Esser & Windmarsh
[2023] FedCFamC2F 629
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Esser & Windmarsh [2023] FedCFamC2F 629
File number(s): CAC 495 of 2018 Judgment of: JUDGE DICKSON Date of judgment: 26 May 2023 Catchwords: FAMILY LAW – CONTRAVENTION – PARENTING – contraventions of final parenting orders conceded by the mother – reasonable excuse established – contravention applications dismissed Legislation: Family Law Act 1975 (Cth) ss 70NAE, 70NAF. Cases cited: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1958) 118 CLR 618
Childers & Leslie [2008] FamCAFC 5
Perkins & Perkins (1979) FLC 90-600
Keehan & Keehan [2019] FamCAFC 250
Mitty & Mitty [2012] FamCA 329
Seaward & MacDuff [2011] FamCA 1041
Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454,
Vaughton & Randle (No 2) [2013] FamCA 286
Division: Division 2 Family Law Number of paragraphs: 116 Date of last submission/s: 24 April 2023 Date of hearing: 21 April 2023 & 24 April 2023 Place: Adelaide Counsel for the Applicant: Mr Finch Counsel for the Respondent: Ms Behrens Solicitor for the Respondent: Foster Johnson Lawyers ORDERS
CAC 495 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ESSER
Applicant
AND: MS WINDMARSH
Respondent
order made by:
JUDGE DICKSON
DATE OF ORDER:
26 MAY 2023
THE COURT FINDS THAT:
A.The mother contravened Order 6.c.iii.2. of the final orders made by consent on 24 August 2020 ( the said final orders ) by not ensuring that the child X born 2015 (‘the child’) spent time with the father on 17 December 2022;
B.The mother contravened Order 6.c.iv.2. of the said final orders by not ensuring that the child spent time with the father on 23 December 2022;
C.The mother contravened Order 6.c.iii.2.A. of the said final orders by not ensuring that the child spent time with the father on 14 January 2023;
D.The mother contravened Order 6.c.i. of the said final orders by not ensuring that the child spent time with the father on 24 February 2023;
E.The mother contravened Order 6.c.ii. of the said final orders by not ensuring that the child spent time with the father on 1 April 2023;
AND THE COURT FINDS THAT THE MOTHER HAD A REASONABLE EXCUSE WITHIN THE MEANING OF SECTION 70 NAE(5) OF THE FAMILY LAW ACT1975 (CTH) FOR THE SAID CONTRAVENTIONS.
THE COURT ORDERS THAT:
1.The Applications for Contravention filed on 20 January 2023 and 13 April 2023 are hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Esser & Windmarsh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
On 21 and 24 April 2023, the Court heard a Trial in relation to Applications for Contravention filed respectively on 20 January 2023 (‘the first Application’) and on 14 April 2023 (‘the second Application’). The applicant is the father (‘the father’).
The relevant final order was made by consent on 24 August 2020 (‘the final order’).
The first Application alleged three contraventions and the second Application alleged two contraventions of the final order.
Save for Count 1 of the second Application, the respondent mother (‘the mother’) conceded that she had contravened the final order as alleged in the first and second Applications. In relation to Count 1 of the second Application, the mother argued that there was no prima facie case and no contravention was established. In the alternative, the mother argued that she had a reasonable excuse. For the reasons set out herein, the Court proposes to deal with Count 1 of the second Application in the same way as all other counts in the first and second Applications.
Each of the parties were legally represented at the Trial.
These are the Court’s reasons for decision arising from the Trial.
BACKGROUND
The parties are both currently 36 years of age.
They commenced cohabitation in 2013 and were married in 2014. Final separation occurred in or about June 2016.
There is one child of the relationship, X born 2015, now seven years of age (‘the child’).
Final parenting orders were made by consent between the parties on 24 August 2020. Both parties were legally represented throughout the currency of the earlier litigation and the child was represented by an Independent Children’s Lawyer.
Pursuant to the final order, the mother and the child moved from City B to Brisbane in late 2021. The final order also contemplated the father moving from City B to Brisbane should he elect to do so.
In 2018, the father formed a relationship with Ms C. They were married in 2020. The father and Ms C have one child, D born 2020. After finally separating in late 2021, the father remained living in City B near Ms C and the child D.
The breakdown of the relationship between the father and Ms C and the events that followed their separation have had a seismic impact on the parties’ co-parenting relationship and the issues now to be determined by the Court at Trial.
DOCUMENTS RELIED UPON AT TRIAL
The father relied upon the documents set out on page 1 of his Outline of Case Document dated 13 April 2023. The father and Ms C both gave evidence and were cross-examined.
The mother relied upon the documents set out in her Outline of Case Document. In addition, the mother relied upon an affidavit of Ms White, solicitor filed 19 April 2023 annexing material produced by the Australian Federal Police pursuant to a section 69ZW order and a Costs Notice dated 20 April 2023.
The mother tendered a bundle of text messages between herself and Ms C across 2022 which are marked as ‘Exhibit M1’.
The mother’s counsel also provided ‘Written Final Submissions’ which supplemented the oral final submissions made by each counsel on behalf of their respective clients.
SIGNIFICANT CHRONOLOGICAL EVENTS
In order to understand how the parties arrive at Trial, it is necessary to set out a number of significant events which were traversed in the evidence.
In February 2016;
·The mother alleged that the father returned to their home intoxicated and broke into a room where the mother was “hiding”. The mother alleged that she was assaulted by having her head “bashed” against a wall on “five or six” occasions whilst holding the parties’ child in her arms. The mother alleged that she was assisted to leave the parties’ home at 2:00am by her sister.[1]
[1] See the Affidavit of Ms Windmarsh filed 18 April 2023 at paragraph 9(a).
In February to June 2016;
·The mother alleged that during an argument, the father held her down on a bed with a pillow over her head restricting her breathing. The mother alleged that she was forced to “scratch him and kick him” to free herself.[2]
[2] Ibid at paragraph 9(b).
In mid-2016;
·The mother secured an Interim Family Violence Order for the protection of herself and the child. The Intervention Order expired in early 2018.
In August 2020, final parenting orders were made between the parties.
From July to October 2021;
·The mother alleged that the child informed her that the father tried to leave him at home unattended.[3]
·The mother alleged that the child disclosed to her that the father had driven him home from a party and vomited out the window.[4]
[3] Ibid at paragraph 15.
[4] Ibid at paragraph 16.
On 31 July 2021;
·The mother alleged that she was informed by Ms C that the father:
(a)had not been personally caring for the child during time spending periods pursuant to the final order;
(b)had been drinking and smoking marijuana;
(c)had been “fighting” with her and that “sometimes these fights are getting violent”; and
(d)was drinking to excess and smoking marijuana which made the situation “unsafe” “for the child”.[5]
[5] Ibid at paragraph 10.
On 10 October 2021;
·The father and Ms C separated. Court proceedings were later instituted in relation to the child D.
On November 2021;
·The mother and the child relocated to Brisbane pursuant to the final order.
·The father remained living in City B.
Between 8 to 15 January 2022;
·The father spent time with the child in Brisbane.
In February 2022;
·The mother alleged that she was informed by Ms C of an incident that took place between herself and the father in mid-2021 wherein:
(i)The father had attempted to drive away in a motor vehicle with their son, D, unrestrained and sitting on his lap;
(ii)Ms C was hit by the motor vehicle driven by the father necessitating police attendance and an admission to hospital;[6]
(iii)Photographs provided by Ms C showed her in hospital wearing a hospital gown and with visible injuries. A copy of the E Hospital Discharge Statement dated mid-2021 is ‘Annexure A’ to the mother’s affidavit;
(iv)Ms C informed the mother that the father had threatened her not to “press charges” over the incident, stating that the father would restrict her travel overseas to visit family and withhold passports if she did so. Further, that Ms C was concerned that a complaint to police might affect her application for permanent residency in Australia;
(v)Ms C informed the mother that she and the father are trying to “work out parenting plans” and that “…he won’t agree to things including me visiting my family in [Country G], if I make it difficult for him”;[7] and
(vi)Ms C disclosed that the above events occurred after Ms C had returned the child to the mother during a period of Court ordered time in favour of the father. Ms C alleged that the father was out drinking alcohol and leaving her at home to care for the two children on her own.
·The mother contacted Region F Police and Child and Youth Protection Services (CYPS) to report disclosures made by Ms C as set out above.[8]
[6] Ibid at paragraph 11.
[7] Ibid at paragraph 12.
[8] Ibid at paragraph 21.
Between February and June 2022;
·The mother alleged being informed by Ms C that she had observed the father to be drunk and affected by marijuana early in the morning when returning the child D to her care.[9]
[9] Ibid at paragraph 18.
In early 2022;
·The mother alleged having been informed by Ms C that the father had been “locked up” in relation to an assault on a friend and smokes marijuana whilst caring for the child.[10]
·The mother alleged that she is informed by Ms C that the father is aggressive, uses alcohol and drugs and has a “psychotic episode at least every year”. Mother alleged that she and Ms C agree to work together to obtain support for the father with Ms C agreeing to a joint letter from their respective lawyers to the father to that affect.[11]
[10] Ibid at paragraph 13.
[11] Ibid at paragraph 23.
Between 2 to 9 April 2022;
·The mother travelled to City B with child to be present in the City B area during the period the child spends time with the father pursuant to the final orders.
In June 2022;
·The mother alleged that Ms C disclosed to her that the state of the father’s home had deteriorated and photographs of the home were provided.[12] Ms C is further alleged to have informed her that there are “drugs and alcohol bottles”, “old food on the floor”, that the father “is always stoned” and that she would be asking the police “…to do a welfare check on the child [D] because I don’t want to have anything to do with him. We are in a war zone.”[13]
·In late June 2022, the mother messaged Ms C about the joint “legal letter.” The mother alleged that Ms C informed her that she had now reached agreement with the father in relation to the child D. Further, that Ms C stated that she did not want the mother to use evidence against the father previously provided by her. Ms C stated “And if you do so I’ll take actions and will sue you.”[14]
·A bundle of messages between the mother and Ms C confirming the change in Ms C position, the threat of legal action and the mother’s surprise at the change in position is contained in ‘Exhibit M1’.
[12] Ibid at ‘Annexure B’.
[13] Ibid at paragraph 19.
[14] Ibid at paragraph 24.
From 25 June to 2 July 2022;
·The child spent time with the father in Queensland pursuant to the final order;
·The father alleged he attempted to have the time take place in City B but the mother would not agree.[15]
[15] See the Affidavit of Mr Esser filed 20 January 2023 at paragraph 13(c).
15 July 2022 is the date of collection of father’s urine for drug testing which was not requested by the mother at that point in time.
From 12 to 14 August 2022;
·The child spent time with father in Queensland pursuant to the final order.
From 17 to 24 September 2022;
·The child spent time with father in Queensland pursuant to the final order.
·The father alleged that he attempted to spend the time in City B but the mother did not engage in communication with him on this topic.[16]
·The mother alleged that following this period of time spending with the father, the child complained to her that:
(a)He was hungry;
(b)Everyone in the father’s house was asleep; and
(c)He ate raw sausages because he could not wake his father to feed him.[17]
[16] Ibid at paragraph 13(e).
[17] See the Affidavit of Ms Windmarsh filed 18 April 2023 at paragraph 20.
On 12 October 2022;
·The father emailed the mother in relation to the forthcoming Christmas school holidays setting out the dates upon which he sought to spend time with the child pursuant to the final order.[18]
[18] See the Affidavit of Mr Esser filed 20 January 2023 at ‘Annexure B’.
On 25 October 2022;
·A letter was forwarded by the mother’s solicitors to the father inviting him to attend urgent mediation to discuss the mother’s concerns about the child’s safety when in the care of the father, specifically with respect to allegations of drug and alcohol use.[19]
[19] Ibid at ‘Annexure C’.
On 31 October 2022;
·A letter was sent from the father to the mother’s solicitor expressing a concern about attending mediation with the mother.[20] The father stated that in his opinion, by making a proposal for mediation, the mother “…wishes to somehow reduce, amend or even negate (the child’s) time with me as specified in the final orders…” and that the proposed mediation “just seems like a fishing expedition at this stage.”
[20] Ibid at ‘Annexure C’.
On 15 November 2022;
·A letter was sent from the mother’s solicitor to the father setting out, with particularity, the mother’s concerns and the allegations made by Ms C in relation to his conduct. The mother again invited father to attend mediation to discuss her concerns without the need for re-litigation.[21]
[21] Ibid at ‘Annexure D’.
On 13 December 2022;
·A letter was sent from the father’s solicitor agreeing to attend mediation but after the father spends time with the child in the Christmas school holidays. The father provided drug and alcohol tests dated July 2022.[22]
[22] Ibid at ‘Annexure E’
16 December 2022
·A letter was sent from the mother’s solicitor acknowledging father’s agreement to attend mediation and repeating an intention to resolve the issues without the need for re-litigation. Mother raised concerns about the date of the father’s drug test given that the results pre-dated the request for drug testing to be undertaken. The letter also enclosed photographs provided to the mother by Ms C showing:
(a)Homemade bongs used for consuming drugs;
(b)Photograph of the child D sleeping next to a razor; and
(c)Photographs of the father’s loungeroom with an open blade on the floor.[23]
[23] Ibid at ‘Annexure D’.
On 16 December 2022;
·A letter was sent from the father’s solicitor advising that the father had spoken with Ms C and understood that the material was provided to the mother in mid-2022.[24]
·The father put the mother on notice that in the event the mother does not comply with the final orders, he will commence urgent Court proceedings.
[24] See the Affidavit of Ms Windmarsh filed 18 April 2023 at ‘Annexure C’.
On 19 December 2022;
·A letter was sent from the mother’s solicitor advising that the mother had provided time in 2022 wherein such time had occurred in Queensland and with the mother close by. The mother confirmed that the father had been invited to attend mediation on 25 October 2022 so that the issues could be addressed prior to the Christmas school holidays. The mother confirmed commitment to attending mediation as soon as possible.[25]
[25] See the Affidavit of Mr Esser filed 20 January 2023 at ‘Annexure G’.
On 9 January 2023;
·An email was sent from the mother to father confirming her commitment to attend mediation as soon as possible and advising that she accepts his chosen mediator’s being ‘Region F Conciliators’.[26]
[26] Ibid at ‘Annexure H’
On 12 January 2023;
·An email was sent from the father to the mother querying the point of attending mediation if the mother had no intention of complying with the orders. The father referred to “misleading information about me from a third party” provided to the mother in February 2022 and the periods of time spending which have occurred since then.[27]
[27] Ibid at ‘Annexure H’
On 20 January 2023;
·The father filed the first Contravention Application.
On 12 April 2023;
·The parties attended Mediation, and a Section 60I Certificate issued.
On 13 April 2023;
·The father filed the second Contravention Application.
On 20 April 2023;
·The mother issued an Initiating Application to revisit final orders.
ISSUES IN CONTENTION
Father’s Application Contravention filed 20 January 2023
Count 1
It is alleged that the mother, without reasonable excuse, failed to provide the child for time spending with the father pursuant to Order 6.c.iii.2. of the final orders being from 17 to 31 December 2022.
Count 2
It is alleged that the mother, without reasonable excuse, refused to allow the child to spend time with the father pursuant to Order 6.c.iv.2. of the final orders being from 23 to 13 December 2022.
Count 3
It is alleged that the mother, without reasonable excuse, refused to allow the child to spend time with the father pursuant to Order 6.c.iii.2.A.. of the final orders being from 14 to 21 January 2023.
Father’s Application for Contravention filed 13 April 2023
Count 1
It is alleged that the mother, without reasonable excuse, failed to comply with Order 6.c.i. of the final orders being from 24 to 26 February 2023.
Count 2
It is alleged that the mother, without reasonable excuse, refused to allow the child to spend time with the father pursuant to Order 6.c.ii. of the final orders being 1 to 8 April 2023.
In respect of Counts 1, 2 and 3 of the first Application, and Count 2 of the second Application, the mother admits that she contravened the relevant order and argues that she had a reasonable excuse for doing so.
In relation to Count 1 of the second Application, the mother submits:
(2)That the contravention is not admitted and that there is no prima facie case; or
(3)In the alternative, the mother admits the breach but states that she had a reasonable excuse for doing so.
A prima facie case has been described in one context as a case with “a reasonable probability of that claim being successful in some measure.”[28] The High Court has described it in the context of an interlocutory injunction as “…whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at the Trial of the action the plaintiff will be held entitled to relief…”[29]
[28] Perkins& Perkins (1979) FLC 90-600, 78,054.
[29] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622.
At Trial, there was no specific cross-examination of either party in relation to the email sent by the father to the mother dated 16 February 2023,[30] which is said by the mother to support an application that there is no prima facie case in relation to Count 1 of the second Application. In the absence of direct evidence on the topic, the Court is not prepared to draw an inference from the father’s email alone as the mother seeks.
[30] See the Affidavit of Mr Esser filed 14 April 2023 at ‘Annexure B’.
The Court therefore proposes to adopt the alternate position promoted by the mother, namely that the breach is conceded by her but that she had a reasonable excuse for her non-compliance.
LEGAL PRINCIPLES AND STANDARD OF PROOF
The applicable law in respect of failure to comply with orders that affect children is contained in Division 13A of Part VII of the Family Law Act 1975 (Cth) (‘the Act’). The purpose of Division 13A is to ensure compliance with parenting orders made by the Court as distinct from a party being “punished” i.e. for contempt.[31]
[31] Keehan & Keehan [2019] FamCAFC 250.
The standard of proof in determining whether or not a person has a reasonable excuse for contravening an order is on the balance of probabilities.[32]
[32] Family Law Act 1975 (Cth) s 70NAF.
All findings in these Reasons are made to that standard.
A person 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)That person believed on reasonable grounds that not allowing the child and person to spend time together with was necessary to protect the health or safety of a person (including that person 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).[33]
[33] Ibid s 70 NAE.
The onus of establishing whether the requirements of section 70NAE(5) of the Act have been met is on the mother. The mother must establish that she believed on reasonable grounds that not allowing the child to spend time with the father was:
(a)necessary to protect the health or safety of the child;
(b)that the period of the contravention was not longer than was necessary to protect the health or safety of the child; and
(c)that the belief was based on reasonable grounds.
These requirements have been described as having both a subjective and an objective element.[34]
[34] Vaughton & Randle (No 2) [2013] FamCA 286, [82] and [83].
The definition of ‘reasonable excuse’ described at section 70NAE(1) has been held to be expansive insofar as the circumstances in which a person may be taken to have had such an excuse include, but are not limited to, the circumstances set out otherwise in section 70NAE of the Act. The Court has recognised that section 70NAE(1) requires an objective test, albeit that one might include ‘subjective’ aspects.[35]
[35] Childers & Leslie [2008] FamCAFC 5.
The High Court decision of Taikato v the Queen [1996] HCA 28; (1996) 186 CLR 454 at 466 (cited in a family law context in cases such as Seaward & MacDuff [2011] FamCA 1041 and Mitty & Mitty [2012] FamCA 329), is also of assistance in relation to the interpretation of the term “reasonable excuse”:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because 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 defence of “reasonable excuse” is an exception…
… However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts, the power to determine the content of such defences. 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. That being so, the courts must give effect to the will of Parliament and give effect to their own ideas of what is a “reasonable excuse” in cases…
Did the mother have a ‘reasonable excuse’ for contravening Final Orders?
This is an unusual case and turns on its own facts. The mother had first become aware of safety concerns and issues in the father’s household from Ms C in or about February 2022. Despite this, the mother had continued to comply with the orders for time spending until September 2022. It was not until time spending was to occur in the Christmas school holidays in 2022/23 that the mother decided not to comply with the final order.
In this case, the same substratum of facts underpins each count in both Applications and forms the basis for the mother arguing that she had a reasonable excuse for her non-compliance.
The mother contends that she had a reasonable excuse for not complying with final orders on the dates alleged because of:
(1)Her own personal experience of family violence when in a relationship with the father. The mother’s allegations of family violence by the father as detailed at paragraphs 19 and 20 herein were not challenged under cross-examination;
(2)The disclosures and corroborative evidence of family violence made by Ms C included a photograph taken of her injuries whilst lying in a hospital bed and a hospital Discharge Summary dated mid-2021. The Discharge Summary contained very personal information, referred under the heading ‘Clinical Assessment’ to an “alleged assault by partner” in some detail with D present;
(3)The serious disclosures made to her by Ms C regarding the father’s use of marijuana and alcohol particularly during periods when he had either the child or the child D in his care. The allegation of marijuana use was supported by photographs of homemade bongs taken by Ms C at the father’s home and given to the mother; and
(4)The disclosures and photographs made by Ms C of the state of the father’s home and the dangers posed to children including the photographs of the child D lying in bed next to a razor and an open bladed knife on the floor of the father’s home.
The mother argues that the combination of her own experiences of family violence with the father and the disclosures made by Ms C as detailed above meet the threshold set out in paragraph 65 herein by way of a defence of reasonable excuse.
THE EVIDENCE
The Court considers that the evidence of the parties and of Ms C is critical in determining both the objective and subjective elements of the mother’s defence.
The Father’s Evidence
The father was vigorously cross-examined and made a number of critical concessions in relation to the allegations which are said to underpin the mother’s defence. Those allegations and the father’s evidence are set out below.
Drug Consumption by the Father
The father conceded that all of the photographs given to the mother by Ms C were taken in his home. The father could not confirm nor deny whether either child was in his care when the photograph of the homemade bongs was taken, nor could he explain how the bongs came to be in his study.
The father stated that whilst he had smoked marijuana using water bongs in the past, he had not done so for a long time. He initially denied any knowledge of whether Ms C had made allegations of his smoking marijuana in their own litigation. When pressed by counsel he conceded that Ms C had given evidence of the photographs but not of marijuana use.
The father conceded that the photographs of bongs and the statements made to the mother by Ms C of his use of marijuana whilst caring for children, would have caused the mother to become worried.
The father conceded that he had continued to use marijuana despite the final order restraining him from doing so arguing that he had misunderstood its terms. It is uncontested that paragraph 27(c) of the final orders restrained the father from ingesting, consuming or using or otherwise being under the influence of any other legal or illegal drug or substance unless in compliance with paragraphs 27(d) or (e). The father was legally represented at the time the final orders were made.
In paragraph 31 of his first affidavit, the father deposed to not understanding that the wording of the order implied a total abstinence from an illicit substance until he and Ms C were preparing a parenting plan for the child D in July and he had re-read the orders.
The father agreed in evidence that the drug test dated 15 July 2022 provided by his solicitor under the cover of letter dated 13 December 2022 was not undertaken in response to the request made by the mother’s solicitors. It was not until the father filed his affidavit on 20 January 2023 that the mother was informed that the drug test dated July 2022 was produced as part of ‘parenting negotiations’ with Ms C.[36]
[36] See Affidavit of Mr Esser filed 20 January 2023 at paragraph 31.
The father accepted in his oral evidence that his failure to address why the drug test predated the mother’s formal request may have caused the mother concern.
Neglect and Living Conditions in the Father’s Home
The father conceded under cross-examination that the photographs of the nappies, milk bottle and exposed power board in his bedroom would have caused the mother concern in relation to his parenting.
He described the photograph of his kitchen as “messy” rather than “filthy”.
He accepted that the mother observing a photograph of a Stanley knife on his loungeroom floor, when there were indicators of a child present, “possibly” could have caused the mother concern over his parenting. The father could not explain how the Stanley knife was on the floor. He agreed that the razor had been placed near the child D in the bed because he had been playing with it, albeit with the blade removed.
The father agreed that the photograph of the child D lying on a bed next to a razor, could have caused the mother concern and that the mother would not have known from looking at the photograph if the blade was on or off the razor when the photograph was taken.
Family Violence
The father conceded that the allegations of family violence made to the mother by Ms C, together with the photographs of her injuries and a copy of the Discharge Summary, could have caused the mother concern. This evidence was qualified by stating that it would depend on how Ms C had “put it to her”.
The father denied the allegations of family violence arising from his relationship with the mother. He agreed however that if the mother had suffered such an experience, and then heard of Ms C’s complaints about similar conduct, it would have caused her to become worried for the child.
In paragraph 28 of his first affidavit, the father described the incident involving Ms C in mid‑2021 as “an unfortunate incident.” The father otherwise denied having been accused, charged or prosecuted for an offence against a person.[37]
[37] Ibid at paragraph 32.
In his second affidavit and after production of the section 69ZW documents, the father conceded in paragraph 28(a) to having kicked the window of a restaurant whilst intoxicated in 2020. The father pleaded guilty to one count of property damage was placed on a good behaviour bond and ordered to pay damages.
Consumption of Alcohol by the Father
The father agreed in his evidence that in December 2020 police had been called over a disturbance involving the father, and that he had been placed in a facility quaintly described by him as “The Drunk Bin.” He otherwise denied consuming alcohol to excess whilst the child was in his care.
Mother’s Attempts to Mediate
The father conceded that it was “not surprising” that the mother had become worried when faced with the photographs, Ms C's Discharge Summary and an allegation of police involvement whilst he was intoxicated.
He acknowledged declining the mother’s written requests to attend mediation until 13 December 2022 and even then, offered for the mediation to occur in late January/early February 2023 – after the Christmas school holidays had occurred.
He conceded that the mother’s offer to attend mediation was a reasonable course of action in the circumstances. This concession appeared from the evidence to be reluctantly given.
In his second affidavit at paragraph 16, the father stated;
“I am confused as to why [Ms Windmarsh] wants to attend mediation when our situation has not changed significantly.”
This statement must be seen against the letters forwarded by the mother’s solicitor dated 25 October 2022, 15 November 2022, 16 December 2022 and 19 December 2022 which clearly spell out the mother’s concerns and the reasons why she wished to mediate with him prior to the Christmas school holidays.
The father admitted in his evidence that if the facts were as the mother (reasonably) saw them, then she acted reasonably and what she did was understandable.
Having had the benefit of observing the father’s oral evidence, the Court finds that a degree of caution must attach to the father’s evidence on the following topics:
(1)The father gave conflicting evidence about when he had last sent a text message to Ms C. He was adamant that the last text message or conversation he had had with Ms C was the day before the Trial commenced (Thursday). Ms C read to the Court text messages he had sent to her on the same day (Friday) and a text message in reply where she said to him "don't talk to me". Whilst a benign topic, the Court prefers the evidence of Ms C;
(2)The Court rejects his evidence about never having bongs at his house and not smoking marijuana when he was caring for the child. On this topic, the Court prefers the oral evidence of Ms C that she removed the bongs she photographed from the rubbish bin at his house and that when they were living there together, she observed and smelt marijuana which led her to know that the father had been smoking marijuana while caring for the boys;
(3)In his second affidavit, the father deposed that he had never been accused of assault. This evidence is contradicted by the section 69ZW material at page 6, page 7 (this appears to be the incident referred to in the screenshot copied into the message at page 15 of ‘Exhibit M1’), page 8, and pages 19 to 20 of the affidavit of Ms H, solicitor, filed 19 April 2023. The section 69ZW material was not available to the father when he filed his second affidavit; and
(4)The father’s evidence that he acted in the way he did in mid-2021 (‘the mid-2021 incident’) because he was "scared" of Ms C was not persuasive and was raised for the first time under cross-examination. The Court considers it more likely that the father was angry with Ms C for returning the child to the mother during this period of time and reacted in response to learning this when he arrived home.
MS C EVIDENCE
Ms C under cross-examination:
(1)Contradicted the father’s evidence on when they had last had contact stating that it was “this morning”, being the first day of Trial. She denied having received any text messages from the father the preceding day. As set out above, her evidence on these topics were at direct odds with that given by the father under cross-examination;
(2)Agreed that she and the mother had become friendly with each other when Ms C was in a relationship with the father and described sending “kind messages to each other”;
(3)Agreed that she had returned the child to the mother in mid-2021 and “more than likely” told her about the father leaving her alone to care for the children X and D whilst he went out drinking.
(4)Agreed having disclosed matters relating to the father’s conduct to the mother from February 2022 and at a time when they had a “friendly relationship.” Ms C added to this by stating in her evidence that the complaints she had made to the mother were “exaggerated”;
(5)Remembered having referred to the father as a “psycho” or a “dickhead” explaining that at the time, she “was angry”;
(6)Agreed that the messages in ‘Exhibit M1’ sent by her to the mother about the father would likely cause the mother to worry about the child’s safety;
(7)Stated that the photographs of the razor and the Stanley knife were taken in mid-2022 at a time when she was very angry with the father about what she observed in his home. She conceded that at the time of taking the photos she was worried about the father and his parenting;
(8)Agreed having told the mother about the incident in mid-2021 and that at the time of the incident agreed that she considered herself to be a “victim of an assault”;
(9)Agreed that she had withdrawn her consent to the sending of a joint letter to the father after she and the father had reached agreement for the child D and that she had used the words that “it was not in her best interests”;
(10)Conceded filing an affidavit in the litigation with the father over the child D. In response to a question as to whether or not the evidence in that affidavit was truthful, she replied “yes – at the time.” She remembered filing a Notice of Risk in her own proceedings with the father where she had raised allegations of drugs and alcohol, domestic violence and neglect;
(11)Claimed to have found the bongs in a bin at the father’s home and then put them on a table to take photographs so as to make it “look more dramatic.” This evidence at least confirmed the father’s evidence that he did not know how the bongs ended up on his office desk. Ms C was not asked if she had planted the Stanley knife on the loungeroom floor for similar “dramatic” effect;
(12)Stated that the photographs of the father’s home and the bongs were taken “for rainy days for future in case something came up”; and
(13)Informed the mother via message that she would be asking the police to carry out a welfare check on the child D when in the father’s care.[38]
[38] See ‘Exhibit M1’.
In a number of important respects, Ms C’s evidence was unsatisfactory in that she claimed to have no memory of pivotal events. In her oral evidence, Ms C could not remember:
(1)Receiving information from the mother referring her to support services for women who have experienced family violence despite the messages being clearly spelt out in ‘Exhibit M1’. Ms C stated in her evidence that she “no longer had those messages” without explaining how they might have been erased from her mobile phone;
(2)Telling the mother that she would not press charges against the father over the mid‑2021 incident because the father would then make it difficult for her to travel to Country G with the child D;
(3)Telling the mother that she was worried about her visa status if she continued with complaints about the father’s conduct;
(4)Receiving messages from the mother querying her change of position explaining again that “I don’t have those messages anymore”;
(5)Telling the mother that the child “was not safe” in the father’s care;
(6)Telling the mother that the father had been smoking marijuana whilst the child X was in his care, adding those events were “two years ago”; and
(7)Telling the mother in April 2022 that she had seen the father smoking marijuana whilst caring for the child but agreed that if she had sent such a message, it would have been true.
When it was put to the witness that her evidence had the tone of trying not to damage the father’s case or get him “into trouble”, she denied it. The witness claimed that she had made the disclosures to the mother so that she could “find things out from her” and not the other way round. This explanation, on its face, seems inherently implausible and I reject it.
Having observed Ms C’s evidence, the Court assesses her as now attempting to distance herself from the very serious allegations made by her to the mother at a point in time when her own relationship with the father was fraught. There may be many reasons for Ms C’s change of heart. The Court considers for this Trial, it is not necessary to make findings as to Ms C’s motives.
It is enough, on the facts of this case, to observe that but for the disclosures made by Ms C to the mother, the mother would have been none the wiser of what was going on in the father’s household. It was Ms C alone who sent the photographs to the mother of the father’s home, the photographs of the bongs, the razor and the Stanley knife, her injuries and evidencing the state of the father’s home. Having unleashed that evidence, it not so hard to understand that now she seeks to resile from it given that she and the father have reached agreement and continue to co‑parent their son.
What is clear from the evidence is that the neither the father nor Ms C informed the mother that proceedings had been instituted at Court in relation to their child D.
Where Ms C’s evidence is at odds with the mother, the Court prefers the mother’s evidence.
THE MOTHER’S EVIDENCE
Under cross-examination, the mother:
(1)Conceded that she complied with orders for time spending after being in receipt of the evidence from Ms C;
(2)Agreed that she had not observed the father to be under the influence of drugs during the period 25 June 2022 to 2 July 2022 or from 12 to 14 August 2022;
(3)Agreed that she had felt more comfortable for time occurring in Queensland rather than in City B at that time;
(4)Agreed that as at December 2022 she still held the view that the father was using drugs;
(5)Conceded to having referred to the child as ‘X Windmarsh’ and not ‘X Esser’ on at least one occasion;
(6)Conceded that the paragraphs referencing conversations with Ms C deposed to in her affidavit and using direct quotations, came from a combination of messages, some contemporaneous notes and conversations relayed to her mother or sister and her memory;
(7)Agreed that she had facilitated time between the child and the father up to September 2022 even though she held a view that the father posed a risk to the child;
(8)Denied that her decision to stop time in December 2022 was to limit the father’s involvement in the life of the child, stating that this was the reason why she had wanted to mediate with the father from as far back as October 2022;
(9)Stated that she had not initially told the father about the existence of the messages and photographs sent by Ms C because she was worried that “he would do something horrible to her”; and
(10)Stated that her concerns for the child if spending time with the father fell under the categories of drugs, alcohol and family violence. The Court observes that those matters largely mirrored the categories of risk conceded by Ms C to have been identified in her Notice of Risk filed in her own proceedings with the father.
On the balance, the Court prefers the evidence of the mother when in conflict with that of the father and Ms C.
The Court does hold some concerns about the mother’s evidence. For example, the implied reference in ‘Exhibit M1’ being a message dated 10 February 2022 to Ms C about building a case against the father and urging Ms C to obtain date stamped photographs,[39] raise queries about the mother’s motivations.
[39] See ‘Exhibit M1’ at pages 4 and 28.
Furthermore, the large references to conversations with Ms C in the mother’s affidavit which give the impression of direct quotes, when in fact they are not, are misleading. I have not drawn any conclusions from the evidence given by the mother in her affidavit in direct quotations. It is now clear that those paragraphs are not exact replications of conversations but come from a number of different sources. I am, however, cognisant that the mother prepared the affidavit herself and without legal assistance.
CONCLUSION
In light of all of the evidence, the Court has come to a conclusion that, on balance, the mother has established having a reasonable excuse within the definition as provided for in section 70NAE of the Act for breaching the final order in each count as alleged by the father. As already observed by the Court, this is an unusual case and turns on its own facts.
It is the Court’s view that it is unreasonable to expect that the mother could simply “unsee” all of the evidence provided to her by Ms C. Both the mother and Ms C, at a point in time, shared the exact same concerns regarding family violence, drug and alcohol use, and neglect in the father’s household. The mother was not to know the reason for Ms C’s abrupt turn of face because the mother was not aware until the Trial that there had been Court proceedings between her and the father in relation to the child D.
The father himself conceded under cross-examination, as set out above, that he understood that the mother would have been concerned when faced with the damaging evidence volunteered to her by Ms C and that her concerns in relation to number of issues were not unreasonable.
The mother made efforts to mediate with the father from October 2022. Instead of seeing this as an opportunity to hear what the mother had to say and to ventilate these issues in a confidential forum, the father declined. The father viewed the offer of mediation as a hostile or hollow offer by the mother rather than seeing it as an opportunity to find out what she had to say.
The Court is satisfied that the mother acted in a way to protect the safety of the child and that her belief was genuine and based on reasonable grounds. Given the unusual factual matrix in this case, the Court is satisfied that the periods of contravention were not longer than was necessary to protect the safety of the child. The sudden retraction by Ms C caused even further alarm for the mother as to what was actually going on in the father’s life. The person who had brought to light extremely concerning allegations had ‘gone to ground’. In the absence of the father engaging with the mother at mediation, the mother’s decision to withhold the child was reasonable in all of the circumstances.
If successful at Trial, the mother seeks for the Court to make orders varying the final orders. The mother has now filed an Initiating Application seeking to vary the final orders. The Court therefore declines to interfere with the final order. The Application can proceed in the usual way through the case management pathway and with a focus on the child’s best interests. The Court considers that the reappointment of an Independent Children’s Lawyer would be useful given the nature of the allegations and the intractable dispute between the parties. Further applications may also need to be considered to access the Court file of the father and Ms C. These are all matters to be ventilated moving forward.
The Court accepts that the father is keen to recommence time spending as soon as possible. It is hoped that the findings of the Court as set out herein can assist the parties to focus on the child’s future relationship with each of his parents and what steps need to be taken to move the matter forward with the child’s best interests as a priority.
For all of those reasons, the Court makes the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 26 May 2023
0
8
0