EGAN & ROBSON
[2020] FamCA 1053
•10 December 2020
FAMILY COURT OF AUSTRALIA
| EGAN & ROBSON | [2020] FamCA 1053 |
| FAMILY LAW – ORDERS – Contravention – Where final orders were made by consent – Where the father alleges the mother has breached the orders by refusing to facilitate the child spending time with the father and failing to provide a sickness certificate for the child – Where the father also alleges the mother has breached the orders by attending with the child upon a medical professional without the father’s consent and failing to provide the father with details upon treatment being received – Where the mother admits some of the breaches but pleads she has a reasonable excuse – Where the mother denies some of the breaches – Where the mother claims the child wanted a break from seeing the father – Where the mother claims the orders do not apply to the child being taken to the professional attended upon - Contraventions proven. |
| Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NEB, 70NEC Family Law Rules 2004 (Cth) rr 15.41, 21.08 |
| APPLICANT: | Mr Egan |
| RESPONDENT: | Ms Robson |
| FILE NUMBER: | ADC | 2623 | of | 2018 |
| DATE DELIVERED: | 10 December 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 10 September 2020 and 2 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITOR FOR THE APPLICANT: | Clelands Lawyers Adelaide Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Praolini |
| SOLICITOR FOR THE RESPONDENT: | Matthew Mitchell |
UPON finding that the mother is in breach of Counts 1 to 12 inclusive of the Application for Contravention filed 29 July 2020
Orders
That the proceedings be adjourned for sentencing submissions on 12th day of January 2021 at 9.15am.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Egan & Robson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2623 of 2018
| Mr Egan |
Applicant
And
| Ms Robson |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Egan (“the father”) and Ms Robson (“the mother”) have been engaged in ongoing conflict concerning the parenting arrangements for Z EGAN-ROBSON born in 2008 (“the child”).
The parties met in about 2006 and during a short relationship the child was conceived.
The father married Ms B in 2009. The father and Ms B now have two children.
Following the child’s birth the parties implemented an informal arrangement for the child to spend time with the father. It appears that at first, the parties were able to reach consensus in respect of the parenting arrangements for the child, however, in late December 2016/early January 2017 the father considered that concerns expressed by the mother as to the child’s interaction with members of the father’s family prompted him to suggest that counselling for the parties might provide an open forum for discussion and the resolution of any difficulties.
The parties were not able to reach ready agreement as to the child spending time with the father across 2017. There were periods when the father alleges that the child’s time with him was stopped and further sessions were arranged with a psychologist in November 2017.
The parties remained in disagreement as to the parenting arrangements for the child across the 2017/2018 Christmas period. Further mediation was attempted by the parties in early 2018 and on 3 July 2018 the father commenced proceedings by filing an Initiating Application seeking orders summarised as follows:-
(1)That the parties have equal shared parental responsibility for the child.
(2)That the child live with the mother.
(3)That the child spend time with the father each third weekend from 3.00 pm Friday to 9.00 am Monday (to be extended to the Thursday or the Tuesday if either the Friday or the Monday is a non-school day) and for periods of up to seven days in school holidays.
On 24 October 2018 the parties consented to final orders which were broadly in keeping with the orders sought by the father in his application.
Application for contravention filed 29 july 2020
The Application for Contravention was heard on 10 September 2020 and 2 October 2020 with a mention on 22 September 2020. The parties were both represented by counsel.
Count 1 alleges a breach of paragraph 5.3 of the final order in that on 29 May 2020 at 3.00 pm at C School, the mother, without reasonable excuse, refused to facilitate the child spending time with the father.
Count 2 alleges a breach of paragraph 8 of the final orders in that on 30 May 2020 at 9.00 am at D Street, Suburb E, the mother, without reasonable excuse, refused to facilitate the child spending time with the father.
Count 3 alleges a breach of paragraph 9 of the final orders in that on 1 June 2020 at 3.00 pm the mother, without reasonable excuse, failed to provide the father with a sickness certificate for the child.
Count 4 alleges a breach of paragraph 10.1 of the final orders in that on 5 June 2020 at 3.00 pm at C School, the mother, without reasonable excuse, refused to facilitate the child spending time with the father.
Count 5 alleges a breach of paragraph 5.3 of the final orders in that on 12 June 2020 at 3.00 pm at C School, the mother, without reasonable excuse, refused to facilitate the child spending time with the father.
Count 6 alleges a breach of paragraph 8 of the final orders in that on 13 June 2020 at 9.00 am at D Street, Suburb E, the mother, without reasonable excuse, refused to facilitate the child spending time with the father.
Count 7 alleges a breach of paragraph 9 of the final orders in that on 14 June 2020 at 3.00 pm, the mother, without reasonable excuse, failed to provide the father with a sickness certificate for the child.
Count 8 alleges a breach of paragraph 5.6 of the final orders in that between 9 July 2020 and 18 July 2020 at 5.00 pm at D Street, Suburb E, the mother, without reasonable excuse, refused to facilitate the child spending time with the father.
Count 9 alleges a breach of paragraph 11 of the final orders in that on 24 February 2020 at F Street, Suburb G, the mother, without reasonable excuse, attended with the child upon Dr H without the prior written consent of the father.
Count 10 alleges a breach of paragraph 12 of the final orders in that on 24 February 2020 at F Street, Suburb G, the mother, without reasonable excuse, did not advise the father that the child had consulted with Dr H and the mother did not provide the father with the name and contact details of Dr H immediately upon that treatment being received.
Count 11 alleges a breach of paragraph 11 of the final orders in that on 18 May 2020 at F Street, Suburb G, the mother, without reasonable excuse, attended with the child upon Dr H without the prior written consent of the father.
Count 12 alleges a breach of paragraph 12 of the final orders in that on 18 May 2020 at F Street, Suburb G, the mother, without reasonable excuse, did not advise the father that the child consulted with Dr H and the mother did not provide the father with the name and contact details of Dr H immediately upon that treatment being received.
The mother admitted the breaches in respect of Counts 1, 4, 5, 8, 10 and 12 but pleads that she had a reasonable excuse for doing so.
The mother denied the breaches in respect of Counts 2, 3, 6, 7, 9 and 11.
The law
Division 13A of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) designates the legislative pathway concerning an Application for Contravention of orders made in respect of children.
Subdivisions C to F of Div 13A of Pt VII of the Act provide for the orders that are available to the court that can be made in instances where:
a)the contravention has been alleged but not established (sub-div C);
b)the contravention is established but reasonable excuse for the contravention is found (sub-div D);
c)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (sub-div E); and
d)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (sub-div F).
Section 70NAC – Meaning of contravened an order
Section 70NAC provides:
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 …
(Original emphasis)
Section 70NAE – Meaning of reasonable excuse for contravening an order
Section 70NAE provides:
(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).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4)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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(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).
(6)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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(Original emphasis)
Section 70NAF – Standard of proof
Section 70NAF provides:
(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:
(aa)paragraph 70NEB(1)(da); or
(ab)paragraph 70NECA(3)(a); or
(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.
Section 70NEB sets out the manner in which a court should deal with a contravention in circumstances where it is considered “less serious”.
Section 70NEB – Powers of the court
Section 70NEB sets out the power of the court as follows:
(1)If this Subdivision applies, the court may do any or all of the following:
(a)make an order directing;
(i)the person who committed the current contravention; or
(ii)that person and another specified person;
to attend a post-separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d) – impose a fine not exceeding 10 penalty units on the person;
(e)if:
(i)the current contravention is a contravention of a parenting order in relation to a child; and
(ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)if the court makes no other orders in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
…
Section 70NEC of the Act provides for the terms and conditions of a bond if a court requires a person to enter into a bond under s 70NEB(1)(d).
Rule 21.08 – Procedure for hearing
Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outlines the procedure for the hearing of an Application for Contravention of orders and provides:
At the hearing of an application mentioned in item 1A, 2, 3 or 5 in Table 21.1, the court must:
(a)inform the respondent of the allegation;
(b)ask the respondent whether the respondent wishes to admit or deny the allegation;
(c)hear any evidence supporting the allegation;
(d)ask the respondent to state the response to the allegation;
(e)hear any evidence for the respondent; and
(f)determine the case.
…
Evidence and submissions
Count 1, 2 and 3
The father relies upon his affidavit filed 29 July 2020 and in particular paragraphs 33 to 47 inclusive.
Paragraph 5.3 of the final orders provides for the child to spend time with the father:-
5.3Each third weekend thereafter commencing 2 November 2018 from 3:00pm Friday or 3:00pm Thursday if the Friday is a non-school day until 9:00am Monday or 9:00am Tuesday if the Monday is a non-school day.
Paragraph 8 of the final orders provides as follows:-
8.In the event the said child is ill on a day when he is otherwise due to spend time with the father then he remain in the mother’s care until 9:00am the following morning when the father will collect him from the mother.
Paragraph 9 of the final orders provides as follows:-
9.In the event the said child is ill when in the mother’s care when he is due to spend time with the father and remains unwell for two (2) or more days then the mother shall forthwith furnish the father with a sickness certificate.
It is agreed that the child should have spent time with the father on 29 and 30 May 2020.
On 28 May 2020 the father received an email from the mother enclosing a medical report from Dr H, a paediatrician, dated 18 May 2020.
The email sent to the father contained the following information and request:-
Therefore, in the best interests of the child, I am writing to let you know of the situation and ask that you consent to [the child] having a break until he is well and ready to return again.
I request an urgent response within 24 hours of your acknowledgement.
Notwithstanding, if you refuse consent then I will have no option, but to be forced to withhold him until his mental health improves and he is well again.[1]
(Original emphasis)
[1] Exhibit “1”
The father’s solicitors sent a letter to the mother on 28 May 2020 indicating that the father expected compliance with the orders. The father did not accept the basis of the mother’s contention that the child was unwell, and in particular, that there had been a decline in the child’s mental health wellbeing.
The father ascertained from the child’s school that he was not in attendance on 29 May 2020 and that the school records recorded that the child was unwell.
The father’s solicitor wrote to the mother on 29 May 2020 and referred to paragraphs 8 and 9 of the final orders, noting that if the child was unwell on the day when he was to otherwise spend time with the father then he should be made available on the following day and if the child’s ill health extended for two days then the orders required the mother to provide a medical certificate to the father.
The mother responded to both the father and his solicitor on 29 May 2020 in the following terms:-
Hi [Mr Egan]
I refer to your letters to me, via your lawyer, Victoria Treloar dated 28 & 29 May 2020 and write to ask why this has to be so drastic?
Accordingly, please consider:-
1.That [the child] has requested this break as reported 3 & 4 May 2020 after the last visit with you and your family;
2.That [the child’s] request should be respected and as per the attached reports;
3.That independent legal advice had been sought that Order 11 does not include Pediatricians;
4.That there will be no change to financial arrangements over this time;
5.That due to the lack of specific definition as at Order 10, there will be no make up time since it is the child’s request;
6.That I put you on notice that early … 2020, Z & I will be celebrating my 50th birthday with friends and family;
7.That Z will let me know when he is ready to return.
8.I seek your understanding. [Ms Robson][2]
[2] Exhibit “5”, page 4.
The child did not spend time with the father on 30 May 2020 and it is conceded that no sickness certificate was provided.
The father initially objected to the mother relying on the reports of Dr H and Dr K unless they were called to give evidence. Dr K was not called but Dr H did give evidence consequent upon the filing of his affidavit on 15 September 2020.
The affidavit of Dr H contains communication and reports as to the child’s wellbeing passing between Dr H and Dr K. In order to better understand the basis of the mother’s position that she had a reasonable excuse for breaching the orders, the history of the child’s medical involvement needs exploration.
Exhibit “Dr H1” to the affidavit of Dr H is a letter of referral from Dr K to Dr H dated 21 January 2020. It sets out that the child had been seeing Dr J, now a retired paediatrician. The basis for the referral to Dr H is set out in the letter of referral as follows:-
…[the child] has problems because his parents are estranged. [The child’s] stepmother has been causing a lot of problems and creates a lot of stress for [the child] which then transfers to his mother. [The child’s] father wants him to come over but doesn’t pay him a lot of attention and most care is left to the stepmother.
[The child] also has responsibility for the other children in his father’s house. And gets the blame if they have bad behaviour. (Redacted)
He has been diagnosed as having anxiety and an adjustment disorder. Mum is concerned about his academic prowess and feels he is underachieving at school and is worried that he will not improve because of the way he is treated when he has visits at his father’s house with the stepmother. [The child] doesn’t feel welcome or comfortable at his father’s house and finds the regular visits are quite traumatic. Mum feels the visits undermine her parenting.
The child and the mother attended upon Dr H on 24 February 2020. Dr H prepared a report following his interview and assessment of the child dated 25 February 2020. A detailed history was provided by the mother which is reflected in the body of his report. The summary of the child’s presentation to Dr H is set out as follows:-
On examination he sat quietly in his chair, he was quite fluent and well spoken. He had one or two minor facial twitches as he talked to me about his issues in detail. Clearly he is not happy with his father, he feels intimidated and is actually frighted of his step-mother. He was fluent and believable and I got the impression that he did not make up the story. He told me that his sleep pattern is disturbed when he returns from his father and while at his father’s house he sleeps poorly. He told me that he is happy to be with his mother and would like a better relationship with his father. He feels that his step-brother and sister are favoured by their mother. He has never been exposed to physical violence. He is anxious and sometimes hesitant to ask for extra food or an extra blanket when he is at his father’s house.[3]
[3] Affidavit of Dr H filed 15 September 2020, exhibit “Dr H2.”
Dr H considered that the child presented as “sad and depressed and quite angry and hence his attempt to self-harm”.[4]
[4] Ibid.
The mother and the child further presented to Dr H on 18 May 2020.
Following a further history and assessment Dr H summarised the position as follows:-
Without prejudice, I feel that [the child] would welcome a brief stay away from his father and stepmother and I would suggest that for the next full term at school he resides under his mother’s care full time. The issue may then be resolved to his satisfaction and he told me he would welcome the break from his father and step family.[5]
(Original emphasis)
[5] Affidavit of Dr H filed 15 September 2020, exhibit “Dr H3”
The mother agreed that she had booked the child to see Dr K about two or three weeks before his report. At that time it does not appear that the child was presenting with any significant health issue and I find that the sole purpose of the consultation was to give the child an opportunity to tell Dr K that he did not want to see the father.
The mother was asked as to the circumstances surrounding the child’s attendance on Dr H in February 2020. The mother conceded that she knew for at least one month prior to the child’s attendance on Dr H that an appointment had been made.
The mother agreed that she had written a long letter to the father dated 21 February 2020 but did not mention the child’s involvement with either Dr K or Dr H.
In evidence, Dr H agreed that he first saw the child on 24 February 2020 following the referral from Dr K. He spoke to the mother and the child for about an hour and arranged a second appointment in May 2020 of about 40 minutes.
Dr H agreed that his entire knowledge of the matter was confined to the content of the letter of referral from Dr K and the history as relayed to him by the mother.
It appears that the mother had provided Dr H with the earlier reports of Dr J and in anticipation of Dr H giving evidence, the mother also forwarded to him reports from Ms L, psychologist, Dr M, general practitioner, Ms N, psychologist and Dr O also a psychologist.
The mother did not provide Dr H with any of the orders and I find that all information provided to Dr H came from the mother.
The mother’s evidence could be distilled to a simple proposition, namely, that she did not consider that she was bound by the orders and if she did not think they were appropriate in the circumstances she did not intend to comply with them.
The father’s position is that I should place little or no weight on the evidence of Dr H that on 18 May 2020 the child was not able to spend time with the father pursuant to the orders.
The mother kept notes setting out her thoughts and observations in respect of the time that the child would spend with the father. Exhibit “4” in these proceedings is a snapshot of the mother’s notes from 2017 to 2019 The notes are indicative of the mother’s attitude to the child spending time with the father are informed by her observations of the child before and after he spends time with the father as recorded in the following table:-
After
Before
· argumentative
· talk like baby when get home
· touch milks when get home
· hard to live with – basic survival things to live was hard going
- breakfast
- showering
- getting ready
· aggressive
· distant
· happy
· tells me what learnt at school
· singing
· easy to live with
· easy going
· writing improving
· better conversations
· mellow
· affectionate
Under the heading of “General” on page 4 of the notes in exhibit “4”, the mother records her concerns summarised as follows:-
·Dad not around
·Child babysits kids
·Cleans up after kids all the time
·Cleans up toys after kids all the time
·Gets blamed for everything
·Stops kids fighting
·Videoed by step-sister whilst getting yelled at
·If step-sibling gets hurt it is the child’s fault
The notes reveal that the mother considers the child is being treated as a slave and she prepares a pie-chart which is intended to reflect the extent to which the child’s time with the father is good or bad. The pie-chart reflects only a small “slice” which is good with the balance being “all bad”.
The mother’s notes also include a pie-chart purportedly prepared by the child concerning his visits on the father between September 2018 and February 2019. The pie-chart indicates a small slice as being “good” with the balance being “bad”.
The mother was asked whether she had assisted the child to prepare his pie-chart or whether he had seen her notes. The mother’s evidence was unequivocal that the pie-chart drawn by the child was his own work and was not in any way influenced either by the mother personally or by the child having seen the pie-chart that the mother had prepared.
The mother’s evidence was unsatisfactory. I did not accept her assertion that the child prepared the pie-chart unaided.
I do not attach significant weight to the evidence of Dr H in circumstances where he was not informed appropriately as to the history of the matter nor of the extent of the Court orders which reflected a concern, that without restraint the mother may well have recourse to medical practitioners and other health professionals in order to support her contention that the child did not wish to see the father.
Dr K and Dr H were the subject of significant manipulation by the mother such that Dr H, at the very least, could not be considered as a treating doctor as considered by reference to r 15.41 of the Rules but rather, was part of a plan by the mother to stop the child spending time with the father.
I find Counts 1, 2 and 3 to be proven and that in each count the mother did so without reasonable excuse.
Counts 4, 5, 6 and 7
The father relies upon his affidavit filed 29 July 2020 and in particular paragraphs 48 to 66 inclusive.
Paragraph 10.1 of the final orders provides as follows:-
10.In the event the said child misses spending time with his father due to illness, or for any other reason, then the said child is to spend “make up time” with the father as follows:
10.1On the weekend immediately thereafter;
…
Paragraph 5.3 of the final orders provides for the child to spend time with the father as follows:-
5.3Each third weekend thereafter commencing 2 November 2018 from 3:00pm Friday or 3:00pm Thursday if the Friday is a non-school day until 9:00am Monday or 9:00am Tuesday if the Monday is a non-school day;
Paragraph 8 of the final orders provides as follows:-
8.In the event the said child is ill on a day when he is otherwise due to spend time with the father then he remain in the mother’s care until 9:00am the following morning when the father will collect him from the mother.
Paragraph 9 of the final orders provides as follows:-
9.In the event the said child is ill when in the mother’s care when he is due to spend time with the father and remains unwell for two (2) or more days then the mother shall forthwith furnish the father with a sickness certificate.
On 2 June 2020, the father’s solicitors responded to the mother’s emails of 29 May 2020 advising that the father intended to collect the child from school, at the conclusion of school at 3.00 pm on 5 June 2020.
The father received a response purportedly from the child’s email address in the following terms:-
“Hi dad, We don’t speak on the Phone to each other, so I’m writing this letter to you about my decision to have a break from going to visit you. I am having a break. From [the child].”[6]
(Original emphasis)
[6] Affidavit of the father filed 29 July 2020, paragraph 49.
By letter dated 5 June 2020, the mother forwarded correspondence from the child to the father with the clear implication that the child would not be spending time with the father pursuant to the orders.
The mother’s position was confirmed by her email to the father’s solicitors on 11 June 2020.
No attempt was made by the mother to comply with paragraphs 8 and 9 of the orders and in circumstances where I do not find that the mother has established, on the balance of probabilities, a reasonable excuse for not complying with paragraph 5.3 of the final orders, I find that Counts 4, 5, 6 and 7 are proven.
Paragraph 5.5 of the final orders provides for the child to spend time with the father for a period of seven nights each year during any of the holiday periods listed therein, including the July school holidays. Paragraph 5.6 provides :-
5.6The seven (7) nights referred to in the paragraph above may be taken consecutively or spread over any of the four holiday periods as agreed by the parents, but in default of agreement, the seven (7) nights will be taken from 10:00am on the Saturday of the middle weekend to 10:00am the last Saturday of the July school holidays each year.
The father alleges that his solicitors wrote to the mother on 22 June 2020 seeking that the mother confirm she would not withhold the child from spending time with the father over the July school holiday period, but specifically from 10 July to 18 July 2020.
Various emails and letters passed between the parties and the father’s solicitor and in particular, on 2 July 2020, the father received a text message from the mother’s mobile phone in the following terms:-
“Hi dad its [the child] here my mum has asked me if I want to go [on holiday] and the answer is no i do not want to go [on holiday].”[7]
(Original emphasis)
[7] Affidavit of the father filed 29 July 2020, paragraph 62.
No agreement was able to be reached as to the child spending time with the father during the July 2020 school holidays.
The orders are clear and the mother has not established any reasonable excuse for her non-compliance.
I find Count 8 proven.
Counts 9, 10, 11 & 12
The father relies upon paragraphs 67 to 102 inclusive of his affidavit filed 29 July 2020.
Paragraph 11 of the final orders provides:-
11.The parents be restrained and an injunction is hereby granted restraining the said child being seen by a psychologist, psychiatrist, counsellor, therapist or any other mental health professional without the prior written consent of the other parent.
Paragraph 12 of the final orders provides:-
12.Each parent shall advise the other parent of any medical or health related treatment received by the said child, and the name and contact details of those health practitioners, immediately upon that treatment being received.
The father’s contention is that at no time did he consent to the child being referred to Dr H on 21 January 2020, nor that the child should consult with Dr H on 24 February 2020 and 18 May 2020.
The mother does not suggest otherwise but rather, argues that paragraph 11 of the final orders would not apply to the child being taken to a paediatrician.
The gravamen of the order was to restrain the parties, by injunction, from taking the child to see a health professional for a mental health assessment, management or treatment. It is argued that a paediatrician is not a “mental health professional”. Dr H considered that it was part of his professional skill set to provide some advice or express an opinion to whether a child may be presenting with mental health issues.
Without equivocation, Dr H did consider that the child may well be presenting with mental health issues. Although I consider that the mother’s conduct was such that it rendered any opinion by Dr H as unreliable, nonetheless, he considered that he had a role to play in assessing whether a child was presenting with mental health issues. I do not ignore that the mother sought the referral to Dr H for the purpose of obtaining a report that supported the child not spending time with the father.
For reasons as discussed, I find that the mother did not provide the father with the name and contact details, nor information in respect of the child’s attendance upon Dr H on 24 February 2020 and 18 May 2020. I find that the mother did not have a reasonable excuse for not doing so, nor was it mere inadvertence on the part of the mother.
I find Counts 9, 10, 11 and 12 proven and on the balance of probabilities I find that the mother did not have a reasonable excuse in respect of any of the breaches.
Conclusion
Accordingly, I find that a breach has been established in respect of Counts 1 to 12 inclusive and the matter will be listed for submissions as to penalty, if any.
I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 December 2020.
Associate:
Date: 10 December 2020
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Breach
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Consent
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Sentencing
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