Deakin & Howe
[2016] FCCA 2605
•17 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEAKIN & HOWE | [2016] FCCA 2605 |
| Catchwords: FAMILY LAW – Contravention – where father alleged 5 counts but only pressed 4 – where mother admitted the 4 counts – where mother claimed reasonable excuse pursuant to s.70NAE(5) Family Law Act1975 (Cth) – consideration of whether the mother had a reasonable excuse – where mother sought findings of family violence in relation to incidents pre-dating consent orders subject of contravention – where no family violence established – no reasonable excuse for contravention established. |
| Legislation: Family Law Act 1975, ss.4AB, 69ZT, 70NAC, 70NAE, 70NDA, 70NEA, 70NFA |
| Cases cited: Childers & Leslie (2008) FLC 93-356 |
| Applicant: | MR DEAKIN |
| Respondent: | MS HOWE |
| File Number: | SYC 5023 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 23 September 2016 |
| Date of Last Submission: | 23 September 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 17 October 2016 |
REPRESENTATION
| Appearing for the Applicant: | Mr Bainbridge |
| Solicitors for the Applicant: | Bainbridge Legal |
| Counsel for the Respondent: | Ms Reynolds |
| Solicitors for the Respondent: | Macarthur Law Firm |
ORDERS
That a finding be recorded that the mother, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 16 December 2014 in that:
(a)The mother refused to allow the father to spend time with the children X born on (omitted) 2005, Y born on (omitted) 2007 and Z born on (omitted) 2009 (“the children”) from the conclusion of school on 1 April 2016;
(b)The mother refused to allow the father to spend time with the children from the conclusion of school on 13 May 2016;
(c)The mother refused to allow the father to spend time with the children from the conclusion of school on 20 May 2016; and
(d)The mother refused to allow the father to spend time with the children from the conclusion of school on 27 May 2016.
The matter is listed for directions on 17 October 2016 at 9.30am for the purposes of being allocated a hearing date for sentence in respect of the contraventions.
IT IS NOTED that publication of this judgment under the pseudonym Deakin & Howe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYC 5023 of 2014
| MR DEAKIN |
Applicant
And
| MS HOWE |
Respondent
REASONS FOR JUDGMENT
Introduction
In December 2014 the father and mother reached agreement in respect of parenting arrangements for their three children:
a)X born (omitted) 2005;
b)Y born (omitted) 2007; and
c)Z born (omitted) 2009.
As a result of that agreement and upon application made to the Federal Circuit Court of Australia, the Court made final parenting orders by consent on 16 December 2014.
Relevantly, the parents agreed and the Court ordered by consent that the children would live with their mother and spend significant and substantial time with their father. The order for the children to spend time with the father during the school term is as follows:
a) During school terms:
i) each alternate weekend commencing at the conclusion of school on Friday until the commencement of school on the following Monday.
ii) each alternate Friday commencing at the conclusion of school with the father to return the children to the mother’s residence at 9.00am or to a sporting event on Saturday morning.
By Application-Contravention (Amendment) (“Amended Application”) filed on 15 July 2016 the father alleges:
COUNT 1:
On 1 April 2016 at 3.00pm at (omitted)
The Respondent removed the children from school at 2.05pm, and without reasonable excuse, refused to allow the applicant to spend time with our 3 children, X, Y and Z Deakin.
COUNT 2:
On 1 April 2016 at 7.00pm at (omitted)
My partner (Ms D), her 2 younger daughters (A & B) and I returned to (omitted). To the respondent’s address to pick up X, Y and Z to spend my court appointed time with them. We were met by an extremely hostile person, being Mr M (partner of respondent), stating that the respondent and he were “going legal”. During this conversation my daughter Z had come to the front door, when she saw me she was very excited and wanted to say hello. However, Mr M very physically grabbed her shoulder/arm violently and proceeded to slam the front door shut. I witnessed as Mr M slammed the door shut hit my daughters with the door as it was closing. Thus, the respondent without reasonable excuse refused to allow me (the father) to spend time with one of our children.
COUNT 3:
On 13 May 2016 at 3.00pm at (omitted)
The Respondent did not send children to school on the 13th May 2016, and without reasonable excuse refused to allow the applicant (Father) to spend time with our 3 children X, Y, and Z
COUNT 4:
On 20 May 2016 at 3.00pm at (omitted) Public School
The respondent did not send our children to school on the 20th May 2016, and without reasonable excuse refused to allow the applicant (Father) to spend time with our 3 children X, Y, and Z for overnight care as per the Family Court orders.
COUNT 5:
On 27 May 2016 at 3.00pm at (omitted) Public School
The respondent did not send our children to school on 27th May 2016, and without reasonable excuse refused to allow the applicant (Father) to spend time with our 3 children X, Y, and Z for the weekend as per the Family Court orders.
Upon being informed by the Court of the alleged contraventions[1], the mother denied each of the five alleged contraventions. The hearing was conducted on the basis of the Court firstly determining the issue of whether or not there was a contravention as alleged and secondly determining the issue of reasonable excuse. What orders, if any, are to be made upon the determination of these issues is a matter which will be determined after hearing from the parties on sentence.[2]
[1] In accordance with Rule 25B.04 Federal Circuit Court Rules
[2] For this purpose it is envisaged that the matter will be listed for further hearing as appropriate
It became clear shortly after the hearing commenced and after the father commenced his evidence, that not only did the mother admit four of the alleged contraventions and asserted that she had a reasonable excuse in respect of each of those admitted contraventions, but that the father was not pressing the second alleged contravention, which was the only one the mother did not admit.
The hearing proceeded on the basis of the father pressing the alleged contraventions 1, 3, 4 and 5 as contained in the Amended Application and the mother pleading that she had a reasonable excuse after admitting to those contraventions.
The father relied on his Affidavit filed on 23 September 2016 and the mother relied on her Affidavit filed on 4 July 2016[3].
[3] Which affidavit had been filed in support of the mother’s Initiating Application filed on 4 July 2016
Short Chronology
The father was born on (omitted) 1979.
The mother was born on (omitted) 1979.
The parties were married on (omitted) 2002.
There are three children of the relationship:
a)X born (omitted) 2005;
b)Y born (omitted) 2007; and
c)Z born (omitted) 2009.
The parties separated in July 2013 and were divorced on 28 September 2015.
Final parenting orders were made by consent on 16 December 2014.
On 19 May 2016, the father filed two Applications-Contravention, the first alleging one count on 1 April 2016 (“First Application Contravention”) and the second alleging two counts on 1 April 2016 (“Second Application Contravention”). The first count in both applications related to the same event. Also on 19 May 2016, the father filed two Affidavits affirmed on 17 May 2016, in support of the two alleged contraventions.
Registrar Tran, on 19 May 2016, granted an exemption from filing a section 60I certificate in respect of the First Application Contravention and Second Application Contravention.
On 27 May 2015, the First Application Contravention and Second Application Contravention were delivered to the mother’s address at (omitted).[4]
[4] Affidavit of Service filed 31 May 2016; Affidavit of Service filed 31 May 2016
On 31 May 2016, the father filed a further Application – Contravention (“Third Application Contravention”) alleging breaches of orders by the mother on 20 and 27 May 2016. The same day, the father filed a further Affidavit sworn on 31 May 2016.
All three contravention applications were returnable on 7 July 2016 in the duty list.
On 30 June 2016 the father filed a further Affidavit affirmed on 30 June 2016.
On 4 July 2016, the mother filed an Initiating Application, Affidavit and Notice of Risk. The first return date of that Initiating Application was 19 September 2016. A section 60I certificate was filed on 4 July 2016.
On 7 July 2016, the Court directed the father to file, within 14 days, an Amended Application Contravention listing all of the alleged contraventions in the one application. The contraventions were listed for hearing at 10am on 23 September 2016. Also on 7 July 2016, the Court directed that the Initiating Application be listed for directions on 23 September 2016 to be dealt with following the hearing of the contraventions (thus vacating the return date of 19 September 2016). The Initiating Application (and the documents filed by the mother in support) had not been served on the father as at the time of the making of directions on 7 July 2016, although they were served later that day.
In accordance with directions made, on 15 July 2016 the father filed the Amended Application alleging the 5 counts which this Judgement deals with. The father also filed an Affidavit sworn on 19 September 2016 dealing with the allegations the subject of the Amended Application.
A Notice to Admit Facts and Authenticity of Documents was filed by the father on 19 September 2016, but that Notice was not relied upon at the hearing of the Amended Application.
As noted earlier, the Amended Application was heard on 23 September 2016. At the conclusion of the contravention hearing the mother’s Initiating Application was stood over for directions to 17 October 2016.
The Law dealing with Contraventions
The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A Family Law Act1975 (Cth).
Division 13A is organised in a progression from lesser to greater seriousness, as explained in s70NAA. In summary it deals in turn with:
a)Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdivision A;
b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F
The meaning of “contravened an order” is set out in s70NAC of the Family Law Act1975 (Cth):
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;
…
(emphasis in original)
The mother admitted the contraventions[5]. Therefore, the onus of proof shifted to the mother to establish that she had a reasonable excuse for the contraventions.[6]
[5] Being counts 1, 3, 4 and 5
[6] ss 70NDA(c); 70NEA(1)(c); 70NFA(1)(c)
The meaning of “reasonable excuse” is, relevantly, found in s70NAE of the Act, which reads:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
...
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
…
Count 1
Evidence & Submissions
In respect of count 1, the mother says she had a reasonable excuse because the child X was sick, namely that the mother believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health and safety of a person.
The mother’s evidence is that on the day that the children were to be picked up by the father from school to spend time in accordance with the orders X had school sores. The mother says that she took X to the doctor, Dr S, who advised her that the infection was extremely contagious and was told ‘not to let them go into contact with any other children’.
The mother says that she withheld the children because they were contagious.
There is no evidence that Y or Z were sick on the day or that they had been taken to be seen by a doctor.
Dr S was not called to give evidence in the mother’s case. There was no subpoena issued to Dr S nor were any documents sought to be tendered which might have corroborated the assertions by the mother that Dr S told the mother that X had an infection and that the infection was contagious. There was no medical certificate tendered to prove the child was ill.
The mother could not recall whether she kept X home from school for two days, on the Thursday as well as the Friday when the children were due to commence spending time with the father. When the school records were put to the mother, she said while the records appeared to be the absence reports from the school, she did not agree with the records. The records did not assist the mother with remembering whether X was off school for two days or just on the Friday. The school records show that X was absent from school on Thursday and Friday.
The school records for the other two children, Y and Z, indicate that the children were removed early from school on the Friday, such that they were not there when their father came to pick them up to commence spending time with them in accordance with the orders. The mother was not able to recall whether Y and Z were removed from school early on that Friday. As noted earlier, there was no evidence that either Y or Z were sick.
The Court finds that X was not at school on either Thursday, 31 March 2016 nor on Friday, 1 April 2016. The Court finds that Y and Z were removed early from school on Friday 1 April 2016, by either the mother or at her direction into her care.
The mother was asked whether she had forwarded the doctor’s certificate regarding X to the father, to which she replied “of course not”. She said that he could have subpoenaed those documents.
The mother said that the father was not competent to look after a sick child, nor that the father is fit to come to a decision as to whether he will expose his family to an infectious disease.
It was said in the mother’s case that in contravening the order, the mother had the aim of trying to keep the children from passing the sores to other children. The other children were said to be those in the father’s household.[7]
[7] The father’s partner has children who live in the father’s household
Reasonable Excuse
In Taikato v R[8] the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:
… what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defences of ‘reasonable excuse’ is an exception…
… Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.
[8] (1996) 186 CLR 454 at p464-466 per Brennan CJ, Toohey, McHugh & Gummow JJ
A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child.[9]
[9] In the marriage of O’Brien (1993) FLC 92-396
Section 70NAE was considered by Warnick J in Childers & Leslie[10] where his Honour said:
22.… s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
23.The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
24.While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “...necessary to protect the health...” and “...not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
[10] (2008) FLC 93-356
…
29.… The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:
... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.
29.Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.
The mother’s argument was that she had a reasonable excuse within the meaning of s70NAE(5).
The matters referred to earlier[11] are telling of the mother’s lack of reasonable excuse. I find that:
a)There was no corroborating evidence that X was sick and the mother’s evidence in respect of same was of little weight;
b)There was no corroborating evidence that X suffered from a contagious illness and the mother’s evidence in respect of same was of little weight;
c)There was no evidence as to the period during which X was said to be contagious;
d)There is no evidence on what day the mother attended upon Dr S, or any other medical practitioner with X;
e)There was no evidence from Dr S, or any other medical practitioner, about the diagnosis and prognosis of the illness which X was said to be suffering from at the time;
f)There was no evidence that Y or Z were sick;
g)There is no evidence that Y or Z were ‘contagious’ with regard to the illness which X was said to be suffering from at the time[12]; and
h)Y and Z attended school on Friday, 1 April 2016 but were called out early from school by the mother.
[11] Paragraphs 32-41
[12] If it be said that there was evidence from the mother in this regard, which was of no weight, I note that there was no expert or other corroborative evidence about this assertion
The argument that the mother did not comply with the order because she believed on reasonable grounds that it was necessary to withhold the children from the father on this occasion lest they make the members of the father’s household sick with school sores is not established on the evidence.
The Court also finds that if the mother genuinely held the belief on reasonable grounds that it was necessary to contravene the orders to ensure the health and safety of persons in the father’s household (which is not established), she would not have sent the children Y and Z to school on Friday, 1 April 2016.
The defence of reasonable excuse in respect of Count 1 is not established.
Count 2
This count was withdrawn.
Counts 3-5
Evidence & Submissions
In respect of counts 3-5, the mother says she had a reasonable excuse because she believed on reasonable grounds that withholding the children from the father on the dates in question was necessary to protect the health and safety of the children.
In April 2016, the children spent time with the father during the second week of the school holidays in accordance with the orders.
On Friday 6 May 2016 to Saturday 7 May 2016, the children spent time with father in accordance with the orders.
The mother says in respect of Friday, 6 May 2016:
The children asked me to attend the school in the afternoon because Mr Deakin was frequently late and the children were worried that they would be at school alone. Mr Deakin was late and we were waiting until approximately 3.20pm and we all started to walk home as Mr Deakin had not arrived. X was walking behind me and Y and Z had already walked away to see their friends and were out of Mr Deakin’s reach. I saw Mr Deakin push X by his head into his car. At approximately 6pm Marked [sic] dropped Y and Z to Mr Deakin at McDonalds.
While the mother apparently “saw Mr Deakin push X by his head into his car” she did not take any steps to address this matter with the father either at the time or since. Indeed, that afternoon, the mother’s partner dropped the other two children to the father at McDonald’s.
There is no explanation by the mother why Z and Y did not go with their father straight from school, except that they had ‘already walked away’ and that they ‘were out of Mr Deakin’s reach’ – an unfortunate phrase. The mother certainly did not encourage the children to spend time with their father in accordance with the orders on that occasion.
The mother says that after the children returned from spending time with the father on 7 May 2016, X said to her “I am scared of going to dad’s, he hurts me, he hits me on the head and grabs me around the neck.” X was apparently so distressed that the mother took him to see Dr S where X reportedly made “the disclosure about Mr Deakin’s assault on him”.
Importantly, the mother gives no evidence of what X supposedly said to Dr S on Monday, 9 May 2016 although the mother was present during such consultation[13].
[13] She says in her affidavit “Upon hearing this I called the Police” in reference to the alleged disclosures made by X to Dr S
Dr S was not called to give evidence in the mother’s case. There was no subpoena issued to Dr S nor were any documents sought to be tendered which might have corroborated:
a)The assertion by the mother that she took X to see Dr S on Monday, 9 May 2016; or
b)The assertions by the mother that X made disclosures to Dr S of an assault on him by his father.
After taking X to see Dr S, the mother[14] called the Police who attended her home and spoke to X.
[14] The mother is a (occupation omitted). She has been in the (employer omitted) for nearly 16 years. The mother is not employed in (duties omitted).
The mother does not give any evidence about what either she or X said to the Police.
On 12 May 2016, the mother took X to (omitted) Police Station and he participated in an electronically recorded interview. Later that day, an out of hours urgent Apprehended Domestic Violence Order was taken out by the Police for X’s protection, naming the father as the defendant.
The mother was not present during X’s interview with the Police. She did not give any evidence of having any conversations with the Police, not only with respect to what action the Police considered appropriate in the circumstances but also, and importantly, in respect of any disclosure which X made to the Police.
The father conceded in cross-examination the allegations contained in the application for the Apprehended Domestic Violence Order which the Police made, that is, he agreed that the allegations were made but denied the allegations.[15] The father gave evidence in his Affidavit about the mother taking X to the Police, where he was interviewed, and a provisional AVO being issued listing X as the person in need of protection and the father as the defendant. [16]
[15] See paragraph 152 below
[16] While a subpoena had been issued to the Police, a tender of the documents produced by the Police in answer to the subpoena was rejected by the Court in the mother’s case. The purpose of the tender was to corroborate that the mother had reported X’s allegations to the Police, that the Police had interviewed X and that the Police took action in applying for the AVO. These matters were not in dispute, and therefore the documents were ruled as not relevant.
At approximately 3pm on Friday, 13 May 2016, the father attended the children’s school to collect them for the weekend. The children were not at school. Indeed, the children had not been at school at all that day.
The father had not received any notification from the mother that the children would not be attending school, nor that they would not be made available to spend time with the father pursuant to the 2014 Orders.
Between 3.10pm on 13 May 2016 and 7.30am on 14 May 2016 the father sent the mother 4 text messages enquiring after the children and asking the mother to communicate “what’s happening for my Family Court ordered access?”
At 8.03am on 14 May 2016, the mother sent to the father a text message “Access denied until after Wednesday. Not my fault the kids aren’t answering their phone. They are the ones that have it not myself.”
The children did not spend time with their father from after school on Friday, 13 May 2016.
Over the next few days the father sent to the mother a number of other text messages trying to arrange telephone time with the children and informing the mother that the orders made by the Family Court ‘over ride’ the AVO.
On 18 May 2016, an Interim Apprehended Domestic Violence Order was made at Blacktown Local Court. Although the mother gives sworn evidence that this order was for a period of 12 months[17], the order as annexed to her Affidavit shows that the “order remains in force until it is revoked or a further order made by the Court becomes effective.”
[17] Paragraph 31(f) Mother’s Affidavit filed 4 July 2016
At 2.39pm on Friday 20 May 2016, the mother sent the father a text message saying “The children will not be at school today” to which the father replied asking where he could pick the children up from, if not from school and asking why the children were not at school.
There then followed this exchange of text messages:
a)At 4.50pm from the mother to the father:
“X won’t go to school because of you. He is terrified of you.”
b)At 4:51pm from the father to the mother:
“Pardon?”
c)At 5.05pm from the father to the mother:
“As you know this won’t be going before the courts until the 22/6 and until that time I still have my regular access with all 3 chn including a phone call each day which you are denying me. Where & when will I be collecting the chn today?”
d)At 5.07pm from the mother to the father:
“You won’t be collecting the children today.”
The children did not spend time with their father from after school on Friday, 20 May 2016.
Between 20 May 2016 and 26 May 2016 a number of text messages were again exchanged between the parties. The father’s messages were of a similar vein, trying to organise telephone communication with the children. On 24 May 2016, the mother advised the father “Busy with their psychologist. That we are paying for.” The father then asked who the psychologist was and that it would be beneficial if this information could be shared with him. The mother did not advise the father by text message of who the psychologist was.[18] On 26 May 2016, the mother sent the father another text saying “Busy at the psychologist again.”
[18] There is no evidence that the mother advised the father of this matter at all – except of course through her affidavit filed on 4 July 2016 to the extent which the affidavit addressed the issue
On Friday 27 May 2016, at 2.31pm the mother sent to the father a text advising: “The children have another psychologists (sic) appointment.” The father replied asking again who the psychologist was and what time he could meet the mother to pick up the children from McDonald’s. There was no reply.
The children did not spend time with their father from after school on Friday, 20 May 2016.
The mother says in her Affidavit as follows:
Since the ADVO has been in place the children have not spent any unsupervised time with the father due to my concerns about their safety in his care and due to Y and X refusing to spend time with their father.[19]
[19] Paragraph 31(h) Mother’s affidavit of 1July 2016
For the sake of completeness, the application for the Apprehended Violence Order was withdrawn and dismissed on 15 August 2016 by Blacktown Local Court.
The children have not spent any time with the father since the provisional/interim AVO was made on 11 May 2016, not just any unsupervised time. This per se, is a matter which was submitted in the mother’s case, not to be relevant to the determination of whether the mother had a reasonable excuse in respect of counts 3, 4 and 5.[20] The Court however notes the comment of Warnick J that there is no fundamental reason why proof of facts relevant to a contravention on a particular occasion may not in part depend on inferences about those facts drawn from findings about ex post facto events.[21] No submission was made in the mother’s case that the Court should adopt such an approach or that it should make any inferences.
[20] As at the date of contravention hearing, the children had still not recommenced spending time with the father pursuant to the orders; that is the children had not spent any time with the father since being returned to the mother on 7 May 2016.
[21] Childers & Leslie (2008) 39 FamLR 379 at 387
The mother’s argument is two-fold:
a)Firstly, she argues that she had a reasonable excuse on the basis that what X had said to her on 7 May 2016 and to Dr S on 10 May 2016, coupled with what she asserts is a long history of family violence and what had been reported to her by the children since the orders were made in December 2014, she believed on reasonable grounds that not allowing the children to spend time with the father on the three named occasions was necessary to protect the children’s physical and psychological wellbeing.
b)Secondly, that she had a reasonable excuse because the children were refusing to spend time with the father.
The reported refusal of the children to spend time with the father will be considered in the context of what was going on at the time, and not as a stand-alone argument only.
Allegations of Family Violence
It was submitted on behalf of the mother that the Court should make findings of fact consistent with the mother’s allegations of family violence, namely, that the father had engaged in the conduct as alleged by the mother. The allegations of family violence are contained in the mother’s Affidavit[22].
[22] Paragraphs 24 and 31 of Mother’s Affidavit filed 4 July 2016
The mother never reported any of these matters to the Police nor to any medical or other professional.
Family violence is defined in s4AB of the Act. The definition states:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
There are two elements to the definition. The first is the behaviour alleged and the second is the issue of causation, both of which must be proven to satisfy the definition.
At the commencement of the father’s cross-examination, Counsel for the mother asked the father whether he had seen the mother’s Affidavit setting out various alleged incidents at paragraph 24. Counsel indicated that she wanted to go through those ‘very quickly’ to see what the father has to say about each one of those. No objection was taken by the father’s lawyer to the questions being asked.
The mother’s Counsel did not indicate at that point, and indeed not until her closing submissions, that she would be inviting the Court to make findings of fact in respect of these allegations. Had Counsel done so at the commencement of the hearing or even at the commencement of the father’s cross-examination, it is likely that the Court would have made an order pursuant to s69ZT(3) of the Act. As things stood, the matter was heard without such an order having been made. Indeed, such notice might have resulted in different and lengthier cross-examination of the mother.
Having read the parties’ Affidavits, and after hearing from both of the parties in cross-examination, I am not satisfied that the mother has proven, to the requisite standard[23] any of the allegations of family violence.
[23] s140 Evidence Act; See also Neat Holding Pty Ltd v Karajan Holdings Pty Ltd (1992) [1992] HCA 66; Janssen & Janssen (No.2) [2016] FamCA 796 at [110] – [114]
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.[24]
[24] s55 Evidence Act 1995 (Cth)
It is important to state that simply because an assertion, general or otherwise, is made by a party it does not mean that the Court has to accept it – even in circumstances where it is not denied. Assertions are not evidence of fact.
The evidence of a fact is that which tends to prove it, something which may satisfy an enquirer that the fact exists.[25]
Allegation 1
[25] Byrne QC, Heydon, Cross On Evidence, Butterworths, 3rd ed at [1.1]
In 2004 Mr Deakin threw a set of keys at my face and I sustained a black eye.
The allegation was put to the father in cross-examination. He denied it.
This allegation, like most of the others the mother makes, does not contain the specificity one would expect to be included such that the court may make a finding of fact; for example and as a minimum, where the alleged incident is said to have occurred and in what circumstances. There is no corroborating evidence of the facts alleged.
The conclusion contained at the end of the sentence is nothing more than lay opinion, which is without any probative value.
While the mother in her evidence in chief further asserted “I did not call the Police on this occasion due to being scared of the consequences from Mr Deakin” she did not give any evidence of coercion, control or fear as a result of the “violent, threatening or other behaviour” she alleges against the father, which could only be the throwing of a set of keys at her face as alleged. Indeed, there is nothing violent or threating in the way the incident is described.
The mother gives evidence of being fearful of calling the Police because of how she perceived the father might react in that circumstance. No submission was made as to the basis for the mother’s fear.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 2
In 2005 I was 7 months pregnant with X when Mr Deakin threw me against the fridge then pushed me to the floor resulting in false labour pains.
The father denied the incident.
The mother gives further evidence as follows: “I was bed ridden for a day to make sure I wasn’t going into labour. I did not attend hospital or the doctor due to being scared of the consequences from Mr Deakin.” Comments made at paragraph 94-97 above are relevant and similarly apply in respect of this evidence.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 3
In approximately late June, early July 2005 my mum’s friends were at the house that I shared with Mr Deakin at (omitted), helping with the painting of the house and Ms P saying words to the effect “I’m shocked at the amount of holes in the walls that they had to fill.”
The question put to the father in cross-examination was that whilst a friend was helping paint the house she observed holes that had to be filled. The father agreed that there were two holes which needed to be filled. One hole was from the father punching the wall (or the door) as a result of an emotional outburst, and that he was having an argument with the mother at the time. The father says the second hole was from a broom going through the wall.
It is admitted by the father that he punched two holes, one with his hand and the second with a broom. The first incident arose in circumstances where the parties were arguing. These are the only findings of fact the Court makes in respect of this allegation, as vague as those facts are.
There is no evidence of what the argument was about. There is no evidence of what the father had said to the mother during this argument. There is no evidence of whether the mother was present at the time the father punched the hole in the wall or caused a hole by the broom, nor how she might have been affected by the father’s actions.
No family violence can be found on the basis of the facts whether as asserted by the mother (if accepted) or as admitted by the father. As I find that there can be no family violence on the basis of what is alleged or admitted, it is not necessary to make any findings of fact in respect of the facts asserted by the mother in her evidence in chief.
Allegation 4
In approximately 2009 Mr Deakin and I were painting the nursery for Z’s birth. I was approximately 7 months pregnant with Z at the time. X who was approximately 4 years old at the time spilt the pink paint that we were using to paint Z’s room. I recall Mr Deakin got so angry yelling and shouting, he kicked the wall. I was fearful for X and said words to the effect “I did it, it wasn’t X.” Mr Deakin hit me across the shoulder and punched the wall. I regularly took responsibility for the children’s actions due to fear of Mr Deakin’s reaction.
The father denied the incident as alleged, but did recall that paint was spilt by the father and that he still has it on his tracksuit. The father did not agree that anyone else had spilled the paint and nor that he took any action as a result of someone else spilling the paint.
The cross-examination of the father on the issue was very limited.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 5
In approximately June 2013 Mr Deakin hit Y across the face so hard he left a hand print on his cheek.
The father denied hitting Y as asserted by the mother.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 6
Throughout my relationship with Mr Deakin he would hit the children across their heads regularly as form of discipline, and when I tried to intervene he would turn on me and hit and shove me and he would scream at the children.
Once again, this is a general assertion and the evidence is of little probative value. It contains conclusion upon conclusion.
The father did not agree with the proposition that he hit the children across the heads regularly as a form of discipline. When asked if the mother intervened as he screamed at the children, the father said no. He said he had never taken anything out against the mother or the children.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 7
During 2011 and 2012 Mr Deakin’s behaviour escalated and his screaming and yelling increased. He would lose his temper and yell at the children and punch and kick holes in the walls and throw objects.
There is no specific allegation made. There are no particulars provided. The allegation contains conclusions and opinion about which there is no factual basis provided. The assertions contained in this paragraph of the mother’s Affidavit are of no probative value. However, no objection was taken by the father’s lawyer to the evidence.
In cross-examination the father conceded that he would at times lose his temper and that he would yell. He said however, that he would not yell at the children. The father said that he wouldn’t punch and kick holes in the walls or throw objects.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 8
Towards the end of my relationship with Mr Deakin in 2012 the children were too scared to sleep in their own bedroom and they started sleeping in my bedroom, as it was the only room with a lock on the door. They felt extremely unsafe. The minute they would hear his car in the driveway, they would all run upstairs to my room, the only one with a lock.
The father disagreed with the suggestion that the children slept in the same room as the mother because they were afraid. The mother did sleep in a room with a lock, both of them did. The children did not sleep in a locked room with the mother. These were the only matters put to the father in cross-examination in respect of this allegation.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 9
The children and I would never know what mood Mr Deakin would return home in and Mr Deakin would constantly slam doors and throw things at me and the children. His behaviour was very unpredictable and volatile.
The father denied that he would constantly slam doors, the only matter put to him in cross-examination in respect of this allegation.
Allegation 10
During 2012 Mr Deakin would take days off work to play Xbox/PlayStation games online. He would play these games all night regularly until at least 3am and would wake up the children with loud yelling and swearing. Mr Deakin swore so much that the children thought it was normal to be called a ‘fucking cunt’ ‘mother fucker’ which he called the children and me regularly. I have heard Y say to Mr M words to the effect ‘daddy always says he’s going to rip me a new arsehole’.
The father was asked if he swore at the mother and the children using the words “fucking cunt” and “mother fucker”. He conceded that he did swear at the children and the mother, and he could not exactly tell what sort of words he used “but it included the ‘f bomb’ for sure”. The father conceded that as a figure of speech he had said to Y that he’s “going to rip him a new arsehole”.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
However, the Court does find that the language used by the father is not appropriate as it may make the children and/or the mother feel uncomfortable.
Allegation 11
Mr Deakin would constantly hit the children as a form of discipline with an open hand. He would hit them if they were misbehaving and shove them to the floor. He would usually hit them on their back or the back of their head.
The father conceded that he would smack the children on the bottom with an open hand, but that he never hit them on the back of the head, or shove them to the floor with the force of hitting them.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 12
I recall an incident in 2014 when Ms D threw a mobile phone at me that I had given X. Mr Deakin and Ms D were picking up the children from our home for the school holiday period. I had given X a mobile phone so that Mr M and I could keep in touch with him as he was worried about not being able to call us while he was with Mr Deakin. X was getting into their car, Mr M and Mr Deakin, Y and I were standing together in our driveway. Ms D suddenly threw this phone at me which hit me in the head and yelled words to the effect “If you want to contact those kids you can fucking call on Mr Deakin’s phone.”
The father said that this incident never happened.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 13
In approximately 2015 during a school “meet the teacher day” Ms D and Mr Deakin sat across the room from X and I while X and I met with his teacher. Ms D mouthed at me “you’re fucked” and turned hear head and laughed. I observed that X saw Ms D do this and he appeared scared and he said to me words to the effect ‘mum let’s go.’ We left the school immediately.
The father said this incident never happened.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 14
In approximately April 2015 Y came home after a visit with Mr Deakin with a large gash on his chin. When I asked him how it happened Y said words to the effect “Dad left us at someone’s place and we were in the spa and I smashed my chin.” I asked Y words to the effect, “where was dad?” Y said words to the effect “I don’t know, he just left us there.” I asked Y words to the effect “Who were you with, all of you?” Y said words to the effect “Yes, I don’t know the guy’s name, he just had a spa.” I recall that X had an ear infection when he returned home from spending time with the father.
The father agreed that Y had suffered a gash to his chin, while in the spa with the father at a friend’s place (Mr E[26], a friend of the father). The father says he did not leave the children at the friend’s house. I accept the father’s evidence.
[26] Spelling of surname may be incorrect
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
No family violence is proven in respect of this allegation.
Allegation 15
In approximately December 2015 I was told by one of the children over the phones that Mr Deakin had taken them to (omitted) to visit Mr Deakin’s parents. Mr Deakin’s partner Ms D and her children also went. They all went to visit their paternal aunt Ms S’s house. Ms D and Mr Deakin started to argue and Mr Deakin punched a hole in the wall and broke off the rear screen door. Mr Deakin left and walked back to his parent’s house which was approximately 30 minutes away. X said words to the effect that “Ms D was screaming at nanna and poppy you’re all fucking cunts” and that Mr Deakin said words to the effect “You’re a fucking cunt bitch just fuck off”. Later that day Mr Deakin punched a hole in the wall in his parent’s house and broke their front wooden door. X said words to the effect “after about an hour we left, and we all had to be in same car and dad and Ms D didn’t talk entire way home, it was silent”. X said to me words to the effect “once we got back to the unit they were yelling so loud at each other, Dad sad [sic] “you mother fucker” twice, Ms D screamed at him “you’re a fucking ass! 3 times. Then Ms D got on the phone with Aunty Ms S and started screaming at her telling, “you should be paying your brother’s rent”. X said words to the effect that “Ms D got off phone then they screamed at each other and Ms D screamed, I’m sick of paying your rent get your sister to pay more and then Ms D stormed out with her 2 kids”.
The father conceded that they did travel to (omitted) as reported by the children, and went to the father’s sister’s house where the father had an argument with Ms D. He says that he never punched hole in wall or that he broke the screen door. He did walk to his parent’s home. Ms D was not screaming at the parents and he didn’t say to Ms D “you’re a fucking cunt”. The father says that he didn’t damage any property at his parent’s home, nor that he said to Ms D “mother fucker”. The father denies that Ms D screamed out “you’re a fucking arse”. Ms D never called father’s sister names as alleged to have been reported by X.
The mother’s evidence is at best second hand hearsay. The father gives a different version, as far as put to him in cross-examination.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother, although the Court finds that the children were exposed to an argument between the father and his partner.
No family violence is proven in respect of this allegation.
Allegation 16
On 21 March 2016 I left the children’s uniforms outside of the house for Mr Deakin to collect because I wouldn’t be home. I did this because Mr Deakin did not have uniforms for the children and Mr Deakin had previously sent the children to school in their pyjamas. I recall receiving a phone call from a lady in the school office saying words to the effect “the kids are here in their pyjamas”. I said words to the effect “Mr Deakin knows that the children’s uniforms are outside the front of the house in bags for them”. Later that day X said to me words to the effect “dad made us get changed into our school uniforms out the front of the house”. We live on a main road just down the road from the school in front of a bus stop with no cover.
The father says the children did not go to school in their pyjamas, they got changed out the front of the mother’s house.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother.
However, the Court finds that asking the children to get changed in front of their mother’s house is not appropriate.
No family violence is proven in respect of this allegation.
Allegation 17
On 12 May 2016 an out of hours urgent Apprehended Domestic Violence Order (“ADVO”) was taken out by Police to protect X naming Mr Deakin as the defendant. On 6 May 2016 the children were at school waiting for their father to pick them up as it was their Friday night to spend time with Mr Deakin. The children asked me to attend the school in the afternoon because Mr Deakin was frequently late and the children were worried that they would be at school alone. Mr Deakin was late and we were waiting until approximately 3.20pm and we all started to walk home as Mr Deakin had not arrived. X was walking behind me and Y and Z had already walked away to see their friends and were out of Mr Deakin’s reach. I saw Mr Deakin push X by his head into his car. At approximately 6pm Mr M [sic] dropped Y and Z to Mr Deakin at McDonalds.
When the children returned from Mr Deakin’s home on Saturday at approximately noon X said to me words to the effect “I am scared of going to dad’s, he hurts me, he hits me on the head and grabs me around the neck”. I was not aware of the extent of the assault on X by Mr Deakin until Monday morning when X was so distressed that I took him to see Dr S where X made the disclosure about Mr Deakin’s assault on him. Upon hearing this I called the Police. The Police attended our home on 10 May 2016 and spoke to X. On 12 May 2016 I took X to (omitted) Police Station and X participated in an Electronically Recorded Interview Statement. The Police obtained an ADVO on 12 May 2016 for a period of 12 months.
As noted earlier in these Reasons, while the mother apparently “saw Mr Deakin push X by his head into his car” she did not take any steps to address this matter with the father either at the time or since. She does not give any evidence as to whether the alleged assault upon X is a different incident to the one which she witnessed. She does not give any particulars of the alleged assault giving rise to the Police interviewing X or applying for the ADVO.
In cross-examination the father conceded that he was served with an AVO application in May 2016, which included an account of what it was alleged the father had done to X. The father agreed that the Police conducted a recorded interview with X. The father agreed that it was alleged that he had “hit X on back of head and hit him on head and that he often pushed X by pulling his ear and putting hand around neck in a chocking fashion.” The father however denied the allegations. He said that on Friday, 6 May 2016 X did not want to walk off to speak to a friend, he denied that he took hold of X by any part of his body, and he denied pushing him by his head into the car.
The evidence is insufficient to permit the findings of fact as submitted on behalf of the mother, which the Court conveniently summarises as follows:
a)that the father assaulted X on 6 May 2016; and/or
b)that the father assaulted X on other unspecified occasions.
No family violence is proven in respect of this allegation.
Other Matters Said to be Relevant by the Mother
In essence, the mother’s case was that to completely understand her argument about reasonable excuse in respect of Counts 3-5, the Court must also look briefly at the totality of the mother’s evidence in respect of the parties’ relationship, pre and post separation and their co-parenting post the consent orders of 2014, including the specific allegations of family violence referred to in the preceding paragraphs. The Court is not persuaded that the entirety of the mother’s evidence is relevant to the reasonable excuse argument. It is a tedious and unnecessary task that the Court was asked to undertake.
The mother included in her evidence what she asserted were various matters identified as ‘risk issues’. Those assertions are contained in paragraph 31 of her Affidavit, some of which have been specifically referred to as allegations of family violence in respect of which the father was cross-examined. The remainder are reproduced below.
Paragraph 31(d) of the mother’s affidavit read as follows:
In February 2016 I was concerned about the impact of the father’s behaviour on the children and on my mental health and that I saw our local General Practitioner DR Y who provided a referral to a psychologist, Ms R. The children and I have met with Ms R on 3 occasions. Once in February 2016 and then again in May 2016 on two occasions. Ms R is working with me and the children regarding the trauma that we have experienced and to assist in getting X to return to school. As X is refusing to return to school due to being scared. Ms R has told me that this letter is a draft report and that is why it is not signed. I am waiting for a final letter from Ms R and will provide that to the Court when I receive it.
Ms R was not called as a witness in the proceedings, nor was a subpoena issued for her to provide her file.[27]
[27] The letter dated 30 May 2016 referred to in the affidavit was rejected by the Court, both in its draft form and as apparently finalised. It was submitted that the signed letter was a business record, although no evidence was lead which might lead the court to make that finding. Ms R was had not sworn an affidavit, she was not called as a witness, a subpoena for her attendance or for the production of her file was not issued, and the Court had no evidence as to her specialised knowledge based on her training, study or experience. The probative value of the letter was substantially outweighed by the danger that the evidence would be unfairly prejudicial to the father.
The highest that this evidence can be taken is that the mother had concerns about the children, sufficient enough for her to take them to counselling. This of course is the mother’s subjective view.
Paragraphs 31(g) & 31(h) of the mother’s Affidavit read as follows:
The ADVO proceedings were before the Court on 9 June 2016 and on that occasion were adjourned to 22 June 2016 to fix a hearing date as the father is contesting the ADVO. The ADVO proceedings have now been fixed for hearing on 15 August 2016 and X is to give evidence.
Since the ADVO has been in place the children have not spent any unsupervised time with their father due to my concerns about their safety in his car and due to Y and X refusing to spend time with their father
The terms of the ADVO were as follows:
(a)The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
(b)The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
(c)The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
The orders were standard orders only.
It was submitted in the mother’s case that the ADVO was insufficient to protect X and the other two children from harm. This submission is not supported by an objective view of the evidence.
The ADVO protected X in the stated ways. It was a Court order. The mother decided that the ADVO was not sufficient to protect X. On what basis she decided so was not in evidence.
It was submitted that the ADVO was not adequate to do what needed to be done for the child’s psychological and emotional health at the time. The difficulty with this submission is that it is not supported by any evidence.
It was submitted that X was refusing to go to school, he had emotional and psychological problems, and knowing that there was an ADVO didn’t come anywhere near what X needed for his health and safety at the time. Once again, the difficulty with this submission is that it is not supported by any evidence.
Specifically, there was no evidence
a)that X’s health or safety were compromised by spending time with the father; nor
b)what, if anything, X needed to protect his health and safety
that was not already dealt with by the apprehended violence order.
Paragraph 31(i) of the mother’s Affidavit reads as follows:
In early May 2016 Y said to me words to the effect “when Ms E looks after us she always goes to the bedroom with her boyfriend and has sex” I said to Y words to the effect “what do you mean, you don’t know what sex is” Y said words to the effect “Yes I do it’s when you kiss and banging on the wall.”
It is not clear what the risk of harm is alleged to be[28]. At its highest it is evidence of Y forming a particular view about what his step-sister might be doing. There is no evidence as to any view the mother formed as a result of hearing Y say such things. No submission was made as to the relevance of this particular evidence on the reasonable excuse argument.
[28] It was not suggested in submission that the relevant test for reasonable excuse was in some way correlated to a risk of harm, or indeed an unacceptable risk of harm. The Court notes that the relevant test for reasonable excuse is as set out in s70NAE(1).
Paragraphs 31(j) and 31(k) of the mother’s Affidavit read as follows:
On 7 June 2016 I was chatting to children and Y disclosed to me word to the effect “dad gets really angry, do you know what I found, we were kicking the ball in the house and dad got really angry”. I said words to the effect “well we get angry with balls in the house too”. Y said words to the effect “I kicked the ball under dad and Ms D’s bed and found a box with a packet of white pills – I counted them mum there were 23, next time we were there I found little bags with crystals – like little pieces of ice crystals” I reported this to Crime Stoppers.
On 16 June 2016 Y got into our bed and said words to the effect “daddy is going to come and steal us with a black car”
These last two events are post the dates of the contravention. They were not relied upon as being relevant to any reasonable excuse argument the mother makes.
By way of summary, the mother gives evidence about her current circumstances. She tells the Court that she was diagnosed with depression in 2007 and anxiety and Post Traumatic Stress Disorder in 2014. She has been told certain things by her psychologist as to the causes of her mental health difficulties.
The mother had “previously self-medicated” she says as a result of the stress and anxiety of her relationship with the father. She attended a detoxification in late 2015. She does not give any other evidence, nor is there any corroborating and/or independent evidence, of whether the ‘self-medication’ amounted to an addiction and/or whether she is still receiving treatment is respect of this issue. The Court is left in the dark as to how long the mother was self-medicating for.
The mother says that at the time the parenting orders, dated 16 December 2014, were made she raised her concerns about her experience of domestic violence, and that she felt that those issues were not properly considered when the orders were made. The mother had not, until 4 July 2016, made any application with respect to those Orders. Importantly, even as at the date of these Reasons, no application has been made to set the orders aside on the basis that there was a miscarriage of justice. I do not accept that the orders were entered into with anything but informed consent, and made properly. To suggest as the mother does is simply not appropriate and does little for her credit.
The Court refers again to what was said in Childers & Leslie referred to in paragraph 46 above. Warnick J also referred to the authoritative statement made in In the Marriage of Gaunt:[29]
The essential question is this – can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervising power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
… A party’s subjective view of the rights and wrongs of a decision cannot be relied upon a ‘just cause or excuse’ or ‘reasonable cause’…
[29] (1978) FLC 90-468 at 77,398
The mother, at all relevant times, had and continues to have an ongoing obligation to comply with orders.
The mother gives evidence about the children not spending time with the father since the last of the contraventions.
The mother gives evidence about the father’s child support payments, or rather lack thereof. No findings are made in respect of these assertions. Such evidence is not relevant to the contraventions or the reasonable excuse argument.
The mother gives evidence about the children’s daily routines in the mother’s household. Such evidence is not relevant to the contraventions or the reasonable excuse argument.
The mother says that X is seeing a psychologist about his refusal to attend school, and that such refusal started immediately after the incident with the father in early May 2016. In light of the lack of evidence in this regard, particularly expert evidence, the Court is not able to make any findings about X’s mental health, nor what may have impacted upon such health.
Importantly for these proceedings, the Court found the mother’s demeanour in the witness box to be very strange. The mother gave evidence that she is taking a number of prescribed medications, namely Zoloft and Valium.
The mother appeared to the Court, during her cross-examination, to have difficulty in concentrating and in answering the questions, her words were sometimes slurred, she appeared to be irrational at times in her responses, including her tone of voice, and she appeared to be overly dramatic in her body language and gesticulations. The mother was not an impressive witness.
The father on the other hand was much more impressive as a witness. He made concessions about his past behaviour, such concessions being against interests.
Reasonable Excuse
The Court shall not repeat the wording of s70NAE(5). The Court does however, note again that it was submitted on behalf of the mother that the reasonable excuse argument fell within this sub-section.[30]
[30] See in particular paragraphs 51, 78 and 81 of these Reasons
It was submitted in the mother’s case that if the Court accepts the history as deposed to by the mother, then on hearing her child say in 2016 that the father has grabbed him around the neck, coupled with the other concerns the children have reported about the father’s behaviour, the mother’s view that the father is becoming violent is reasonable. It was further submitted that if there had been no history then the child’s statement may have had a different impact upon the mother.
The Court notes that 12 of the 17 allegations of violence pre-date the making of the consent orders in December 2014. The allegations of family violence were not proved. In respect of the allegations which post-date the making of the consent orders, none of those facts as found, amount to family violence.
If the Court is wrong about this, the mother submitted to the Court in December 2014 that it was in the children’s best interests for final parenting orders to be made in the terms as ultimately made. The mother did not submit to the Court at the time that the children were at risk of harm in the father’s care, particularly at an unacceptable risk of harm, due to the allegations of family violence she makes, such that the orders should not be made.
These are all relevant matters that the Court takes into consideration in respect of whether the mother believed on reasonable grounds that not allowing the children to spend time with the father was necessary to protect the health and safety of the children.
Counsel for the mother further submitted that when the mother had been on the receiving end of such behaviour from the father[31] it would give her great concern about the father’s behaviour towards the children, in the context of all of the incidents. The accumulating effect of all incidents was such that she would have concerns. Part of the reason why she didn’t send the children were the ongoing incidents. There was a building up of difficulties.
[31] That is the violent behaviour which she alleged, which was carefully considered under the heading “Allegations of Family Violence” and the other behaviour considered under the heading “Other Matters said to be Relevant by the Mother”
It was submitted on behalf of the mother that the accumulation of all of those matters was such that it gave the mother reasonable grounds for her belief that it was necessary to withhold the children from spending time with their father in order to protect the health or safety of the children. The health and safety of the children was said to include their psychological health and wellbeing. It was submitted that there were clearly issues in February 2016, requiring the mother to take the children to the psychologist. There was the incident in (omitted). X so distressed that she took him to the doctor. The mother stopped time between the children and the father because of the build-up of all of the facts.
Section 70NAE(5) was considered by Dawe J in Vaughton & Randle (No.2)[32] where it was held that:
(82)There are multiple considerations, both subjective and objective, involved in applying subsection 70NAE(5) to the facts…
(83)First, there is the issue of whether the respondent believed on reasonable grounds that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child. This issue has a subjective element (consideration of whether the respondent actually believed that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child) and an objective element (consideration of whether this belief of the respondent was reasonable).
(84)Second, there is the consideration of whether the period during which the child and the person did not spend time together was “longer than was necessary to protect the health or safety” of the child pursuant to s 70NAE(5)(b). (original emphasis)
[32] [2013] FamCA 286 per Dawe J at [82]-
With these remarks, the Court respectfully agrees. They are a statement of the law which applies to this case.
Even if the Court accepted that the events post December 2014 as alleged by the mother occurred (coupled with the pre-December 2014 events and in light of the consent orders), they would still not be sufficient to ground a finding of reasonable belief.
Distress of a child may give rise to a claim of reasonable excuse, if it results in risk of harm to the child’s emotional wellbeing.[33] It has been said that:
“… ‘such cases are rare in the absence of precipitating conduct by the contact parent, or otherwise “changed circumstances”. Otherwise, it would simply be a flagrant challenge to the findings of the Court when making the contact orders as the original orders must have been found by the Court to be appropriate parenting orders at the time they were made.”[34]
[33] Stamp & Stamp [2014] FCCA 1269 at [24] referring to Fooks & Clark [2004] FamCA 212; and Raider & Raider [2011] FamCA 488.
[34] Stamp & Stamp [2014] FCCA 1269 at [24] quoting an earlier judgement of Judge Riethmuller in TVT & TLM [2006] FMCAfam 20
The mother says, in her affidavit, without reference to any particular date or time that:
X is refusing to spend time with his father, Y is worried about spending time with his father and Z has not really said anything about it but has seen and heard X’s reaction to spending time with his father.
In the circumstances, none of the evidence establishes that the distress[35] of the children was such that it would result in a risk of harm to the children.
[35] Even if the Court accepts the mother’s opinion that the children have been distressed
The Court is mindful that there is no evidence of the following matters:
a)What, if anything, the children said to the mother on or about (or even leading up to) Friday, 13 May 2016 about spending time with their father that weekend (noting in particular that on 10 May 2016 the mother took X to the Police station to report the alleged assault of X by the father);
b)What, if anything, the children said to the mother on or about Friday, 17 May 2016 about spending time with their father that weekend;
c)What, if anything, the children said to the mother on or about Friday, 24 May 2016 about spending time with their father that weekend;
d)What behaviours, if any, the children displayed on or about Friday, 10 May 2016 prior to the commencement of the time they were to spend with their father that weekend;
e)What behaviours, if any, the children displayed on or about Friday, 17 May 2016 prior to the commencement of the time they were to spend with their father that weekend;
f)What behaviours, if any, the children displayed on or about Friday, 24 May 2016 prior to the commencement of the time they were to spend with their father that weekend; and
g)Expert evidence in relation to any mental health issues of X, (and/or the other two children) and what matters might have impacted upon those mental health issues.
As such, the Court does not accept that the belief held by the mother was reasonable.
In respect of the second-limb of the mother’s argument, namely, the children’s refusal to spend time with the father (as a stand-alone argument), the Court reiterates the long standing authority that parents have positive obligations to comply with orders for children to spend time with the other parent. They must genuinely comply with the order by encouraging children to spend time and to take reasonable steps to deliver the children for time to be spent with a parent. Token compliance or passive resistance is not sufficient.[36]
[36] In the marriage of O’Brien (1993) FLC 92-396
It is not the child’s decision whether or not they will spend time with a parent pursuant to an order. It is up to parent to tell the child that she must go to spend time with the other parent.[37]
[37] In the marriage of O’Brien (1993) FLC 92-396
In Webber and Budd (No 2)[38], Watts J found that the mother contravened the orders for the children to spend time with the father on a particular occasion, saying:
7. … even accepting the version the mother has given, there was nothing in that version about any encouragement that the mother gave to the children to go with their father on that day, or about anything the mother did to prepare the children, so that they would happily go with their father on that day.
[38] [2011] FamCA 539 referred to by Judge Riethmuller in Stamp & Stamp [2014] FCCA 1269
The Court finds likewise.
Lest it be suggested that it was not considered, the Court finds that the cumulative effect of the facts is not such that there was a reasonable grounds for the mother to hold a belief that withholding them from the father, was necessary to protect the health or safety of the children.
Lastly, the Court finds that there was no evidence going to the element of time, namely, that the children were withheld for “no longer than was necessary to protect their health or safety”.
The defence of reasonable excuse in respect of Counts 3-5 is not established.
Conclusion
The list of potential reasonable excuses for contravention at section 70NAE is of course not exhaustive. I respectfully agree with the obiter comments by Warnick J[39], namely that subsection (5) ought to be applied whenever it can “fit” the circumstances[40].
[39] Supra n.10 at [23]
[40] Which I have paraphrased
The excuse which the mother relied upon with respect to each of the admitted contraventions was within s70NAE(5). Notwithstanding, I also find that the mother did not have a reasonable excuse for her contraventions that is not within the list.
In summary, the Court finds that the mother has failed to establish on the balance of probabilities a reasonable excuse for the admitted contraventions.
As noted by Justice Fogarty in Stevenson & Hughes[41]
It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.
[41] (1993) FLC 92-363 at 79,816
The Court invite the parties to make further submissions before me on a date to be advised as to the orders the Court should make in light of the findings the Court has made in this Judgement.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 17 October 2016
The tender was also pressed on the basis that the matters as reported by X were relevant. This argument was rejected on the basis that whatever X might have said to the Police the mother was not present and did not give any evidence that she became of such matters at a later stage. As such, the matters which X might have said to the Police could not have formed part of the mother’s knowledge or impacted upon her state of mind at the time that she decided not to make the children available to spend time with the father.
3
8
2