D & C
[2005] FamCA 1046
•4 NOVEMBER 2005
[2005] FamCA 1046
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT ADELAIDE Appeal No. SA15 OF 2005
File No. ADF3278 OF 2001
IN THE MATTER OF: D
Appellant Mother
AND: C
Respondent Father
CORAM: KAY, WARNICK, BOLAND JJ
DATE OF HEARING: 10 OCTOBER 2005
DATE OF JUDGMENT: 4 NOVEMBER 2005
JUDGMENT OF THE FULL COURT
Appearances: Mr F Elekwachi of counsel appeared for the appellant mother
Mr M D C, respondent father, did not appear
Mr J Hicks of counsel appeared as amicus curiae
| Name of Appeal | D & C |
| Appeal Number | SA15 OF 2005 |
| Date of Appeal Hearing | 10 OCTOBER 2005 |
| Date of Judgment | 4 NOVEMBER 2005 |
| Coram | KAY, WARNICK, BOLAND JJ |
Catchwords: APPEALS – FROM DECISION OF FAMILY COURT JUDGE – PARENTING ORDERS – CONTACT – CONTRAVENTION – REASONABLE EXCUSE – The parties have one child of 7 years of age – Contact orders were in existence allowing the father contact – A previous contravention application had resulted in the mother being sentenced to 30 days imprisonment and serving part of that term – On hearing the subsequent contravention application the trial Judge concluded that the mother had again contravened the orders for contact without reasonable excuse – The trial Judge revoked the suspension of the remaining 18 days imprisonment to be served by the mother.
Application to adduce the service agreement with the contact centre as further evidence – the mother argued that once the mother presented the child to the contact centre there was no further opportunity to promote contact – This argument not run in the court below – The further evidence could have been made available at the time of the trial.
The mother argued that the previous ‘history’ of litigation was not relevant – Not necessary to express a concluded view –There are dangers for a trial Judge referring to past litigation as difficult questions of the evidentiary status of such matters can arise.
Misunderstanding obligations under the relevant order as a ‘reasonable excuse’ – There was evidence at trial that the mother believed her obligation did not go beyond presenting the child at the contact centre – A parent obliged to deliver a child to a contact centre, even if constrained as to interaction with the child after reaching the centre, is also obliged to so act as to encourage the child not just to attend the contact centre but, when there, to leave on contact with the other parent – A need to address whether that obligation was met does not exclude consideration of a parent’s understanding of obligations under an order for contact.
Stevenson v Hughes (1993) FLC 92-363
Appeal allowed. Orders 1 and 2 of the orders made 14 March be set aside. That the amended application of the father that the mother be dealt with for contravention be remitted for hearing. That the court grants to the appellant mother a cost certificate pursuant to the Federal Proceedings (Costs) Act 1981.
The parties are the parents of the child, now a few months past 7 years of age. From mid-2001, when the child was just 3 years old, there have been numerous proceedings in this court between the parents, particularly in relation to contact by the father with the child. Importantly, in relation to this appeal, orders about contact were made on 17 March 2004 and included provision for changeover at a contact centre. Contravention proceedings in respect of those orders resulted in the mother being sentenced to imprisonment for 30 days and serving part of that term.
The March 2004 order was amended in August 2004 and subsequently the father brought another application that the mother be dealt with for a contravention. Following a hearing over 2 days in December 2004, Dawe J, by reasons delivered 7 February 2005, found that on one count the mother had again contravened the orders for contact without reasonable excuse. On 28 February 2005 Dawe J heard submissions as to sanctions and for reasons she gave on 14 March 2005, her Honour revoked the suspension by Kay J on 31 August 2004 of the 18 days imprisonment remaining from the term previously imposed, with the result that the mother was liable to serve that period of 18 days in prison, effective immediately. Dawe J also ordered that the mother enter into a bond on certain conditions. It is the mother who brings this appeal.
The Notice of Appeal contains nine grounds but, as argued, only two issues were squarely raised. However, another point, within the grounds but almost obscured, drew attention and in the end, results in the success of the appeal. That point is that there was evidence before the court that the mother did not understand the obligations imposed by the contact orders. That point was also almost obscured at the trial, and ultimately, it was not dealt with by the trial Judge.
Notwithstanding that the point received only passing attention at trial, we consider that, in a proceeding involving liberty of a party and in which the father did not appear to oppose the appeal, the point was sufficiently delineated at trial for us to entertain it on appeal.
Though the father did not participate in the appeal, Mr Hicks of counsel, who appeared for the child representative at the hearing of the contravention (and perhaps surprisingly, fully participated therein) appeared also before us on the appeal, after discussion with the bench, as amicus curiae. The mother was represented by solicitor and counsel.
The mother made application that further evidence in support of her appeal be received. This application was rejected for reasons given at the time. However, the content of that further evidence was very much connected with the first of the issues argued on appeal and will be briefly mentioned when addressing that issue.
Though the appeal stated on its face that it was against all the orders of 14 March 2005, which included adjournment of the interim parenting orders and suspension of contact, these aspects of the appeal were not pursued. The challenge was essentially to the finding that the mother had no reasonable excuse for contravening the order.
We will return to the issues raised in the appeal after a brief background and summary of the judgment of the trial Judge.
Background and the judgment of the trial Judge
The amended contravention application brought by the father contained two allegations of contravention. As indicated, only one was found made out. It is unnecessary to say anything of the contention that failed.
In her reasons in respect of the contravention application her Honour recorded that she had heard the trial on the issue of contact in September and November 2003 and that:
“12. …At that trial the substantial issue to be determined was whether the father had sexually abused [the child] as the mother alleged. The mother also alleged that the father had assaulted her, raped her, stalked her, controlled her and manipulated her.…
13. The mother sought that the father have no contact. Having heard all the evidence I was satisfied that there was no unacceptable risk of [the child] being sexually abused by her father and no need to protect her by denying contact. I made orders on 17 March 2004 which provided…for the father to have contact initially for Sunday, then leading to each alternate weekend and specific holiday and special occasion contact.…”
Orders 3 and 4 of the orders of 17 March 2004 provided that:
“3. That within seven [7] days from this date both parties take all actions, sign all necessary documents and make arrangements to attend the assessment necessary to enrol for contact handover to take place at the [Contact Centre].
4. That as soon as the parties are accepted for contact handover at the [Contact Centre] all handovers shall occur at that centre.”
The order made on 4 (though the cover sheet reads “2”) August 2004 extended the weekend contact, to commence Friday 6 August 2004, to each alternate weekend from 5.00pm Friday until 5.00pm Sunday. Order 5 commenced with the words:
“That there is no other interference with any other orders made on the 17th of March 2004…”
In her reasons for the order under appeal, her Honour recorded the contravention proceedings earlier mentioned, instituted by the father following the orders of 17 March 2004, the finding by a Federal Magistrate that the mother had contravened the order as it related to the first period of contact following that order, and the resulting sentence of imprisonment for 30 days.
The mother appealed the order of the Federal Magistrate, but nonetheless, before the appeal was heard, spent two periods of about one week each in gaol. Other proceedings, about residence, had been transferred from the Federal Magistrates Court and had came before Dawe J, who ordered on 4 August 2004 that the child, who had been in the care of the father since the mother’s incarceration, be returned to the mother’s care.
When the mother’s appeal against the Federal Magistrate’s decision was heard by Kay J on 31 August 2004, he allowed it to the extent that he suspended the further 18 days of imprisonment to be served by the mother, on condition:
“Entirely upon the mother:
(a) complying with all orders of the court relating to contact that is to occur between the [the father] and [the child] for a period of 12 months from this date.”
When the father filed the contravention application to which the current appeal relates, he also filed another residence application. Following further events and interim hearings, on 3 November 2004, Dawe J ordered that, on an interim basis, the child reside with the father.
After setting out this and other history, her Honour referred herself to the law relating to contravention of orders affecting children, in particular, ss 70NC, 70NE (but in part only), 65N and 79ND(b) of the Family Law Act 1975.
Her Honour then addressed the mother’s case, as her Honour saw it:
“42. The mother admits that contact between the father and [the child] did not take place on the 17 September 2004 but says that she has not contravened the order without reasonable excuse because [the child] refused to attend on contact.
…
48. The mother’s evidence was that [the child] was spoken to by the male Worker and female Worker at the Contact Centre. After a period when The child played with a worker one of the Workers told the mother to take The child home.
49. When cross-examined by the father the mother denied that she had failed to encourage The child to go on contact with the father.”
Her Honour set out at length passages of the mother’s evidence under cross-examination. Her Honour then said:
“51. It was a bit later in that section of cross-examination after being pressed by Mr Hicks, the mother said that on the 17 September she had taken The child to the contact centre and told her that she had to go.
…
55. When pressed as to what she did at the handover centre to encourage The child to see her father the mother replied ‘I just told her ‘off you go’’. The child’s response according to the mother was to cling to the mother. The mother’s evidence is the worker tried to encourage her and took The child to play with some toys. (This was a male worker who went to play with The child further away in the same large room).
56. When asked by Mr Hicks was there any more she could have done to encourage The child, other than to say ‘off you go’ the mother replied ‘I took her to the centre’.
…
Assessment of Mother’s Evidence
59. When giving evidence, particularly when being cross-examined by Mr Hicks, the mother on occasions did not answer the question but gave a response which suited her cause. She appeared defensive. Until it became clear to her that it was not sufficient for her to merely take The child to the contact centre this appeared to be the mother’s evidence namely, that she had taken The child to the contact centre and therefore she was not in breach of the Court order. Later when cross-examination concentrated upon any encouragement she had given to The child the mother asserted that she had encouraged The child. I am not however convinced by her evidence that she did take any step to genuinely encourage The child to go on contact with her father other than taking The child to the contact centre and telling her ‘off you go’.”
The trial Judge then referred to the evidence of a social worker at the contact centre who gave evidence on behalf of the mother, saying:
“61. [The social worker] then sat at the table with The child and talked with her. Part of the conversation included [the social worker] saying to The child ‘you have to go with dad’ and The child saying ‘No I don’t want to’. When asked ‘Why’ The child told [the social worker] ‘He hurts me, he hits me on my arm, it hurts a lot I don’t want to go. I’m not going’. It was suggested that The child go and talk to her father and that [the social worker] would go with [the child]. The child said that it makes her feel very sad when she has to go to her dads.
62. At no time was the mother asked to leave the room in which The child was talking and playing with the workers.
63. [The social worker]’s evidence was that The child was in the room playing for approximately 20 minutes. Every so often she would try to coax her to go see her father. [The child] was tearful on and off.
64. [The social worker]’s evidence was that she had overheard the mother telling [the child] that she needed to go with her father.
65. … The worker interpreted the efforts of the mother as the mother making a genuine effort to encourage [the child].”
Then under the heading “Conclusions about mother’s efforts to encourage the child to attend on contact” the trial Judge found:
“66. The evidence of [the social worker] and of the mother suggests that the mother has told [the child] that the Court order requires the mother to take [the child] to the contact centre. The evidence of [the social worker] and to a lesser extent the evidence of the mother suggests that the mother may have told [the child] that [she] has to go on contact with her father. That is the extent of the efforts made by the mother.
72. The mother needs to establish on the balance of probabilities that she had a reasonable excuse for the breach of the contact order. It is not sufficient for the mother to take [the child] to the contact centre. The mother is required to ensure that [the child] attends upon such contact. She cannot avoid this responsibility by handing over the responsibility to the workers at the contact centre.
…
74. …I am also satisfied that from time to time the mother makes a token effort by saying words to the effect of ‘off you go’ or ‘you have to go’ to [the child], but this is done in such a way that [the child] is free to ignore her mother’s remarks.
…
76. This behaviour by [the child] needs to be viewed in the context of this particular matter. The most important feature is the influence of the mother on [the child].”
Her Honour then set out at length a passage from the judgment of Nygh J in Stevenson v Hughes (1993) FLC 92-363 at page 79,813 and continued:
“79. I agree that a contact order requires the custodial parent to take ‘An active role with an obligation to positively encourage access’. This is not merely to be ‘a token effort’ disguised to convey the burden of compliance.
…
81. Having heard all of the evidence of the mother and [the social worker] I am not satisfied that the mother made a genuine attempt to encourage [the child] to attend contact and I am certainly not satisfied that the mother made a genuine effort to insist to [the child] that she (the child) attend contact or positively encouraged contact.
82. The mother has not used her position of authority over [the child] to ensure that [the child] does as she is told.”
Grounds of appeal - general
We have stated that the point that the mother had a reasonable excuse in respect of the contravention because of a failure to understand the obligations imposed by the contact orders was only lightly touched upon before us in argument on the appeal. The point was indeed not particularised in the grounds of appeal. However, we are satisfied that it fits within one or more of the following grounds:
“1. Her Honour erred in finding on 7 February 2005 that on 17 September 2004 the appellant contravened the orders for contact made by her Honour on 4 August 2004.
…
3. Her Honour failed to take relevant considerations into account in both of her Honour’s findings on 7 February 2005 and in imposing the sentences on 14 March 2005.
…
6. Her Honour’s findings on 7 February 2005 were contrary to the weight of evidence.
…
8. Her Honour exercised her discretion to arrive at a decision which was clearly wrong in respect to Her Honour’s findings on 7 February 2005 and the orders made by Her Honour on 14 March 2005.”
In circumstances where we have indicated that the appeal succeeds on a particular point, we think it unnecessary to set out the balance of the grounds of appeal. However, we intend to discuss the two main points argued on appeal (which, as stated, do not include the point upon which the appeal succeeds) as that discussion assists in delineating the successful argument and the way that argument emerged. For the sake of completeness we will also discuss briefly a minor argument put forward.
Main arguments on appeal
The main point of the appeal as argued, related in substantial part to the further evidence, which included the agreement between the parents and the contact centre, as to the use of its services. The argument was set out at paragraphs 30 and 31 of the Summary of Argument:
“30. At all material times the agreement vested total management of control of the actual physical contact handover process in the contact handover centre and the appellant was effectively not allowed to have any involvement in the actual handover process.
Whereas at all material times the appellant retained the obligations of the custodial parent, clauses 3-4 of the main parenting order and the agreement it gave rise to, constrained and limited the ability of the appellant to become involved in the actual handover process.
31. At all material times prior to 17 September 2004 the appellant and the respondent had established a long history of prior use of the contact handover centre. On 17 September 2004 the appellant followed the usual procedures of making a child available at the centre and handed the child over to the centre staff. Thereafter the appellant as is the usual practice followed the directions of the centre.
It was contended on the mother’s behalf that she had walked to the contact centre with the child notwithstanding the child’s resistance and expressed wishes and distress. To get the child to the contact centre she had told her that they were going to meet a girlfriend of the mother there. It was submitted that the mother believed that the professional staff at the contact centre would be best equipped to deal with the difficulty created by the child’s attitude. Her Honour misconstrued this evidence and failed to consider the mother’s evidence in the context of the immediate circumstances of the child’s attitude.
…
Once at the contact handover centre the handover process fell entirely into the hands of the professional workers and the parents where (sic) no longer permitted to play any further role in the process and had to follow the directions of the workers. The appellant had exhausted and done everything that she could and was allowed to do to assist in contact occurring.”
It was further submitted that the decision not to proceed with contact handover “was one made by staff at the contact handover centre pursuant to their policy and procedures and in line with the agreement signed by the parties”.
Counsel for the mother argued that the mother’s case was to be distinguished from cases involving general contact orders where no third party authority was involved in the contact change-over process and that none of the authorities to which her Honour had directed herself involved a third party contact centre. It was also submitted that once the mother presented the child to the contact centre, there was no further opportunity at all open to the mother to either continue to persuade the child or to physically take the child to the father to ensure that contact took place.
The difficulty with these arguments is that this was not the case run below. The mother did not contend that she was prevented by the terms of the agreement from encouraging the child to go on contact as Dawe J found was open to her. At no stage did the mother claim that she was constrained in her actions by arrangements with the centre.
As is obvious, these arguments also depended to a large, if not entire, extent on the receipt of the further evidence. Our reasons for rejecting that evidence included that it was available at the time of trial. Further, because it related only to the terms of the agreement and not to whether and in what manner at a practical level that agreement was implemented, of itself, the further evidence would not show that the orders appealed from were wrong. Had it been tendered at the trial, it would have invited cross-examination about these matters of its application in practice. Finally, there was the factor that it was not the case run before the trial Judge.
Notwithstanding the failure of the application that we receive the agreement between the parents and the contact centre, counsel for the mother contended that orders 3 and 4 of the 17 March 2004 orders did not qualify or provide any reasonable clarity as to, the role of the contact centre. Counsel submitted that it was plainly unjust in the circumstances that neither the “main” parenting order, the “modifying” order or the handover agreement expressly or impliedly warned or put the mother on notice that she could be held to be in contravention of the contact orders by complying with the direction of the contact centre or by following their procedures and processes pursuant to the handover agreement made in pursuance of the orders.
Counsel further submitted that the evidence established that in taking the child to the contact centre, the mother had done all that she could do and/or was required to do.
These submissions raised, inferentially if not expressly, the question of the mother’s belief as to her obligations under the contact orders, requiring as they did, changeover to take place at a contact centre.
The other point argued, at least in written submissions, related to the finding of the trial Judge detailed at paragraph 25 of her reasons, where her Honour concluded as follows:
“…In the particular circumstances of this case (and bearing in mind the relationship between the mother and the child, the long history of litigation between the parties and the mother’s attitude to any relationship between [the child] and the father) the evidence indicates that the mother was merely going through the motions of pretending to abide by the Court order rather than taking all appropriate steps to ensure that the order for contact was obeyed.”
Counsel for the mother submitted that the “history” was an irrelevant consideration for the purposes of determining whether or not the mother had contravened contact orders on 17 September 2004 and that her Honour had erred in coming to conclusions on the basis of her Honour’s knowledge of the prior history of the proceedings involving the mother and of conclusions reached in those proceedings about the mother’s conduct.
In addressing such “history”, her Honour expressed the view that a person’s actions at any particular time, including words spoken, needed to be interpreted in context.
It is not necessary for us to express a concluded view about this argument on the mother’s behalf. However, we think it appropriate to note the dangers of a trial Judge referring, particularly in a rather general way, to past litigation, as difficult questions of the evidentiary status of such matters and indeed of the identity of upon what exactly reliance is being placed, can arise.
A Minor point
It was further submitted that the trial Judge failed to properly weigh the evidence. The proposition was that her Honour disregarded the evidence of the mother and the evidence of the social worker, without providing any comments or review of the evidence given by the father and without providing any reasons indicating a preference for the father’s evidence.
Of course, matters of which the mother and the social worker gave evidence were peculiarly within their knowledge. The father was not in a position to give direct evidence of those matters. Her Honour did give reasons for rejecting the evidence of the mother in particular, and for having some reservations about the evidence of the social worker.
The successful point
As earlier indicated, the trial Judge referred herself to and set out, particular sections of the Act. These included s 70NC(a) which reads as follows:
“A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order – he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or…”
and s 70NE(3) as follows:
“A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:
(a) the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).”
Her Honour noted that subsection (1) of s 70NE provided that the circumstances constituting a reasonable excuse were not limited to those set forth in subparagraphs (1A) to (4). Nonetheless, her Honour did not address paragraph 1A which is as follows:
“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.”
This absence is initially surprising, given that the question of the understanding of the mother of her obligations was directly raised, primarily by the trial Judge, during the course of submissions:
“HER HONOUR: Yes, but the mother’s evidence also is that she took the child to the contact centre and that was it. That’s all she had to do.
…
HER HONOUR: But this is a crucial part of the mother’s evidence and her understanding of her obligations. It’s crucial part that I consider the mother’s understanding of the steps she has to take to give contact, not the worker’s impression.
MR FALDONE: She said that she had to take her there and she did. She made every reasonable attempt for handover to take place.”
In our view, it can be seen from this passage that the question of the mother’s understanding of the obligations imposed upon her by the orders was “alive”, though her own legal representative slipped away from the point and focussed upon the reasonableness of attempts to comply with obligations, rather than a misunderstanding of obligations. However, we do not consider that that progression amounted to an abandonment of such defences as were available to the mother.
However, together with the course of evidence, which followed a similar pattern, the deviant course of the mother’s case does explain the difficult task that confronted her Honour in identifying and determining all relevant issues. We repeat however, that we are persuaded that there were more issues open and requiring determination than in the end her Honour decided.
Questions of a parent’s understanding of obligations cast upon that parent to produce a child for contact, and whether that person has done all that could be reasonably expected, may often be interrelated. The one body of evidence may give rise to a necessity to consider not just the question which her Honour the trial Judge posed for herself, namely, whether the mother had made a genuine attempt to encourage the child to attend contact, but also what the mother believed her obligations under the contact orders were.
Her Honour had set out what she regarded as significant evidence of the mother in paragraph 50 of her judgment, partly reproduced here:
“did you say anything to [the child] when she started crying - anything to encourage her about seeing her father?” --I just said, ‘Don’t cry. It’s the right it’s the right’ - you know, Don’t get upset.
Is that it?—That’s it.
And then you set off walking. Did she keep crying while you walked? – I actually said, ‘We’re going to meet my girlfriend there,’ and so that made her happier. I tried to distract her from – well, because obviously she was upset by me saying that, ‘We’re going to see your dad,’ so then I tried to distract her thought to, ‘Well, I’m meeting my friend,’ who she likes. So she was okay, and just continued. She said that for me to tell [the worker] at the handover centre and I said, ‘I can’t talk to [the worker]. You’ll have to talk to [the worker] if you’ve got something to tell [the worker], but I can’t tell [the worker]’. She said to tell her that she didn’t want to go.
All right. You told her you couldn’t say that to [the worker]. Why did you tell her that?—Well, because the court orders say that I have to deliver my child to the centre for contact, so I’m bided by that order, the court order to do that. So then – yes.
Because ---? --- And then I deliver her to the professional workers there, and then it’s up to them in their professional discretion to make a decision, I guess.
HER HONOUR: Sorry. Where did you get that from?---I don’t know. Well, I’m just assuming. I don’t know.
Sorry. Say that again?---I take my daughter to the handover centre to give to the professional workers there, so that’s my part.
You see---?---And I went back and I sat away and left it to them to take [the child] through to her father, and I sat back.”…” (emphasis added)
Her Honour recognised the impact of this evidence when she said, in paragraph 59 of her reasons:
“59. …this appeared to be the mother’s evidence namely, that she had taken [the child] to the contact centre and was therefore not in breach of the court order.”
But again, her Honour discerned a shift in the mother’s case, as she continued:
“Later, when cross-examination concentrated upon any encouragement she had given to [the child] the mother asserted that she had encouraged [the child]:
‘I am not however convinced by her evidence that she did take any step to genuinely encourage [the child] to go on contact with her father other than taking [the child] to the contact centre and telling her ‘off you go’.”
We repeat that it is our view that the change in focus of the mother’s evidence to address the question of encouragement of the child did not necessarily imply that she had abandoned her evidence that she had done all that the orders required of her by taking the child to the contact centre.
In no way do we suggest that a parent obliged to deliver a child to a contact centre, even if constrained as to interaction with the child after reaching the centre, is not also obliged to so act as to encourage the child not just to attend the contact centre but when there, to leave on contact with the other parent. But a need to address whether that obligation was met does not exclude consideration of a parent’s understanding of obligations under an order for contact, a question that we consider the above evidence raised.
Indeed, the passage quoted earlier from the exchange between her Honour and counsel for the mother during final submissions, indicates that her Honour was at that time of similar view. However, as the question of the mother’s understanding of her obligations was not ultimately addressed, we consider the appeal must succeed.
Re-exercise of discretion or remission
A consequence of the focus at trial on the question of whether the mother did all she reasonably could to encourage the child to actually leave the contact centre with the father is that, insofar as the mother’s evidence relates to her belief as to what was required of her under the orders, that evidence stands substantially unchallenged.
However, a question to be addressed, even if we accept that the mother thought that once she delivered the child to the contact centre she no longer had to participate in any efforts to have the child actually leave on contact with the father, is whether she presented the child to the centre, having already done all that she could reasonably do to encourage the child to depart on contact with the father. Here the interplay between the belief of the mother as to her obligations and the evidence of encouragement are connected because, in so far as the trial Judge formed the view that the mother had not done all that was reasonably necessary, that view was partly founded on her lack of participation in encouraging the child at the contact centre. However, the question of in what way the mother’s beliefs impacted on what was reasonably required at the contact centre was not addressed, nor was the question of whether the mother, believing that all she had to do was deliver the child to the contact centre, did all that she could beforehand to ensure that, once at the centre, the child actually left on contact, considered.
In short, we think that there was insufficient attention, in the conduct of the hearing and subsequently in the judgment to issues raised.
In the end, we consider that the contravention application must be remitted.
Costs
Each of the mother and the child representative sought costs certificates in the event that the appeal was allowed. We do not consider the grant of a certificate to the child representative appreaing as “amicus curiae”, available. We consider it an appropriate case for the grant of a certificate to the mother.
ORDERS
That the appeal be allowed.
That orders 1 and 2 of the orders made 14 March 2005 be set aside.
That the amended application of the father that the mother be dealt with for contravention, filed 14 October 2004, be remitted to the Family Court of Australia for hearing by a Judge other than the Honourable Justice Dawe.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
I certify that the 55 preceding
Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd:
Associate