HALLIFAX & BESSANT

[2020] FCCA 241

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALLIFAX & BESSANT [2020] FCCA 241

Catchwords:

FAMILY LAW – Six Contravention Applications filed by the Father – significant geographical distance between the parties – distrustful and acrimonious parenting relationship – findings that the Mother breached parenting Orders on three occasions without reasonable excuse – finding that the Mother breached parenting Orders on one occasion with “reasonable excuse” – two Contraventions formally dismissed – further submissions required in relation to penalty following the Court’s findings regarding breaches.

Legislation:

Evidence Act 1995 (Cth), s.140(2)

Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 70NAF, 70NBA.

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Childers v Leslie (2008) 217 FLR 124; (2009) 39 Fam LR 379

Applicant: MR HALLIFAX

Respondent: MS BESSANT

File Number: CAC 404 of 2018

Judgment of: Judge Neville

Hearing date: 3 September 2019

Date of Last Submission: 13 September 2019

Delivered at: Canberra

Delivered on: 27 February 2020

REPRESENTATION

Solicitors for the Applicant: Andrew Warren Associates

Solicitors for the Respondent: Legal Aid ACT

ORDERS

1. Contravention 1:

   (a)The Mother pleaded: the Mother contravened the Orders with reasonable excuse.

   (b)The Court finds: The Contravention was not pressed and is formally dismissed.

2. Contravention 2, 3 and 4:

   (a)The Mother pleaded: the Mother contravened the Orders with reasonable excuse.

   (b)The Court finds: The Mother contravened the Orders without reasonable excuse.

3. Contravention 5:

   (a)The Mother pleaded: the Mother contravened the Orders with reasonable excuse.

   (b)The Court finds: The Contravention was not established to the requisite standard and is dismissed.

4. Contravention 6:

   (a)The Mother pleaded: the Mother contravened the Orders with reasonable excuse.

   (b)The Court finds: The Mother contravened the Orders with reasonable excuse.

5. Within 21 days of the date of these Orders, being by 19 March 2020, the parties are each to file and serve written submissions of no more than 2 pages in length, regarding the appropriate penalty in all the circumstances.

6. Within 21 days of the date of these Orders, being by 19 March 2020, the parties are each to file and serve written submissions of no more than 2 pages in length, addressing what, if any, changes should be made to the current parenting arrangements.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 404 of 2018

MR HALLIFAX

Applicant

And

MS BESSANT

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Contravention Applications, filed 14^th December 2018, 8^th January 2019, 21^st January 2019, 21^st August 2019 and 27^th August 2019, the Applicant Father seeks relief from this Court in relation to alleged breaches of parenting Orders by the Respondent Mother regarding the two children of the relationship, 7 year old X, and 4½ year old Y.

2. In total there are 6 contraventions alleged against the Mother.  The final Orders that are said to have been breached were made by this Court, by consent, on 29^th May 2018.

3. There was somewhat limited evidence (noted below) provided by both parties.  The Applications, and more particularly the evidence of the parties, did not assist the Court very much.  I do not say this critically.  The evidence primarily highlighted, in my view, the very significant difficulties faced by the parties due to (a) the geographical distance between the respective parental households (the Mother – the primary carer of the children - lives in Canberra, the Father lives on the south coast of NSW), and (b) the completely bitter, fractious and almost totally unworkable co-parenting relationship.  Indeed, unless something is done to assist the parties to resolve parenting issues away from the courtroom, I fear that not only will there be further Applications for contravention of Orders (which will tax everyone further), but also the negative impact on the parents, and the children, will be continuously exacerbated.

4. In terms of the Contravention Applications themselves, the Mother formally admitted each of the six contraventions alleged in not making the children available to spend time with the Father, pursuant to the 2018 Final Orders, on the specific dates and times stated in each Application.  However, she pleaded that she had a “reasonable excuse” on each occasion.  Precise details of the contraventions, and the Mother’s “reasonable excuse” defence, are set out in (i) the Applications, (ii) the Affidavits, and (iii) the submissions, filed on behalf of each of the parties.  The submissions are set out in full later in these reasons.

5. Summarily stated, the “reasonable excuses” pleaded by the Mother were as follows:

   a)Contravention 1: the Mother was urgently admitted to hospital.  Although the Mother was cross-examined at the hearing about it, ultimately, the Father did not press this contravention.  Such was (and presumably still is) the level of distrust (and much worse) between the parties, only in the course of the hearing did he accept that the Mother was in hospital at the relevant time as she said.  A copy of a medical certificate from B Hospital, dated 20^th October 2018, is Annexure A to the Mother’s Affidavit, filed 3^rd May 2019.  This Contravention should have been withdrawn at a much earlier point in time.  In the light of the medical certificate provided months before the hearing, it borders on the scandalous, if not being contemptuous of the Court.  Either the Father and/or his lawyer, in the face of the medical certificate, should have abandoned this Contravention immediately upon receipt of the Mother’s Affidavit.  It was a waste of everyone’s time and energy -  including the Court’s;

   b)Contraventions 2 - 4: the Mother said that she was suffering financial hardship on each of the occasions pleaded in these contraventions;

   c)Contravention 5: the Mother’s “reasonable excuse” plea here related to there being a report to the Department of Family and Community Services which, she said, warranted her not to make the children available to spend time with the Father;

   d)Contravention 6: the Mother here said that her reasonable excuse arose from and was related directly to an interim Family Violence Order that had been taken out in February 2019 against the Father.  She said that, at all relevant times, she was extremely intimidated by and frightened of the Father at changeover.

Outline of principle

1. The evidence that is summarised below is to be viewed through, or measured against, the following basal principles.

2. First, the relevant standard of evidence is the civil standard, by which the Court must find the case of a party proved if it is satisfied on the “balance of probabilities.”[1] 

   [1] See in particular s.70NAF of the Family Law Act 1975 (Cth), which refers specifically to the application of the civil standard in contravention proceedings.

3. In addition to the matters referred to in s.140(2) of the Evidence Act 1995 (Cth), such as the subject matter of the proceeding, and the gravity of the matters alleged, it is as well to recall the well-known comments by Dixon J in Briginshaw v Briginshaw, thus:[2]

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…

   [2] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.

4. The second reference point is the collection of comments and observations by Warnick J (sitting alone as the Full Court) in Childers v Leslie.[3]  At the outset of his Honour’s judgment, he said, at [1] – [2]:

   [1] This appeal involves features typical of a great many applications that assert contravention of an order that a child spend time with a parent: the complaint, even if correct, seems a heavy handed, even obsessive reaction – yet, if the incident is the latest in a series (about which there will commonly be mainly subjective comment, irrelevant to the particular proceeding) perhaps any exasperation of the complainant is at least understandable; secondly, the “excuse” offered by the respondent will seem “fair enough”, at least not to be behaviour that ought attract punishment; and finally, whatever the outcome, it will seem unlikely to contribute to any real diminution in the particular family’s conflict.

   [2] However, these pervasive but nebulous features must be put aside, though the sense that one is presiding over an unproductive process might tempt a judicial officer to strive to achieve more from the hearing than it can properly yield. The focus must be narrowed, and, at first instance, the relevant facts determined and the law applied. In turn, the appellate court must scrutinise the process below, according to legal principle. As I said in Oxley and Inglis [2007] FamCA 16706, another appeal in respect of a contravention application, a successful appeal may merely exacerbate a disproportion between the extent of litigation and its utility.

   [3] Childers v Leslie (2008) 217 FLR 124; (2009) 39 Fam LR 379.

5. Then at [28] – [29], Warnick J said:

   [28] …the learned Magistrate may well have fallen into error by applying too loose a test of “reasonableness”. The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s.70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 Fam LR 553 at 559 - 60:

   ... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.

   [29] Here, the context in which “reasonable excuse” applied tellingly included the subsections of s.70NAE.  It also included that the father was entitled to spend time with the child pursuant to a court order.  Such an order places serious obligations on persons in the position of the mother in this case.

6. At [34] and [43], his Honour commented further:

   [34] The relevant context also includes authoritive [sic] statements of the court about like cases, of which the following statements In the Marriage of Gaunt (1978) 4 Fam LR 305 at 308 are a good example:

   The essential question is this - can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.

   ... A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”... .

   …

   [43] There is no fundamental reason why the proof of facts relevant to a contravention on a particular occasion may not in part depend on inferences about those facts drawn from findings about ex post facto events.

7. Finally, I note that, as adverted to in the authorities to which I have just referred, s.70NAE of the Family Law Act 1975 (Cth) (“the Act”) defines, in some detail, but not exhaustively, what constitutes a “reasonable excuse” for the purposes of Division 13A of the Act.

Oral evidence of the Applicant Father

1. The Applicant Father’s evidence, summarised, was as follows.

2. In relation to Contravention 1, the Father confirmed that (a) he was aware the Mother was in hospital; (b) she had advised him of this by SMS, including that she was having surgery and the time it was to occur; and (c) she offered him “make-up” time.

3. In answer to questions from the Bench, the Father said that he now believed the Mother had been in hospital.  He said that it was possible for someone to manufacture evidence about something like being in hospital.  This was in circumstances that the Mother had attached to her Affidavit a copy of her discharge summary from the hospital.  

4. He said that he only believed about 50% of what the Mother tells him.  Even if he received a similar message today (e.g. that the Mother was in hospital), his [negative/sceptical] response would likely be the same as it was in the past.

5. When asked if anything will, or is likely to, change or improve the co-parenting relationship, the Father’s regular answer or comment was to the effect that it would if “the Mother stayed out of my life”.  He said that he would also like to have more certainty in knowing what was going on in the children’s lives, including him having access to school reports.  He said, for example, that he only found out approximately one week before the hearing that the Mother had changed her (and the children’s) residence.

6. He confirmed that his over-riding feeling or disposition towards the Mother is one of bitterness for her having “taken the children” away from him.  He wants (understandably and reasonably) to see his children and to spend more time with them.  It was unclear (subject to what is said below) whether the multiple Contravention Applications were calculated to achieve this particular goal; such a comment accords with those made by Warnick J in Childers v Leslie, noted earlier in these reasons.

7. The Father confirmed that he pays child support as assessed, and he did so in October 2018.  However, it did not come out of his pay in November 2018, he said, because the Mother had [somehow] cancelled it and had [maybe] dismissed any arrears owing.

8. The Father also confirmed that the Mother had contacted him about concerns that the children are allergic to a certain range of [named] skin products; they have rashes and eczema when the Father uses these products.

9. In various annexures to the Father’s material (e.g. his Affidavit, filed 8^th January 2019: Annexure B), there are copies of multiple email messages between the parties.  That correspondence highlights many of the ongoing issues between the parties, and in particular: (a) the Mother’s regular complaint about her financial plight and its negative impact on her ability tom take one of the children to school, and to travel to changeover at Suburb E; (b) the Mother’s concerns about the regularity of payment of child support by the Father, which he says occurs through the Child Support Agency (“the CSA”); (c) the Father’s warning to the Mother (see p.15 of this Affidavit, email dated 14^th December 2018) that “every time you refuse me access to my children” he said he would file “another contempt application.”  Subject to what is said later in these reasons, this “warning” or caution by the Father may also be seen as a threat or some form of intimidation.  At the very least, the Mother could not say that she was unaware of the Father’s position with regard to any future action taken involving the Court.

10. In other emails, the Father claimed to the Mother that she had alienated the children from him, and was continuing to do so.

The Respondent Mother’s evidence

1. The Mother’s evidence, summarised from her Affidavit (filed 3^rd May 2019), and from what she deposed in Court at the hearing, was as follows.  As will be evident, like the Father’s evidence, it was very limited.

2. The Mother is a student in accounting at C University.  She will finish her studies in about 5 years’ time.  She is also undertaking a certificate course.

3. In relation to Contravention 1, the Mother confirmed that on 19^th October 2018 she required emergency surgery.  She notified the Father before she went to hospital.  She offered him “make-up time” to spend with the children.  She said that he refused the offer.  As earlier recorded, the Mother attached to her Affidavit a copy of a medical certificate from the B Hospital regarding her admission and “surgical intervention.”  In emails between the parties at and around the time of the Mother’s admission, which are attached to the Father’s Affidavit, it is clear that the Mother was keeping the Father informed of her medical and related predicaments, as well as offering “make-up” time for the Father, which was refused.  The emails further record the Father’s regularly unhelpful and distrusting responses on all fronts.

4. Regarding Contravention 2 (filed 8^th January 2019), the Mother said that she was in financial difficulties at the time.  She asked the Father if he could pick up the children from her house.  The Father declined.  The Mother said that at the changeover she had hoped to speak with the Father regarding changing the children’s schools, which would help (she said) to reduce some costs.  She said that on one occasion she borrowed her Mother’s car.  She requested the Father to pay child support but, she said, he refused.  According to the emails previously referred to, the Father said that the CSA takes the requisite amount from his pay directly.  He refused to pay it any other way. 

5. The Mother further said that, although there were funds being taken from the Father’s pay by the CSA, this did not occur in December 2018.  She annexed a copy of the Child Support Payee Transaction Statement from 4^th April 2018 to 15^th December 2018 (Annexure B).

6. In her Affidavit, filed 2^nd May 2019, the Mother confirmed her offer to the Father in late December 2018 for him to have make-up time with the children.  She said that he had declined.

7. The Mother said that she received child support from the Father.  In her words, it was “sporadic”, and she did not receive it in December 2018.  She maintained that she was under financial pressure at that time (and on other occasions also).  This required her, she said, on occasion to go to the Salvation Army to seek financial assistance.  She said that she tried to speak with the Father about her plight but without success.

1. The Mother also commented on the children, and Y in particular, having psoriasis, being affected by eczema.  She said that this skin condition had been exacerbated by the children being required to sleep on the lounge-room floor while in the Father’s care.  The Mother said that she had informed the Father about the children’s issues regarding eczema and the treatment of it for them.

2. The Mother confirmed that in relation to the last contravention alleged, she was suffering from a severe panic attack at the prospect of meeting the Father.  She said that she was taken to hospital via ambulance.

3. In relation to questions put to her by the Father’s lawyer, the Mother stated the following.

4. The Mother confirmed that when she went to hospital her Mother cared for the children.  She said that she recalled corresponding with the Father by email (noted earlier in these reasons), and further that the Father later offered to pick up the children.  She declined.  She confirmed that she had a low opinion of the Father and that she had called him a “deadbeat” and “immature”.  The mutual low regard between the parents, as earlier observed, is plain to see from the lengthy email exchanges before the Court.

5. The Mother said that her usual approach regarding problems in making the children available for time with him is firstly to try to negotiate with the Father.  She said however that usually does not get very far because of the Father’s hatred of her.

6. The Mother made some general comments about her distress at not being able to discuss anything with the Father regarding parenting because of his antipathy towards her.  This was exacerbated by an incident at a changeover where, the Mother said, the Father and paternal Grandfather were present.  She said that they were laughing at her and refused to provide her with details of the location of the children.  She said that she was intimidated by their behaviour.  She denied that she was yelling and screaming at the Father and the paternal Grandfather.

7. She confirmed that, because of her very difficult financial circumstances, her Mother was assisting her, financially and otherwise, including lending her a car occasionally.

8. The Mother referred to the children’s ongoing skin condition(s), which, on one occasion led to Y being hospitalised.  It was the Mother’s evidence also that, at times, the Father takes the children to reside in places (e.g. the residence of the Father’s girlfriend) that are allegedly “filthy.”  She said that there had been a “biological sample” taken from Y that confirmed some infective or similar medical problem as to why he regularly suffered from diarrhoea.  In July-August 2018, Y had been prescribed antibiotics to deal with this issue.

9. In August 2019, the Mother obtained a Protection Order from the Local Court.  She did not advise the Father that she had taken out this Order.  It was listed for hearing on 9^th September 2019.

Written submissions on behalf of the Applicant

1. In the light of the evidence provided by the parties, on 13^th September 2019, the Applicant Father filed written submissions regarding the contraventions, which were as follows:

   OUTLINE OF SUBMISSIONS FILED ON BEHALF OF THE APPLICANT FATHER

   Contravention 1 – 19 October 2018

   The applicant father no longer presses this contravention.

   Contravention 2 – 30 November 2018

   The mother’s excuse is that she “had no money and could not afford the petrol” (her affidavit at paragraph 12).

   The mother, despite this matter being listed for hearing four months, made no attempt to lead any supporting evidence of her financial circumstances. She said in cross examination that her solicitor had her bank statements. None were tendered.

   A perusal of the emails between the parties (annexure “C” to the father’s affidavit, pages 16 – 33) makes it clear that what drove the mother’s decision not to comply with the Order is that the father would not give her money, (which he was not obliged to do), that she believed the father was spending money on “those other kids” (26 November, 2:02 PM, page 16), then when in fact the father did pay money into “the child support account’ (28 November at 1:23 PM, page 22) the mother was jealous and aggravated about the father’s new relationship (28 November 1 24 PM at page 22, 28 November 1 44 PM at page 23).

   Notwithstanding that the father offered to pick the children up Suburb D (28 November, 1:47 PM, page 24) (which would have alleviated any alleged petrol problem) the mother did not accept that either. Her frequent emails continue through to page 32 where she says on Wednesday 28 November at 4:47 PM “I will not be in Suburb E or Suburb D unless you pay the child support I have requested”.

   The simple fact of the matter is that the mother outright refused to deliver the children, withholding them to force the father to comply with her financial demands.

   Contravention 3 – 14 December 2018

   The email chain appears in reverse order between pages 17 – 11 of the father’s affidavit affirmed 21 December 2018.

   The emails commence with the mother to the father on 14 December 2018 at 10:47 AM (page 16). Immediately, the email is abusive. She writes of a “traumatic incident” involving X. Throughout the email chain she refuses to give any information about what she is talking about to the father, which is what he complained of in the witness box. She calls him “stupid”, “dirty little liar”, “deadbeat”, “narcissistic” and ultimately at page15 on December 14 at 11:36 AM “ Cos trust me - I’m coming for you and I will take you down… Bring it bitches”

   The email evidence is plain.  The contravention was nothing to do with financial impossibility.  It was all to do with the mother’s bitterness and desire to force the father to comply with her financial demands. Again, no evidence was produced by the mother as to her financial circumstances.

   Contravention 4 – 26 December 2018

   Once again, and repeatedly in the witness box, both in chief and in cross examination, the mother insisted that she did not comply with the orders on 26 December 2018 because she could not afford petrol.

   That was manifestly a lie.  Order 3.3 did not require her to drive anywhere.  She lived in Canberra.  Handover was to take place in Canberra.

   The father annexed an email exchange at page 11 of his affidavit affirmed 18 January 2019.

   At 9:53 AM on 26 December 2018 he emailed the mother “I am in Canberra. Where do I pick my children up from?”.

   Her response should be read in detail, but suffice to say it had nothing to do with petrol.

   Plainly, it was nothing to do with petrol because the father was in Canberra. She was cross-examined – why couldn’t she have gone 500 m up the road and met him? The response was (absurdly) that that still would require petrol. She said that he knew where she lived. She was then cross-examined as to why she couldn’t simply tell him to pick the children up from her house. She responded she was “scared” of him (but facilitated contact after December 2018 right through until August 2019 – she couldn’t have been too scared). Why could she not have walked the children down to the local street corner to meet the father?

   It is submitted that the mother’s willingness to plainly lie about her reason for non-compliance being ‘she couldn’t afford petrol’ casts further doubt on whether she was telling the truth in this regard in relation to contraventions 2 and 3.

   Contravention 5 – 9 August 2019

   The mother’s excuse was she was concerned for the children’s safety.

   The father drove to Suburb E and annexed text messages sent to her at 5:16 PM on 9 August 2019. She deigned not to answer (notwithstanding she would have been aware that the father had driven from the coast to Suburb E to collect the children).

   She did not respond until the next day and her text message appears on page 12 of the father’s affidavit affirmed 16 August 2019.

   Whilst the response does not make any particular sense, she said in cross-examination she was referring to “Ms F” (the father’s new girlfriend) and that when she said it was “legally sorted WORD. She is not allowed near MY kids…” this was referring to a family violence order she had taken out (against Ms F). She conceded, however, that in fact no order had been made.

   In any event, there is not a skerrick of evidence that the father was going to be anywhere near Ms F that weekend. The mother had never even asked whether he would be with Ms F prior to non-compliance. She gave evidence about how filthy Ms F’s house was and other houses that the father took the children to. She conceded that she had not been to the houses at all or for years.  She had no idea where he would be taking the children.

   The mother’s “excuse” is plainly ridiculous.

   Contravention six – 23 August 2019

   The mother’s excuse was that she was intimidated by the behaviour of the applicant father’s father who parked next to her car.  (That is contrary to Mr Hallifax’s evidence). Therefore,  she drove off with the children and refused to comply with the Orders.

   However, the mother never challenged the evidence of either the applicant father, or the applicant father’s father, which were completely contrary to her account, and both of whom were available for cross examination.

   In addition, the mother never led evidence to support her claims from her mother who accompanied her, both on 23 August 2019 and to Court.

   The mother’s “excuse” could not possibly be made out.

Written submissions on behalf of the Respondent

1. The Respondent Mother filed her written submissions on 10^th September 2019, which were as follows:

   Written Submissions: Respondent Mother

   1.   These submissions are in response to the Contravention Hearing of 3 September before His Honour Judge Neville in the Federal Circuit Court of Australia in Canberra.

   2.   The mother relies on her affidavit filed 2 May 2019, and oral evidence given on 3 September 2019.

   Contravention 1

   3.    The applicant father alleges the mother contravened the Orders of 29 May 2018 on 19 October 2018, by not making the children available for changeover.

   4.   The respondent mother admits the contravention and that she had reasonable excuse to do so.

   5.   On 19 October 2018 the respondent mother was admitted to hospital for emergency surgery and could not comply with the Orders.

   6.   The respondent mother alerted the father to this issue and offered make up time which was refused.

   7.   The applicant father’s evidence at the contravention hearing was that he accepts the respondent mother was in hospital.

   Contravention 2

   8.   The applicant father alleges the mother contravened the Orders of 29 May 2018 on 30 November 2018, by not making the children available for changeover.

   9.   The mother admits the contravention and that she had reasonable excuse to do so.

   10.    During this time the respondent mother was suffering from financial difficulty.

   11.    The respondent mother could not afford petrol to attend the changeover.

   12.    The mother concedes that she did not provide the father or the Court with bank statements that outlined her financial position. The mother gave evidence at the contravention hearing that she asked the Salvation Army for help at that time due to the financial position she was suffering.

   13.    The fathers affidavit filed 14 December 2018 shows in “Annexure C” that the mother informed the father on 26 November 2019 that “I wont be able to drive this weekend now either” after informing the father about her financial situation.

   14.    The mother offered for the father to collect the children from Canberra, however the father declined.

   Contravention 3

   15.    The applicant father alleges the mother contravened the Orders of 29 May 2018 on 14 December 2018, by not making the children available for changeover.

   16.    The mother admits the contravention and that she had reasonable excuse to do so.

   17.    The mother asserts on this occasion she could not afford petrol to attend the changeover in Suburb E.

   18.    At this time she had not received any payment of child support for the month of December.

   19.    Due to her financial position not improving and no child support payments the mother could not afford to travel to Suburb E.

   Contravention 4

   20.    The applicant father alleges the mother contravened the Orders of 29 May 2018 on 26 December 2018, by not making the children available for changeover.

   21.    The mother admits the contravention and that she had reasonable excuse to do so.

   22.    The mother asserts the same circumstances as outlined above in Contravention 3, that she had no money for petrol due to lack of payment of child support.

   23.    The mother offered the father some time on Christmas day, to which the father refused.

   Contravention 5

   24.    The applicant father alleges the mother contravened the Orders of 29 May 2018 on 9 August 2019, by not making the children available for changeover.

   25.    The mother admits the contravention and that she had reasonable excuse to do so.

   26.    On this occasion the mother asserts that she contravened the orders to protect the health and safety of the children.

   27.    The mother asserts that the children return from the applicant father’s house with rashes and inflammation of the children’s eczema. The father admits to using Arbonne products on the children despite the mother’s request not to do so.

   28.    The mother gave evidence that she notified the father that Y was sick and the children would not be available for changeover. Y was sick due to his rash.

   29.    The mother gave evidence that she is concerned about the father’s living conditions and cleanliness of the house.

   30.    The mother gave evidence that she has reported this to Child Youth Protection Services, but has not heard back from any outcome with this entity.

   Contravention 6

   31.    The applicant father alleges the mother contravened the Orders of 29 May 2018 on 23 August 2019, by not making the children available for changeover.

   32.    The mother admits the contravention and that she had reasonable excuse to do so.

   33.    The applicant mother asserts that she attended the changeover on the 23 August 2019, however gave evidence that she felt intimidated by the father’s behaviour and that of his father at the changeover, noting there is a current Family Violence Order in place.

   34.    The mother asserts that she panicked and got into the car where her mother was waiting with the children and proceeded to drive off down the road.

   35.    The mother asserts she pulled over and observed text messages on her phone from the father that she considered threatening.

   36.    At the time the mother asserts she was not well and had in fact the previous day attended hospital via ambulance for what was believed to be a severe panic attack.

   37.    The mother showed the applicant fathers solicitor a copy of this medical certificate via her mobile phone on the day of the contravention hearing.

Consideration and disposition

1. I note that s.70NAC of the Act relevantly provides:

   A person is taken to have contravened an order if and only if where the person is bound by the order he or she has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.

2. Section 70NAE(2), (4), (5) and (7) provide non-exclusive circumstances in which a person may be taken to have had a reasonable excuse for contravening an Order.

3. The onus falls to the person alleging the contravention to prove it.  Similarly, the person alleging “reasonable excuse” must prove that excuse for each contravention alleged.

4. On the significantly limited and conflicting evidence available to the Court, I make the following rulings.

5. As already noted, Contravention 1 was not pressed.  This was confirmed in the Father’s written submissions. 

6. The Father had ample opportunity, and in my view, ample evidence, to have withdrawn this Contravention at a much earlier point in time.  He should have done so.  To have pressed it up to and during the hearing, where the Mother was cross examined on it, in the face of the certificate from the B Hospital, bordered on an abuse of process.  Such matters are likely to be part of any assessment in relation to penalty.

7. The comments noted earlier by Warnick J in Childers v Leslie regarding a fractured co-parenting relationship figure very large in the current dysfunctional and wretched circumstances regularly on display here.  This includes certain levels of festering malcontent that could border, at times, on a form of provocation from the Father.  Such matters may be relevant, in due course, to questions of penalty.  In my view however, they do not, without more, relate directly to the question or issue of compliance with Orders.

8. The Mother’s evidence in relation to Contraventions 2, 3 and 4 amount to the same “reasonable excuse”, namely, that she was short of funds and under financial pressure.  In one instance (Contravention 3), she said that her financial difficulty was because the Father had not paid child support for December 2018.  The Father confirmed that this was the case.  In another instance, the Mother said that she was (a) supported financially at times by her Mother, and (b) supported financially by the Salvation Army.  On another occasion, she was able to borrow the maternal Grandmother’s car.  These aspects of her evidence indicate that she was not completely without support from time to time.  This is also to say that there was little in the evidence to support a view that there was ongoing financial support.

9. While I do not doubt the Mother’s contentions, regrettably, there was little documentary evidence to support the Mother’s claims.  Her contention of financial difficulty, without more, was rather too threadbare to support her defence of “reasonable excuse.”  It is likely that such matters (subject to any other submissions) may play some part in any discussion regarding penalty.  There may be other mitigating circumstances in relation to penalty, such as the Father’s conduct of one kind or another.

10. Accordingly, I do not accept the defence of “reasonable excuse” in relation to Contraventions 2, 3 and 4.

11. Contravention 5 related to (a) the issue of the children’s health arising from eczema, psoriasis; (b) the alleged allergic reaction to unsanitary conditions in which the children had been left, and (c) a pathological sample that required Y to be prescribed antibiotics.  There was also the admission by the Father that, contrary to the Mother’s advice to him not to use products from a certain brand, he did so.  Although the evidence on all sides is somewhat scarce, on the balance of probabilities, in my view it is insufficient to warrant a finding that the Mother’s defence of “reasonable excuse” is not made out.  Accordingly, I dismiss this Contravention.

12. In relation to Contravention 6, the Mother contends that her “reasonable excuse” on this occasion arose from (a) the Father’s, and his family’s, intimidatory conduct, and (b) there being in place an interim Family Violence Order, which issued on 25^th February 2019.  A copy of that Order was filed with the Court.  The final hearing for this Order was to take place in October 2019.  The Mother further said that on the day of the alleged Contravention she suffered a panic attack as a result of what she considered to be threatening behaviour from the Father.  She said that she attended hospital via ambulance.  On the day of the hearing, the Mother showed the Father’s lawyer a copy of the relevant medical certificate from B Hospital dated 23^rd August 2019.

13. Whatever the typically problematic circumstances that surround the evidence on both sides, the medical certificate of the Mother together with the interim family violence Order, in my view, are sufficient to establish that a reasonable excuse has been made out.

14. In the light of the above, by way of summary:

    a)Contravention 1 was not pressed; it is formally dismissed;

    b)Contraventions 2, 3 and 4 were admitted by the Mother.  Her claims of reasonable excuse are not accepted;

    c)Contravention 5 was not, on the evidence, established to the requisite standard and must be dismissed;

    d)Contravention 6 was admitted but with reasonable excuse.  In the light of the medical certificate of the Mother, the Mother’s excuse must, on balance, be accepted.

1. Within 21 days of the date of these Orders the parties are to file 2 pages of written submissions regarding what, in all the circumstances, should be the appropriate penalty in relation to the 3 contraventions that have been established and where the Mother’s defence of reasonable excuse has not been made out.  The parties are to ensure that all paragraphs are numbered.

2. I note too that there is a s.11F Memorandum from Ms Gye, dated 10^th December 2019. In addition to the submissions regarding penalty, the parties are to provide a further 2 pages of submissions regarding what, if any, changes should be made to the current parenting arrangements. I mention this because the Court may, as part of any Orders arising from the Contravention hearing, make further parenting Orders pursuant to s.70NBA of the Act.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date: 27 February 2020