Eagle and Scarlett
[2017] FCCA 2814
•21 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EAGLE & SCARLETT | [2017] FCCA 2814 |
| Catchwords: FAMILY LAW – Contravention – where mother admitted contraventions but claimed reasonable excuse pursuant to s.70NAE(5) of the Family Law Act1975 – no reasonable excuse established. |
| Legislation: Family Law Act 1975, ss.70NAA, 70NAC, 70NAF, 70NAE, 70NDA, 70NEA, 70FA |
| Cases cited: Taikato v R (1996) 186 CLR 454 Childers & Leslie (2008) FLC 93-356 |
| Applicant: | MR EAGLE |
| Respondent: | MS SCARLETT |
| File Number: | PAC 2781 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 25 July 2017 |
| Date of Last Submission: | 25 July 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 21 November 2017 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Appearing for the Respondent: | Ms Reid |
| Solicitors for the Respondent: | Rafton Family Lawyers |
| Appearing for the Independent Children's Lawyer: | Ms Newland |
| Solicitors for the Independent Children's Lawyer: | JLM Family Lawyers Pty Ltd |
ORDERS
That a finding be recorded that the Respondent mother, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 2 December 2016 and as varied on 3 April 2017 in that:
(a)On 18 May 2017 at 10am at (omitted) Police Station (omitted), she failed to make the child available to spend time with the father in accordance with paragraph 3(c) of the orders.
(b)On 20 May 2017 at 10am at (omitted) Police Station, (omitted) she failed to make the child available to spend time with the father in accordance with paragraph 3(c) of the orders.
(c)On 25 May 2017 at 10am at (omitted) Police Station, (omitted) she failed to make the child available to spend time with the father in accordance with paragraph 3(c) of the orders.
The matter is listed for directions at 9am on 5 February 2018 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 Eagle & Scarlett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2781 of 2016
| MR EAGLE |
Applicant
And
| MS SCARLETT |
Respondent
REASONS FOR JUDGMENT
Introduction
Since the father commenced proceedings in June 2016, the father has filed three Application-Contraventions. These are the Reasons for Judgment in relation to an Application-Contravention filed by the father on 19 June 2017.
The parties to the proceedings are the Applicant father, Mr Eagle and the Respondent mother, Ms Scarlett.
Short Chronology
The mother was born on (omitted) 1988 and is currently aged 29 years.
The father was born on (omitted) 1977 and is currently aged 41 years.
The parties have one child together, X born (omitted) 2015 and currently aged 2 years.
The mother has three other children from previous relationships.
On 2 December 2016 the Court made orders as follows:
1. The child X born (omitted) 2015 live with the Respondent mother.
2. Within 48 hours the parties do all acts and sign all documents necessary to complete the intake process with CatholicCare (omitted) at (omitted), such that changeover can be facilitated at that Contact Centre.
3. The child is to spend time with the father as follows:
a. Commencing on 6 December 2016, each Tuesday and Thursday from 10am till 12 noon;
b. Thereafter from 31 January 2017, each Tuesday and Thursday from 10am till 1pm; and
c. Thereafter from 7 March 2017, each Tuesday, Thursday and each Saturday from 10am to 2pm.
4. For the purposes of the child spending time with the father changeover is to occur at CatholicCare (omitted) located at (omitted) and until such time as the changeover can be facilitated by that Centre changeover shall occur at the front of Campbelltown Court House located at (omitted).
5. The father is to pay any costs associated with the changeover occurring at Catholic Care Contact Centre.
6. Pursuant to section 68B of the Family Law Act 1975 the father is restrained by injunction from:
a. Consuming any alcohol while spending time with the child, and for a period of 12 hours before spending time with the child; and/or
b. Consuming any illicit substances while spending time with the child and for a period of 24hours before spending time with the child.
7. The Respondent mother shall insure that the Applicant father is kept informed of any medical problem or illness suffered while in the mother’s care, any medication prescribed for the child, with such notification to occur within 24 hours or as soon reasonably practicable of the child suffering the illness or being prescribed the medication.
The Court further ordered on this day the appointment of an Independent Children’s Lawyer pursuant to section 68L of the Family Law Act 1975.
On 9 December 2016 the father filed an Application-Contravention, Affidavit and Application in a Case which was returnable on 21 December 2016 seeking variation to the orders made on 2 December 2016.
On 21 December 2016 the Court discharged order 2 made on 2 December 2016 and varied order 4 made the same day to read “changeover is to occur at the front of Campbelltown Court House located at (omitted)”.
On 28 February 2017 the father again filed an Application-Contravention, Affidavit and Application in a Case seeking make up time, an extension of time with the child and that the child “live with father on the weekends”, these Applications were returnable on 3 April 2017.
On 3 April 2017 the Application-Contravention filed on 28 February 2017 was heard and determined.
On 19 June 2017 the father again filed an Application-Contravention and Affidavit which was made returnable on 5 July 2017.
On 5 July 2017 the mother pleaded guilty with reasonable excuse to the three charges listed in the Application-Contravention filed 19 June 2017 which read as follows:
1. On 18 May 2017 at 10am at (omitted) Police Station (omitted) as per orders 3(c) of 2/12/2016 and 9 of the orders made on 3/4/17 Ms Scarlett failed to make X available to spend time with me as per orders 3(c) at police station.
2. On 20 May 2017 at 10am at (omitted) Police Station as per orders 3(c) – 2/12/2016 and 9 of orders made on 3/4/17, Ms Scarlett failed to make my daughter X available to spend time with me as per orders 3(c) at (omitted) police station.
3. On 25 May 2017 at 10am at (omitted) Police Station Ms Scarlett failed to make my daughter X available to spend time with as per orders 3(c) made on 2/12/17 (sic) and orders 9 made on 3/4/17 at (omitted) police station.
The Court listed the above Application-Contravention for hearing on the reasonable excuse argument on 25 July 2017, these being the Reasons in relation to the reasonable excuse argument.
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[1]. Therefore, the onus of proof shifted to the mother to establish that she had a reasonable excuse for the contraventions.[2]
[1] Being counts 1, 3, 4 and 5
[2] 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).
…
Reasonable Excuse
In Taikato v R[3] 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.
[3] (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.[4]
[4] In the Marriage of O’Brien (1993) FLC 92-396
Section 70NAE was considered by Warnick J in Childers & Leslie[5] 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.
[5] (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).
Section 70NAE(5) was considered by Dawe J in Vaughton & Randle (No.2)[6] 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)
[6] [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.
Count 1
Evidence & Submissions
The mother relied upon the evidence contained in paragraphs 37 to 39 of her Affidavit filed on 4 July 2017, together with the annexures S3-9, in respect of the reasonable excuse argument in respect of Count 1 (18 May 2017). In summary the evidence consisted of:
a)A medical certificate dated 16 May 2017 stating an opinion that the child ‘will not be fit for work from 16/5/17 to 16/5/17”;
b)A medical certificate date 16 May 2017 stating that the mother has been started on a 5 day course of 2 antibiotic medications;
c)The mother’s assertion that on 18 May 2017 the child was unwell and that it was a particularly cold and wet day. The mother says: “I was concerned how X would cope in the cold. So I did not attend changeover on this date.”
d)The mother notifying the father, through his solicitor on 18 May 2017 via email at approximately 9.15am that the child “has still not returned to full health” and that the mother and her 4 month old child ‘have now also become very unwell.” Furthermore, the mother ‘had indicated she may have pneumonia and has been placed on a course of antibiotics and as such she is not fit to travel to drop X off”.
e)An email dated 19 May 2017 advising the father that the mother and the child were not well enough to attend contact on 20 May 2017, and that the mother expected them both to be better by the visit on the following Tuesday;
f)A medicate certificate dated 19 May 2017 advising that the child “was/will not be fit for visits away from her mother during her current illness 18/5/2017 to 20/5/2017 inclusive”; and
g)A letter from Dr K “to whom it may concern” dated 19 May 2017, advising that the medical practitioner has recommended that the mother take paracetamol for ongoing pain and symptoms related to her current illness.
There was no expert medical evidence called in the mother’s case. The only evidence which the mother relied upon was hearsay evidence as contained in the medical certificates annexed to her affidavit.
Those medical certificates did not reveal any opinion that the child was not well enough on 18 May 2017 to spend time with the father or that going outside for the purpose of changeover or spending time with the father was something which the child was too sick for. Indeed the certificate relied upon related to 16 May 2017 and opined that the child was not ‘fit for work’. It is difficult to see how any weight could be given to a purported medical opinion in respect of a two year old’s fitness for work and what the relevance such an opinion could have in respect of the child’s health on 18 May 2017 and her “fitness” to spend time with the father.
Furthermore, the medical certificates[7] do not disclose any opinion that the mother was not fit to travel to drop the child off at changeover. All that the certificate confirms is that as at 16 May 2017 the mother was placed on 2 courses of antibiotics. The letter dated 19 May 2017 “confirms” the mother is taking paracetamol for pain and symptoms of her illness, such illness not being identified.
[7] This includes the letter dated 19 May 2017 from Dr K
In any event, the mother’s evidence is that she was concerned how the child would cope in the cold and “so” she did not attend changeover. She does not depose to being too sick herself to attend, albeit the email she sent to her solicitors asserts “I can not (sic) for my health travel to drop X off as walking that distance with difficulty breathing is not an option I will supply medical certificates after my xray and return visit to doctor and advise if I furrher (sic) need to cancel Saturdays (sic) visit also”.
There is no fundamental reason why the 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.[8]
[8] Childers & Leslie at [43]
As such, the Court has considered the mother’s evidence relating to the events of 19 and 20 May 2017, as contained in her evidence in support of the reasonable excuse argument for Count 2, noting that some of that evidence overlaps with the evidence in support of the reasonable excuse argument for Count 1, in particular that the mother relies upon medical certificates dated 19 May 2017 in support of her argument that the child was too sick to spend time with the father on 18 May 2017.
The difficulty for the mother is that she does not say the child was too sick, she says that she was concerned how the child would cope with the cold given that she was unwell and that it was a particularly cold and wet day. The difficulty with the opinion expressed in the medical certificate is discussed at paragraph 39 and 40 below. The certificate certainly does not say that it was necessary for the child not to spend time with her father on 18 May 2017 in order to protect her health.
The Court is not satisfied that the mother had a belief at all, or if she did, that it was on reasonable grounds, that refusal of the time that the child was to spend with the father, commencing at 10am on 18 May 2017, was necessary to protect the health of the child.
Having regard to the onus of proof, the Court is not satisfied that the mother had a reasonable excuse for the contravention which occurred.
Count 2
Evidence & Submissions
The mother relied upon the evidence contained in paragraphs 40 to 43 of her affidavit filed on 4 July 2017, together with the annexures S7-9, in respect of the reasonable excuse argument in respect of Count 2 (20 May 2017). In summary the evidence consisted of:
a)That the mother took the child to see Dr K on 19 May 2017, and she obtained medical certificates for both herself and the child (which are referred to below);
b)An assertion that on 20 May 2017, the child remained unwell and that it was another particularly cold and wet day. The mother says that she was “concerned how X would cope in the cold. So I did not attend changeover on this date.”
c)The mother’s assertion that she had pneumonia and that she was not fit to walk to changeover. Furthermore, the mother says that she does not drive and no one else in her family was willing to attend changeover;
d)An email dated 19 May 2017 advising the father that the mother and the child were not well enough to attend contact on 20 May 2017, and that the mother expected them both to be better by the visit on the following Tuesday;
e)A medicate certificate dated 19 May 2017 advising that the child “was/will not be fit for visits away from her mother during her current illness 18/5/2017 to 20/5/2017 inclusive”; and
f)A letter from Dr K “to whom it may concern” dated 19 May 2017, advising that the medical practitioner has recommended that the mother take paracetamol for ongoing pain and symptoms related to her current illness.
Once again, the mother’s evidence is that because of her concerns for the child’s ability to cope with the cold she did not attend changeover.
In relation to the hearsay evidence contained in the medical certificate dated 19 May 2017, the opinion expressed by Dr K on that day was that the child will not be fit for visits away from her mother. No explanation was given as to why this might be so, that is on what factual basis that opinion was formed, and why the father was not a person who could look after the child notwithstanding her illness. There was no evidence as to the illness the child was said to be suffering from. The certificate certainly does not say that it was necessary for the child not to spend time with her father on 20 May 2017 in order to protect her health.
There was no appropriate expert evidence that the mother was too sick to attend changeover. The mother had been to see Dr Q on 16 May 2017 and Dr K on 19 May 2017, yet neither of the two medical practitioners sought to provide any opinion as to what the mother was suffering from or that she was restricted from attending changeovers due to her illness.
Furthermore, there was no evidence in the mother’s case that she had suggested to the father that changeover might occur somewhere else to assist the mother due to her illness.
The Court is not satisfied that the mother had a belief at all, or if she did, that it was on reasonable grounds, that refusal of the time that the child was to spend with the father, commencing at 10am on 20 May 2017, was necessary to protect the health of the child.
Having regard to the onus of proof, the Court is not satisfied that the mother had a reasonable excuse for the contravention which occurred.
Lastly in relation to both Count 1 and Count 2, the Court finds that there was no evidence going to the element of time, namely, that the child was withheld for “no longer than was necessary to protect their health or safety”. The Court finds on the evidence that as at 9am on 18 May 2017 the mother had already foreshadowed that she might not be complying with the orders in respect of time on 20 May 2017, and that by 3pm on 19 May 2017, the solicitors for the mother had already notified the father that the child would not be well enough to spend time with him on the following day.
While the medical certificate for the child dated 19 May 2017 purports to opine that the child will not be well enough for visits away from her mother from 18 May 2017 to 20 May 2017, no weight is given to that opinion for reasons explained earlier in these reasons.
Count 3
Evidence & Submissions
On 23 May 2017, the child spent time with the father in accordance with the orders.
The mother has conceded that the child did not spend time with the father from 23 May 2017 to 10 July 2017, albeit Count 3 only concerns 23 May 2017[9].
[9] The Application-Contravention was filed on 19 June 2017
The mother relied upon the evidence contained in paragraphs 44 to 61 of her affidavit filed on 4 July 2017, together with the annexures S10-14, in respect of the reasonable excuse argument in respect of Count 3 (25 May 2017). In summary the mother’s evidence relevant to the contravention is that:
a)At changeover on 23 May 2017, the father said to her that the child likes to smash her head on things, and that she had been smashing her head on the metal poles at Dr M’s playground. The father allegedly said to the mother that the child “started rolling her eyes and her head and had a twenty minute sleep afterwards”. [10]
b)The mother observed a lump and bruise to the left side of the child’s forehead immediately after changeover;
c)While changing the child’s nappy immediately after changeover, the mother notices a red rash down to her inner things, and a small scratch about half a centimetre long near the child’s bottom;
d)The mother was concerned about what the father had told her and she was worried the child may have had a serious concussion;
e)The mother took the child to her doctor who referred her to (omitted) Hospital;
f)The child was assessed by triage at (omitted) Hospital and then seen by a doctor working in emergency, who referred the child to a paediatrician. The doctor working in emergency apparently observed lumps and bruising and “breaks in her skin and private areas”; and
g)The next day, the mother took the child to a paediatrician Dr M who said to the mother that she was seeing him for the purpose of “sexual abuse checks” and that “everything is intact, just because I haven’t seen anything though doesn’t mean there has been no abuse at all. These cases are really hard to diagnose. Sometimes a lot of cases are not dealt with because there needs to be really hard evidence.”
[10] The father denies ever saying this to the mother
The mother annexes to her affidavit:
a)Letter from Dr M to Dr K dated 24 May 2017, which she says she has read since the consult with Dr M, albeit she does not say when. That letter reads:
I reviewed X on the 24th May… She presented to emergency on the 23rd May because of Ms Scarlett’s concern about the potential for sexual abuse. Ms Scarlett stated that on 5 occasions after picking her up, she found scratching and bruising to both hips and inner things…
On examination… there were no signs of any physical injury. On examination of the perineum there was no bleeding, bruising, hymen was intact and I could detect no evidence of injury.
I informed Ms Scarlett that there was no physical evidence of non-accidental injury or child sexual abuse at this examination, however even though there was no physical sign of any overt injury, it is certainly possible that an assault had occurred and physical findings may not be present.
I then discussed X’s case with the sexual assault team at (omitted). Follow-up will be at FACS discretion.”
b)An email to the father dated 25 May 2017, advising that there is a current Department of Family and Community Services investigation involving concerns about physical harm that has come to X while she was in the father’s care, with the details of the investigation not being “able to be disclosed” while the investigation was ongoing to the father. The father was also advised that the mother has provided instructions to her solicitors to seek a variation of the orders such that time be supervised be pending outcome of any departmental investigation, and “as such our client will not be facilitating visits between yourself and X due to safety concerns she harbours”;
c)A “supporting” letter from Dr K dated 25 May 2017, being supportive of the mother’s application for a variation of the orders such that the child spend only supervised time with the father;
The mother’s evidence is that since “this time[11]” she has “not facilitated contact between Mr Eagle and X as I was concerned for her safety.”
[11] Presumably a reference to 25 May 2017 given the natural meaning of paragraph 57 of the mother’s affidavit, although it could be a reference to 23 May 2017
The difficulty with the mother’s evidence is that she does not explain what her concerns for the child’s safety were, that is, whether they were concerns regarding physical abuse and based on what, and/or if they were concerns regarding sexual abuse and based on what. The Court is left in a position where it has to join the dots. This is not an appropriate way to conduct proceedings.
The father denies saying the things to the mother which she alleges he said on 23 May 2017 in respect of the child hitting her head. The father submitted to the Court that the allegations of sexual abuse go back to December 2017. While afforded the opportunity of cross-examining the mother, the father as a self-represented litigant, was not as skilled in cross-examination as most advocates who come before the Court. Although he did put to the mother some relevant questions in respect of her actions following 23 May 2017, he was not able to effectively challenge all of her evidence.
In considering the mother’s reasonable excuse argument, the Court has considered her evidence at its highest[12]. This carries a significant advantage for the mother in respect of the onus she has to meet. However, even if her evidence in respect of the contravention on 25 May 2017 is accepted in its entirety, the Court still does not accept that there were reasonable grounds for the mother to believe that the child had been physically or sexually abused by the father. This is for the following reasons:
a)The father told the mother on 23 May 2017 that the child had hit her head. The mother did not raise with the father at that time or consequently in the material she relies upon, any suggestion that the injury which the child had suffered was anything but accidental or that the father had been neglectful or careless of the child while she was in in his care;
b)On 23 May 2017, the paediatric registrar noted a small superficial linear skin tear between the vagina and the anus which was not present on 24 May 2017; and
c)The mother was told on 24 May 2017 by a paediatrician that there were no signs of any physical injury to the child and that there was no evidence of non-accidental injury or child sexual abuse at the examination[13].
[12] Albeit the mother has the onus to prove her case on the balance of probabilities
[13] albeit the mother was told that it was certainly possible that an assault had occurred and physical findings may not be present
The letter dated 24 May 2017 from Dr M, who was not called as a witness in the mother’s case, contains an opinion which the Court finds quite concerning for its lack of explanation and basis. If the reason for the examination of the child is due to the physical injuries which the mother reported, namely, “a bright red rash down which was to her inner thighs” and “a small scratch about half a centimetre long near her bottom” and if the findings were that there was no signs of any physical injury, the speculation by Dr M about a “possible” assault is just extraordinary.
Furthermore, the reason that the child was taken to Dr M was because of the mother’s “concern about the potential for sexual abuse.” At whose hands and for what reason was not explained by the mother in her evidence at all, except that her material contains hearsay evidence to the effect that the mother had stated that on 5 occasions after picking the child up from time with the father she had found scratching and bruising to both hips and inner things.
The mother does not depose to any concern that the child had been sexually abused by the father nor does she depose to these alleged observations on 5 previous occasions as to bruising and scratching. All that she says is she did not make the child available because she had concerns for the child’s “safety”.
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[14], namely that subsection (5) ought to be applied whenever it can “fit” the circumstances[15].
[14] Supra n.10 at [23]
[15] 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.
The Court finds that the mother has not established the defence of ‘reasonable excuse’ within the relevant meaning of in respect of any of the counts.
The Court invited the parties to make further submissions on a date to be advised as to the orders the Court should make in light of the findings made.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 20 November 2017
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