FULTON & PACKER

[2018] FamCA 1124

FAMILY COURT OF AUSTRALIA

FULTON & PACKER [2018] FamCA 1124

FAMILY LAW – ORDERS – Contravention – where the Applicant seeks to prosecute a number of alleged contraventions – where a number of those contraventions have been the subject of summary dismissal – where a number of counts of alleged contraventions remain – Respondent found to have contravened orders without reasonable excuse – fine imposed

FAMILY LAW – CHILDREN – Application to vary parenting orders – competing applications – father seeks to vary orders such that the child lives with him or members of the maternal extended family – mother seeks to vary orders by having all orders other than that the child live with her discharged 

Family Law Act 1975 (Cth)

Crimes Act 1914 (Cth)

Banks v Banks (2015) FLC 93-637

APPLICANT: Mr Fulton

RESPONDENT: Ms Packer

FILE NUMBER: LEC 575 of 2007

DATE DELIVERED: 7 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 11 and 31 August 2017, 7 September 2017,
10 and 16 October 2017

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Pursuant to s 70NFB(2)(g) of the Family Law Act 1975 (Cth), the mother pay all of the Applicant father’s costs to these contravention proceedings.

2. Pursuant to s 70NFB(2)(d) of the Family Law Act 1975 (Cth), the Respondent is fined 60 penalty units ($12,600.00) and shall pay that fine of $12,600.00 to the Registry Manager of the Brisbane Registry of the Family Court of Australia by 4.00 pm on Friday 28 June 2019.

3. Pursuant to s 70NBA of the Family Law Act 1975 (Cth) the parenting order made by Justice Forrest on 12 October 2015 relating to the child B, born … 2003, is varied by deleting paragraphs (4)(iii), 4(iv), 4(v) of that Order.

IT IS NOTED THAT THE COURT FOUND THAT

1. The Respondent, without reasonable excuse, contravened Order 3 of the Order made on 12 October 2015, by failing to complete a post-separation parenting orders program conducted by a s 65LB provider of such programs within six (6) months of the date of that Order and by failing to provide evidence in writing of the completion of such a program to the Court and the father as soon as she has completed the program.

2. The Respondent, without reasonable excuse, contravened Order 4(iv) of the Order made on 12 October 2015, by failing to keep the Applicant father informed of a postal address to which he could send letters, cards and/or presents to the child.

3. The Respondent, without reasonable excuse, contravened Order 4(v) of the Order made on 12 October 2015, by failing after April 2016 to advise the Applicant father in writing at six (6) monthly intervals of the child’s development, progress and educational performance.

4. The Respondent, without reasonable excuse, contravened Order 3 of the Order made on 29 July 2013, by failing, prior to making the ultimate decision to  remove the child from his school in X Town and to relocate his residence from a location in New South Wales to a location in Queensland, to:

   (a)use her best endeavours to advise the Applicant in writing of the decisions intended to be made; and

   (b)seek his written response in relation thereto; and

   (c)consider, by reference to the best interests of the child, any such response prior to making any such decisions; and

   (d)advise the Applicant in writing as soon as reasonably practicable of her ultimate decisions.

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 Fulton & Packer 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 BRISBANE

FILE NUMBER: LEC 575 of 2007

Mr Fulton

Applicant

And

Ms Packer

Respondent

REASONS FOR JUDGMENT

1. The Applicant father alleges[1] that the Respondent mother contravened certain aspects of the parenting orders made by Kent J on 29 July 2013 and by Forrest J on 12 October 2015.[2] These Orders relate to the child, B born in 2003.

   [1] Application – Contravention filed 17 July 2017.

   [2] Orders 1, 3 and 4.iv and 4.v of the Order made on 12 October 2015 by Forrest J (as amended on 5 November 2015) and Order 3 of the Order made on 29 July 2013 by Kent J.

2. The father submitted that the mother should be found to have contravened the Orders and, given that such findings would represent the second occasion on which she would have been found to have contravened parenting orders, she should be imprisoned.

3. The mother either denied contravening the Orders as alleged or, if she accepted that she had contravened them, asserted that she had a reasonable excuse for any contravention. She submitted that, if she was found to have contravened the Orders without reasonable excuse, any punishment other than a bond would adversely affect the child and, therefore, should not be imposed.

4. Both parents also sought to vary the existing parenting orders.[3] The father sought that they be discharged and, instead, an Order be made for the child to live with him or with members of his extended maternal family. The mother sought that all existing Orders, other than that which provides for the child to live with her, be discharged.

   [3] S 70NBA Family Law Act 1975 (Cth).

5. It is against the background outlined below that the most recent allegations of further contravention of Orders and the competing applications to vary the existing parenting orders fall to be considered.

The orders made on 29 July 2013 (the July 2013 Orders)

1. The July 2013 Orders were made after the parents participated in a contested hearing before Kent J, at which each sought that the child live with them. The mother – at least ostensibly – proposed that, until he turned fourteen years of age (which was on 4 October 2017), the child spend supervised time with his father; the father proposed that, after a moratorium over his time with his mother of either six months or six weeks, the child spend alternate weekend and holiday time with his mother.

2. The significant issues considered at that hearing included:

   a)whether, as alleged by the mother, the father was controlling of others’ behaviours and had sexually and physically abused the child and whether the child was, therefore, fearful of him and at an unacceptable risk of suffering harm if he spent unsupervised time with his father; and

   b)whether the child had been subjected to emotional and psychological abuse as a consequence of being exposed to his mother’s belief that he had been the victim of sexual and physical abuse at the hands of his father, such that he was at an unacceptable risk of suffering psychological and emotional harm if he remained living with his mother.

3. Reference to the Reasons for Judgment delivered by Kent J on 29 July 2013 makes it clear that the mother’s case involved allegations that the father had:

   a)whilst showering with the child and washing his bottom with his hand, digitally penetrated the child’s anus and that the child first disclosed anal digital penetration on 18 July 2011; and

   b)urinated on the child whilst showering with him (said to have first been disclosed by the child on 9 December 2010) and that such practice was done by the father for his own sexual gratification;  and

   c)been and was prone to angry outbursts and had engaged in controlling behaviour, such that the child was fearful or scared of him.

4. Reference to the Reasons for Judgment delivered by Kent J on 29 July 2013 also makes it clear that the father:

   a)denied inflicting physical abuse or perpetrating sexual abuse on the child and also denied that the child had ever feared him at any time prior to about mid-2011; and

   b)asserted that the mother had invented these allegations and had actually coached the child to make them or, alternatively, they were the product of the influence and dynamics within her household upon the child.

5. Reference to the Reasons for Judgment delivered by Kent J on 29 July 2013 also makes it clear that the Independent Children’s Lawyer contended that:

   a)the child’s disclosures were unreliable: not because of deliberate “coaching” by the mother but as a result of the child picking up on her anxiety; and

   b)the Court ought to make a finding that the child was not at an unacceptable risk of harm in his father’s care; and

   c)both the mother and her then husband (Mr Packer) genuinely and adamantly believed that the child had been physically and sexually abused by the father and that such belief had been, and would continue to be, “transmitted” to the child; and

   d)because the mother was unable and/or unwilling to protect the child from her own distress and anxiety relating to his relationship with his father, he was at an unacceptable risk of harm in her household from continuing psychological and emotional abuse; and 

   e)the child would not have a meaningful relationship with his father if he continued to live with his mother, because she would almost certainly not comply with Orders for him to spend unsupervised time with his father.

6. The Independent Children’s Lawyer ultimately supported parenting orders which would have seen the child move to live with his father and that his father be accorded sole parental responsibility for major long-term decisions relating to him.

7. Reference to the Reasons for Judgment delivered by Kent J on 29 July 2013 makes it clear that his Honour found that:

   a)following investigation by the Joint Investigation Response Team (‘JIRT’), it was resolved that a criminal prosecution of the father in respect of the allegations could not be sustained; and

   b)the mother’s firm conviction that the father had engaged in physical and sexual abuse of the child had brought about reconstruction and distortion in her evidence;[4] and

   [4] Paragraph [53] Reasons for Judgment delivered 29 July 2013.

   c)a significant issue for the child, at least as at the beginning of the 2010 school year, was his school phobia and separation anxiety;[5] and

   [5] Paragraph [171] Reasons for Judgment delivered 29 July 2013.

   d)after the child’s return to his mother’s care in January 2010 (following spending 23 nights with his father), she and Mr Packer were concerned about her report of his obvious distress, asked him on many occasions what had happened when he was with his father and, after he kept repeating “I can’t remember”, they formed the view or belief that he had “repressed many traumatic memories”[6] and, in such context, this questioning was not simply a forum for the child to relate any negative comments but constituted influence upon him to do so;[7]  and

   [6] Paragraph [203] Reasons for Judgment delivered 29 July 2013.

   [7] Paragraph [205] Reasons for Judgment delivered 29 July 2013.

   e)the mother’s rejection of the contentions that she was hypervigilant, looking out for “every little sign” that the father may have harmed the child, spent a lot of time asking the child questions about what happened with his father, questioned the child because she was being vigilant about him being at risk, questioned him extensively following his return from visits and that her purpose in questioning him was to look out for whether or not any harm had come to him, did not rest comfortably with aspects of her own affidavit evidence;[8] and

   [8] Paragraphs [202] and [203] Reasons for Judgment delivered 29 July 2013.

   f)the evidence given by the father and witnesses called by him was such as to put in question the mother’s oral evidence that, from the commencement of 2010, the child was genuinely in fear of, or scared of, his father;[9] in fact, their evidence appeared irreconcilable with the notion that the child was in fear of or scared of the father;[10] and

   [9] Paragraph [183] Reasons for Judgment delivered 29 July 2013.

   [10] Paragraph [185] Reasons for Judgment delivered 29 July 2013.

   g)the respective observations of Ms D (Family Consultant) in March 2011 and those of Mr L (psychologist) in May 2011 of the child’s interactions with his father were apparently inconsistent with the proposition that the child was in fear of or scared of him;[11] and

   [11] Paragraph [186] Reasons for Judgment delivered 29 July 2013.

   h)after a recovery order was made on an ex parte basis after the mother had decided, at some stage in early December 2010, to contravene the then existing parenting orders which had provided for the child to spend time with his father, the mother refused to hand the child over to police and took “the drastic step” of going into hiding with him for some weeks to avoid that order: “I find that to be a reflection of her firm conviction and belief by that time that the child had been physically and sexually abused by the father and that she had to protect him.”;[12] and

   [12] Paragraph [72] Reasons for Judgment delivered 29 July 2013.

   i)by early December 2010, both the mother and Mr Packer held firm and unequivocal views that the child had been physically and sexually abused by his father;[13] and

   [13] Paragraph [81] Reasons for Judgment delivered 29 July 2013.

   j)on the evidence of Mr Packer, the child had been told by his mother and Mr Packer that he was the victim of physical and sexual abuse soon after disclosures of “urinating and bottom washing (in a yucky way)” were made and that both of these disclosures had been made by 9 December 2010;[14] and

   [14] Paragraph [73] Reasons for Judgment delivered 29 July 2013.

   k)as early as soon after 6 December 2010, the child was told that what was happening to him was child sexual abuse and was absolutely wrong;[15] and

   [15] Paragraph [82] Reasons for Judgment delivered 29 July 2013.

   l)on 29 December 2010, a Ms J (a psychologist with whom the child had been consulting since October 2010) told a Departmental Caseworker that:

   i)it had been very difficult to engage the child: he was an highly anxious child, which was exacerbated by his mother’s level of anxiety; and

   ii)whilst the child was very comfortable with his mother, much of his anxiety appeared to be centred on him not wanting to upset her; and

   iii)whilst the child had made some disclosures to her about his father being “angry” and that this frightened him, these had been made in his mother’s presence and she had “assisted with the disclosure”: the mother provided scenarios and asked the child to “remember” and expand on specific incidents (one of them being the father “punching” the child in the stomach);  and

   iv)she did believe there was an anxiety for the child that related to his father, but she had not determined any information to indicate concern significant enough to make a report; “no clear or substantive disclosures of risk”,[16]  and

   [16] Paragraph [132] Reasons for Judgment delivered 29 July 2013.

   m)if the mother’s methodology described by Ms J to the Department was accurate then, taken with other evidence referred to below in the Reasons for Judgment as to the extent of the child’s questioning on and from January 2011, there were “profound questions about both the reliability of the child’s disclosures and the reliability of the mother’s reporting of them”;[17] and

   [17] Paragraph [142] Reasons for Judgment delivered 29 July 2013.

   n)by 6 January 2011, the child knew that his mother had resolved to “contravene” the existing Orders and that she would only countenance  “supervised contact”;[18] and

   [18] Paragraph [83] Reasons for Judgment delivered 29 July 2013.

   o)by 6 January 2011, the child had seen and identified a list of people to whom he had spoken “so I don’t have to go to pappa’s” and to have such people on “our side” with reference to “court”;[19]  and

   [19] Paragraph [83] Reasons for Judgment delivered 29 July 2013.

   p)by no later than May 2011, Mr Packer was firmly of the view that the “yucky” bottom washing by the father was not limited to touching the child’s anus but included “digital insertion”;[20]  and

   [20] Paragraph [86] Reasons for Judgment delivered 29 July 2013.

   q)Mr Packer was firmly of the view that digital penetration was involved, despite the child not ever having made that allegation to that point – he (Mr Packer) shared that view with others (including the then Family Report Writer) and told teachers at the child’s school that the father was a paedophile;[21] and

   [21] Paragraph [87] Reasons for Judgment delivered 29 July 2013.

   r)the mother respected Mr Packer’s views, not only because he was her husband but, also, because he was an experienced health professional: she was already of the firm conviction that the child was exposed to sexual abuse when with the father and, from the child’s perspective, he was plainly aware of and responsive to his mother’s anxieties;[22] and

   [22] Paragraph [88] Reasons for Judgment delivered 29 July 2013.

   s)Mr Packer was a powerful presence, such that the mother would be prone to defer to his opinions;[23]  and

   [23] Paragraph [295] Reasons for Judgment delivered 29 July 2013.

   t)it was difficult to accept that the child had not been exposed, whilst in his mother’s household, to Mr Packer’s firm views (reached by no later than May 2011) that the father’s conduct included anal digital penetration, even though the child had not made such a disclosure at that time;[24]  and

   [24] Paragraphs [297] – [300] Reasons for Judgment delivered 29 July 2013.

   u)it was hardly a quantum leap that, when from early 2010 the child was asked, on the mother’s evidence repeatedly by herself and Mr Packer, questions which explored, from a standpoint of “repressed traumatic memories” to do with the father, that, over time, the child would make increasingly negative statements concerning him;[25] and

   [25] Paragraph [191] Reasons for Judgment delivered 29 July 2013.

   v)there were some obvious and important examples where the mother’s highly negative views of the father and/or her own anxiety surrounding the child spending time with him had been exposed to the child and had either been absorbed by him or placed him in a position of having to navigate a path, being well aware of the mother’s position;[26] and

   [26] Paragraph [192] Reasons for Judgment delivered 29 July 2013.

   w)any negative statement from the child about the father gained ready and uncritical acceptance from the mother: that is, any negative statement or view he expressed was accepted as genuine or truthful without any testing of such views;[27]  and

   [27] Paragraph [201] Reasons for Judgment delivered 29 July 2013.

   x)there were striking examples of the child adopting the mother’s viewpoint or beliefs about the father: that is, adopting as truth negative views or portrayals of the father sourced to the mother or as a result of influences in her household,[28] which included him conveying in a formal interview that he had seen his father angrily yelling at his mother and telling her that she owed him $500,000.00 for living on his property, whereas the mother’s own account of this asserted argument with the father involved that it occurred when the child was only three months of age;[29] and

   [28] Paragraph [206] Reasons for Judgment delivered 29 July 2013.

   [29] Paragraph [207] Reasons for Judgment delivered 29 July 2013.

   y)the child had adopted, as his own experience and memory, facts or versions of events that could not possibly be his own experience or memory and, in recounting such “facts” to others, recounted them with the same degree of conviction as other facts: the “facts” could only be in his knowledge or belief system because he heard them from his mother or in her household;[30]  and

   [30] Paragraph [225(a)] Reasons for Judgment delivered 29 July 2013.

   z)the father elected in May 2011 to cease all contact with the child and he did not telephone him, nor did he send him any cards or gifts: in effect, he refused to submit to the mother’s demand for supervised time pending a final hearing on the basis that there was no need for supervision of the child’s time with him;[31] and

   [31] Paragraph [78] Reasons for Judgment delivered 29 July 2013.

   aa)he had no doubt that, by the time of the 28 July 2011 JIRT interview (if not earlier), the child actually believed the things he was saying in terms of the father engaging in the pattern of conduct involving urination and the digital penetration;[32]  and

   [32] Paragraph [246] Reasons for Judgment delivered 29 July 2013.

   bb)observations or conclusions to the effect that the child’s presentation during the interviews appeared “scripted” or “contaminated” or “rehearsed” or “unreliable” could not be said to be unreasonable;[33]  and

   [33] Paragraphs [249] – [251] Reasons for Judgment delivered 29 July 2013.

   cc)he did not find that the mother “coached” the child, but the probable explanation for the child ultimately making the disclosure lay in the combination of the fact that the mother had been unsuccessful in her attempt to have the father’s time supervised, in combination with Mr Packer’s firm view that digital penetration was involved,[34] an opinion he said he had formed because the child had bleeding from the back passage;[35] and

   [34] Paragraph [300] Reasons for Judgment delivered 29 July 2013.

   [35] Paragraph [301] Reasons for Judgment delivered 29 July 2013.

   dd)whilst the mother said that, after the child told her (on 24 July 2011) that on occasions he had blood in his poo after his father put his finger up his bottom in the shower, she recalled that, in 2010, there were some occasions when he complained of blood in his poo and she had spoken to his paediatrician about this, the paediatrician’s clinical notes contain no reference to any such discussion;[36] and

   [36] Paragraph [302] and [303] Reasons for Judgment delivered 29 July 2013.

   ee)neither the mother nor Mr Packer ever independently confirmed that in fact the child had any bleeding and there is no disclosure by him that is not directly in the context of his father cleaning his bottom;[37] and

   [37] Paragraph [305] and [306] Reasons for Judgment delivered 29 July 2013.

   ff)given that the child had already spoken about “bottom washing” from December 2010 and had spoken extensively about his father, including in a January 2011 interview, it beggared belief that, if in April or May 2011, the father had perpetrated acts of anally digital penetration, the child would not have said so until July 2011;[38] and

   [38] Paragraph [311] Reasons for Judgment delivered 29 July 2013.

   gg)he had no doubt that the mother, already convinced that the child was subjected to abuse, would have questioned him closely after his April and May 2011 visits with his father;[39] and

   [39] Paragraph [311] Reasons for Judgment delivered 29 July 2013.

   hh)during the 28 July 2011 JIRT interview, the child made a clear disclosure of the father putting his finger in his bottom on at least one occasion, describing it feeling like a “soft rock”;[40] and

   [40] Paragraph [312] Reasons for Judgment delivered 29 July 2013.

   ii)there would not exist an unacceptable risk of the child being exposed to sexual abuse if parenting orders made included that he spend unsupervised time with his father;[41] and

   [41] Paragraph [314] Reasons for Judgment delivered 29 July 2013.

   jj)he had absolutely no doubt that each of the mother and Mr Packer had a firm and entrenched belief that the child had been physically and sexually abused by the father and that the child spending unsupervised time with him would mean that the child continued to be physically and sexually abused;[42] and

   kk)it could not be concluded that such beliefs were irrational or baseless given the nature of the child’s statements even initially;[43] and

   ll)he accepted that the child did make statements to the mother, which she readily concluded were descriptions of abuse when the statements were in fact unreliable, and that, whilst her method of questioning him likely compounded this problem, given that he accepted the child was responsive to the mother’s anxieties, the compounding effect of their interactions became obvious; Mr Packer was firmly of the view that what the child was speaking of was, first, physical abuse and then disclosures of sexual abuse;[44] and

   mm)there was no doubt within the mother’s family members and her best friend and her adult children that the child has been victimised by the father and that this “inescapably informs the mother’s own views and belief system”;[45] and

   nn)the mother had an entrenched belief and nothing was likely to change that and he was confident that his Reasons would be dismissed by the mother and Mr Packer as simply further evidence of the failure of “the system”;[46] and

   oo)having seen and heard the mother give her evidence, he did not accept that the Court needed expert evidence to conclude that the mother’s parenting capacity would be fundamentally compromised in response to an order that the child spend unsupervised time with his father;[47] and

   pp)the mother had a resolute belief in the allegations, supported by the shared belief of Mr Packer and her now adult children, which belief could not be characterised as irrational or baseless;[48] and

   qq)to conclude that the child would be accepting of a decision that saw him in the primary care of his father, when he was aware of the mother’s position and beliefs, defied reality;[49] and

   rr)in the circumstances of the case, changing the child’s residence to the father offered no real solution to the dilemma in terms of meeting the child’s best interests and would probably lead to a greater damage for him.[50]

[42] Paragraph [315] Reasons for Judgment delivered 29 July 2013.

[43] Paragraph [316] Reasons for Judgment delivered 29 July 2013.

[44] Paragraph [318] and [319] Reasons for Judgment delivered 29 July 2013.

[45] Paragraph [321] Reasons for Judgment delivered 29 July 2013.

[46] Paragraph [322] Reasons for Judgment delivered 29 July 2013.

[47] Paragraph [326] Reasons for Judgment delivered 29 July 2013.

[48] Paragraph [332] Reasons for Judgment delivered 29 July 2013.

[49] Paragraph [335] Reasons for Judgment delivered 29 July 2013.

[50] Paragraph [341] Reasons for Judgment delivered 29 July 2013.

What happened after the 29 July 2013 Order was made?

1. The father filed a Contravention Application in December 2013 and subsequent Applications in August 2014 and January 2015. Such applications were ultimately determined by Forrest J. His Honour found that the father had established, on effectively five separate counts, that the mother had contravened the July 2013 Order without reasonable excuse.

2. Having afforded the parties the opportunity to be heard[51] about penalty in relation to their competing contentions that the Court should amend the July 2013 Orders[52] and having considered a Family Report prepared after January 2015 interviews, his Honour made Orders on 12 October 2015 (the October 2015 Orders).

   [51] In July 2015.

   [52] S 70NBA Family Law Act 1975 (Cth).

3. The October 2015 Orders removed the requirement for the child to spend any time with his father at all, other than in accordance with his wishes, when he feels able and ready for such time to occur.

4. The October 2015 Orders also imposed various obligations on the mother in terms of completing a post-separation parenting orders program, providing the father with a postal address, to which he could send the child gifts and cards, and providing the father with a report about the child’s development, progress and educational performance on a six monthly basis.

5. Reference to the Reasons for Judgment delivered by Forrest J on 12 October 2015 makes it clear that his Honour accepted the opinions expressed by the Family Consultant who had interviewed the child in January 2015 and that his Honour found that:

   a)in 2013, after a long trial, in a carefully considered Judgment, Kent J determined that the child would not be at an unacceptable risk of sexual abuse in his father’s unsupervised company and, notwithstanding that determination, made parenting orders which provided for the child to spend supervised time with his father;[53] and

   [53] Paragraph [18] Reasons for Judgment delivered 12 October 2015.

   b)despite such Orders, the child had spent virtually no time with his father since then;[54] and

   [54] Paragraph [18] Reasons for Judgment delivered 12 October 2015.

   c)the child told a Family Consultant in January 2015 “in absolute and resolute terms that he did not want to see his father anymore because his father had sexually and physically abused him as a younger child”;[55] and

   [55] Paragraph [19] Reasons for Judgment delivered 12 October 2015.

   d)the Family Consultant reported that the child expressed “a strong and adamant desire to never spend time with his father” and that he held a firm belief that his father had abused him sexually and physically;[56] and

   [56] Paragraph [19] Reasons for Judgment delivered 12 October 2015.

   e)the child told the Family Consultant that he hoped that professionals involved with the Court would listen to him this time so that he would not have to be interviewed for Court related matters again;[57] and

   [57] Paragraph [19] Reasons for Judgment delivered 12 October 2015.

   f)the child told the Family Consultant that, if he was ordered to continue to see his father, he would run away or just walk out of the room: when she persuaded him to meet with his father in her presence, the child confronted him and accused him of having sexually abused him and demanded that he take responsibility for his actions;[58] and

   g)a clinical psychologist, whom the child had been seeing following a referral from his general practitioner, told the Family Consultant that the child had made “very clear and consistent” disclosures to her and that she was in no doubt that he had been sexually abused;[59] and

   h)in a very careful and well balanced consideration, the Family Consultant had observed that, regardless of any determination about the abuse or the nature of the relationship dynamics the child had with his parents, his “reality” is that he had been abused by his father and his “development, views and thoughts are centred on what appears to be an ingrained belief”;[60] and

   i)the Family Consultant concluded that, regardless of the “truth”, the child’s truth is that his father had abused him and, on that basis, he refused to have a relationship and spend time with him;[61] and

   j)the Family Consultant considered, given the nature and complexity of the parenting issues and her opinion that each of the child’s parents had a limited capacity to facilitate him having a meaningful relationship with the other parent, that the only viable and workable parenting arrangement was one where the child lived with one parent (who had sole parental responsibility) and where his relationship with the other parent was effectively non-existent;[62] and

   k)he accepted the Family Consultant’s opinion that a change of residence for the child would necessitate “a complete re-working” of the child’s beliefs, values, personality structure and framework and a complete breakdown and re-working of his relationship with his mother: something that would be “a very significant emotional task, fraught with considerable risk” to the child’s emotional stability and overall psychological well-being;[63] and

   l)he accepted the Family Consultant’s opinion that she had doubts and strong reservations about whether the child could successfully transition to his father’s care whilst at the same time undergoing “a complete reworking in his emotional reality”;[64] and

   m)the Family Consultant had pointed out that, whilst remaining with his mother would mean that the child’s negative perception of his father would continue to grow and his belief that his father has abused him would be enhanced – things that would cause “perhaps irreparable damage” to the child-father relationship – such damage had already occurred;[65] and

   n)the Family Consultant had acknowledged that, whilst a complete cessation of time with his father accorded with the child’s own views, this would certainly cement the destruction of the child-father relationship (at least on a short to medium term basis); however, forcing the child to spend time with his father would likely result in further emotional anguish;[66] and

   o)the Family Consultant had assessed the relationship between the child and his mother as appropriate and that the mother was a caring, sensitive parent.[67]

   [58] Paragraph [19] Reasons for Judgment delivered 12 October 2015.

   [59] Paragraph [20] Reasons for Judgment delivered 12 October 2015.

   [60] Paragraph [21] Reasons for Judgment delivered 12 October 2015.

   [61] Paragraph [21] Reasons for Judgment delivered 12 October 2015.

   [62] Paragraph [22] Reasons for Judgment delivered 12 October 2015.

   [63] Paragraph [23] Reasons for Judgment delivered 12 October 2015.

   [64] Paragraph [24] Reasons for Judgment delivered 12 October 2015.

   [65] Paragraph [25] Reasons for Judgment delivered 12 October 2015.

   [66] Paragraph [26] Reasons for Judgment delivered 12 October 2015.

   [67] Paragraph [28] Reasons for Judgment delivered 12 October 2015.

6. Forrest J concluded[68] that:

   a)the child’s views (then being those of a twelve year old boy), which were clearly and resolutely expressed to the Family Consultant, ought be given much weight; and

   b)at that important stage of his development, the child needed respite from the parental dispute and a secure and stable environment within which to grow to adolescence; and

   c)living with the mother provided the child with such security and stability; and

   d)discharging that aspect of Kent J’s Orders which required the child to spend time with, and communicate with, his father would afford him the respite he needed.

   [68] Paragraph [30] Reasons for Judgment delivered 12 October 2015.

7. His Honour also concluded, however, that it was then in the child’s best interests for his father to know where he attended school and to be able to obtain information from the school and for the mother to be obliged to keep the father informed about a postal address, to which he could send letter cards and gifts for the child, and also that she keep him informed about the school at which the child attends.

Alleged contravention of the July 2013 Order

1. Relevantly, Order 3 of the 29 July 2013 Order is as follows:

   3 The Mother shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of the child, save that the Mother shall, prior to making the ultimate decision about any such issue:

   a. use her best endeavours to advise the Father in writing of the decision intended to be made;

   b.        seek the Father’s written response in relation thereto;

   c. consider, by reference to the best interests of the child, any such response prior to making any such decision;

   d. advise the Father in writing as soon as reasonably practicable of her ultimate decision.

2. I accept that the mother withdrew the child from the X Town school in about mid-August 2015 and that he was not enrolled into another school until 3 November 2015. I accept that the mother left X Town with the child when she removed him from the X Town school: that is, in mid-August 2015.  I accept that she did so at a time when Forrest J was reserved in his determination about the appropriate penalty to be imposed on her (following his earlier finding that she had contravened the July 2013 Order without reasonable excuse) and in his consideration of each parent’s competing applications to vary the July 2013 Order.

3. I am satisfied beyond reasonable doubt that the mother intentionally did not tell the father about her decision to remove the child from the X Town school. I am satisfied beyond reasonable doubt that the mother intentionally did not tell the father about her decision to relocate the child from X Town to live in Queensland.  

4. I am satisfied beyond reasonable doubt that, prior to making the ultimate decision about removing the child from the X Town school, the mother intentionally failed to consult with the father, in the manner prescribed by Order 3 of the July 2013 Order, about the decision to remove the child from the X Town school. I am satisfied beyond reasonable doubt that, prior to making the ultimate decision about relocating the child from X Town to live in Queensland, the mother intentionally failed to consult with the father, in the manner prescribed by Order 3 of the July 2013 Order, about the decision to relocate the child to live interstate.

5. I am satisfied beyond reasonable doubt that, having already implemented her decisions to remove the child from the X Town school and relocate him to live in Queensland, the mother took steps to have her then legal representative write to the father to falsely assert that she was seeking his prospective input into the decisions to remove the child from school and relocate him from New South Wales to Queensland.

6. That is, I am satisfied beyond reasonable doubt that the correspondence sent on the mother’s behalf by her then legal representative on 21 and 22 October 2015 deliberately falsely asserted:

   a)first, that the mother was in the process of relocating; and then

   b)that the mother would like to relocate,

   when, at the time each piece of correspondence was sent, she and the child had already relocated from X Town.

7. I am satisfied beyond reasonable doubt that, prior to making the ultimate decision about enrolling the child at the GG Town State School, the mother intentionally failed to consult with the father, in the manner prescribed by Order 3 of the July 2013 Order, and that, by this failure, she intentionally failed to comply with the Order.

8. I am satisfied beyond reasonable doubt that the mother intentionally contravened Order 3 of the July 2013 Order in the manner outlined above.

9. I am not persuaded to the requisite standard by the evidence relied on by the mother that she had a reasonable excuse[69] for contravening Order 3 of the July 2013 Orders. Rather, I am satisfied beyond reasonable doubt that she contravened the same without reasonable excuse.

Alleged contraventions of the October 2015 Order

[69] S 70NAE Family Law Act 1975 (Cth).

Alleged contraventions of Order 3

1. Orders 1, 2 and 3 of the October 2015 Order are as follows:

   1That pursuant to the provisions of s 70NEB(1)(a)(i) of the Family Law Act 1975 (Cth) (“the Act”) the mother shall attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs.

   2 That the mother shall be personally responsible to access details of such programs through a Family Relationship Centre in her residential proximity and for making contact with a provider of such programs, enrolling in, attending and completing such a program.

   3That the mother shall complete such a post-separation parenting orders program within six (6) months of the date of these Orders and provide evidence in writing of the completion of such a program to the Court and the father as soon as she has completed the program.

2. I accept that the mother failed to complete a post-separation parenting orders program within six months of 12 October 2015. I accept that the Certificate of Completion she provided is dated 13 October 2016. I am persuaded beyond reasonable doubt that she intentionally failed to comply with the requirement that she complete this course within six months of the date of the October 2015 order.

3. I am not persuaded to the requisite standard by the evidence relied on by the mother that she had a reasonable excuse for failing to complete the post-separation parenting orders program within six months of 12 October 2015.

4. I am persuaded beyond reasonable doubt that the mother did not provide the father with evidence in writing of the completion of such program (whether by provision of a copy of the Certificate of Completion of that course or by any other means in writing) as soon as she had completed the program. I am persuaded beyond reasonable doubt that, despite having a Certificate of Completion dated 13 October 2016, the mother did not provide the same to the father until late August 2017.

5. I am not persuaded to the requisite standard by the evidence relied on by the mother that she had a reasonable excuse for failing to provide the father with evidence in writing of her completion of the post-separation parenting orders program as soon as she completed it.

6. I am satisfied beyond reasonable doubt that the mother contravened Order 3 of the Orders made on 12 October 2015 without reasonable excuse.

Alleged contravention of Order 4(iv)

1. Order 4(iv) of the 12 October 2015 Order[70] provides as follows:

   4.That pursuant to s 70NBA of the Act the parenting Order of Justice Kent of 29 July 2013 relating to the child, B born … 2003, is varied by deleting paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15, 16 and 17 and by replacing those paragraphs with the following paragraphs:

   …

   iv.That the mother shall keep the father informed of a postal address to which he can send letters, cards and/or presents in accordance with the previous paragraph.

   …

   [70] As amended by Order made pursuant to the slip rule on 5 November 2015.

2. I accept that the mother initially provided the father with the postal address of a lawyer she had then engaged. I also accept, however, that, after she ceased to engage that lawyer – and they thus were unavailable to receive any communications from the father directed toward the child – the mother intentionally failed to provide the father with a postal address.

3. I am, therefore, satisfied beyond reasonable doubt that the mother intentionally failed to keep the father informed of a postal address to which he could send letters, cards and/or presents.

4. I am not persuaded to the requisite standard on the evidence relied on by the mother that she had a reasonable excuse for failing to keep the father informed of a postal address to which he could send letters, cards and/or presents.

5. I am satisfied beyond reasonable doubt that the mother contravened Order 4(iv) of the Orders made on 12 October 2015 without reasonable excuse.

Alleged contravention of Order 4(v)

1. Order 4(v) of the 12 October 2015 Order[71] provides as follows:

   4.That pursuant to s 70NBA of the Act the parenting Order of Justice Kent of 29 July 2013 relating to the child, B born … 2003, is varied by deleting paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15, 16 and 17 and by replacing those paragraphs with the following paragraphs:

   …

   v.That the mother shall write to the father at six monthly intervals advising him of the child’s development, progress and educational performance and she shall keep the father informed as to the school the child is attending at any time with the father to be entitled to obtain from any such school, at his own cost, if any, copies of reports and other information that the school usually supplies to parents of its students.

   …

   [71] As amended by Order made pursuant to the slip rule on 5 November 2015.

2. It is accepted that the mother sent the father one piece of correspondence which outlined matters about the child. The father contended that the contents of this undated correspondence did not comply with the terms of the Order. He also contended that, whilst the correspondence should have been received by him on around 12 April 2016 (being six months after the October 2015 Order was made) it was not received until 10 June 2016 and only after he had requested the same.

3. I accept that he did not receive any written information about the child before he asked for the same and that he received the correspondence from the mother on 10 June 2016.

4. I am not persuaded that this correspondence did not comply with the relevant terms of the October 2015 Order. I consider that it advised the father about the child’s development, progress and educational performance in that it told him that the child: was growing up to be a very fine young man; had been in excellent health (with nothing more serious than a cold that year); had settled well into their “new location” and was making many friends; was doing well at school (and provided details of his grades and behaviour); enjoyed sport and had represented the school to the district level in cross-county; and that he continued to love animals and enjoyed playing with his pets.

5. I am satisfied beyond reasonable doubt that, save for this correspondence, the mother has not written to the father at six monthly intervals to advise him of the child’s development, progress and educational performance. I am satisfied beyond reasonable doubt that, save for this correspondence, the mother has intentionally not written to the father at six monthly intervals to advise him of the child’s development, progress and educational performance.

6. I am not persuaded to the requisite standard on the evidence relied on by the mother that she had a reasonable excuse for failing to write to the father at six monthly intervals to advise him of the child’s development, progress and educational performance.

7. I am satisfied beyond reasonable doubt that the mother contravened Order 4.v of the Orders made on 12 October 2015 without reasonable excuse by failing to provide the father with a report about the child’s development, progress and educational performance at six monthly intervals.

Should there be consequences for the mother resulting from her contraventions?

1. In dealing with the mother for the contraventions he found established, Forrest J was persuaded that it was more appropriate to deal with such contraventions pursuant to Subdivision E of Division 13A of the Act.[72]

   [72] S 70NFA(4) Family Law Act 1975 (Cth).

2. I am not so similarly persuaded in relation to the current contraventions. Rather, I consider it more appropriate for the most recent contraventions to be dealt with under Subdivision F of Division 13A of the Act. I arrive at this conclusion because I am easily persuaded that the mother has behaved in a way demonstrative of serious and persistent disregard of obligations imposed upon her by the Orders made on 29 July 2013 and 12 October 2015. I am easily satisfied to the highest standard that she has wilfully determined not to carry out such obligations, particularly where the same required her to consult with the father prior to making the decisions she made to remove the child from his school in X Town and relocate him to live in Queensland.

3. Further, I am satisfied that all of the statutory prerequisites prescribed by s 70NFA of the Act have been established in this case.

4. Section 70NFB(1)(a) of the Act mandates that, unless I am satisfied that it would not be in the child’s best interests, I must make an order that the mother pay all of the father’s costs of the contravention proceedings. I note that both parties have represented themselves during the contravention proceedings; given this, there is no evidence to suggest that the father has incurred any legal costs in particular. However, it may be that he has sought legal advice about his conduct of the proceedings.

5. The mother submitted that it would not be in the child’s best interests for there to be any order other than one placing her on a bond: an order that she be imprisoned would have direct consequences for him and his care and any monetary order would also directly impact upon him. Whilst this may be the case in a financial sense, that is not the only relevant aspect of determining what is in his best interests.

6. I am not satisfied that it would not be in the child’s best interests for an order to be made pursuant to s 70NFB(2)(g) of the Act because I consider it is in his best interests to appreciate that Orders made by this Court bind those whom are parties to them and that there are consequences of a failure to comply with the same.

7. For these reasons, I intend to order that, pursuant to s 70NFB(2)(g) of the Act, the mother pay all of the father’s costs of these contravention proceedings.

8. The power to impose a sentence of imprisonment on the mother[73] is predicated on the Court being satisfied beyond reasonable doubt that the grounds for making such an order exist.[74] Whilst I am so satisfied, I am not persuaded that such an order is the most appropriate of those orders available to the Court under s 70NFB(2) of the Act in the circumstances of this case, particularly having regard to the findings made by Kent J about the mother’s beliefs.

   [73] S 70NFB(2)(e) Family Law Act 1975 (Cth).

   [74] S 70NAF(3) Family Law Act 1975 (Cth).

9. I consider there to be absolutely no utility in ordering that the mother enter into a bond: it would have no real effect on her and, in my view, certainly would not be any real recognition of her contravention of orders of the Court.

10. The power to fine the mother not more than 60 penalty units ($12,600.00[75])[76] is also predicated on the Court being satisfied beyond reasonable doubt that the grounds for making such an order exist.[77]  Again, I am so satisfied.

    [75] A penalty unit meaning the amount of $210.00: s 4AA(1) Crimes Act 1914 (Cth)

    [76] S 70NFB(2)(d) Family Law Act 1975 (Cth).

    [77] S 70NAF(3) Family Law Act 1975 (Cth).

11. Of the options remaining, I consider the most appropriate to be that the mother is fined.[78]

    [78] S 70NFB(2)(d) Family Law Act 1975 (Cth).

12. Given the need to impose a punishment which, given the remaining options, is most appropriate to the mother’s repeated contraventions, without reasonable excuse, of operative parenting orders – including in circumstances where she was yet to learn of the consequences of the father’s previous successful application for contravention before Forrest J – and the need to uphold the authority of the Court to make effective orders and the importance of a general deterrent, I consider that the most appropriate order is to fine the mother the maximum amount prescribed (60 penalty units, which is $12,600.00) and to require that the same be paid to the Registry Manager of the Brisbane Registry of the Court by 4.00 pm on Friday, 28 June 2019.

13. In according the mother far longer than would usually be accorded for the payment of a fine, I have taken into account the potential impact of the quantum of the fine on the child.

Competing Applications to vary the existing parenting orders[79]

[79] S 70NBA(1)(b)(ii) Family Law Act 1975 (Cth).

1. When making any order to vary the existing primary parenting orders, I must regard the child’s best interests as the paramount consideration.[80] Given my conclusion that Subdivision F of Division 13A of the Act applies in this case, I have taken into consideration that the mother contravened the October 2015 Order, in some respects, after having attended a post-separation parenting program.[81]

   [80] S 60CA Family Law Act 1975 (Cth).

   [81] S 70NBA(2)(a) Family Law Act 1975 (Cth).

2. The matters to which regard must be had in determining what is in the child’s best interests are prescribed by s 60CC of the Act. The requirement to “consider” each of these matters involves taking note of them or giving heed to them or thinking over or reflecting on them; it does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[82]

   [82] Banks v Banks (2015) FLC 93-637: whilst said in the context of a consideration of interim proceedings, there is no reason to think that the underlying principle does not apply to the final disposition of proceedings.

3. Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the child’s best interests, accepting that his “truth” is as has been found in the Reasons for Judgment delivered by Kent J in July 2013 and Forrest J in October 2015, which have, for this reason, deliberately been summarised in such detail above. I have given heed to and reflected on all of the relevant considerations in arriving at my conclusion about those orders which are now in the child’s best interests.

4. Given the findings made by Kent J in 2013 and Forrest J in 2015 about the child’s belief structure vis-a-vis his father and the allegations made about him, the fact that the child has not spent time with his father (other than on a very limited supervised basis and during the January 2015 Family Report interview), his views as expressed to the Family Consultant in January 2015 and his observed behaviours toward his father then, the Family Consultant’s opinion about the likely consequences for the child of any change to his longstanding parenting regime and that he is now fifteen years of age, I am not persuaded that it is in his best interests for there to be an order changing this longstanding parenting regime. Even if it was thought that such order is in his best interests, I am not remotely persuaded that it could be put into effect or that he would comply with its terms or that he would not run away and thereby place himself at risk.

5. Rather, given the findings made by Kent J and Forrest J, the reality of the child’s “truth” as so clearly set out in the same and that it is clear on the evidence that the mother’s views have remained steadfastly now as they have previously been, I am compelled to conclude that it is now in the child’s best interests to discharge Orders 4(iii), 4(iv) and 4(v) of the Orders made by Forrest J on 12 October 2015.

6. Save for this, the parents’ competing applications to vary the existing orders are dismissed.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 December 2018.

Associate: 

Date:              7 December 2018