Gough and Martin

[2014] FamCA 77

FAMILY COURT OF AUSTRALIA

GOUGH & MARTIN	[2014] FamCA 77
FAMILY LAW – ORDERS – Contravention – no reasonable excuse for contraventions established by the mother

APPLICANT: Mr Martin

RESPONDENT: Ms Gough

FILE NUMBER: SYC 7 of 2008

DATE DELIVERED: 4 February 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 4 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITORS FOR THE APPLICANT: G P Legal

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER Carter Farquar Lawyers

Orders

IT IS ORDERED THAT

1. The father’s Contravention Application filed 31 October 2013 be listed for further hearing at 10.00 am on Monday, 28 April 2014 before the Honourable Justice Hogan in the Family Court of Australia at Brisbane.

2. Pursuant to section 65L of the Family Law Act1975 the time the father spends with the child, L born … June 2006, be supervised by a Family Consultant, nominated by the Manager of Child Dispute Services of this Registry of the Court.

3. Following the series of appointments with the nominated Family Consultant, the Family Consultant prepare by Wednesday, 23 April 2014 a short issues report including:

   (a)       the progress of the time spent between the child and her father;

   (b)       recommendations as to future time between the child and her father; and

   (c)any advice that the Family Consultant has for the Court pursuant to section11E(1)(e)(i) of the Family Law Act 1975 (Cth).

4. The Family Consultant is to be provided with a copy of the following:

   (a)the father’s affidavit filed 31 October 2013;

   (b)Exhibits 1 and 2 in the proceedings;

   (c)the mother’s affidavits filed 13 December 2010, 3 May 2012, 2 November 2012 and 22 January 2014;

   (d)the Reasons for Judgment delivered 4 February 2014.

5. The father spend time with the child, L born … June 2006, as agreed between the parties and failing agreement, on no more than four (4) occasions for two (2) hours on each occasion or such other occasions or time as nominated by the supervising Family Consultant in compliance with Order 2 herein.

6. That pursuant to s 11F of the Family Law Act 1975 (Cth):

   (a)the father attend all appointments as notified by the Family Consultant;

   (b)the mother attend all appointments as notified by the Family Consultant;

   (c)the mother arrange fort the child to attend all appointments as notified by the Family Consultant.

7. The parties have liberty to apply to the Docket Registrar in relation to any non-compliance with this Order.

8. The interim hearing date of 7 March 2014 for the Application in a Case filed by the mother on 22 January 2014 is vacated.

9. The Application in a Case filed 22 January 2014 be listed for hearing at 10.00 am on Monday, 28 April 2014 before the Honourable Justice Hogan.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS DIRECTED THAT

1. The Docket Registrar bring any application to relist the matter to the attention of the Honourable Justice Hogan.

IT IS NOTED THAT:

A.The Court requests that, if possible, the supervised appointments between the child and the father occur on a fortnightly basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gough & Martin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC7 of 2008

Mr Martin

Applicant

And

Ms Gough

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Given my finding that the respondent had contravened the order made in November 2012 in the manner alleged in the application for contravention filed 31 October 2013, it is necessary that I consider whether the respondent has established on the balance of probabilities a reasonable excuse for such contraventions. The meaning of the term “reasonable excuse” is found in s 70NAE of the Family Law Act1975 (Cth).

2. Relevantly, subsection (5) of that section provides that a person (such as the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person, including the respondent or the child; and

   b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than necessary to protect the health or safety of either the respondent or the child.

3. The respondent says that I should conclude that she has established a reasonable excuse for the contraventions alleged. I do not accept this submission.  I am not persuaded that the respondent has established a reasonable excuse for the contraventions as found by me. 

4. In so concluding, I rely upon the following matters.

5. Insofar as it may be suggested[1] that the allocation by the Contact Centre of a male supervisor to undertake the supervision on an occasion of supervision on 12 January 2013 led to such distress by the child L, (“the child”) that the respondent’s later action in determining not to provide the child at the Contact Centre for the purpose of time was necessary to protect the child’s health or safety, it is clear that a subsequent visit between the applicant and the child took place at the Centre.

   [1]          Exhibit 1

6. I am not persuaded by the mother’s evidence, based on a recounting by the child, that the child was upset during the visit. This is contradicted by the contents of Exhibit 2 and the applicant’s evidence.  But, even if the child was upset as a consequence of the allocation of the male supervisor, such upset was clearly not of such extent as to lead the respondent to cease attendance at the Centre at that time - as I have said, the second visit took place.

7. The respondent submitted that she had a reasonable excuse not to provide the child to the Contact Centre in accordance with the order because she believed, on reasonable grounds, that not allowing time was necessary for the health and safety of both the child and herself.

8. I consider that the evidence clearly establishes the following:

   a)the mother has a longstanding opposition to the child spending time with the father - as is made apparent from a perusal of the contents of her affidavits filed in the Court and relied upon by her in these proceedings;

   b)the mother was, as a result of the contents of the affidavits, clearly aware of the father’s behaviours prior to entering into the Consent Order in November 2012;

   c)the mother was legally represented at that time by the same solicitor who has prepared the submissions on her behalf for this proceeding and, as I understand it, this solicitor has represented her throughout the entire parenting proceedings;

   d)the order agreed between the parties provided for the child’s time with the applicant to occur within the confines and under the supervision of a Contact Centre. 

9. I am not persuaded on the evidence of the respondent that her concerns about what she terms a failure to divert conversation during supervised time at the Contact Centre were such as to afford to her reasonable grounds for a belief that a continuation of the child’s time there with the father would have placed at risk the health or safety of the child.

10. The respondent provides no evidence as to the father’s behaviours of a threatening nature between the first visit (on 17 November 2012) and the last visit (on 26 January 2013). 

11. There is, I consider, no evidence to suggest that, in the time after the parties entered into the consent orders, the father has acted in a way that would permit a belief on reasonable grounds that a cessation of time at the Contact Centre was necessary to protect the child’s safety or necessary to protect the health or safety of the respondent.

12. The mother’s affidavit (filed 22 January 2014) contains her evidence that, after the visit on 26 January 2013, she ceased sending the child to the Centre because she had concerns with the applicant having “inappropriate conversations with [the child] and the conversations not being diverted.”  I have already made comments about this issue.

13. It is apparent from paragraph 15 of the respondent’s affidavit that, by February 2013, she had determined that she would not comply with the order because she did not want to have a “complete breakdown”.

14. It is clear, therefore, that by February 2013, the mother had arrived at her determination not to provide the child to the Contact Centre in accordance with the order. It is also clear, on a consideration of the chronology of asserted events, that email communication from the applicant to the respondent came after the mother’s decision not to provide the child.  There is no evidence to suggest that the applicant had communicated with the respondent in any way that might be regarded as threatening manner or at all in the period from the making of the November 2012 order until the mother’s decision in February 2013 that she would no longer provide the child at the Contact Centre.

15. It is also relevant to note that the Application for a Protection Order was made by the respondent on 22 March 2013 in circumstances where her evidence is that the previous Apprehended Violence Order had expired some time in 2011.  I consider it highly unlikely that, if there had been behaviours by the applicant sufficient to cause or provide a basis for a reasonable ground for the respondent to believe that the health and/or safety or either the child or herself were in question as a consequence of supervised visits, it would have taken from the end of January 2013 until 22 March 2013 for the respondent to lodge an Application for a Protection Order.

16. As I have said, the email correspondence and correspondences from the applicant to the respondent followed after the respondent’s determination that the child would not be provided to the Contact Centre in accordance with the terms of the consent order.  There is no evidence before the Court that, at any time prior to February 2013 and the mother’s determination to cease the child’s supervised time with the applicant, the applicant acted to approach either the mother and/or the child outside of the Contact Centre.

17. There is no evidence to suggest, therefore, any physical behaviour by the applicant towards the mother and/or the child that would provide reasonable grounds for the respondent’s belief that a continuation of compliance with the orders would place either herself or the child at risk and/or that there was a reasonable ground to believe it was necessary to ensure that the supervised time did not take place. 

18. The mother’s affidavit (filed on 2 November 2012) contains the following at paragraph 89:

    In April 2012, [the father] asked me what I think he should do, as he was thinking of just calling it quits with [the child].  While I was happy, I also got upset at [the father] because I could not believe that he put [the child] through all of this to in turn reject her because he didn’t feel like visits any more.  I advised [the father] that [the child] had finally felt like she was loved and now he wanted to reject her, but that I was not surprised.

19. Further, at paragraph 97 of the same affidavit:

    I acknowledge that [the child] has since acknowledged that she believes her father loves her and she has grown fond of the father.  However, my role as a parent is to protect [the child] and to do what is in her best interests.  As previously stated, I have now accepted that I cannot make [the father] be the sort of father he should be for [the child].

20. In these circumstances, where the mother:

    a)acknowledges that the child believes the applicant father loves her and has grown fond of her; and

    b)acknowledges that the child would suffer detriment as a consequence of any decision he might make to walk away from the proceedings or to “call it quits” in relation to her,

    c)has knowledge of the father’s behaviours,

    there is doubt whether the mother actually believed, on reasonable grounds, that continuing to allow the child to spend time with the father on a supervised basis at the Contact Centre would in some way endanger her.

21. It is clear, from the mother’s own evidence that, with the benefit of supervised time, the child had formed some sort of relationship with the father and believed that he loved her - she had grown fond of him.  There is nothing in the evidence that post-dates the November 2012 affidavit to suggest that there has been anything in the father’s behaviours towards the child which is likely to have caused a change to that observed and acknowledged relationship.

22. The mother contends that a cessation of the child’s time with the father at the Contact Centre was based on a necessity for her self-protection. Acceptance of such submission would, in these circumstances require a finding that the failure to provide the child on an ongoing basis was necessary. 

23. I am not persuaded on the evidence before me, for the reasons I have already expressed, that the mother has discharged the onus insofar as this contention is concerned. 

24. It follows for these brief reasons that I am not persuaded on the evidence that the mother has a reasonable excuse for the contravention of the orders in the manner particularised in the Application for Contravention and I so find.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 4 February 2014.

Associate:                 

Date:    19 February 2014