D & C - [2005] FamCA 1046

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: D & C [2005] FamCA 1046
Case: [2005] FamCA 1046
Decision Date: 4 NOVEMBER 2005

CaseChat Overview and Summary

This case involved an appeal concerning findings of contravention of child contact orders. The appellant mother was found by the trial judge to have contravened orders requiring her to facilitate contact between her child and the child's father. The dispute centred on whether the mother had taken sufficient steps to encourage the child to attend contact, particularly in light of the child's expressed reluctance and fear of the father.

The primary legal issue before the appellate court was whether the trial judge erred in finding that the mother had contravened the contact orders. This involved determining whether the mother had a reasonable excuse for the child's non-attendance, and whether her actions constituted a genuine and active encouragement of contact, rather than a mere token effort. The court also considered whether the trial judge failed to take relevant considerations into account or made findings contrary to the weight of the evidence.

The appellate court affirmed the trial judge's reasoning that a custodial parent has an obligation to actively encourage and ensure a child attends contact, and that simply taking the child to a contact centre is insufficient. The trial judge found that the mother's efforts, such as telling the child "off you go," were not a genuine attempt to encourage attendance, especially given the child's expressed fears. The appellate court agreed that the mother had not used her position of authority to ensure compliance and that her actions did not demonstrate a genuine effort to insist on contact.

The appeal was dismissed. The appellate court was satisfied that the trial judge's findings were not contrary to the weight of the evidence and that she had not erred in her conclusions regarding the contravention of the contact orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 Evidence59. 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].”

Decision

Reasons for decision

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.” 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.”

Ratio Decidendi

Legal Principle Established

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