Don and McGlennan (No 3)

[2011] FamCA 346

FAMILY COURT OF AUSTRALIA

DON & MCGLENNAN (NO 3) [2011] FamCA 346

FAMILY LAW - CONTRAVENTION – where the mother alleges that the father has repeatedly contravened orders for her to spend time with the child without reasonable excuse – where the burden of proof rests with the mother – whether the mother has established on the balance of probabilities that the father has failed to or made no reasonable attempt to comply with the orders – where the Court held that the mother has not overcome the burden of proof – held that the father has not contravened the orders – where the matter was adjourned to allow for further submissions in relation to the orders to be made

Evidence Act 1995 (Cth) ss 8 & 140
Family Law Act 1975 (Cth) ss 65N, 69ZM, 69ZT, 70NAC, 70NAD, 70NAE & 70NAF

Briginshaw & Briginshaw (1938) 60 CLR 336
Judd & Marr [2010] FamCAFC 55
Miller v Minister of Pensions [1947] 2 All ER 372

APPLICANT: Ms Don

RESPONDENT: Mr McGlennan

INDEPENDENT CHILDREN’S LAWYER: Elliotts Barristers & Solicitors

FILE NUMBER: DNC 148 of 2009

DATE DELIVERED: 17 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 22, 23, 24 and 25 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McLaren

SOLICITOR FOR THE APPLICANT: Asha McLaren

COUNSEL FOR THE RESPONDENT: Mr O'Donnell

SOLICITOR FOR THE RESPONDENT: Halfpennys Barristers and Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Elliott

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Elliotts Barristers & Solicitors

Orders

1. The matter is listed for further submissions as to the orders which each of the parties and the Independent Children’s Lawyer are seeking to a date to be fixed after consultation with Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Don & McGlennan (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 148  of 2009

Ms Don

Applicant

And

Mr McGlennan

Respondent

REASONS FOR JUDGMENT

introduction

1. The current proceedings before the Court are the Contravention Applications filed by the mother Ms Don on 25 November 2010.  The mother alleged that on various dates between 7 August 2010 and 20 November 2010 “the father unreasonably refused to allow the mother to spend time with [M] ([…]/9/2000) thereby frustrating the Court Orders”.  (See Contravention Application Schedule filed by the mother on 25 November 2010).

2. The father denied that he had contravened the orders without reasonable excuse.

3. The relevant orders were made on 3 June 2010 when His Honour Justice Burr delivered his judgment and made orders after hearing a lengthy trial.

4. The Orders provided that M live with the father who was to have sole parental responsibility for M.  The mother claims that the father contravened paragraphs 3 and 4 of the Orders of 3 June 2010.

5. Paragraphs 3 and 4 are as follows:

   “3.That save and except as otherwise agreed between the parties, the mother spend time with [M] each Saturday from 10.00 am until 5.00 pm UPON NOTING that:-

   (a)       such time shall include a visit to the [C] swimming pool;
   (b)       such time shall include time spent at the mother’s residence;

   (c)the mother will arrange lunch for [M] which includes Red Rooster chips.

   4.That all handovers at the commencement and conclusion of each period of time that [M] spends with the mother shall be conducted at the premises of [Children’s Contact Centre 1] SAVE AND EXCEPT that in the event that [Children’s Contact Centre 1] are not prepared to make their facilities available to the parties, then handovers are to be conducted at the main entrance of the [S Shopping Centre].”

Hearing

1. The matter was listed to commence on 21 March 2011.  Following upon a request for the matter to be adjourned, the proceedings commenced on 22 March 2011 at approximately 11.00 am.

2. The Contravention proceedings were heard in Darwin on 22, 23, 24 and 25 March 2011.  At that hearing the mother was represented by Ms McLaren, the father by Mr O’Donnell and the Independent Children’s Lawyer by Ms Elliott.

Relevant sections of the Family Law Act 1975 (Cth)

1. Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) refers to “consequences of failure to comply with orders and other obligations, that affect children”.

2. The most relevant sections in relation to these proceedings are as follows:

   Section 65N

   General obligations created by parenting order that deals with whom a child spends time with

   (1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

   (2)  A person must not:

   (a)    hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b)    interfere with a person and the child benefiting from spending time with each other under the order.

   Section 69ZM

   Proceedings to which this Division applies

   (1)This Division applies to proceedings that are wholly under this Part.

   …

   (4)Proceedings to which this Division applies are child-related proceedings .

   Section 69ZT

   Rules of evidence not to apply unless court decides

   (1)These provisions of the Evidence Act 1995 do not apply to child-related proceedings:

   (a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;

   Note:   Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.

   (b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

   (c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

   (2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

   (3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

   (a)the court is satisfied that the circumstances are exceptional; and

   (b)the court has taken into account (in addition to any other matters the court thinks relevant):

   (i)the importance of the evidence in the proceedings; and

   (ii)the nature of the subject matter of the proceedings; and

   (iii)the probative value of the evidence; and

   (iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

   (4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

   (5)      Subsection (1) does not revive the operation of:

   (a)      a rule of common law; or
   (b)      a law of a State or a Territory;

   that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.

   Section 70NAC

   Meaning of contravened an order

   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;

   Section 70NAD

   …

   (b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order

   Section 70NAE
   Meaning of reasonable excuse for contravening an order

   (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).

   …

   Section 70NAF
              Standard of Proof

   (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

   (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)The court may only make an order under:

   (a)    paragraph 70NFB(2)(a), (d) or (e); or

   (b)    paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

3. Various powers of the Court are set out under the subdivisions B, C, D, E and F of Division 13A.

Evidence Act 1995 (Cth)

1. Section 8(1)

   Operation of other Acts etc.

   (1)This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903 .

2. Section 140

   Civil proceedings: standard of proof

   (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence; and
   (b)      the nature of the subject-matter of the proceeding; and
   (c)      the gravity of the matters alleged.

3. In the Dictionary of Evidence Act 1995 (Cth) “case” of a party means “the facts in issue in respect of which the party bears the legal burden of proof”.

Background

1. The mother and father have three children, Q who was born in October 1994, L who was born in February 1996 and M who was born in September 2000.  His Honour Justice Burr made orders by consent which provided for Q and L to live with the mother.  He then heard lengthy proceedings to determine the parenting orders in relation to the child M.

2. M has been described as severely autistic.

3. The particulars of the history of the relationship between the parties and the children are set out in the detailed judgment of His Honour Justice Burr delivered on 3 June 2010.

4. The orders made by His Honour Justice Burr are the subject of an appeal instituted by the Independent Children’s Lawyer and supported by the mother.

5. The mother alleges that the father has “without reasonable cause or excuse refused to hand over [M]” on 9 occasions from August to November this year, details of which are set out in the schedule attached to the application for contravention.  (Paragraph 6 of the affidavit of the mother filed on 25 November 2010).

6. The Contravention Application has attached to it a schedule listing nine separate dates (7 August;  14 August;  28 August;  18 September;  … September;  16 October;  23 October;  6 November and 20 November 2010) indicating a time of 10.00 am for each occasion and the S Shopping Centre as the place on each occasion.  The statement of the alleged contravention in the Contravention Application is the same for each occasion and is as follows, “the father unreasonably refused to allow the mother to spend time with [M] ([…]/9/2000) thereby frustrating the Court Orders”. 

7. No issue was raised at the hearing about the failure to attach a copy of the Order of 3 June 2010 to the Contravention Application.

8. The mother filed a further affidavit on 29 November 2010 providing further sworn evidence about each occasion save and except there was no reference to the 20 November 2010 in that affidavit.

9. The father denies any contravention without reasonable excuse.  He relied upon his affidavits filed on 16 December 2010 and 21 March 2011 and his oral evidence.

10. In his first affidavit the father said that on some occasions when the mother did not spend time with M it was because M was sick or had gone to hospital.  He also said in his first affidavit that on a number of occasions the mother refused to pick up M, saying that she was either sick or busy.  He says in this affidavit that the mother said she was sick on 11 September 2010.  The 11 September 2010 however is not a date upon which the mother alleges there was a contravention.

11. In that affidavit and his subsequent affidavit the father refers to other occasions when the mother failed to attend the S Shopping Centre to collect M.

12. In the affidavit filed on 21 March 2011 the father sets out specific references to each of the occasions referred to in the Contravention Application.

13. At the conclusion of the mother’s oral evidence counsel for the mother indicated that was all of the evidence she proposed to call to support the contraventions.

14. After hearing submissions of counsel in relation to a case to answer I directed that the matter proceed and refused the request by counsel for the father to dismiss the contraventions.

15. The father then gave his oral evidence.

Consideration of evidence relating to each of the alleged contraventions

1. Alleged contravention 7 August 2010

1. In the mother’s affidavit filed on 29 November 2010 the mother says that she went to the S Shopping Centre “at about 9.30 am and waited until about 10.30 am”.  She says that the father did not arrive, did not call her or provide any reason or explanation for failing to bring M that day.  She said that she made a voice recording of the event on her mobile telephone at about 10.10 am that day.

2. In his affidavit filed on 21 March 2011 the father says:

   “On Saturday, 7 August 2010, at about 9:50am I attended [S] Shopping Centre to drop [M] (hereinafter referred to as “[M]”) off to [Ms Don] (hereinafter referred to as “[the mother]”).  [The mother] did not arrive at the scheduled time at 10.00 am.  I tried calling her on her number [0415…] but there was no answer.  I then took [M] home at approximately 10:40 am.”

3. During the oral evidence of the mother she referred to the message which she said she had recorded on 7 August 2010.  When asked what the telephone number was upon which she made the recording she said 0451… (my emphasis).

4. The mother denied the allegations made by the father that she was not at the S Shopping Centre at 9.50 am on 7 August 2010.  She said that 0415… was her telephone number at the time (my emphasis).  She said that she did not receive a telephone call from the father at that time.

5. During this part of her evidence the mother produced a drawing of the S Shopping Centre (which became Exhibit 2) indicating where she said she had waited for the father to deliver M.

6. During cross-examination by counsel for the father, the mother was asked about her reference to her attendance at the shopping centre “at about 9.30 am” (my emphasis).  She then said that it was exactly at 9.30 am but denied that the use of “at about” was incorrect.  The mother said that on 7 August 2010 she was at the front of the shopping centre between the two entrances.

7. During cross-examination the mother insisted that on 7 August 2010 she was at the shopping centre at 10.00 am.  She insisted that she went every single Saturday except one when she was sick and insisted that she was “never late, not once”.

8. During cross-examination by the Independent Children’s Lawyer I asked questions of the mother about her telephone numbers and she indicated that it was hard for her to remember telephone numbers.  She then gave evidence that the telephone number she referred to earlier in the day was incorrect and that the correct number was 0415... not 0451… (emphasis added).

9. There was also some suggestion that there was a telephone number 0450… .  The mother was asked to bring to the Court any documents that she possessed in relation to those telephone numbers.

10. During re-examination the mother gave evidence that since 3 June 2010 she had had two telephone numbers.  She said that on 20 September 2010 her telephone was “cut-off”.  She then got a new telephone number on 8 October 2010.  The first was a Telstra telephone, the second was a Vodafone.

11. When asked whether he recalled being at the S Shopping Centre on 7 August 2010 the father said that he went every Saturday.  His oral evidence indicated that on each occasion he went to the shopping centre on Saturday mornings, he went in the exit.  It is meant to be a one-way exit, but he used it as an entrance.  He said he “never ever” used the front entrance.  His evidence was that he drove straight up the exit towards the front of the shopping centre.  He would then drive past the front entrance waiting to see if the mother was there.  He described in his evidence on occasions parking in the disabled parking bay or in front of the “tin things”.

12. During cross-examination by counsel for the mother, the father confirmed that he went to the S Shopping Centre on 7 August 2010 with M.  The father said he attempted to telephone the mother on 7 August 2010.  He maintained that he had not received a call from the mother on that occasion or other occasions when handover did not take place.

13. During cross-examination by counsel for the Independent Children’s Lawyer the father was again asked about his procedure when he attended at the S Shopping Centre.  He confirmed that when he attended at the shopping centre with M he drove around and around the shopping centre car park area and would not get out of the car, but would wait to see the mother at the front of the shopping centre.

1. Alleged contravention 14 August 2010

1. In the affidavit of the mother filed on 29 November 2010 the evidence she provides concerning 14 August 2010 is an exact word for word copy of the evidence in relation to 7 August 2010 (compare paragraph 2 with paragraph 3).

2. In giving evidence-in-chief in response to the father’s affidavit the mother maintained that she was at the front of the S Shopping Centre on 14 August 2010 and did not see the father or M.  She claimed to be at the front of the shopping centre from 9.30 am until 10.30 am.  She gave evidence on that occasion she had her mobile telephone with her and she did not receive any call from the father between 9.30 am and 10.30 am.

3. During cross-examination by counsel for the father, the father’s allegation that he was at the S Shopping Centre on Saturday 14 August 2010 but the mother was not there at 10.00 am was put to the mother.  She said that it was not correct.  Again, she said that it was not true that the father had telephoned her number.

4. In the father’s oral evidence he again asserted that he did attend the S Shopping Centre on 14 August 2010 with M.

5. There is no other specific evidence dealing only with 14 August 2010 although there are many other parts of the evidence of both witnesses which relates to their behaviour on the dates and times in a general sense.

1. Alleged contravention 28 August 2010

1. Paragraph 4 of the mother’s affidavit filed on 29 November 2010 is an exact copy of paragraphs 2 and 3 which related to the 7 August and 14 August 2010.

2. In the father’s affidavit filed on 21 March 2011 he states:

   “4.On Saturday, 28 August 2010, at about 9.00am I called [the mother] to advise her that [M] is sick and that he will not be able to attend [S] Shopping Centre.  There was no answer.  I attended [S] Shopping Centre anyway to let her know that [M] was sick.  [The mother] did not attend at the scheduled time at 10.00 am.  I tried calling her on her number [0415…] but there was no answer.  I then took [M] home.”

3. That section of the father’s affidavit was put to the mother during her oral evidence in chief.  She said she did not receive a telephone call from the father at about 9.00 am that morning.  She said her telephone was working and it was in her hand.  Her oral evidence was that she was present at the S Shopping Centre on 28 August 2010 between 9.30 am and 10.30 am but she did not see M that day.

4. Under cross-examination by counsel for the father the mother said that she did not receive a call from the father on 28 August 2010 at about 9.00 am. 

5. During the cross-examination of the father by counsel for the mother, the father confirmed that he attempted to telephone the mother on 28 August 2010 at 9.00 am, but that there was no answer.  After vigorous cross-examination by the counsel for the mother about telephone numbers and attempted telephone calls, the father maintained his evidence.

6. Later during further cross-examination by counsel for the Independent Children’s Lawyer, the following exchange took place:

   “Did he go to school on 27 August?---I wouldn’t know without being able to check the school records.  I don’t have the school records to go by.  If he’s not in hospital, he’s at school;  that’s the way it goes. 

   So on 28 August you attended at the [S] Shopping Centre, you say?---Was it a Saturday?

   Yes, it was a Saturday?---Well, then I would have been there. 

   And did you have [M] with you?---Of course I would have had [M] with me.

   So he wasn’t too ill to be able to travel to the shopping centre?---No, he was too ill, but the fact of the matter is, no matter how sick he is, if I don’t take him there for her to have him, you guys are going to bring me in court saying I’m doing the wrong thing, so I actually have to take him when he’s sick because you say so, same as I’ve got to try and drag him out of the house kicking and screaming because you demand I’ve got have him there by 10 o’clock, you know?  It’s just ridiculous. 

   Now, you said that whenever he’s sick you take him to the hospital?---If he’s sick enough, yes, but sometimes he gets the flu, and the rules of the hospital are he can have a temperature for up to 24 hours, and if he’s not drinking or keeping down any fluids after 24 hours, then he has to go to the hospital, but for the first 24 hours I’ve got to keep him cool and keep his fluids up.  That’s the way it works;  I’ve basically got to be a doctor to him myself.  I’ve been - - -

   So on Saturday 28 August, did you take him to the hospital?---I don’t know without checking the hospital records;  I couldn’t tell you.  I’ve taken him to the hospital that many times.  If you want me to subpoena the hospital records, let’s do it;  for the last six months you’ll be able to find out. 

   But, [Mr McGlennan], in your affidavit you say that you do remember 28 August, because you’ve referred to it in paragraph 2?---That’s what I’ve written – if it’s in the affidavit, it means I must have had a letter for the doctor or hospital, something to prove that he was there if I went to the hospital.  I wouldn’t – all right. 

   Well, I call on that letter?---All right, well, I’ll have to go to the hospital and ask for it. 

   Well, you said you had the letter, [Mr McGlennan];  where is it?---No, I never – I said the hospital has letters.  All I’ve got to do for anything you want, medical reports, I’ve got to walk into the hospital downstairs, the bottom floor, and say, “Look, [M] was in here on the 28^th, can you please give me the doctor’s report of what he was in here for?”  Now, I can do that if you want;  you’ll have to adjourn the case, we’ll go to the hospital for a couple of hours while we sort it out. 

   So when you did your affidavit, how did you remember Saturday 28 August?---I can’t, I can’t – without referring to my affidavit, I don’t even know what you’re talking about.  I don’t know what date you’re talking – I can’t confirm a date for hospital at [M] without comparing my affidavit with the medical records.  I can’t answer that otherwise.”

1. The detailed cross-examination continued.  The father was called upon to produce any notes that he had used when preparing the affidavit which referred to the occasion of 28 August 2010.  The father’s solicitor was given an opportunity to look at his file to ascertain if there were any notes of the father.  Later the counsel for the father said that the father’s solicitor indicated that there were no notes of the father on the solicitor’s file relevant to 28 August 2010.  When further cross-examined about this occasion he was asked “now what was he sick with?”  – Answer “some type of flu.  I can’t be exactly sure what it was, just a bit of a fever, hot, sick, throwing up, that’s it.”  He did not know if he had any written record relating to any illness on that day.

2. The father maintained his evidence that even though M was sick on that day, he took M to the shopping centre around the appointed time for handover.

1. Alleged contravention 18 September 2010

1. Paragraph 5 of the mother’s affidavit filed on 29 November 2010 sets out the mother’s evidence in relation to the 18 September 2010.  Again, it is an exact copy of the wording of paragraphs 2, 3 and 4 save and except that the sentence “so I went home” appears twice.

2. In the father’s affidavit filed on 21 March 2011 the father refers to receiving a text message from the mother on 11 September 2010 (not a date when contravention is alleged) using her mobile number 0415… .  The message was that ‘I won’t be taking [M] today because I feel sick”.  The father says that he attended at the S Shopping Centre in any event but the mother did not arrive.

3. In paragraph 7 of that affidavit the father says in relation to the events of 18 September 2010:

   “On Saturday, 18 September 2010, at about 9.50 am I attended [S] Shopping Centre to drop [M] off to [the mother].  [The mother] did not arrive at the schedule time at 10.00 am.  I tried calling her on her number [0415...] but this time the automated operator said that the mobile number has been disconnected.  I then took [M] home at approximately 10.40 am.”

4. In her oral evidence in chief the mother confirmed that she was sick on 11 September 2010.

5. The mother denied that she was not at the S Shopping Centre at 10.00 am on 18 September 2010.  She said “that’s not true I was there”.  She said that her telephone was in her hand.  The mother gave evidence that that particular telephone number was not disconnected until 20 September 2010.  During cross-examination by the counsel for the father she was asked “On the Saturday 18 September, [the father] says he attended at 9.50 am you weren’t there at 10.00 am, and again, he tried to ring?”  Answer – “That’s not true”.

6. The mother confirmed her earlier evidence that her telephone was disconnected on 20 September 2010.  When it was put to her the father’s evidence was that when he called that it went through to an automated operator indicating that it had been disconnected on 18 September 2010, the mother said that the father “told lies” and the telephone did not get “turned off” until 20 September 2010.

7. During re-examination the mother maintained that her telephone was cut off from 20 September 2010 and that she did not get a new telephone number until 8 October 2010.

8. In cross-examination by counsel for the mother, the father repeated that on 18 September 2010 he attempted to call the mother but her telephone was disconnected.

9. On 24 March 2011, after the mother had completed her evidence, Exhibit 3 was produced by the mother’s counsel, being a Telstra Tax Invoice issued on 8 October 2010 for telephone number 0415… .  This was the telephone number referred by the father in his evidence and affidavit of 21 March 2011 paragraphs 6 and 7.  The Tax Invoice included charges for the period 8 September to 27 September 2010. 

10. The invoice includes a reference to “Service Termination Fee $1,238.76” but the detail in the invoice does not assist in determining when the telephone number ceased to be operating.

1. Alleged contravention … September 2010

1. The mother’s affidavit filed on 29 November 2010 sets out her evidence in relation to this date using the exact wording that was used in the previous paragraph, including the repetition of the sentence “so I went home”.

2. The father’s affidavit filed on 21 March 2011 confirms that … September 2010 was M’s birthday.  He said he was running about 10 minutes late, “as [M] did not want to get out of the pool”.  The affidavit continues:

   “…I had no way of contacting [the mother] that I was running late as she had disconnected her mobile number.  At approximately 10.10am [the mother] called me on a private number and yelled at me saying that I am late.  I tried to explain to her that [M] got carried away with the pool and that we were just about to leave the house as we spoke.  I asked her to give [M] some slack as it was his birthday.  I also told her that I would have called her to let her know if I had her new mobile number.  She said nothing further and hung up.  I immediately attended [S] Shopping Centre and was there at approximately 10.20 am.  She was not present.  [M] and I waiting around with my grand daughters, [LL] and [SS] until about 10.30am.  My grand daughters wanted to buy some chips and a drink so I bought them at the drive through of the shopping centre.  Annexed and marked with the letters “MM-2” is a true copy of the receipt of the purchase.  We all then went to [the mother’s] residence to drop [M] off but [the mother] was not there.”

3. In the mother’s oral evidence in chief she said that on the day before M’s birthday she went to M’s school and spoke to his teacher and then sat with M “for about half an hour” …“he was happy.  He was healthy”.  She said there was nothing wrong with him at all and that he was happy to see her at school.

4. The mother further said that on … September 2010 she left home about 9.15 am and was at the S Shopping Centre by 9.30 am.  She said that she was at the front entrance of the shopping centre and the father did not arrive. She said that she did not receive a telephone call from the father on … September 2010.  She also denied that she called the father on a private number on that date.  She said that there was no conversation.

5. The mother denied that she was not at the S Shopping Centre at 10.20 am, she said “It was [M’s] birthday and I waited out the front of the [S] Shopping Centre from 9.30 am to 10.30 am and [the father] did not turn up with [M]”. 

6. In relation to the father’s evidence that he had taken M to the mother’s home on that day, the mother was asked whether the father was allowed to come to her residence or street at that time.  She said that he was not because there was a restraining order saying he was not allowed within 100 metres of her residence at that time.

7. Annexure “MM-2” to the affidavit of the father filed on 21 March 2011 is a receipt for chips and a drink which the father says were items he purchased at the S Drive-Thru Bottle mart.  The receipt date and time is “[…]-Sep-2010 – 10.34AM”.

8. The mother did not accept that this receipt indicated that the father had purchased the goods or that he was at the front of the S Shopping Centre that morning at 10.20 am.

9. During cross-examination by counsel for the mother, the father said that he was not aware that the mother had visited M’s school on the day before M’s birthday.  When asked:

   “and on [the day before M’s birthday] you agree that there was nothing wrong with [M].  [M] was fine and healthy that day?

ANSWER:No he wasn’t.  He had a flu.  He had a flu for a couple of days.

QUESTION:He went to school on [the day before his birthday]?

ANSWER:Yes – he still goes to school when he’s got a flu I don’t keep him home just because he’s got a flu.  He’s still got to go to school.  He’s got a routine to stick to.  Only if it is a severe flu, then he goes to the hospital, but if it is just a bit of a runny nose or a bit of a cough, well, he can still go to school.

QUESTION:Right.  So he was well enough to go to school on [the day before his birthday], but he wasn’t well enough according to you to be given – handed over to the mother for her to spend time with him on […].  Is that what you’re saying?”

1. The father gave a long detailed answer insisting that he was at the S Shopping Centre on … September 2010 and that the mother had telephoned him at about 10.10 am yelling at him because they were late.  Although excitable when giving his evidence at this time and at other times, he appeared to be behaving in a natural way.  His mannerism and language at this part of cross-examination and other occasions, supports a finding that he was telling the truth. 

2. When shortly thereafter he was cross-examined about the receipt from the bottle shop timed at 10.34 am, the following took place:

   “MS McLAREN:   [Mr McGlennan], that receipt shows that you attended the S bottle shop?‑‑‑Yes.

   At 10.34 in the morning?‑‑‑That’s right.

   Correct?‑‑‑Yes, yes.

   That is 34 minutes late, isn’t it?‑‑‑No, no, I got there at 10 o’clock.  That’s when I left the S Shopping Centre.  I got that receipt on my way out, not when I first got there.

   [Mr McGlennan], isn’t it your case that [M] didn’t get out of the swimming pool on his birthday and therefore you were running late?‑‑‑I was running about five or 10 minutes late.  We left home at five – she called me at 10 past 10 and we left straight after that.  As soon as she hung up, I chucked everybody in the car, “Right, let’s go, la, la, la,” because we just got [M] out of the pool, so we would have left my place at quarter past, which means driving at 110 Ks an hour like I do everywhere – I don’t follow the speed limit – I would have been at the S Shopping Centre by easy 10.20 at the least.

   10.20?‑‑‑I’ve got a fully worked car, my car is fully worked.

   So when you just told the court that you got there at 10 o’clock, that is not correct?‑‑‑I didn’t say I got there at 10 o’clock.

   You did?‑‑‑I said I was – I always say I leave my home about quarter to 10.  This day we were late.  It was his birthday.  She called me, started abusing me, didn’t let me finish to say I was on my way, so we left and we got there.  When we got there, it would have been about quarter past because I flew straight there, and I stayed there till 10.30.

   [Mr McGlennan], you just told this court a few minutes ago that you were there from ‑ ‑ ‑?‑‑‑You’re twisting it, no you’re twisting it.

   Let me finish?‑‑‑No, you’re twisting it.

   From 10 o’clock to 10.30 and that you got the chips and the bottle of water at 10.34 on your way out.  Now you’re telling the court that you only arrived there at 10.20?‑‑‑No, I didn’t say that at all.  I said ‑ ‑ ‑ 

   Is that correct?‑‑‑ ‑ ‑ ‑ she called me about five, 10 minutes past 10.  I didn’t know what time it was because I don’t have a clock.  If you look at all my phones, not one of them has the right time on it.  Go and have a look, you will see.  They’re all time and dated different times and dates.  She called me, said I’m running late.  She’s the one that told me I was late.  I didn’t realise it.  I said, “Yes, we’re coming now,” and I didn’t get a chance to tell her I had [LL] and [SS] because she chucked a nana.  Anyway, do you know what the funny thing is, she spent the next day, Sunday, with [M], [LL] and [SS] at bloody the thing.  We even got a message from her from it where she says she didn’t get to give the girls her lollipops.”

1. Shortly thereafter the father was further cross-examined about the times, he said events happened on … September 2010.

2. Annexure “MM-3” to the father’s affidavit filed on 21 March 2011 is an email between solicitors in the father’s solicitors’ office it says inter alia:

   “[The father] stated that he was going to drop his son off to her and she called and yelled that he was late.  This happened at about 10.10am on Saturday.

   He then arrived at his ex wife’s house at 10.30am and she wasn’t there.”

3. The cross-examination continued:

   “But your evidence is that you arrived at the shopping centre at 10.20 and that you stayed at the shopping centre at – till 10.30.  That you went through the bottle shop at 10.34, therefore you could not have been at [the mother’s] house at 10.30 on […] September?‑‑‑I just told you, I was there about 10.36, 10.38.  A lousy six to eight minutes.  You want to make a big deal out of it, go for it.  Who cares?  What is the relevance?  What does it mean?  Nothing.  I still went to her house.  Okay, a couple of minutes different timing.  I didn’t have a clock.  Couldn’t tell you exact time.

   [Mr McGlennan], you are just making up this evidence as you go, and you can see that there are direct contradictions between what you told your solicitor’s office on 27 September?‑‑‑I can’t see any contradictions at all.  I can’t see not one contradiction.  I say about 10 past 10, because [the mother] told me I was 10 minutes late and I’m supposed to drop him off at 10 o’clock.  So she tells me I’m 10 minutes late.  That means it has got to be 10 past 10.  And I jumped in my car, grabbed the girls, put them in the car as quickly as I could and headed off at 110 Ks an hour to get him there on time.  She didn’t turn up.  I then went through the bottle shop, got a receipt, drove down a couple of minutes down the road, past her place, seen there was no car there, no one living in the house, so I drove home.  And [the mother] did not bother to ring me to ask me where I was, did not bother to do anything.  So I don’t know what you’re going on about.”

4. Shortly, thereafter the following passage:

   “You didn’t go to the house, [Mr McGlennan], had you gone there you would have known that [L] was still at home?‑‑‑No.  I went past the house and she wasn’t there.  They were down at [B Street], her new house.  That’s where they were.  And they were trying to keep the new house a secret from me because they didn’t want the court to know that it doesn’t have a six foot security fence around and that [the mother] has no weed cloth up around her fence.  It’s not secure.  It’s not the same house that the judge granted her permission to have access in.  Her access is supposed to be done in this other house.  It’s not.  She has now moved to a different house.  Has the kid in a different house.  This is breaching the court order there. 

   [Mr McGlennan], you are lying to this court because the mother did not change her residence until 11 November last year? ‑‑‑Well, how am I supposed to know that.
   You are making up your evidence and your stories as you go along?‑‑‑I don’t know – how do I know when she moved out?  I don’t know.  All as I know is I went past her house and there was nobody there, no furniture no nothing.  And the thing is [L] had a pool table underneath the awning at the front of the old house, and that pool table was in the back yard of the other house on … September.

   That is a lie, [Mr McGlennan]?‑‑‑No, it’s not.  It’s a fact.  That’s how I found out where her address was.  A simple mate of mine drove past and told me, “Hey, your son’s pool table is out the back yard of another house now.”  Otherwise I wouldn’t even have known she moved.  She wasn’t even going to tell me she moved. 

   By driving ‑ ‑ ‑?‑‑‑She was going to be having access to him, taking him different places and not even tell me that she had moved house.  So I wasn’t even going to know where he was.

   By driving past the mother’s residence, which was [W Street], you could not have said whether she was in there or not?‑‑‑There was no more stuff out the front.  Two days before there was play things, swimming pools, all sorts of stuff underneath the awning.  And then on the … there’s nothing there.  The yard’s cleaned out.  There was a big skip – a rubbish tip bin, sitting inside the driveway full of rubbish and a bunch of work crew men in there cleaning the place up.

   [Mr McGlennan], the mother was living at [W Street] on […] September 2010?‑‑‑Well, I don’t know that.  I don’t know that.  I went past the house there was nobody there.  That’s all I done.  I didn’t get out of the car and go and knock on the door.  I certainly drove past with my grand daughters and [M] in the car.  We pulled up out the front for a couple seconds, looked, “Doesn’t look like anybody’s living here, Poppy,” and we drove off.”

1. During further cross-examination about the events of that day the father maintained his insistence that although he was running late he did go to the S Shopping Centre on that day and that the mother was not there.

1. Alleged contravention 16 October 2010

1. Paragraph 7 of the mother’s affidavit filed on 29 November 2010 sets out the mother’s evidence about this date.  The wording is exactly the same as the wording used for the mother’s evidence in paragraphs 3 and 4 of that affidavit and the evidence in paragraphs 5 and 6, save and except in the latter two paragraphs there is a repetition of the sentence “So I went home”.

2. In the father’s affidavit filed on 21 March 2011 he refers to obtaining a new telephone number for the mother from his adult son W.  Paragraph 13 of his affidavit says:

   “13.On Saturday, 16 October 2010, at about 9.00am I called [the mother] on her new number and old number to advise her that [M] is sick and that he will not be able to attend [S] Shopping Centre.  The old number was disconnected and there was no answer to the new number.  [The mother] did not call me back.”

3. In the mother’s oral evidence in chief she said that the father did not call her at any time on 16 October 2010 to advise her that M was sick.  She said that she walked up to the S Shopping Centre and waited for M from 9.30 am until 10.30 am and he did not come.  She said that there was “No communication, no phone calls, nothing”.

4. During cross-examination by counsel for the father, the mother repeated her evidence that the father had not called her on 16 October 2010 to advise her that M was sick.

5. Under cross-examination by counsel for the mother, the father insisted that he did go to the S Shopping Centre on 16 October 2010 and that he telephoned the mother’s number but she did not answer.  The following exchange then took place between counsel for the mother and the father:

   “And [Mr McGlennan], isn’t it your case that because [M] was sick on 16 October 2010, you didn’t go to the S Shopping Centre because he was sick?---Well, it was quite simple.  I know for a fact that [the mother] and all you women will try anything you can to get [M] from me, so why would I be stupid enough not to turn up?  I turn up at the [S] Shopping Centre even when [the mother] says she’s not going to be there because I think it’s a trap.  I think it’s a trap every day when I go and drop him off, so of course I’m there.”

1. Alleged contravention 23 October 2010

1. In the mother’s affidavit filed on 29 November 2010 she sets out the evidence in relation to the alleged contravention on that day using exactly the same words that she used in previous paragraphs.

2. In the father’s affidavit filed on 21 March 2011 the father says at paragraph 14:

   “14.On Saturday, 23 October 2010, at about 9:50am I attended [S] Shopping Centre to drop [M] off to [the mother].  [The mother] did not arrive at the scheduled time at 10.00 am.  I tried calling her on her new number 0450… but there was no answer.  I bought some potato chips and a drink at the shopping centre drive-thru.  I then took [M] home at approximately 10:40am.  Annexed and marked with the letter “MM-5” is a true copy of the purchase.”

3. The Annexure “MM-5” is another receipt from the S Drive-Thru Bottle mart showing the purchase of “crunch crisps and a drink” on 23 October 2010 at 10.34 am.

4. This part of the affidavit was put to the mother in her oral evidence.  She said that she was out of the front of the S Shopping Centre waiting for [M] and that she did not see the father.  She said that she had the telephone with her and it was switched on and that she did not receive a call from the father.  She maintained this evidence in cross-examination.

5. When cross-examined about the Annexure “MM-5” the tax invoice from the drive-in bottle shop for 23 October 2010, the following exchange took place between counsel for the father and the mother:

   “MR O’DONNELL:   So sorry, what was the last part of the evidence, so that we’re all clear?‑‑‑[The father] has a friend by the name of [Mr Y], that works in the [S] bottle shop, drive-thru bottle shop.

   Now, why do you raise that?‑‑‑Well, it’s quite possible that these receipts were organised for [the father] to have these brought up on a till.

   So you’re saying you believe that that’s untrue – it’s manufactured evidence.  Is that what you’re saying?‑‑‑That’s one scenario that I believe, or [the father] did go through, but he was still late, and he wasn’t there, and I didn’t see him there, and he does have a friend that works in that bottle shop that could have wrote up these receipts for him.

   So at your own volition, you’re adding the fact that you believe a friend who works at the bottle shop has conspired with [the father] to produce false evidence to this court.  You’re just adding that, are you, in your evidence?‑‑‑Yes, I would like the court (to know (sic)) that [the father] is known to do things like this.

   And you have no evidence whatsoever to substantiate that allegation, do you?‑‑‑No, but I know [the father].”

6. During cross-examination by counsel for the mother, the father confirmed his evidence that this was the day he was at the S Shopping Centre at a time when he tried to call the mother but she did not answer her telephone.

1. Alleged contravention 6 November 2010

1. The evidence of the mother in her affidavit of 29 November 2010 under this date is the same wording as the earlier paragraphs, save and except after the sentence “So I went home”, the following appears instead of the last sentence in all the other paragraphs: 

   “On this occasion I called the father’s telephone but there was not (sic) response the father called my phone at 6.30 pm and left a message saying ‘who is this’ even though I gave this phone number to the father on 8 October 2010 and he is fully conversant of it (sic).  The father contacted me on 9 October 2010 on this phone number”

1. The father’s response in his affidavit filed on 21 March 2011 is as follows:

   “15.On Saturday, 6 November 2010, at about 9:00am I called [the mother] on her new number and old number in hope that it has been reconnected, to advise her that [M] was sick and that he will  not be able to attend [S] Shopping Centre.  The old number was disconnected and there was no answer to the new number.  [The mother] did not call me back.

   16.At this stage, I had lost faith in trying to contact [the mother] by telephone.  In the afternoon the same day I noticed a missed call from [the mother’s] new number.  The call would have been made at about 12 noon.  I messaged the number asking who’s (sic) number does this belong to.  I asked this because I had never spoken to [the mother] on this new number before and wanted her to confirm that the number was hers in writing.  I received no reply to that message.”

2. In her oral evidence the mother repeated her evidence that she was out the front of the S Shopping Centre on 6 November 2010 between the times of 9.30 am and 10.30 am.  She said that she did not see the father and that he did not bring M to her on that day.  She said that she then telephoned the father’s telephone at lunchtime and that he did not answer the telephone.  She agreed that on 6 November 2010 the father sent a message to her telephone.  When asked whether she answered the message which was enquiring whose telephone number it was, she said “I told him earlier that it was my phone number”.  She said that she did not recall whether she answered that message from the father.

3. During cross-examination by counsel for the mother, the father was asked whether he was at the shopping centre on 6 November 2010 at the appointed time of 10.00 am.  In a long answer he said that it may not have been exactly at 10.00 am, but that he would have got there some time between 10.00 am and 10.30 am.  He insisted that he was at the shopping centre some time between 9.30 am and 10.30 am on that day.

4. During cross-examination of the father by counsel for the Independent Children’s Lawyer the following questions and answers took place:

   “Could you read paragraph 15, please?  We’re talking now about 6 November.  [M], you say, was sick on that day.  What was wrong with him on 6 November?---Don’t know.  He was sick.  I don’t know exactly what he was, wouldn’t be able to find out without referring to medical records.  What you’re asking is an impossible question to answer, so I can’t answer it.
   Well, now – see, on 18 March you swore that he was sick on 6 November?---Well, if I swore that, he was sick.  Simple as. 

   How did you know on 18 March that he was sick on that date?---Because he was sick.  I don’t understand the – what are you asking me?  It doesn’t make any sense.  How do I – it was that day, he was sick. 

   Well, how did you remember?  Did you have it written down?---No, he was just sick.  He was sick lots of times.  He’s sick all the time.  Why do you keep asking me the same stupid question for?  He was sick.  It’s on my affidavit;  I swore to it.  What are you trying to twist up?

   I’m trying to ask you, [Mr McGlennan] - - - ?---You’re not, you’re trying to twist me into saying I don’t remember, I - - -

   I’m actually trying to ask you what he was ill with?---I don’t remember.  There’s your answer.  I do not remember what he was ill with, and it doesn’t matter whether he was ill or not or what he was ill with, because I still took him to the shopping centre.  So what – this is supposed to be a convention (sic) of me not turning up with him, even though he was sick, and I tried to ring [the mother] to say he was sick and he couldn’t come;  I still took him there, because when she’s not answering the phone I assume straight away she’s trying to set me up, so I have to take him there even if he is sick.”

1. Alleged contravention 20 November 2010

1. On the first day of the hearing I raised with counsel the fact that the affidavits of the mother did not provide any evidence in relation to the events of 20 November 2010.  In response counsel for the mother said that this was an oversight and that the omission had not been realised until raised by me.  The father’s affidavit in response referred to events of 20 November 2010.  After hearing argument from counsel I allowed the mother to give oral evidence about the events of 20 November 2010.

2. In the father’s affidavit filed on 21 March 2010 the father said at paragraph 17:

   “17.On Saturday, 20 November 2010, at about 9.00am I called [the mother] on her new number to advise her that [M] was sick and that he will  not be able to attend [S] Shopping Centre.  To my surprise she answered her phone.  I offered her to take [M] on Sunday instead as he should be better with a good day’s rest.  She said no because she was broke and was unable to pay for his Sunday routine.  [M’s] usual Sunday routine starts with going to [Location 1] the (sic) go to [N] swimming pool, then to [N] bowling and then play gym.  I offered her $100.00 or $150.00 for her to take [M] on Sunday.  She refused and said that she will take [M] the following week.  The following Monday I attended Halfpennys lawyers and informed my solicitor of what happened that weekend.  Annexed hereto and marked with the letters “MM-6” is a true copy of the file note dated 22 November 2010 of Halfpenny’s receptionist, [Ms TT], outlining my conversation with [the mother] as it was still fresh in my mind at the time.”

3. In oral evidence the mother said that on 20 November 2010 she walked from her home to the S Shopping Centre arriving there at around 9.30 am.  She said she followed a regular routine to go in to get the paper, get an ice-coffee and walk to the front entrance of the S Shopping Cntre.  She said she stood there from about 9.45 am to 10.30 am and that the father did not bring M to the S Shopping Centre on that day.  She said about 10.30 am she then walked home. 

4. The mother said that the father did not telephone her in the morning to advise that M was sick.  She said that the father did telephone in the afternoon about 3.00 pm or 3.30 pm.  She said that the father told her that she could have M on Sunday “seeing I didn’t have him this morning as long as I took [M] on his regular Sunday routine”.  This Sunday routine was to take M to Location 1, to the N Swimming Pool, to the Bowling Alley or play “Shack” at the N Bowling Alley.  The mother gave evidence that she told the father that she had no money to take M on this routine, but she was more than willing to take him on his Saturday routine on the Sunday.  When the mother was asked about the father offering her $100 or $150 to take M on the Sunday she said that it was true and her response was “I told him I didn’t want his money”.

5. When being cross-examined by counsel for the father, the mother insisted that the father did not telephone her at 9.00 am on the morning of 20 November 2010.  She said in cross-examination that it was the father who telephoned her at 3.00 pm or 3.30 pm and that she had not telephoned him.

6. When the father was cross-examined by counsel for the mother, he said that if 20 November 2010 was a Saturday then he would definitely have taken M to the S Shopping Centre.  Part of her cross-examination was as follows:

   “On 20 November last year, did you call the mother about 3.30 in the afternoon telling her she can have [M] on the following day, provided she follow [M’s] - - - ?---There you go, well, there you go, well, yes.”

7. Following objections from counsel for the father as to some part of the following questions, the cross-examination continued:

   “Now, [Mr McGlennan], at 3.30 on 20 November 2010, did you call the mother and tell her that she could have [M] the following day, Sunday, provided she followed his Sunday routine?---No.

   And did you - - - ?---She called me.

   And did you offer to pay – did she tell you that she didn’t have the money to follow the Sunday routine?---Yes.

   And you offered her between $100 and $150?---Yes.

   And she refused that?---No, she accepted at first, and then about an hour later she rang me back.  She said, “No, I don’t want your money;  I don’t want you using nothing against me.”  That was somebody – somebody talks to her, so one minute she wants help, things are going well, but then someone speaks to her and all of a sudden, “No, you’re not – I don’t want no help from you because you can use it against me in court.”  So she refused the money.
   She told you that she would be happy to have [M] on Sunday, but she would follow his Saturday, did she not?---That’s – yes, she refused to do his Sunday routine.  [M’s] routine is very important;  she won’t do it.  She – you can’t give him two Saturday routines;  that’s not how it works.  He’s got so used to one Saturday and the Sunday.  She’s already changed his one Saturday by keeping him at home all the time;  he doesn’t go out and do his normal things.  He used to go go-carting, he used to go the parks, we used to go to the beach, go bowling;  she does nothing.  She just keeps him at home in the swimming, playing music and crap like that. 

   And you refused, did you not, [Mr McGlennan], to send [M] on Sunday the 21^st - - - ?---No, I did not.  She said she didn’t want him.  She said she didn’t want him;  she said, “No, I don’t want him.  I don’t have the money;  I don’t want him.”  I said, “I’ll give you the money.”  She goes, “I don’t want your money;  I just won’t be doing his routine on Sunday if you bring him over.”  And I said, “Well, okay, fair enough;  I’ll take him on Sunday routine like normal.”  So I took him to [Location 1], took him to the swimming pool and took him bowling, like he does every Sunday. 

   So you offered the mother to spend time with [M] on Sunday because you did not take [M] and hand him over to the mother on Saturday 20 November, is that not - - - ?---No, I turned up on the Saturday;  she wasn’t there.  So I simply said, “Look, you can have him tomorrow.  I don’t care.”  I rang [Z].  [Z’s] the one I rang, because I got a text message on my phone from her saying, “Okay, [Z] said I can have [M] tomorrow instead of today.  Is that still on or what?”  Sent me a text message.  Do you want to read the text message?  I’ve got it in my phone.”

Discussion and findings

1. The evidence presented by the mother to establish the contraventions by the father on the nine specified dates is the evidence in her two affidavits and oral evidence.  The father relied upon his affidavit and his oral evidence.  No other witnesses were called.

2. The evidence clearly indicates that M did not spend time with the mother on the nine dates of the alleged contraventions.

3. The mother says that she was in attendance at the front entrance of the S Shopping Centre between 9.30 am and 10.30 am on each of those occasions and that the father did not deliver M to her.

4. The father says that he drove with M to the S Shopping Centre on each of those occasions, even though on some of those occasions he had endeavoured to telephone the mother to say that M was sick.  The father’s evidence was that he drove past the front of the shopping centre to see if the mother was present and that if the mother was not present at the front of the shopping centre he would leave the area and take M with him.

5. The father admits that it is possible that he was not present at 10.00 am sharp on each of those occasions.  He explained the possibility that he was late on some occasions by saying that he did not have a clock and that the only reference to the time was in his car.  He also says that due to M’s severe Autistic difficulties it was not always possible, and is not always possible, to ensure that M is at a particular place at an appointed time.

6. There is complete contrast in the parents’ evidence about the telephone calls which the father said he attempted to make to the mother.  The mother said she had the telephone and it was switched on and that there were no calls from the father.

7. In his affidavit the father says that on four different dates M was sick.  The Medical Certificates referred to however relate to dates which are not dates the subject of the Contravention Application.

8. The father’s evidence about the dates of the contraventions on which he says M was sick was not specific.  He did not give reliable specific evidence about what illness M had on those dates.

9. The father’s affidavit filed in March 2011 does not specifically recite that, notwithstanding M was ill, the father attended the S Shopping Centre with M on all of the dates referred to in the Contravention Application.  His oral evidence was that he attended on every occasion even when M was sick.

10. The evidence of the father in response to the Contravention Application must be considered in the light of all of his evidence, both his affidavit and oral evidence.

11. There were inconsistencies and lack of accuracy in the father’s affidavit evidence about specific times on … September 2010.  The solicitor’s notes refers to him being at the mother’s house at 10.30 am and the bottle shop receipt is for 10.34 am.  The father’s response to this inconsistency given in an excited fashion was nonetheless believable in its context.

12. There was confusing evidence from the mother about her telephone numbers.  The telephone invoice produced by the mother for the first telephone number is of limited value.

13. The father maintained his evidence (particularly under vigorous cross-examination) about attempts to telephone the mother.  Whilst he gave more particular evidence than was contained in his affidavit, the difference between his oral evidence and his written evidence was primarily that he provided more evidence when cross-examined.  This should not be seen as unusual or calling into question the reliability of his evidence particularly in this case, taking into account the unrestrained behaviour of the father when giving evidence.

14. Counsel for the mother asked me to consider the mother’s evidence in light of the fact that she has appealed the decision of His Honour Justice Burr.  The fact that she has appealed the decision of His Honour Justice Burr does not assist me in determining the veracity of her evidence, but indicates that she has not accepted Justice Burr’s judgment and orders.

1. Counsel for the father asked me to consider the father’s occasional inconsistent comments in his evidence in light of the father’s lack of trust for the mother, her legal representatives and the Independent Children’s Lawyer.  The father gave oral evidence indicating a high level of mistrust of the legal representatives for the mother and the Independent Children’s Lawyer.

2. The burden of proof rests upon the mother.  It is necessary for her to satisfy the Court that it is more probable than not that the father intentionally failed to, or made no reasonable attempt to, comply with the order.

3. Section 70NAF of the Act does not specifically deal with matters referred to in s140(2) which therefore continues to apply.

4. Denning J in Miller v Minister of Pensions [1947] 2 All ER 372 discussed the difference between the standards of proof in criminal and civil proceedings. In relation to the degree of cogency which evidence must reach in order to discharge the legal burden in a civil case, his Honour said (at 374):

   “That degree is well settled. It must carry a reasonable degree of probability, but not so high as it required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged, but, if the probabilities are equal, it is not.”

5. Justice O’Ryan (sitting as a single Judge of the Full Court of Australia) in Judd & Marr [2010] FamCAFC 55 in an appeal in Contravention proceedings said:

   “83.The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities having regard to the gravity of the allegation. The breach must be shown to be intentional but it does not require proof of contumacious behaviour.”

1. The view expressed by his Honour reflects the principle established by the High Court of Australia in Briginshaw & Briginshaw (1938) 60 CLR 336 and which later formed the basis of s140 of the Evidence Act 1995 (Cth).

2. The Court must be satisfied on the balance of probabilities.  This does not require certainty but the scales must tip in favour of satisfaction being more probable than not.

3. The conflicting evidence of the mother on the one hand and the father on the other hand makes it difficult to determine whether the father failed to attend the S Shopping Centre with M on all of the nine occasions he says he was present and whether the mother was in attendance at the front of the S Shopping Centre on each occasion or not.

4. The mother gave her evidence in a calm, quiet manner.  The father was much more excitable and less restrained.  His lack of restraint however made it difficult to conclude that he was manufacturing his evidence or deliberately lying to the Court.

5. Apart from the mother’s evidence that on each occasion she was at the front of the S Shopping Centre the mother has not provided any evidence which contradicts the father’s evidence that on each of those occasions he took M to the shopping centre (even on occasions when M was sick).  The mother has not provided any evidence other than her own evidence about being present at the front of the S Shopping Centre on each occasion.

6. Weighing carefully all of the evidence before the Court on the Contravention Applications, I find that the mother has not overcome her burden of proof to establish that it is more likely than not that on any of the nine occasions the father has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.

7. For the above reasons therefore I find that the father has not contravened the order of the Court of 3 June 2010 on any of the nine occasions referred to in the mother’s Contravention Application filed on 25 November 2010.

8. Whilst it might seem appropriate in these circumstances to dismiss the Contravention Application of the mother, the complex provisions of Part VII Division 13A of the Act provide for a range of orders to be made by the Court even when a Contravention has not been established.

9. Therefore, as indicated when I reserved judgment, I will allow time for consideration of my reasons before re-listing the matter for further submissions as to the orders which each of the parties and the Independent Children’s Lawyer are seeking.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 May 2011

Associate: 

Date:  17 May 2011