DENMAN & CARUSO
[2018] FCCA 3104
•31 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DENMAN & CARUSO | [2018] FCCA 3104 |
| Catchwords: FAMILY LAW – Application – Contravention – Reasonable excuse not established. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAE |
| Cases cited: Childers & Leslie (2008) FLC 93-356 |
| Applicant: | MR DENMAN |
| Respondent: | MS CARUSO |
| File Number: | PAC 3945 of 2013 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 30 April 2018 |
| Date of Last Submission: | 22 May 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 31 October 2018 |
REPRESENTATION
| Appearing for the Applicant: | Ms Morrison |
| Solicitors for the Applicant: | Mahony Family Lawyers |
| Appearing for the Respondent: | In person |
ORDERS
That a finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 21 July 2017 in that:
(a)The Respondent without reasonable excuse refused to all the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 1 December 2017;
(b)The Respondent without reasonable excuse refused to allow the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 15 December 2017;
(c)The Respondent without reasonable excuse refused to allow the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 1 January 2018; and
(d)The Respondent without reasonable excuse refused to allow the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 25 December 2017.
The matter is listed for sentence at 10am on 12 November 2018 prior to the commencement of the final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Denman & Caruso is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3945 of 2013
| MR DENMAN |
Applicant
And
| MS CARUSO |
Respondent
REASONS FOR JUDGMENT
On 30 April 2018 the Court heard the father’s Application – Contravention which was filed on 19 January 2018.
The mother pleaded guilty to all four counts but with reasonable excuse. The mother was cross examined.
The onus is on the mother to establish a reasonable excuse for the admitted contraventions.
The contraventions relate to the time the children were to spend with the father pursuant to orders made by consent on 21 July 2017. The contraventions related to:
a)The weekend of 1 December 2017;
b)The weekend of 15 December 2017;
c)Christmas Day – 25 December 2017; and
d)School holidays – 1 January 2018.
The father has in fact not seen the children since November 2017. Time in accordance with the July 2017 orders stopped after the mother decided she would not comply by making the children available.
The Court has, in a number of decisions delivered last year, set out the relevant principles applicable to contravention proceedings and the reasonable excuse argument. These principles are long standing, and are adopted herein[1].
[1] For example: Argyle & Thomas [2017] FCCA 621 and Eagle & Scarlett [2017] FCCA 2814
A reasonable excuse, in respect of a concern as to welfare of a child is limited to a belief, held 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 carrying out of the order might not be in the best interest of the child. The question is whether it is necessary to protect the health or safety of a person, including the child, but only for as long as may be necessary.
These are matters to be established on evidence by the person who asserts them. In this instance the onus is on the mother.
The mother’s case is confusing and difficult to understand. The mother relied on a lengthy affidavit, was cross examined and then after the close of her case filed a further affidavit on 8 May 2018, which the Court has had regard to only as submissions, which the mother was ordered to file and serve. The father filed written submissions on 22 May 2018.
The mother’s evidence was to a large extent not relevant or otherwise inadmissible. Her affidavit dealt with historical matters which pre-dated the July 2017 orders and contained a great deal of opinion not based on any fact and hearsay.
The evidence also largely, to the extent it could be considered relevant, only addressed matters concerning the child [X]. Paragraphs 147 to 167 of the mother’s affidavit deals with relevant time frames of when orders were contravened.
The mother’s evidence is that she decided that the children would not be spending time with the father in accordance with orders.
Paragraph 167 of the mother’s affidavit reads as follows:
On Friday December 1st, I sent a message to Mr Denman stating the children would not be available that weekend, that they were not at after-school care and preschool, and that I would not be facilitating anymore time until the matter was sorted out at court and advised that I would be sending communication to that effect via his lawyer.
The mother has failed to adduce evidence from a suitably qualified medical practitioner that the children have suffered or are at risk of suffering psychological harm.
There is no evidence before the Court to suggest that any of the distress or emotional difficulties that the children are asserted by the mother to be suffering from are caused by the father’s conduct, except for the mother’s opinion which is given no weight.
Looking specifically at the evidence the mother relied upon, many of the references in the affidavit are of a historical nature and therefore are not relevant to the present issue.
For example paragraphs 1-3, 11-14, 26-46 and 49-134 relate to incidents that pre-date the interim consent orders dated 21 July 2017. This evidence is not relevant to the issue of reasonable excuse in circumstances where the mother consented to the July 2017 orders being in the best interests of the children.
There are a number of other paragraphs in the mother’s evidence which do not include a clear date range and further lack specificity. In those circumstances, the Court does not place any weight on that evidence in circumstances where it is not clear that the incidents occurred following the July 2017 orders.
A number of annexures to the mother’s affidavit filed 26 April 2018 are not in proper form, were not capable of being tested at hearing and simply are not relevant to the issue for the Court’s determination. As such the Court did not place any weight upon those documents in determining the issue of reasonable excuse. Specifically, as follows:
a)Annexure A – is a document prepared by Mr P dated 22 March 2018. The document does not provide evidence of the child [X] suffering psychological harm or being at risk of same. Further, the document does not stipulate the dates when observations have been made by the author.
b)Annexure B – is a behaviour record for the child [X]. The record does not substantiate anything other than the behaviour referrals for [X] prior to 2018.
c)Annexure C – is an affidavit of Mr J. It is not in proper form and Mr J was not available for cross examination.
d)Annexure D – is an affidavit of Mr C and annexures. It is not in proper form and Mr C was not available for cross examination.
e)Annexure E – is an affidavit of Ms E. It is not in proper form, Mr C was not available for cross examination and the information pre-dates the parents’ separation.
f)Annexure F – is an Affidavit of Ms A. It is not in proper form, Ms A was not available for cross-examination and further the information appears to relate to the expressed wish of [X].
g)Annexure G – is an Affidavit of Ms L. It is not in proper form, Ms L was not available for cross-examination and the information relates to incidents that occurred prior to July 2017.
h)Annexure H – is an Affidavit of Mr C. It is not in proper form, Mr C was not available for cross-examination and further the information relates to incidents that pre-date the July 2017 orders.
i)Annexure I – is a Psychological Assessment Report dated 23 December 2013. This document pre-dates the July 2017 orders. The issues canvassed in the Report in relation to [X]’s ADHD, behavioural difficulties and ODD have been pressed by the mother as relevant to her case since the commencement of the proceedings. These are not new issues and were clearly apparent at the time the July 2017 orders were consented to.
j)Annexure J – is a letter from Ms E, Senior Occupational Therapist dated 20 November 2015. Again, this document pre-dates the July 2017 orders and predominantly captures the mother’s reported concern regarding [X].
k)Annexure K – is a letter from Ms E, Senior Occupational Therapist dated 24 October 2015. Again, this document pre-dates the July 2017 orders and captures [X]’s diagnosis as at October 2015.
l)Annexure L – is a letter from Ms E, Senior Occupational Therapist dated 18 October 2017. The letter notes that whilst [X] presents as highly anxious there has not yet been a formal diagnosis of anxiety. It notes [X] presents with symptoms consistent with experiences of Developmental Trauma, however does not provide a diagnosis or indicate a time frame for the observations.
m)Annexure M – is a summary report of a Family Support Worker Mr P dated 6 October 2017. It provides not evidence to suggest [X] has been assessed as having been or at risk of being psychologically harmed.
n)Annexure N – is a referral from Dr S dated 18 March 2017. It pre-dates the July 2017 orders and further notes the mother and grandfather’s reported concerns.
o)Annexure O – is a copy of a letter the mother asserts [X] wrote to Ms E. The date of the letter is unclear, however, the mother asserts May 2016 and it is noted that this pre-dates the July 2017 orders.
p)Annexure P – is a copy of a letter and drawings the mother asserts [X] created in August 2016. There is no expert evidence adduced by the mother to interpret the drawings. Further, the document pre-dates the July 2017 orders.
q)Annexure Q – is a copy of a letter the mother asserts [X] wrote to Dr P and Ms E in November 2017. Neither Dr P nor Ms E were witnesses in the mother’s case.
In relation to the material tendered by the mother at the Contravention Hearing and marked as exhibits, the following is noted:
a)Exhibit 1 – Family & Community Services subpoena material:
i)Tab 1 – is a Helpline assessment capturing a third party reporting that the child [X] has reported a fear of going to the father’s house. This does not amount to evidence of psychological harm or risk of psychological harm.
ii)Tab 2 – is a Contact Record from February 2017, it pre-dates the July 2017 orders.
iii)Tab 3 – is a Helpline assessment dated 1 February 2018. It notes that the Department has screened the matter out for “child/YP has symptoms of significant psychological harm.”
iv)None of the material in Exhibit 1 contains the Department making an assessment of Risk of Significant Harm to [X] or [Y].
b)Exhibit 2 – Ms E, Occupational Therapist subpoena material:
i)Tab 1 – is an undated document containing handwriting and drawings. The author is unknown as is the manner in which the document came to be in existence.
ii)Tab 2 – are session notes dated 11 December 2017. The material includes notes about [X]’s worries which are not confined to worries in relation to his father.
c)Exhibit 3 –Mental Health subpoena material:
i)Tab 1 – are session notes from March 2017. The record pre-dates the July 2017 orders. Further, the material does not contain any evidence to substantiate [X] being at risk of psychological harm or having suffered psychological harm.
ii)Tab 2 – are session notes dated 1 August 2017. It records [X] showing dissatisfaction meeting his father but also notes that [X] did not verbalise this. It is therefore unclear how the dissatisfaction was observed.
iii)Tab 3 – are session notes with the child [Y] dated 14 March 2017. This record pre-dates the July 2017 orders.
iv)Tab 4 – is an undated referral form to Mental Health. It appears to capture issues of concern for [X] which were apparent, prior to the commencement of these proceedings and prior to the July 2017 orders being consented to by the mother.
v)Tab 5 – Mental Health Service “have your say” document dated 21 February 2017. Again, this document predates the July 2017 orders.
It is apparent that many, if not all of the difficulties that both children, and in particular, [X] has said to have experienced, are longstanding difficulties that were present for [X] prior to the commencement of these proceedings and prior to the interim consent orders which were entered into on 21 July 2017.
The mother submits that the father’s continued disregard for order 22 of the orders made on 21 July 2017, has led to immediate anxieties and stress to both children, particularly [X]. The Court heard the mother’s Application-Contravention in respect of this issue and dismissed it.
The submissions by the mother relate mostly to assertions that because the father discusses things with the children they are upset, that the children are refusing to see the father and/or that [X] has expressed a wish not to do so.
The mother also mentions “the hostile environment at Mr Denman’s home” and refers to hearsay evidences as to what occurred. It was reported by the children that the father and his partner had an argument and that they are always fighting.
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 well-being. In the circumstances none of the evidence establishes that the distress the mother claims [X] suffered was such that it would result in a risk of harm to that child, or indeed either of the children.
The Court finds that the mother has not established the defence of reasonable excuse within the meaning of s.70NAE(5) in respect of any of the counts.
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.[2]
[2] In the marriage of O’Brien (1993) FLC 92-396
Conclusion
Lest it be suggested that it was not considered, the Court finds that the cumulative effect of the facts as found is not such that there were reasonable grounds for the mother to hold a belief that withholding the children from the father, was necessary to protect the health or safety of the children.
The list of potential reasonable excuses for contravention at section 70NAE is of course not exhaustive. The Court respectfully agrees with the obiter comments by Warnick J[3], namely that subsection (5) ought to be applied whenever it can “fit” the circumstances[4].
[3] Childers & Leslie (2008) FLC 93-356 at [23]
[4] Which the Court has here paraphrased
The excuse which the mother relied upon with respect to each of the admitted contraventions was said to be within s70NAE(5) same not being established. The Court also finds that the mother did not have a reasonable excuse for her contraventions that is not within the list of s.70NAE(1).
The father brought his application promptly, it was heard on the same date that the matter was listed for final hearing. The matter had some difficulties with the preparation of a Family Report, but is nonetheless listed for final hearing the week after next. It is appropriate that any sentence hearing be at least listed at the same time.
In summary, the Court finds that the mother has failed to establish on the balance of probabilities a reasonable excuse for the admitted contraventions.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 31 October 2018
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