Chranley and Smart (No 3)

[2011] FamCA 754

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO 3) [2011] FamCA 754

FAMILY LAW – CONTRAVENTION – where the father alleges that the mother has repeatedly contravened orders for him to spend time with the child without reasonable excuse – consideration of whether the mother had a reasonable excuse – where the Court was satisfied that the mother had a reasonable excuse on the basis that the alteration and subsequent suspension of time was required to protect the child’s emotional health – father’s applications dismissed.

Family Law Act 1975 (Cth) s 70NAE(5)

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

FILE NUMBER: ADC 207 of 2008

DATE DELIVERED: 24 August 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 31 May, 1, 2 & 3 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Father appearing in person

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Mother appearing in person

Orders

1. That the Applications for Contravention filed by the father on:-

   (a)       31 August 2009       (document 20);
   (b)       21 September 2009 (document 24);
   (c)       28 September 2009 (document 28);
   (d)       6 October 2009        (document 32);
   (e)       12 October 2009      (document 36);
   (f)       20 October 2009      (document 38);
   (g)       26 October 2009      (document 47);
   (h)       5 November 2009    (document 52);

   (i)        10 November 2009 (document 55);
   (j)        17 November 2009 (document 64);
   (k)       23 November 2009 (document 67);
   (l)        7 December 2009     (document 72);
   (m)      7 December 2009     (document 76);
   (n)       17 December 2009   (document 82);
   (o)       5 January 2010        (document 88);
   (p)       5 January 2010        (document 92);
   (q)       5 January 2010        (document 98);
   (r)       2 February 2010      (document 100);
   (s)       31 March 2010        (document 89A)
   (t)        6 April 2010 (document 105)

   be and the same are hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Chranley & Smart (No. 3) 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: ADC207 of 2008

Mr Chranley

Applicant

And

Ms Smart

Respondent

REASONS FOR JUDGMENT

The applications

1. The parties to these proceedings have been in disputed litigation in this Court for 7 years.   To the date of the hearing before me some 419 separate documents had been filed, not including separate documentation filed as part of appeal proceedings. 

2. Initially their parenting dispute pertained to both of their children namely Ms J born in 1991 and who is thus 20 years of age and S (“the child”) born 9 March 1997 and who is thus 14 years of age.  However, on 7 December 2005 the father formally abandoned his applications before the Court in respect of Ms J.  Proceedings thereafter continued in relation to the S.

3. On 4 December 2007 final orders were made by consent between the parties to the effect that they were to have joint parental responsibility for the child, that the child live with her mother and that the father spend nominated time with her.

4. The matters now before me for determination are 20 applications filed by the father alleging contravention of the aforesaid final orders by the mother in a number of respects over a lengthy period of time.  Those applications are those filed:-

   4.1.31 August 2009              (document 20);

   4.2.21 September 2009        (document 24);

   4.3.28 September 2009        (document 28);

   4.4.6 October 2009              (document 32);

   4.5.12 October 2009            (document 36);

   4.6.20 October 2009            (document 38);

   4.7.26 October 2009            (document 47);

   4.8.5 November 2009          (document 52);

   4.9.10 November 2009        (document 55);

   4.10.17 November 2009        (document 64);

   4.11.23 November 2009        (document 67);

   4.12.7 December 2009           (document 72);

   4.13.7 December 2009           (document 76);

   4.14.17 December 2009        (document 82);

   4.15.5 January 2010               (document 88);

   4.16.5 January 2010               (document 92);

   4.17.5 January 2010               (document 98);

   4.18.2 February 2010             (document 100);

   4.19.31 March 2010               (document 89A)

   4.20.6 April 2010                    (document 105)

5. Within those 20 applications the father alleges breaches of the Court’s final orders by the mother on some 52 separate days.

6. At the outset of the proceedings the father wished to pursue alleged breaches at various times in respect of paragraphs 2, 4.1, 4.2, 5.2 and 7 of the orders of 4 December 2007.  Very early in the conduct of the proceedings though he agreed that the alleged contraventions which he wished to pursue in these proceedings related to the time he was to spend with the child as identified in paragraphs 4.1 and 5.4 of those orders.  Those paragraphs record:-

   4.That the father do spend time with the child the child at the following times:-

   4.1From 10.00 am Saturday to 6.00 pm Sunday of each alternate weekend, such time to commence on Saturday 15 December 2007.

   …..

   5.It shall be a condition of the child’s time with the father that:-

   …..

   5.4Should any [sporting] functions or tournaments be scheduled during the father’s time with the child, then his time on that weekend shall be varied so that the father’s time shall occur on the following weekend provided that there shall be no decrease in the father’s time with the child and the mother shall give the father notice within twenty-four (24) hours of receiving notice herself and not less than seven (7) days notice.”

   .

7. Service of all of the aforesaid applications was acknowledged by the mother and further she acknowledged that on each of the occasions of alleged contravention she did not comply with the aforesaid orders of the Court. It was her case that she had a reasonable excuse for contravening the orders within the meaning of Section 70NAE(5) of the Family Law Act. It was her contention that she:-

   (a)…. 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).

8. She further contended that she could satisfy Section 70NAE(5)(b):-

   (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)

   in that it became permanently necessary for there to be non-compliance with the aforesaid final orders in order to protect the health and safety of the child.

Background

1. The father was born in 1959 and is currently 52 years of age.

2. The mother was born in 1961 and is currently 50 years of age.

3. The parties commenced living together in 1983 and were subsequently married in 1989.

4. Following almost eight years of marriage, the parties separated on 4 January 1997 and were later divorced on 16 April 2001.

5. The mother says that the parties’ relationship was largely an unhappy one. She says that she was subject to physical, emotional and verbal abuse over the course of it.

6. The child Ms J was born in 1991 (currently aged 20 years) and the child S was born in 1997 (currently aged 14 years).

7. The mother asserts that the children were often witness to incidents of abuse perpetrated by the father.

8. Property settlement and spousal maintenance proceedings were settled by agreement and consent orders were made on 24 April 2002.

9. The father filed his Application for Final Orders on parenting issues on 21 June 2004 seeking orders that both children live with him and spend time with the mother.  He also sought orders that he have sole parental responsibility.

10. The matter proceeded in the usual course and it was noted in orders made by me on 7 December 2005 that the father was no longer seeking orders in relation to the child Ms J.

11. During the time that this matter has been before the Court there have been Full Court appeals and numerous contempt, contravention and disqualification applications.

12. The matter was listed for trial before Dawe J on 3 December 2007. At the trial, the parties appeared unrepresented and Mr Mellows appeared as Counsel for the Independent Children’s Lawyer.

13. On 4 December 2007 consent orders were made which provided for the parties to have equal shared parental responsibility for the child and that she live with the mother and spend regular time with the father.

14. Shortly thereafter the matter came back before the Federal Magistrates Court when the father filed two Applications for Contempt against the mother on 18 January 2008.

15. The bulk of the applications heard and determined by the Court are those relating to alleged contravention of the Orders of 4 December 2007 by the mother.

16. The mother re-partnered with Mr B whom she has since married.

The Contraventions
General

1. The alleged breaches fall into three distinct categories:-

   25.1.those where the child attended upon time with her father from 10.00 am until 8.00 pm each alternate Saturday in lieu of 10.00 am Saturday until 6.00 pm Sunday of each alternate weekend.  This change was purportedly effected by a “contract” executed by the child and the father respectively on 6 February 2009 and 8 February 2009 and purported to come into effect from 15 February 2009 (Exhibit 1).

   25.2.those occasions after 5 September 2009 when the child religiously attended at the C Town Children’s Contact Service (“CCS”) each Saturday at 10.00 am but declined to spend any time with the father.  This alteration in the regime was purported to be effected after a letter from the child to her father dated 5 September 2009 which it was agreed was personally handed by the child to the father at the conclusion of the time he spent with the child on that day.  That letter is annexed as page 28 of Annexure A to the mother’s affidavit filed 22 October 2009 (document 43).  Despite the child’s letter to her father of 5 September 2009, the mother wrote to the father on 8 September 2009 advising that nonetheless she would continue to deliver the child to the CCS each alternate Saturday at 10.00 am purportedly in the hope that she would change her mind and spend time with her father on those occasions.  A copy of that letter is page 33 to Annexure A to the mother’s affidavit filed on 25 November 2009 (document 71).

   25.3.those where the father alleges he was entitled to “make up time” pursuant to paragraph 5.4 of the orders of 4 December 2007.  It was his contention that as the child varied the times she was to spend with him from the whole of each alternate weekend to each alternate Saturday because of her sport commitments on a Sunday, that he was entitled to “make up time” on the following Saturday.  It was thus his contention that after the “contract” effective from 15 February 2009, he was entitled pursuant to paragraph 5.4 of the final orders to see the child each Saturday.

The “contract”

1. This document (Exhibit 1) looms large in the determination of these proceedings in establishing whether or not the mother had a reasonable excuse for her acknowledged breaches.   If she was legally represented she may well have taken advice that she need not have acknowledged breaching the Court orders of 4 December 2007 in that she did everything she could to encourage and support the time the child was to spend with her father and that it was in fact the child who determinedly declined to abide the orders of the Court, firstly due to her sport commitments on a Sunday and secondly in refusing to see her father even though the mother had delivered the child to the CCS at 10.00 am each Saturday as required by the orders.  However, I accept that if the mother is able to establish those factors then they could well constitute a reasonable excuse also, provided those factors also included a necessity to protect the health or safety of the child.

2. It was the evidence of both the mother and her current husband Mr B that:-

   27.1.S prepared the contract herself;

   27.2.she drafted it on, and printed it from, her own home computer;

   27.3.she showed both the mother and Mr B the document before the father signed it;

   27.4.they did not influence her in the creation nor the preparation of that document;

   27.5.she was determined to get the document signed by her father;

   27.6.they supported the child in the pursuit of that contract with her father in order to enable her to pursue her passion for and involvement in sport;

   27.7.S knew that the terms of the document were different from the final Court orders and that it was indeed that knowledge which prompted her to pursue the execution of the document by her father;

   27.8.S signed the document on Friday 6 February 2009 before she went to spend some time with her father the following day;

   27.9.she returned with the document signed by her father near the conclusion of the time she had spent with him on Sunday 8 February 2009;

   27.10.she showed the executed document to the mother and Mr B.

3. I accept their evidence in that regard.   I further accept the evidence of the mother, supported by the evidence of Mr B on those relevant occasions when he was present, that she did not influence the child’s actions in that regard and that the child came to that view and pursued those actions of her own free will.  In cross-examination the father acknowledged that there was no evidence that the mother coerced the child into signing the document.

4. I accept further that the catalyst for this change was the child’s passionate interest in, and significant skill in her sport.  The child began this sport as a 6 year old training with her sister Ms J who was also involved in that pursuit.  The significance of her sport pursuits for the purposes of these proceedings occurred at the beginning of 2009 when the child was invited to join the South Australian State Squad.  This involved a significant commitment for her from 15 February 2009 until about 9 August 2009 by attendance at training every Sunday morning and two to three other times per week.  She had to attend seminars, lectures and small group sessions.  She was aiming to achieve her high grading in 2009.

5. I accept the evidence of the mother, supported by Mr B, that the “contract” was prepared by the child the weekend before her State training commitments were to commence.  It is pertinent that she proposed the alteration to the time she was to spend with her father to commence from the date she began her State training.

6. All of the child’s hard work and diligence in training was rewarded when she represented South Australia at the National Titles from 7 to 9 August 2009.  She was rewarded with a fourth placing nationally.  I accept that for the child sport was especially important to her in the toxic environment of the constant disputation between her parents which by then had already been ongoing for some 5 years.  I accept that it became a refuge for her and all consuming.  It was the pinnacle of 6 years of hard work and I accept that it was important to her and her emotional health that she manage and alter her relationship with her father in order to accommodate her sport.

7. I further find the father’s evidence implausible that he signed “the contract” only because he thought it was a school project and that it did not actually reflect the child’s wishes and the agreement that he and his daughter reached at that time.  There is evidence in the mother’s affidavit filed 22 October 2009 of other “contracts” entered into by the father and the child and to which each of them adhered.

8. For these reasons I am of the view that the mother need not to have acknowledged any breach of the Court orders.   I am satisfied that those changes with effect from 15 February 2009 were changes implemented by the child without influence or persuasion from the mother.  Given though that the mother acknowledged breaches, I explore later in these reasons whether she is afforded a reasonable excuse by reason of the need to protect her daughter’s health.  There is no suggestion that the child’s physical health was compromised in any way by the father.  The issue is whether or not the variation of the times that the child imposed upon her father and her subsequent refusal to attend upon any time with her father was necessary to protect the child’s emotional health.

S’s health

1. It was the evidence of the parties and Mr B that Mr B was primarily responsible for delivering the child to the CCS at the beginning of each period of time that she spent with, or was to spend with, her father and for collecting her at the conclusion thereof from the C Town Police Station (until such time as the child declined to spend any time with her father whereupon he drove her home from the CCS premises).

2. Mr B was impressive as a witness and I prefer his evidence wherever it was in conflict with that of the mother or the father.  However, there were very few areas in which there was conflict but I nonetheless accept his evidence on occasions when he was the only one privy to relevant events, or in combination with the mother, was privy to relevant events.  Significant in the context of the child’s emotional health was his evidence that for the relevant period covered by the contravention applications, the child became nervous some 24 hours before the period of time she was to spend with her father.  He said that she did not sleep well and she suffered mood swings.  On the drive to the CCS she was very quiet.

3. He further said that at the conclusion of periods of time that the child spent with her father on the drive back home, she imparted mostly negative information about the father and regularly appeared nervous and upset.  At other times she was visibly distressed, although there were some occasions when she appeared to have had a good time with the father.

4. Mr B said that on those occasions when she was visibly distressed, as soon as they arrived home the child sought constant reassurance and became very “cuddly” and “clingy”.  At other times she would simply go to her room and stay there.  Mr B said that the mother both before and after the occasions that the child spent with her father when there was evidence of upset in the child, did everything that she could to reassure her and encourage her.

5. In a very thorough cross-examination on that topic by the father as to what signs of distress he witnessed in the child or what negative information the child had imparted to Mr B, he said variously:-

   38.1.S was clearly suffering mentally and emotionally;

   38.2.S complained of arguments which the father had on a regular basis with his partner at the father’s home during the times that the child spent with him;

   38.3.that on occasions the child said that she had to usher the father’s partner’s two children into another room whilst the arguments continued;

   38.4.that the arguments in that household reminded her of the arguments she regularly overheard between her own parents;

   38.5.that she said that the father had threatened to cut the mother’s throat;

   38.6.that the father’s new partner and her two children were getting all of the attention and that she was not able to enjoy any one-on-one time with her father;

   38.7.that the father regularly talked about the Court proceedings between her father and her mother;

   38.8.that the father exhausted all of his funds on his other family and did not have any to spend on her.

6. To his credit, and despite his obvious distress at times, the father acknowledged that there could well have been some substance to the child’s complaint that they were not able to spend as much one-on-one time together as might have been appropriate.  He further indicated that he had no issue with Mr B and respected the role he had taken in caring for his two daughters.  He did not say so, but I also gained the impression that the father was somewhat accepting of the evidence that Mr B gave and of Mr B’s credibility.

1. Further, the father acknowledged in cross-examination that there were various times between February and August 2009 when he returned the child to the mother prior to the conclusion of his time with her because the child was in tears and told him that she wanted to return to her mother.

2. Perhaps of even greater significance in the determination of the issue as to whether or not the need for protection of the child’s health constituted a reasonable excuse for the mother not to abide the orders of the Court of 4 December 2007, was the evidence of Dr A contained in both her Children and Parents Issues Assessment (“the assessment”) dated 16 February 2009 and her oral evidence given to this Court on 1 and 2 June 2011.

3. Dr A was, as at the date of the assessment, in the employ of the Family Court as a Family Consultant.  Subsequent to that date she has commenced in private practice.  Dr A is a highly qualified and significantly experienced Social Worker, Family Consultant, Counsellor and Dispute Resolution Practitioner.  Her impressive curriculum vitae is Exhibit 3 in these proceedings.

4. It was abundantly clear that Dr A was extremely impressed with the child.  At the foot of page 1 of the assessment she records:-

   [S] presented as an engaging, gentle, articulate and mature child for her nearly thirteen years.  the child conveyed a strong impression of an intelligent child whose language skills and cognitive ability appeared to fit well within the parameters suggested by her age and stage of development.  [The child] was able to express her views and feelings about her father in a coherent way and she described her experiences of her father in some detail. …..”

5. In giving mixed messages to Dr A, the father nonetheless at one stage expressed very similar views about his daughter as those impressions formed by Dr A in that (at the foot of page 2) Dr A records:-

   [Mr Chranley] appeared unable to appreciate that the child has, independently of her mother, expressed firm views about spending time with him.  [Mr Chranley] expressed his view that [the child] is a mature, independent child who is bright and unlikely to be led by anyone else’s point of view. …..”

6. In her oral evidence, Dr A reiterated her favourable impressions of the child and her maturity and said that she felt that what the child had told her was credible and that the child believed what she said.  She said that there was no appearance of the child exaggerating her views.

7. In light of the evidence, which I accept, that the child is an articulate and mature child expressing her own views, it is important that this Court gives significant weight to those views.

8. Significantly and relevantly for the period covered by the alleged contraventions, namely February 2009 to April 2010, it was Dr A’s view that the child had held the views she expressed on 15 December 2009 for some time.  Dr A’s evidence supports and corroborates the other evidence before the Court in the form of the oral evidence given by both the mother and Mr B, but also by the “contract” and the child’s letter to her father dated 5 September 2009.

9. In both the assessment and her oral evidence Dr A gave significant independent support to Mr B’s evidence (particularly) and to the mother’s evidence of the upset and distress regularly experienced by the child surrounding the periods of time she was to spend with her father.  In the assessment Dr A variously records:-

   Page 2

   Overall, [the child] described situations wherein she felt unsafe, where she heard denigration of her mother, and other situations with her father that appeared to have strongly impacted the child in a negative way and that certainly appeared to present the child with considerable risks of suffering emotional and psychological detriment.”

   “With regard to her father, [the child] described feelings of emotional pain, frustration, fear and anger.  [The child] adamantly stated that she will not be seeing her father or speaking to him on the phone because of her feelings towards him that have, she said, evolved directly from his negative attitudes and behaviours.  [The child] expressed her wish not to suffer depression and other negative outcomes, as she perceives her sister has, through having to spend time with her father.  She described the impact of the ongoing litigation when she described her strong resistance to her father’s seemingly ceaseless litigation and mentioned sadly that her mother had not been able to attend her sports day at school because she was required to attend Court.

   [S’s] perception of her living arrangements was succinctly expressed by her view that she fears for her mental health if she is required to spend time with her father in the future.  …..”

10. By contrast there is ample evidence of a loving, warm and protective environment for the child, and her elder sister Ms J, at the mother’s home.  To his credit, this fact was essentially acknowledged by the father.  It is supported by Dr A who records:-

    Page 2
    [S’s] account of her significant relationships was marked by her affectionate descriptions of her mother, sister and defacto stepfather.  She referred to their interest in her activities and their family attendances at events that she values and enjoys.  She commented on how much she enjoys the peaceful relationship between her mother and defacto stepfather in which she perceives an absence of shouting, arguing, fighting or abuse.”

    … She expressed well how much she enjoys living with her maternal family members including her defacto stepfather.

11. In her summary Dr A records (at page 4):_

    Overall, [S] the child has indicated her unwillingness and steadfast refusal to spend time with her father.  She further indicated her experience of her father as troubling and ‘unsafe’.  [The child] appeared vulnerable to her fears and to future emotional and psychological detriment when she considered spending time with her father.

    And then, at page 5:-

    …it seems highly likely that increased negative impact of continued unpredictable and damaging behaviours by the father, for example, denigrating [Ms B] and informing the child of his veiled threats to [Ms B], may strongly impact the child’s wellbeing through her adolescent years.”

12. Dr A’s assessment also supports the evidence of both the mother and Mr B that slavishly following the orders of 4 December 2007 have had and will have detrimental health effects upon the child.  Dr A’s written and oral evidence gives firm support for the actions taken by the child and the mother to protect the child’s health and in my view, affords to the mother a reasonable excuse within the meaning of the legislation.  Dr A says this at the foot of page 4 of the assessment:-

    [S] has the support of her mother, her defacto stepfather and her older sister.  With such supports and with an opportunity to proceed through adolescence in the absence of ongoing parental conflict and feelings of fear relating to her father, the child’s developmental milestones would appear likely to be achieved.  It seems possible that [the child] believes that if she is required by the Court to spend time with her father that she will not be able to successfully cope.  It seems possible and likely that in that instance, [the child] will choose, orders or not, to refuse spending time with her father.

13. Under the heading of “Future Directions” on page 5 of the assessment, Dr A observes:-

    It appears unfortunate and difficult to imagine that further assessments might offer [the child] an opportunity to safely and comfortably spend time with her father.  It appears to be fairly clear that there are distinct possibilities that even though [Mr Chranley] reported his intentions to discontinue this matter, he might well continue to litigate with the aim of restoring his relationship with [the child] at this time.

    It appears that spending time with [Mr Chranley] at this time could possibly and most likely present [the child] with an unacceptable risk of emotional and psychological harm.  In the absence of [Mr Chranley’s] willingness and preparedness to enter into counselling then further referrals would appear to be unhelpful at this time.

14. The father was clearly offended by Dr A’s assessment and her evidence and accused her of being biased against him.   He was convinced that she had not followed protocol in allowing a period of observed interaction between him and the child.  He remained unconvinced that protocol had been followed even though the letters to him which constitute Exhibits 5 and 6 make it plain that such an assessment does not ordinarily entail periods of observed interaction.

15. The father was further concerned that a report of Dr M prepared in 2007, was supported by photographs tendered by him (Exhibit 7) indicating that he enjoyed a warm and loving relationship with the child.  He was concerned that Dr M’s report and the photographic evidence was ignored in the preparation of the assessment and indicated that the assessment was flawed and biased against him.  He contended that Dr M’s 2007 report and the photographs clearly demonstrated that he enjoyed an excellent relationship with his daughter which meant that the reported expressed views of his daughter could not be accurate.

16. I acknowledge, as did Dr A, that the photographs depict a child apparently happy and enjoying herself in the company of the father.  Digital photographs also demonstrating a happy, relaxed and contented child in the presence of the father, were shown by the father during the proceedings of an occasion that he spent with her at the Royal Adelaide Show on the very same day that the child handed to him the letter dated 5 September 2009 saying that she did not want to see him again.   He was concerned that all of this evidence had been ignored by Dr A, and was being ignored by this Court, in drawing conclusions.  As he said in his final submissions, “A picture speaks a thousand words”.  I accept the evidence of Dr A though, that particularly in relation to Dr M’s 2007 report, that historical context is important.  It is not possible to draw the conclusion two years later that the father still enjoyed the same warm, loving and supportive relationship with his daughter in 2009 as he did in 2007.

17. Similarly photographs capture only a moment in time and provide no conclusive evidence of the child’s general state of mind and emotion.  In answer to questions from the father, Dr A said that she had a very strong impression that the child revealed considerable frustration, fear, anger and emotional pain in terms of her impressions and feelings towards her father.  She was equally satisfied that the child’s reactions, feelings and responses towards her father were not as a result of any coaching or denigration of the father by the mother or Mr B.  In conveying impressions which seemingly differed significantly from the photographic depictions tendered by the father, Dr A gave evidence that the child was now (at the time that she saw her) more mature, more discriminating and had been worn down emotionally with her emotionally resources spent.

CCS

1. The mother’s evidence that she continued to support the relationship between the father and the child, despite the child’s letter to her father of 5 September 2009, is supported by correspondence she tendered from CCS dated 1 December 2009 (Exhibit 2).  In that letter Ms D, the Coordinator of the C Town CCS, noted that on six consecutive occasions the child had attended at the CCS but refused to spend any time with her father.  Ms D recorded that CCS had made the decision to suspend their services with immediate effect as they did not perceive that the child would change her mind and further they considered that:-

   Consequently, we do not consider that we are meeting her needs or serving her best interests by continuing with what we consider a futile exercise based on the fact that for the past three months she has not showed any signs of faltering from her decision to refuse contact.

2. However, subsequent to representations made by the father, CCS changed their minds and in a letter dated 4 December 2009 (also Exhibit 2) they advised that they would continue to offer the changeover service.  Thereafter the child religiously attended at the CCS, delivered by Mr B, at 10.00 am every alternate Saturday until the relevant orders of 4 December 2007 were discharged by orders of Dawe J made 28 May 2010 after a hearing before her Honour on 6 April 2010.  It is apparent that it was her Honour’s orders that brought to an end the filing of Contravention Applications by the father.

Conclusions

1. I am satisfied on the overwhelming evidence before the Court that the mother has established that she had a reasonable excuse for contravening the orders of 4 December 2007 in that she believed on reasonable grounds that the alteration and then the termination of the child’s time with her father was necessary to protect the child’s health.  I am further satisfied on the evidence that it was permanently necessary for her to alter and then suspend the father’s time spent with the child (although I am also satisfied that this was a decision clearly taken by the child and supported by the mother and Mr B) in order to continue to protect her emotional health.  Sadly that appears to be an ongoing process as it was the mother’s evidence that the child continues to receive counselling from “E Counselling” beginning in early 2010.

2. I am satisfied that the mother has established that she had a reasonable excuse for contravening the orders within the context of the legislation for all of the breaches covered by the 20 Applications for Contravention filed by the father and as identified above.

3. In the event that there is any doubt that the initial alteration from alternate weekends to alternate Saturdays was for reasons of the child’s health, then I am also satisfied that the father acquiesced in those changes.  Those changes were effected on 15 February 2009 and it was not until 31 August 2009 that the father filed his first application alleging contravention, namely a period of some six months or more later.  In cross-examination the father acknowledged that he followed the child’s wishes as to the new regime.

Observations  

1. The father is obviously and patently distressed at the loss of his relationship with both of his daughters, but within the context of these proceedings before me now, the loss of his relationship with the child.  He clearly loves his daughter and finds it intolerable that he is not able to continue in a warm and loving relationship with her.  He finds it impossible to accept the decision taken by the child or to accept that it is her decision alone.

2. It was the evidence of Dr A that the child demonstrated great compassion for her father and indicated some empathy and affection for him and his partner and her two children.

3. It is to be hoped for the father’s sake, and indeed quite possibly for the child’s sake, that a relationship between the father and the child in circumstances where it is healthy and beneficial for the child, can be re-established in the not too distant future.  I am satisfied on the evidence though that the child will need to make that decision herself.  As Dr A said, the child needs time to “de-stress” before she can make some positive adjustments.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr delivered on 24 August 2011.

Associate: 

Date:  24 August 2011