Grant and Aiden - [2009] FMCAfam 732

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRANT & AIDEN

[2009] FMCAfam 732

FAMILY LAW – Contravention of parenting orders – failure by mother to facilitate 2 year old child spending time with father at a contact centre – whether there were reasonable steps to comply – reasonable excuse not proved – imposition of a bond.

FAMILY LAW – Interim parenting orders – request by mother for stay of proceedings – review of supervised “spend time” arrangements – serious allegations made by mother against father – forthcoming closure of contact centre.

Evidence Act 1995, ss.140, 140(2)
Family Law Act 1975, ss.60CA, 60CC(2), 60CC(3), 60CC(4), 64B(1)(a), 64B(2)(b), 65DA, Part VII Division 13A, 70NAB, 70NAC, 70NAD, 70NAD(b), 70NAE, 70NAE(2), 70NAE(5), 70NAF, 70NAF(1), 70NDB, 70NDB(1)(c), Part VII Division 13A subdivision E, 70NEB, 70NEB(1), 70NEB(1)(b), 70NEB(1)(d), 70NEB(1)(e), 70NEB(1)(f), 70NEC, 70NEC(5), Part VII Division 13A subdivision F, 70NFA(4), 70NFB(2), 70NFE

Goode v Goode (2006) FLC 93-286
In the Marriage of O'Brien (1992) 16 Fam LR 723
In the Marriage of Stavros (1984) 9 Fam LR 1025
In the Marriage of Stevenson v Hughes (1993) 16 Fam LR 443
M v G (No 5) (2004) FMCAfam 387
McClintock v Levier (2009) FamCAFC 62
TVT v TLM (2006) FMCAfam 20

Applicant:

MR GRANT

Respondent:

MS AIDEN

Independent children's lawyer:

MACGREGOR’S SOLICITORS

File Number:

MLC 5094 of 2008

Judgment of:

Monahan FM

Hearing date:

7 May 2009

Date of Last Submission:

15 May 2009

Delivered at:

Melbourne

Delivered on:

15 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr P.A. Marchetti

Solicitors for the Applicant:

Michael L. Maplestone

Counsel for the Respondent:

In person

Independent Children’s Lawyer (excluding contravention proceedings):

Ms S.A. Macgregor

ORDERS

On the contravention application of the Husband filed on 20 February 2009, and upon hearing Mr Marchetti of Counsel as amicus curiae on behalf of the Husband and the Wife in person, and upon:

(a)the Court being satisfied that the Wife MS AIDEN (“the mother”) has committed a contravention of an Order under the Family Law Act1975 affecting children (being a contravention of paragraphs 1(c) and 1(d) of the Orders made in the Federal Magistrates Court of Australia at Melbourne on 11 December 2008);
(b)the mother not having proved that she had a reasonable excuse for the contravention referred to in (a) above;
(c)no Court having jurisdiction under the Family Law Act1975 having previously determined that the mother has, without reasonable excuse, contravened the Order referred to in (a) above; and
(d)the Court being satisfied that Subdivision B of Division 13A of Part VII of the Family Law Act applies to the contravention referred to in (a) above,

THE COURT ORDERS THAT:

Pursuant to sections 70NEB(1)(d) and 70NEC of the Family Law Act1975, the mother MS AIDEN do enter into a bond of $1500.00, without surety or security, for a period of 24 months, to:
(a)be of good behaviour; and
(b)obey all Orders of the Federal Magistrates Court of Australia made in the abovementioned case.

AND THE COURT NOTES THAT:

A.The Husband has withdrawn his Contravention application filed 15 November 2008.
B.Given the terms of her appointment there was no need for an appearance by the Independent Children’s Lawyer.
C.The Court will consider what additional orders, if any, should be made under section 70NEB of the Family Law Act 1975 arising from the contravention following the interim hearing to be heard today.
D.Prior to the making of this Order the Court discharged its obligations pursuant to section 70NEC(5) of the Family Law Act 1975.
E.Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND FURTHER

THE COURT ORDERS THAT:

Order 1 of the Orders of this Court made on 11 December 2008 be discharged.
The Applicant Husband spend time with the child of the relationship [X] born in 2006 (“the child”) as follows:
(a)on each alternate Saturday for two (2) hours at the GordonCare for Children Contact Centre in [M] (“the Centre”), subject to supervision by the Centre at such times as may be advised by the Centre, commencing 23 May 2009;
(b)on each alternate Friday for two (2) hours at the Centre, subject to supervision by the Centre at such times as may be advised by the Centre, commencing 29 May 2009;
(c)on each alternate Sunday for two (2) hours between 2:00pm and 4:00pm at [B] Play Centre, [address omitted] (“[B]”), with the Respondent Wife being permitted to remain in the general vicinity during such period provided that she does not approach or interfere with the Applicant Husband or the child during such two-hour period, commencing 24 May 2009;
(d)the Applicant Husband shall meet the costs of the child’s entry to [B]; and
(e)at such times as may otherwise be agreed to between the parties from time to time.
In the event that the Respondent Wife fails to attend her appointment for assessment with DR E on Thursday 21 May 2009 at 9:00am (or such other time or times as requested by Dr E or his nominee), she file with the Court an affidavit outlining her reasons for not attending the appointment(s) and her financial circumstances including her income, expenses, debts and assets by 4:00pm on 28 May 2009.
The subpoena directed to Dr J (or his agent) of [D] Medical Centre be released to the Independent Children’s Lawyer for inspection and copying and the Independent Children’s Lawyer provide the parties with photocopies of the subpoenaed material within 7 days, with the Independent Children’s Lawyer to ensure the subpoenaed material does not disclose in any way the Wife’s current address.

AND THE COURT DIRECTS THAT:

(i)The Respondent Wife take the child to [B] for a period of at least one (1) hour in the next seven (7) days to familiarise the child with the Play Centre.

AND THE COURT NOTES THAT:

A.Upon the request of the Respondent Wife, the Independent Children’s Lawyer has indicated to the Court today that she will issue a subpoena to the Department of Human Services Victoria in regard to the child and the two older children of the Respondent Wife.
B.Order 1 of the Orders made on 19 March 2009 requires the parties to attend upon a psychiatrist nominated by the Independent Children’s Lawyer (“the nominated psychiatrist”) for a full psychiatric assessment and report, with copies of same reports to be filed and served and each of the parties to pay the costs of their respective assessment and report, and the Independent Children’s Lawyer has advised the Court that appointments have been scheduled with Dr E for both parties to attend before Dr E for this purpose
C.In relation to Order 3 above, the Respondent Wife does not admit the need to attend for a psychiatric assessment before Dr E and further has indicated to the Court today that her current financial circumstances are such that she is unable to afford the cost of
Dr E’s appointment and proposed report.
D.Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Grant & Aiden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 5094 of 2008

MR GRANT

Applicant

And

MS AIDEN

Respondent

And

MACGREGOR’S SOLICITORS

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction – Contravention proceedings

This is an application filed by the husband Mr Grant (“the father”) on 20 February 2009 alleging contravention by the wife Ms Aiden (“the mother”) of the current interim parenting orders made on 11 December 2008 (“the interim orders”). The relevant child is [X] born in 2006 (“the child” or “[X]”).
The application was heard on 7 May 2009 and was defended. The father’s application was supported by his affidavit sworn on 19 February 2009 and filed on 20 February 2009.
The father also filed an earlier contravention application on 15 November 2008, alleging contravention by the mother of the orders made on
27 August 2008, but he withdrew this application at the hearing.
The contravention application alleges that the mother has on more than one occasion failed to comply with the interim orders. More specifically, the mother is alleged to have contravened paragraphs 1(c) and (d) of the interim orders, which state:
“1. The applicant husband spend time with the child of the relationship, [X], born in 2006, at the GordonCare Contact Centre in [M] on:
…
(c) Saturday, 17 January 2009 from 1 pm-3 pm, or at such other time as the Director of the Centre may direct and fortnightly thereafter;
(d) Friday, 6 February 2009 from 11.15 am-1.15 pm, or at such other time as the Director of the Centre may direct and fortnightly thereafter.”
The relevant date, times and place of the contraventions are as follows:
a)31 January 2009 at 1:00 pm at GordonCare for Children at [M];
b)6 February 2009 at 11.15 am at GordonCare for Children at [M], and
c)14 February 2009 at 1:00 pm at GordonCare for Children at [M].
The father also alleged at the hearing that the mother has not complied with the interim orders since his last visit with the child at GordonCare for Children at [M] (“GordonCare”) on 28 March 2009.
In her oral response the mother argues that while the contravention times, dates and places are admitted, there are reasonable excuses for each of the contraventions.
At the hearing both parties were self-represented, although Mr Marchetti of counsel was granted leave to appear as amicus curiae for the father. Both parties gave oral evidence. The mother chose not to cross‑examine the father. The mother was cross‑examined.

Background

The father was born in 1959 and is aged 50. The mother was born in 1964 and is aged 45. It would appear the parties commenced cohabitation in September 2004 and were married in 2005. As previously stated, their child [X] was born in 2006 and is currently aged two years and ten months. The parties separated on 5 September 2007.
The father commenced proceedings seeking various parenting orders by his application filed 5 June 2008. The matter has been set down for final hearing on 20 July 2009. It had previously been set down for final hearing on 2 December 2008 and again on 27 April 2009 but these hearing dates were vacated due to reasons related to the now withdrawn contravention application and the current contravention application.
As previously stated, interim orders were made by this Court on 11 December 2008 which provided inter alia for [X] to spend time with her father for two hours per week at GordonCare for Children at [M].
The father details three specific contraventions in paragraphs 11 through 14 of his affidavit sworn 19 February 2009.
As previously stated, the mother admitted those contraventions but argued she had a reasonable excuse on each occasion for doing so.

The law in relation to contravention of parenting orders

By way of preliminary comment, the Court notes that section 65DA of the Family Law Act 1975 (“the Act”) provides that there is a duty of the Court to include in parenting orders particulars of:
“(a) the obligation the orders create; and
(b) the consequences that may follow if a person contravenes the order.”
The duty upon the Court is to ensure that persons affected by parenting orders, other than child maintenance orders, must be; firstly, provided with information about obligations that the orders created and the consequences that may follow if a person contravenes the order, the information ought to be explained in a language that is likely to be readily understood by the person to whom the order is directed; and secondly, be informed of the availability of programs to help people understand their responsibilities under parenting orders.
Particulars are set out in the standard form and annexed to the orders. The Court has a brochure setting this out. A legal practitioner representing a party can be requested to fulfil the Court's duty to provide particulars and explanations.
It appears from my reading of the file that section 65DA was complied with and the parties were given the prescribed information when they received the existing parenting orders that were made on 11 December 2008. In addition the Court notes that the mother was legally represented by counsel on that occasion.
Section 70NAD deals with “requirements taken to be included in certain orders”. Under section 70NAD(b) the order relevant to a contravention must be a parenting order, and this includes a parenting order relating to the time the child spends with a parent, which is relevant to this case.
Part VII Division 13A of the Act deals with the consequence of failure to comply with orders and obligations that affect children. The provisions are “coercive rather than punitive” and the interests of the child are paramount.[1]
[1] McClintock v Levier (2009) FamCAFC 62 at [247] (per Cronin J).
Prior to considering the relevant provisions under division 13A, the Court notes that pursuant to section 64B(1)(a) a parenting order is “an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2)”. It goes on to state under section 64B(2)(b) that a parenting order may deal with “the time a child is to spend with another person or other persons”. In other words, an interim order relating to how much time and the circumstances by which the applicant spends with the child in this case is a parenting order for the purposes of division 13A of Part VII of the Act.

Meaning of contravened an order

Section 70NAC deals with the “meaning of contravened an order”. The section states:
“A person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order - he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise - he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.”
In other words, in relation to non-compliance with a court order it is clear that this provision requires the Court to be satisfied that the respondent, such as the mother in this case, has either intentionally failed to comply or has made no reasonable attempt to comply with the relevant orders.
The applicant to a contravention application, such as the father in this case, bears the onus of proving the contravention by the respondent on the balance of probabilities. Section 140 of the Evidence Act 1995, which refers to the standard of proof in civil proceedings, directs the court to take account of the nature of proceedings in determining whether it is satisfied to the requisite standard, and in that respect subsection (2) states:
“Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”

Meaning of reasonable attempt to comply with the order

The issue of whether the respondent made a “reasonable attempt to comply with the order” has been considered in a number of cases. It is clear that a parenting order in relation to a child spending time with a parent at a contact centre is not a mere declaration but rather casts an obligation upon the relevant parent, such as the respondent mother in this case, “to take reasonable steps to deliver the child to the… [other parent] at the commencement of the access period.”[2]
[2] In the Marriage of Stavros (1984) 9 Fam LR 1025 at 1030 (per Fogarty, Joske and Baker JJ).
Whether the steps that were taken by the relevant parent were “a reasonable attempt to comply” with the relevant parenting order will depend upon the facts and circumstances of each case. As his Honour Riethmuller FM stated in TVT v TLM (2006) FMCAfam 20:
“…it is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner.”[3]
[3] (2006) FMCAfam 20 at [33].
Indeed the Full Court of the Family Court stated in the case of In the Marriage of Stevenson v Hughes (1993) 16 Fam LR 443 that a primary carer parent such as the respondent in this case must “appreciate that they are not entitled to treat the other parent as an enemy who are to be thwarted wherever possible, either by active steps or passive resistance.”[4]
[4] (1993) 16 Fam LR 443 at 450 (per Fogarty J).

Meaning of reasonable excuse for contravening an order

Section 70NAE deals with the “meaning of reasonable excuse for contravening an order”. Under section 70NAE(2):
“A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.”
This provision is not an issue in this case because the mother has admitted the contraventions and was clearly aware of the obligations she was under. Her defence was not based on ignorance of the obligations but was rather that she had a reasonable excuse for non-compliance with the court orders on each occasion.
Section 70NAE(5) of the Act deals with the contravening of an order dealing with whom a child is to spend time with and states that:
“A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).”
This subsection will be considered further in relation to the mother's defence for contravention of the interim orders on 31 January 2009.
In the case of In the Marriage of O'Brien (1992) 16 Fam LR 723, Smithers J commented as follows with regards to the defence under section 70NAE (which is in similar words to that available under section 112AC at that time):
“…it seems to me that the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.”[5]
[5] (1992) 16 Fam LR 723 at 727.

In order to determine whether a reasonable excuse has been shown, clearly an objective test should be applied.
Section 70NAF deals with the necessary “standard of proof”. Subsection (1) states:
“Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.”
Section 140 of the Evidence Act 1995 similarly applies. However, the fact is that this is a defence that is relevant for consideration under section 140(2).
If a contravention is established, then regardless of whether the contravention was reasonably excused, the Court has powers under section 70NAB to vary the parenting order and powers under section 70NDB to make an order compensating a parent for lost time, sometimes referred to as make‑up time. More specifically, under section 70NDB(1)(c) the Court:
“may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; …”
Indeed under section 70NDB the Court is required to consider making what I will describe as a time lost order, providing such is in the best interests of the child.

Contravention without a reasonable excuse

Under Part VII Division 13A, subdivisions E and F when read together deal with a contravention or contraventions without reasonable excuse. Subdivision F deals with the more serious contraventions.
Apart from a time lost order, the Court has a range of powers to deal with inexcusable contravention that includes:
a)in the most serious cases (see section 70NFB(2)):
i)a community service order;
ii)a bond under s.70NFE;
iii)a fine of not more than 60 penalty units;
iv)a sentence of imprisonment; and
v)a costs order; and
b)in less serious cases (see section 70NEB(1)):
i)an order to attend a post‑separation parenting program to better understand and appreciate the obligations created by parenting orders;
ii)a bond under section 70NEC, and
iii)a costs order.
The Court notes that section 70NFA(4) provides that subdivision F:
“…does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.”
This provision was considered recently by Cronin J in the decision of the Full Court of the Family Court in McClintock v Levier (2009) FamCAFC 62, where his Honour stated at paragraph 209:
“In my view, however, the mother's legal representative was entitled to put to his Honour that notwithstanding the concession about “serious breaches”, the court still had to consider the less serious category set out in division E.”
In relation to the issue of an applicable penalty, his Honour stated that the focus of the Court must be “making orders which will enforce future compliance”[6] and not with “general deterrence or policy”.[7] More specifically, his Honour stated at paragraph 234:
“For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like‑minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.”
[6] McClintock v Levier (2009) FamCAFC 62 at [233].
[7] ibid at [235].
In summary, the law requires that the Court must be satisfied firstly that there has been a contravention of the relevant order. If so, then secondly the Court must be satisfied on the balance of probabilities that the contravention was without reasonable excuse. Thirdly, if there is no reasonable excuse, the Court must consider the imposition of an appropriate penalty and/or a time lost order that is in the best interests of the child. The type of penalty depends upon whether the contravention is less serious, in which case subdivision E is applicable; or more serious, in which case subdivision F applies.
Lastly, if the Court is satisfied that there is a reasonable excuse, then the Court is still under an obligation to consider whether a time lost order should be made, and if so can only do so if it is in the best interests of the child.

Evidence and the parties’ submissions

As previously indicated, the applicant father relies on his affidavit sworn on 19 February 2009 which details three specific contraventions in paragraphs 11 through 14. The respondent mother admitted these contraventions but argued she had a reasonable excuse on each occasion for doing so. Each of the contraventions will now be considered in light of the evidence and the parties’ submissions.

Contravention on 31 January 2009

In his affidavit at paragraph 11 the father states:
“…a representative from GordonCare telephoned me about 2 days prior to this date, confirming the date and time for the contact visit to take place. However, on the morning of 31 January 2009 GordonCare left a message on my answering machine at about 10 am to say that this visit had been cancelled by the respondent. I then returned the call from GordonCare and was informed that the respondent had cancelled the visit due to the heat.”
Attached to the affidavit and marked exhibit “PG2” is a letter from GordonCare for Children at [M] dated 13 February 2009 which stated that in relation to “January 31, 2009 - The contact visit was cancelled by the mother, due to her concerns about the excessive heat.”
In her defence the mother made no reference, in her evidence or submissions, to cancelling the visit due to “excessive heat.” She stated that she cancelled the visit due to GordonCare’s handling of an alleged incident involving the father and the child that occurred at GordonCare at [M] on 17 January 2009. In her evidence the mother stated that she had sent a letter to GordonCare on 19 January 2009 that provided details of the alleged incident. In support, she produced an unsigned copy of the relevant letter and her follow‑up letter dated 1 February 2009. These two documents were admitted into evidence without objection and became exhibit “RW1”.
In the copy of the letter dated 19 January 2009 the mother refers to the three previous contact visits that occurred, that is 12 December 2008, 20 December 2008 and 17 January 2009, and specifically alleges that in breach of the service agreement she signed with GordonCare to enable the contact visits to proceed, the father changed the child's nappy on 17 January 2009 and gave the child “gifts” on each occasion.
Under cross‑examination by Mr Marchetti the mother stated that it was the child who allegedly told her that the father had changed her nappy at the visit on 17 January 2009.
In his evidence the father denied ever changing the child's nappies on any of the visits but admitted he was present when the child's nappies were changed by a GordonCare worker. In GordonCare's letter to the parties’ legal representatives (and the independent children's lawyer) dated 13 February 2009, which is attached to the father's affidavit and marked exhibit “PG2”, the [M] centre's coordinator Ms P acknowledges that the mother had sent a letter “outlining concerns that the father changed [X]'s nappy during the last contact visit that proceeded.” Ms P goes on to state:
“As a matter of follow‑up, the Service addressed the mother's concerns in writing. We confirmed that an arrangement for the Worker to change [X]'s nappies was in fact made with BOTH [her emphasis] parties. Additionally, we informed the mother that at no such time did the father change [X]’s nappy.”
The follow‑up letter was not produced in evidence. It is not clear from Ms P’s letter dated 13 February 2009 when the follow‑up letter was sent. That having been said, it is implicit from Ms P's letter that a follow‑up letter was sent prior to 13 February 2009.

Contravention on 6 February 2009

In his affidavit at paragraph 13 the father states:
“…I did not have confirmation from GordonCare that the visit was to take place but I assumed it would. However, on the morning of 6 February 2009 I received a telephone call at about 9.30 am from Ms P of GordonCare [The Court assumes referring to Ms P] informing me that the respondent had again cancelled the appointment that morning because she says I changed my daughter's nappy on a previous contact visit, which I strenuously deny.”
In the second GordonCare letter to the parties’ legal representatives and the independent children's lawyer dated 16 March 2009, which was admitted into evidence without objection and became exhibit “AH1”, Ms P confirms that the mother provided no reason to them for cancelling the contact visits scheduled for 6 February 2009. Ms P states:
“The contact note from 6 February 2009 reads “contact cancelled by the mother.” Additionally, in the letter dated 13 February 2009 that was written by the Service, it clearly outlines that the mother did not give a reason for her cancellation of that contact visit. The service felt that it was important to notify all the parties about a concern that the mother had raised prior to the contact visit with regards to [X]'s nappy change. This was done in order for all parties to fully understand the complexity of the situation, regardless of whether or not it was directly related to the cancellation of the contact visit.”
In her defence the mother stated that she had cancelled the contact visits due to her obtaining a day’s employment with [H], a home cleaning business. She further stated that she had received the offer of work on 5 February 2009. Under cross‑examination by Mr Marchetti, the mother admitted that she had no documentation to support her alleged employment with [H] on 6 February 2009. She stated that her employment that day was on a trial basis only.

Contravention on 14 February 2009

In his affidavit at paragraph 14 the father states:
“…I received a telephone call from a representative of GordonCare about 2-3 days prior to 14 February 2009 confirming that the visit would take place. However, on the morning of 14 February 2009 at about 9.30 am I received a further call from GordonCare informing me that they had received a message from the respondent on their answering machine cancelling the visit. No reason for the cancellation was provided.”
In GordonCare’s first letter dated 13 February 2009, Ms P confirms the visit scheduled for 14 February 2009 and states “BOTH [her emphasis] parties have confirmed that they will be in attendance.”
This confirmation by the mother that the contact visits on 14 February would take place is restated in GordonCare’s second letter dated 16 March 2009. Ms P states that:
“The Service had a conversation with Ms Aiden on 11 February 2009 at 2.13 pm, whereby she confirmed that she would be attending the contact visits with the office staff.”
In her defence the mother stated that she had cancelled the contact visit due to an auction that afternoon of her house at [C]. She said that the auction took place between 2 pm and 2:30 pm but the property was passed in. She also said that the property had been listed for sale by auction over the preceding four weeks, that is since early January 2009.
Under cross‑examination by Mr Marchetti the mother admitted that she had no documentation with her to support the alleged auction on 14 February 2009. She acknowledged that her [C] property is situated about 25 to 30 minutes by car from the GordonCare centre at [M]. She did not agree with Mr Marchetti’s proposition that she would have had enough time to drive the child to the centre at 1 pm on that day, drive back to attend the auction and then drive back to the centre by 3 pm to collect the child.
She did not agree with Mr Marchetti's proposition that she would not in any event have been able to sell the property because the father had registered a caveat over it. The mother did however admit that the father had registered a caveat. She also acknowledged that although the property had been listed for auction for the previous four weeks, she had only telephoned GordonCare to cancel the visit on 14 February 2009 on that particular morning.

Contraventions since the last contact visit on 28 March 2009

The father gave evidence that the mother has failed to take the child to any of the scheduled contact visits at GordonCare since 28 March 2009. He also stated the mother has not provided any reason to explain her non-compliance to him or to his lawyers.
These additional contraventions were confirmed by the mother, who stated that she had reasonable excuses to explain her non-compliance with the interim orders since 28 March 2009.
Firstly, in respect of scheduled alternate Friday visits from 11:15 am to 1:15 pm, the mother stated that she was unable to comply because she had secured full‑time employment and this prevented her from taking the child to or collecting the child from GordonCare. She acknowledged that the child is now attending a child care centre on the days that she worked, including every Friday.
Secondly, in respect of both the scheduled alternate Friday visits and the alternate Saturday visits from 1 pm to 3 pm, the mother stated that both she and the child had experienced a number of illnesses and ailments that prevented her compliance with the interim orders. In support she produced a series of “progress notes” provided to her by her medical practitioners, which detail medical appointments and treatment in the period from 2 March 2009 until 29 April 2009 for herself, [X], and her sons [Y] and [Z]. This document was admitted into evidence without objection and became exhibit “AH2”.
According to the progress notes for [X], the child was taken to the doctor on the following occasions:
a)Friday, 20 March 2009, with the reason for visit being “gastroenteritis”. According to the notes, the child was examined by Dr R, who stated:
“…Temp [I assume temperature] 37.1… Respiratory: No respiratory distress. Normal air entry on Right. Normal air entry on Left. No creps. No rhonch. No whispering pectoriloquy. GIT: No abdominal tenderness, No distension, Normal bowel sounds. ENT: Throat not red. Tonsils not enlarged. No pus on tonsils. Right eardrum not red. Right ear canal not inflamed. No Right ear discharge. No perforation Right ear. Left eardrum not red. Left ear canal not inflamed. No left ear discharge. No perforation Left ear.”
b)Tuesday, 24 March 2009, with the reason for visit being “sinusitis”. According to the notes, the child was examined by
Dr B, who stated:
“fever 38.5. vomiting –today…tear duct blocked. Reason for visit: ?sinusitis. Actions: …Prescriptions printed: CECLOR SUSPENSION [the name of the drug] 250 mg / 5 mL 7 ml b.d. until finished”
c)Monday, 30 March 2009, with the reason for visit being “URTI – Viral”, I assume that's upper urinary tract infection, viral. According to the notes, the child was examined by Dr J, who stated that the child was -
“WELL< no distress, afebrile…Chest clear”
I should point out that afebrile means, according to Mosby's Dictionary of Medicine, “without fever”. The doctor then recommended:
“Management: Reassurance. Conservative treatment.”
d)Friday, 17 April 2009, with the reason for visit being “stools [I had to check my dictionary on that, that is another word for faeces] - mucusy”. According to the notes, the child was examined by Dr J who stated:
“foul-smelling pooey nappy… child care called mum and told her that it appeared similar to other cases at the centre, where Giardiasis had been through… had a sore tummy this morning… mum says that she's concerned about the water at home… Aqua sites (sic) [Science] tested the water and they felt there might be something in the water that could make them potentially ill… mum found that the water had a brown tinge to it… the water has cleared up since. Actions: CECLOR SUSPENSION 250mg / 5 mL ceased. Pathology requested: faecal micro+culture - possible giardiasis - has been through child care centre… Prescriptions printed: FLAGYL S SUSPENSION 320 mg / 5 mL…”
e)Monday, 20 April 2009, with the reason for visit being “Cryptosporidium enteritis... Results given / explained to patient”. According to the notes, the child was examined by Dr J, who stated:
“review…discussed results …self-limiting diarrhoeal infection… today had some biscuits… diarrhoea has settled - loose bowels a couple of times a day… drinking formula - had 150 ml today… not hydrated…interacting, playing… vomited twice on Friday… did not vomit on the weekend or today…hydralyte icy poles for at least 2 weeks… Actions: Letter Created – re. DMC medical certificate… Pathology requeste: faecal micro and culture - cryptosporidium infection… repeat test in two weeks [May]… will ring Human Services to check whether Cryptosporidium enteritis is excludable from child care… [name omitted] of Dept of Human Services rang me back… onset of symptoms 1-2 weeks… answered her questions… notified her over the phone - gave her all necessary details… no need to send the paperwork through … rang mum and left detailed message on her mobile answering service - can attend child care once symptoms have settled - no swimming for two weeks after symptoms settle”
f)Wednesday, 29 April 2009, with reason for visit being “results given/explained to client - Cryptosporidium enteritis”. According to the notes, the child was examined by Dr J, who stated:
“review…discussed results…still has the Cryptosporidium, repeat test 2-3 weeks… given another form… continue precautions at home for transmission… all symptoms have eased… doing solid normal motions… can return to day care… Actions: Removed recall for ABNORMAL RESULT on 05/05/2009. Pathology requested: faecal micro and culture…”
According to the progress notes for the mother, she also attended the same medical centre for her own diagnosis and treatment on the following dates during March and April 2009: 2 March, 20 March, 20 April, 24 April, 28 April and 29 April.
The mother also produced some documents to support her claim that some of the medical problems may be due to poor water quality at the property she currently rents. These documents (from Aqua Science Consultants Pty Ltd dated 3 April 2009, Buxton Real Estate dated 27 April 2009 and from South East Water dated 6 May 2009) were together admitted into evidence without objection and became exhibit “RW2”.
The document from Aqua Science Consultants Pty Ltd dated 3 April 2009 appears to confirm the mother complaining about her and the children being sick in early April 2009. It goes on to suggest that the problem may be due to corroded water pipes on the property. The document from South East Water dated 6 May 2009 states that the street water was tested and found to be “very good” and notes that the water pipes on the property are made of galvanised iron and “are the property owners responsibility.”

Submissions

Mr Marchetti for the father submitted that the contraventions by the mother were “serious and showed little obeyance” by the mother for interim court orders “in substance or in spirit”.
In respect to the contravention on 31 January, Mr Marchetti urged the Court to find that the mother’s excuse was not reasonable because, on her own evidence, those concerns were not the reason why she cancelled the following visit that was due to take place on 6 February 2009.
In respect to the second contravention, Mr Marchetti noted that the wife’s excuse was based upon her allegedly obtaining a day’s employment, for which she was unable to provide any documentary evidence in support.
In relation to the third contravention on 14 February 2009, Mr Marchetti argued that there was no evidence before the Court to corroborate the mother's claim that an auction of her [C] property took place on that afternoon. However, even if there had been an auction, Mr Marchetti questioned why the mother had waited until the very morning of a scheduled visit to cancel it, given that on the mother’s own evidence the auction had been arranged one month earlier.

Mr Marchetti also noted that the mother had no difficulty in advising the father (and the Court) in advance of her inability to attend several proposed contact visits in January 2009 due to her holidays in Sydney. Moreover, Mr Marchetti submitted that the mother had ample time to deliver the child to and pick the child up from the scheduled contact visit at GordonCare, as the auction allegedly occurred between 2 pm and 2:30 pm that day.
Overall, Mr Marchetti urged the Court to find that the mother had made no reasonable attempt to comply with the interim orders and that her admitted contraventions were inexcusable. He argued that the three contraventions that were the subject of the father’s application, coupled together with the mother’s delay in signing the service agreement with GordonCare and her contraventions of the orders that have occurred since the child’s last visit with the father on 28 March 2009, demonstrated a pattern of unreasonable non-compliance by the mother.
Lastly, Mr Marchetti urged the Court to consider imposing a bond under section 70NEB should it determine that the contraventions were without reasonable excuse. In other words, the Court should consider the contraventions under the “less serious” provisions of subdivision E.
In her submissions the mother reiterated that her concerns were excusable. She stated that it was impossible for her to comply with an order requiring her to take the child to and collect the child from GordonCare on Fridays or on any weekday because she is now working full‑time. She acknowledged that with the benefit of hindsight it may have been better for her to have sought a variation of the existing interim orders, to remove the requirement for the child to spend time with the father at the contact centre during normal weekday working hours. She was agreeable to allowing weekend contact every week if necessary but she acknowledged that GordonCare would not be able to facilitate any more than alternate weekend time for two hours.

The Decision

As previously stated, the mother admitted all three contraventions that were the subject of the father’s application. She also admitted non-compliance with the interim orders since the last contact visit on 28 March 2009. Consequently, I am only concerned with whether the mother’s contraventions were reasonably excused and, if not, what sanctions might best promote future compliance with the Court's orders.

The contravention on 31 January 2009

In her evidence the mother argues that she did not comply with the orders on that occasion because of her concerns that the father may have changed the child’s nappy at the contact centre on 17 January 2009. The concerns allegedly arose from statements made to the mother by the child, who was aged two years and four months at that time. This defence is raised despite there being contradictory evidence from GordonCare that the contact visit was cancelled “by the mother due to concerns about excessive heat.”[8]
[8] Letter from GordonCare for Children dated 13 February 2009, attached as Exhibit “PG2” to the affidavit of the father sworn 19 February 2009 and filed 20 February 2009.
It is most unusual for a reasonable excuse argument based on non-compliance being necessary to protect the health and safety of a person, in other words, a section 70NAE(5) argument, to be made in the context of using a contact centre. These centres play a crucial role in facilitating a child spending time with a parent in circumstances where there is personal risk proven or yet to be determined in relation to a child.
It is clear from the evidence that the mother did write to GordonCare about her concerns and that GordonCare responded, also in writing, that the child’s nappy had been changed on all occasions by a GordonCare worker. What is not clear from the evidence is when GordonCare responded. It is clear from their letter dated 13 February 2009 that they had written before that date. Moreover, it is probable that GordonCare wrote to the mother before 6 February 2009, as the Centre confirmed in the first letter that the mother provided no reason for cancelling the subsequent visit.
Applying an objective test, I am not satisfied that the mother’s excuse for this contravention is reasonable in light of the evidence.

Contravention on 6 February 2009

In her evidence the mother argues that she did not comply with the orders on 6 February 2009 because she had obtained a day's work from a home cleaning agency and consequently the child needed to attend a child care centre. The mother did not present any other evidence to corroborate this defence.
It is difficult to see how this explanation falls within the scope of section 70NAE and in particular section 70NAE(5). The child’s time with the father was to be supervised in the contact centre and the mother admits that her decision not to comply with the interim orders on that occasion was based solely on her need to work. Indeed this is the same explanation she provided for not being able to comply with the orders on alternate Fridays since 3 April 2009.
It is disappointing that the mother was not able to arrange her employment in such a way as to be able to take the child to and collect the child from GordonCare on 6 February 2009 and alternate Fridays since 3 April 2009. Whilst the Court accepts that many parents need to work to support themselves and their children, the GordonCare appointment is for two hours only, that is 11:15 am to 1:15 pm, on alternate Fridays. It appears to the Court that the mother's own needs took preference over the right of the child to spend time with the other parent, albeit under supervision in a contact centre.
The mother’s own admission that with the benefit of hindsight it may have been better for her to have sought a variation of the existing interim orders to facilitate her employment is indicative of her failure to appreciate the rights of the child, particularly in a situation where a child is seeing the other parent in a contact centre because of allegations of abuse and family violence yet to be established.
Accordingly, I am not satisfied that the mother's excuse for this contravention is reasonable.

Contravention on 14 February 2009

In her evidence the mother argues that she did not comply with the orders on 14 February 2009 because her [C] property was being auctioned that afternoon. The mother did not present any other evidence to corroborate this defence.
Again it is difficult to see how this explanation falls within the scope of section 70NAE, in particular section 70NAE(5), for the reasons stated above.
Given the mother's own evidence that the property had been listed for auction that afternoon for at least four weeks prior to the scheduled contact centre appointment, it was inexcusable for her to have waited until the very morning of the auction to advise GordonCare of her cancellation. Whilst I accept the mother’s evidence that the auction was scheduled with her agreement that afternoon, it is difficult to understand how it could have logically proceeded, given the mother admits that the father had lodged a caveat in respect of the property.
In addition, it is difficult for the Court to accept the mother’s rejection of the proposition that she would have had enough time to drive the child to the centre at 1 pm that day, drive back to attend the auction and thereafter drive back to the centre by 3 pm to collect the child. Indeed the Court finds that the mother would have been able to do so.
Accordingly I am not satisfied that the mother’s excuse for this contravention is reasonable.

Formal finding

I therefore make formal findings that the mother did contravene the interim orders, as alleged by the father in the father’s application, without reasonable excuse for doing so.

Consequential orders

Given the formal finding that the mother has failed to establish any reasonable excuse for the admitted contraventions of the Court orders, the question of what orders should be made now arises. As previously stated, the father is seeking the imposition of a bond under section 70NEC, presumably to ensure future compliance by the mother with the interim orders and any further orders made by the Court.
These are serious breaches by the mother. As previously stated, I must decide whether the contraventions fall into the “less serious” or “more serious” categories in Division 13A. Given that this is the first time that the mother has been found to have contravened court orders without reasonable excuse, I believe the matter should be dealt with under the provisions of subdivision E, i.e. the less serious contravention provisions.
This finding accords with a submission made by Mr Marchetti for the father in relation to penalty. That all having been said, I note that the Court may have been more inclined to deal with the contraventions under the more serious provisions had the mother previously been found in breach.[9]
[9] See for example M v G (No 5) (2004) FMCAfam 387 at [5] (per Ryan FM).
Keeping in mind the focus of the Court in relation to penalty must be to ensure or enforce future compliance with court orders, I am satisfied that the imposition of a bond under section 70NEB is appropriate. Accordingly, I propose making an order today under section 70NEB(1)(d) that the mother enter into a bond pursuant to section 70NEC in the sum of $1500, without surety or security for two years, to be of good behaviour and to abide by the orders of the Court.
There is a precondition to the making of a bond that is imposed on the Court by section 70NEC(5). The subsection states:
“If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond--fails to act in accordance with the bond.”
Consequently I propose to make the required explanation to the mother upon formal pronouncement of the orders.
As stated previously, under section 70NEB the Court also has the power to make other types of orders, including an order requiring a contravening parent to attend a post‑separation parenting program and/or to make a time lost order in favour of the applicant parent.
In respect of the merits of the mother undertaking a post‑separation parenting program I note that Kate Earl, the family consultant in this matter, in her report dated 10 November 2008 was of the view that both parents should undertake a post‑separation parenting course. Consequently I will defer consideration of this possibility until after the interim parenting hearing today. Given the likely proximity of the final hearing in this matter, it may be an order that forms part of the final outcome.
In relation to a time lost order, given that the Court has previously made orders requiring the child to spend time with the father at GordonCare and given the limited times available for appointments with that service, I also propose deferring consideration of a time lost order until after today’s interim parenting hearing.
I note that the father has not sought costs or claimed expenses in relation to the matter pursuant to section 70NEB(1)(e) and (f).
I reserve the right to settle these reasons. As indicated, I propose to make the formal orders affecting this decision at the conclusion of the interim parenting hearing.

Introduction – Interim parenting proceedings

This is an application filed by the husband Mr Grant (“the father”) on
5 June 2008 seeking various parenting orders in relation to the child [X] born in 2006 (“the child” or “[X]”). The application is opposed by the wife Ms Aiden (“the mother”). The mother has also filed an application in a case on 6 May 2009 which was dealt with at the commencement of the contravention hearing on 7 May 2009.
By way of summary, the parenting orders sought by the father seek that both parties have equal shared parental responsibility for the child and that the child live with the mother and spend time with the father initially for one day per week, increasing to “more frequent and overnight time” over time.
The matter has been listed today for an interim hearing inter alia to review the current interim parenting arrangements made by this Court on 11 December 2008 (“the current orders”). The father is legally represented by counsel, Mr Marchetti, and the mother is self‑represented.
Pursuant to orders made by me on 2 December 2008, an independent children’s lawyer was appointed and Ms MacGregor appears in that capacity today. Regrettably Victoria Legal Aid declined a previous order made by Hartnett FM on 22 July 2008 seeking the appointment of an independent children’s lawyer. The Court is nonetheless grateful to Victoria Legal Aid for agreeing to fund the appointment flowing from my order dated 2 December 2008.
As stated, the mother filed an application in a case on 6 May 2009 seeking two orders, namely: “1. A stay order to stop the operation of the orders until my appeal is decided; and 2. A stay of proceedings pending criminal investigation”.

Background

The personal details of the parties, the child and their relationship were described at paragraph 9 above.
The current proceedings have been set down for final hearing on 20 July 2009. They had previously been set down for final hearing on 2 December 2008 and again on 27 April 2009 but these hearing dates were vacated due to reasons related to a now withdrawn contravention application filed by the father on 15 November 2008 and a second contravention application filed by the father on 20 February 2009, the hearing of which was conducted on 7 May 2009 and concluded with formal findings this morning (see reasons above).
As previously stated, interim orders were made by this Court on 11 December 2008. Most relevantly for today’s proceedings, order 1 provided that:
“1. The applicant husband spend time with the child of the relationship, [X], born in 2006, at the GordonCare Contact Centre in [M] on:
…
(c) Saturday, 17 January 2009 from 1 pm-3 pm, or at such other time as the Director of the Centre may direct and fortnightly thereafter;
(d) Friday, 6 February 2009 from 11.15 am-1.15 pm, or at such other time as the Director of the Centre may direct and fortnightly thereafter.”
In other words, the current orders provided inter alia for [X] to spend time with her father for two hours per week at GordonCare for Children at [M]. The orders were made on that occasion, that is 11 December 2008, following the appointment of the independent children’s lawyer and with the support and recommendation of the independent children’s lawyer.
The necessity for supervision and the continued use of a contact centre follows from allegations of abuse and family violence made by the mother against the father that allegedly relate to the child herself and the mother’s two other children from a previous relationship. In these proceedings the mother filed two Form 4 Notices of Abuse or Family Violence, the first on 12 November 2008 and the second on 1 December 2008.
By their letter dated 24 December 2008, the Department of Human Services indicated that they had:
“…undertaken an assessment of the notified concerns in relation to [Y] and [Z] and [X]. After an assessment of the concerns raised, the Child Protection has decided not to take any further action in this matter. However, Child Protection has information that may be of interest to the court.”
That letter was signed by Mr J, a child protection practitioner within the Southern Metropolitan Intake Unit.
In relation to his application and apart from his recent contravention application, the father has filed and relies on a number of affidavits in these proceedings:
·his first affidavit sworn on 4 June 2008 and filed on 5 June 2008;
·his second affidavit sworn on 21 August 2008 and filed on
22 August 2008; and
·the affidavit of Dr C, consultant psychiatrist, sworn on 21 August 2008 and filed on 22 August 2008.
In addition to her response filed on 21 July 2008, her two Form 4 notices and her application in a case filed on 6 May 2009, the mother has filed and relies on a number of affidavits in these proceedings:
·her first affidavit sworn 20 July 2008 and filed on 21 July 2008;
·her second affidavit sworn on 25 August 2008 and filed on 26 August 2008;
·her third affidavit sworn on 30 October 2008 and filed on
12 November 2008; and
·the affidavit of her mother Ms S, retired, sworn and filed on
2 December 2008.

The Issues

The issues for the Court to determine are fourfold:
·firstly, finalising the husband’s contravention application filed
20 February 2009, which has now been concluded;
·secondly, considering the mother’s application in a case;
·thirdly, reviewing the current parenting arrangements and more particularly the current supervised spend time orders in relation to both their frequency and under what circumstances they should operate; and
·fourthly, given that the two previous listings of this matter for final hearing have had to be vacated, ensuring that the parties are making their best efforts to prepare the case for the final hearing listed on 20 July 2009.
A related issue was the mother’s indication that she may not be able to comply with order 1 of the orders made on 19 March 2009, requiring the parties to attend before a psychiatrist nominated by the independent children’s lawyer. I will return to that issue shortly.
In relation to the husband’s contravention application filed 20 February 2009, I made a formal finding this morning that the mother had contravened the current orders, as alleged in the father’s application, without reasonable excuse for doing so.
In relation to the wife’s application in a case, this was dismissed when the matter was last before Court on 7 May 2009 for the following reasons:
·firstly, no appeal to my knowledge had been successfully lodged by the mother against the orders I made on 28 April 2009; and
·secondly, the mother has provided no compelling evidence that these proceedings should be stayed pending a criminal investigation being conducted into allegations made by the mother against the father.
I acknowledge that the mother did today finally provide the independent children’s lawyer, Ms Mcgregor, with some details about her complaint made to the police, and the independent children's lawyer advised the Court that she had spoken to Victoria Police (Brighton Criminal Investigation Unit) and more specifically one Mr C who appeared to confirm that a complaint had been made. However, Mr C was not the investigating officer and he could not inform the independent children’s lawyer as to how long the process might take and what or if any charges might be forthcoming. Mr Marchetti for the father confirmed that his client has not been interviewed by the police in relation to this investigation.
Of concern to the Court was the mother’s acknowledgement that she only made her statement to the police in April this year, months after making these allegations in these proceedings. She did not have a copy of the statement she alleges she made to the police and could not recall who took her statement. In the circumstances I see no merit in staying these proceedings. Indeed I believe that any stay would jeopardise the child’s ongoing relationship with her other parent, the father, and would clearly not be in the child’s best interests. I note that the stay application did not have the support of the independent children’s lawyer.

Agreed facts

The mother has agreed today to abide by the current parenting orders. She was not agreeable to any make‑up time on an unsupervised basis. She also indicated difficulties that she would have in providing make‑up time on a Saturday or Sunday due to the school sporting or other activities of her two sons.

The father has proposed that additional time could be facilitated by him spending time with the child at a public children’s centre, such as [B] situated at [address omitted] (“[B]”). The independent children’s lawyer supported this proposal but the mother did not. All parties indicated that GordonCare for Children will apparently cease operations as a publicly funded body on 30 June 2009.
The independent children’s lawyer indicated that appointments had been made for the parties to attend with Dr E (in compliance with order 1 of the orders made on 19 March 2009), on 19 and 21 May respectively, and that the parties had a follow‑up appointment with the family consultant Kate Earl on 9 June 2009. The mother indicated that her financial circumstances may prevent her from being able to comply with order 1 made on 19 March 2009, and further that she saw no need for a psychiatric evaluation of her in any event.

The parties' submissions

The father is seeking to return to the orders made by the Court on

11 December 2008
and is also seeking additional time with the child to be spent in a public place during daylight hours, such as [B]. The independent children’s lawyer supports this submission.
The mother has indicated support for the current orders to continue and believes she can now accommodate the alternate Friday appointments at GordonCare. She does not support any contact that is not supervised by a contact centre and has stated the difficulties in accommodating extra weekend time due to her and her family’s commitments. She also indicated, understandably, that she would like to spend “some weekend time” herself with her children, and her daughter in particular, given that she is now engaged in full‑time work.

The Law

In the case of Goode v Goode (2006) FLC 93-286, the Full Court of the Family Court noted at paragraph 81:
“In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.”
I say that this is such a case. More specifically, this raises issues such as the Court cannot fully determine issues of credit today. The evidence that is being presented by the parties to the Court has not been tested by cross‑examination. In the same paragraph, that is paragraph 81 of that decision, the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Family Law Act 1975 (“the Act”) post the 2006 shared parenting amendments must be followed in the interim hearing. That requires me to identify the competing proposals, the issues, and any agreed or uncontested facts, and I have previously noted those in my decision.
Section 60CA of the Act provides that the Court must have regard to the best interests of the child as the paramount consideration. To determine the child’s best interests, the Court must consider the matters set out in section 60CC(2) of the Act, being the primary considerations, and the additional considerations set out in subsection (3) of that provision. The Court will canvass these briefly shortly.
In addition, section 60CC(4) of the Act requires the Court to consider also the extent to which each party has fulfilled his or her parenting responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities.
There is no live issue today about changing the arrangements as to who the child should live with. The issue today is solely in respect of the father’s time with the child and under what circumstances.
In respect of the primary considerations, I note that they are the benefits of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There is no doubt that it would be in [X]’s best interests to develop a meaningful relationship, not just with her mother, but with her father also. That needs to be balanced in respect of protecting [X] from any physical or psychological harm and the like.
The Court notes that the independent children’s lawyer supports the current orders being extended to enable the child to spend some additional time with the father in a public place like [B] and that such an arrangement will service the security of the relevant child.
As to the additional considerations, I note the following comments. [X] is too young at this stage for her views to be seriously considered. However, they can be ascertained in some respect by the processes that the Court engages in, such as the use of the independent children’s lawyer and through the family consultant.
The Court is also required to consider “the nature of the relationship of the child with each of the child’s parents”. This is difficult because we have just had to deal with a number of contraventions successfully alleged by the father against the mother. Clearly the relationship between the parents is poor and the relationship between the child and the father is now distant due to reasons beyond the control of the child.
The Court also must consider the “willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”. This is a real problem in this case. Similarly, the Court must also consider “the capacity of each of the child’s parents… to provide for the needs of the child, including emotional and intellectual needs”, and the “attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents” and the like. This needs to be fully tested at the hearing. The Court notes that a psychiatric examination and the family report have been requested to assist the Court in this process. I am confident that if completed these will assist the Court in being able to make decisions that are in the best interests of the child.
The Court is also required to consider the “extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent”, including spending time with the child and the like. There is a real question mark against the mother at this stage, given the contraventions that the Court has had to determine this morning. Today marks an opportunity for the parties to move forward to fulfil their obligations and responsibilities as parents.
The Court is also required to consider the “likely effect of any change in the child's circumstances” and the like. The child needs to re-establish a relationship with the father but her safety and security is also paramount. The Court believes that there needs to be a further order to enable the child to spend time with the father but that her safety and security should be protected in this process, in other words balanced against her right to spend time with her father.

Conclusion

There is no issue between the parties that current order number 1 made on 11 December 2008 should not continue. It is regrettable that GordonCare will cease operations as a publicly funded body on 30 June 2009. The resumption of the current orders should occur as soon as possible, this weekend preferably.
I also have come to the view that [X]’s best interests demand her to spend more time with her father in the lead-up to the final hearing in July. Such an outcome is irrespective of the fact that the Court also believes that a lost time order under section 70NDB and 70NEB(1)(b) is needed flowing from the earlier contravention proceedings concluded today. I am satisfied that a lost time order requiring the mother to attend with the child at a public place such as [B] for a minimum of two hours every alternate weekend is in [X]’s best interests.
The father has indicated that the mother can be present during that time, but she would be required to keep a reasonable distance away from the father and the child to ensure that the child does not become distressed by such observation, and further, that the mother should not interfere in any way with the father’s time with the child. Failing agreement between the parties and the independent children’s lawyer, I propose that such time occur on Sundays for a minimum two‑hour period between the hours of 12 noon and 4 pm.
In relation to the orders made on 19 March 2009, in the event that the mother does not comply with the request to attend before Dr E she will be required to make, file and serve by 4 pm on 28 May 2009 an affidavit outlining her reasons for non-compliance, and to provide the Court with full financial disclosure of her income and expenses, current outstanding debts and the like.
I propose standing the matter down briefly to enable the parties to have some brief discussions to facilitate these proposed orders. I would ask the independent children’s lawyer to kindly assist the Court with a Minute of Order to reflect this interim decision.
I reserve the right to settle the reasons for this interim judgment.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Monahan FM

Associate: M. Raggatt

Date: 14 July 2009