Harksen & Heazlewood
[2022] FedCFamC2F 360
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harksen & Heazlewood [2022] FedCFamC2F 360
File number(s): PAC 745 of 2015 Judgment of: JUDGE NEWBRUN Date of judgment: 25 March 2022 Catchwords: FAMILY LAW – Contravention hearing - Contravention Application by Father dismissed. Legislation: Family Law Act 1975 (Cth), ss 70NAC, 70NAE, 70NAF, 70NEB, 70NECA, 70NFB, 70NFF. Division: Division 2 Family Law Number of paragraphs: 70 Date of last submission/s: 3 March 2022 Date of hearing: 25 February 2022, 3 March 2022 Place: Parramatta Appearing for the Applicant: Mr Jurd Solicitor for the Applicant: Peter Jurd Lawyer Appearing for the Respondent: Mr Ly Solicitor for the Respondent: Mj Woods & Co Counsel for the Independent Children’s Lawyer: Mr Cairns Solicitor for the Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 745 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HARKSEN
Applicant
AND: MR HEAZLEWOOD
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
25 MARCH 2022
THE COURT ORDERS THAT:
1.The Father’s Amended Contravention Application filed 8 June 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Harksen & Heazlewood has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This is the determination of the Father’s Amended Contravention Application filed 8 June 2021 brought against the Mother. The Mother denies each of the 26 alleged contraventions spanning the period from 12 December 2020 to 5 June 2021. Each alleged contravention date in that period is a Saturday when the child was due to spend time with the Father from 10am to 5pm pursuant to previous Orders of the Court.
The subject child is X born in 2013.
The Amended Contravention Application was heard by the Court on 25 February 2022 and 3 March 2022.
The Father relied upon his Amended Application Contravention filed 8 June 2021, his supporting Affidavit filed 9 December 2021, and his Outline of Submissions document dated 24 February 2022. He relies upon his oral evidence, and the below exhibits.
The Mother relies upon her oral evidence, her Affidavit filed in Court on 3 March 2022, and the below exhibits.
The following exhibits became evidence:
(a)Exhibit A: Affidavit of Father filed 2 December 2020;
(b)Exhibit B: black-and-white photographs of child in car on 11 December 2020;
(c)Exhibit C: black-and-white photographs of child and his half brother at Suburb B Food Court on 5 December 2020;
(d)Exhibit D: Memorandum of Mr C to Jarrett J dated 11 December 2020;
(e)Exhibit E: Memorandum of Mr C to Jarrett J dated 27 November 2020.
BACKGROUND AND EVIDENCE
In determining this Amended Contravention Application, the Court has had regard to all the documentary evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence relevant to the Court’s determination will be considered below.
The Court’s findings of fact have been assessed on the balance of probabilities, including in relation to the Court’s assessment of whether or not the Mother had reasonable excuse for not facilitating the child spending time with the Father. In relation to the Mother establishing reasonable excuse for not facilitating the child spending time with the Father the onus of proof lays upon her.
Both parties, at times, in particular the Mother, were mistaken as to the dates of past events; this was not surprising when one observes that at the recent hearings the parties were cross-examined, inter alia, as to the minutiae of events occurring in late 2020. The Court does not accept that the Mother was adversely affected by substances when she gave her oral evidence, contrary to the submission of the Father. The Court, contrary to the Father’s submission, does not accept that the Mother deliberately lied to the Court in her evidence. Both parties’ evidence has been scrutinized carefully by the Court.
Dunkley J had made final parenting Orders on 22 June 2018. Those Orders provided, inter alia, that the Mother have sole parental responsibility for the child, that the child live with the Mother, and that the child spend time with the Father, inter alia, during school term times, on a graduating basis, leading to each alternate weekend from after school Friday to 5 PM Sunday.
On 1 August 2019, Harman J found that the Mother had failed to comply with Court Orders of 22 June 2018 on 13 separate occasions between 22 December 2018 and 26 April 2019. The Mother was ordered to enter a bond for two years to be of good behaviour, and to comply with the Court’s Orders of 22 June 2018. Harman J made other Orders at that time.
On 2 December 2019 Harman J ordered, inter alia, that the child spend time with the Father each Saturday from 10 AM until 5 PM, with changeovers to occur within the foyer of Suburb B Police Station, and suspended previous parenting Orders to the contrary.
Jarrett J heard a Contravention Application of the Father on 18 November 2020. Judgement was reserved.
On 27 November 2020, Jarrett J ordered that the child spend time with the Father that day until 5 PM and to be returned to the Mother at the Suburb B Police Station.
Exhibit E, being a Memorandum dated 27 November 2020 of Mr C, Parramatta Registry senior family consultant, refers to his involvement in supervising the child going into the Father’s care that day following the Order by Jarrett J for time between the child and the Father on that day. The Court accepts the contents of that Memorandum.
Mr C in that Memorandum refers to being advised by Registry Security that the Mother wanted to say goodbye to the child. He stated that the Mother had expressed concern about the child’s well-being in the Father’s care and anticipated that the child may be distressed, including soiling his pants if required to accompany the Father.
Mr C refers to explaining to the child that he would go with the Father and then return to the Mother later that afternoon. He stated that the child appeared apprehensive but not significantly distressed. The child had said to Mr C that he did not want to go but was reassured that this was what the judge had decided and that he would see his Mother later that day. The child complied with the request to stand up, put his hat on and leave the child care room with the Father, without overt distress or complaint. The family consultant refers to the child having earlier refused a hug from the Father.
Having escorted the child, the Father and his partner from the Registry shortly after 1 PM, the child then said he did not want to go with the Father but was again advised that he had to and again he agreed to walk holding the Father’s hand, having refused his Father’s offer to carry him. Mr C states that there were no indications that the child was overwhelmed by strong emotions or frozen with fear but stated, “however, this does not exclude the possibility that (the child) was feeling fearful.”
Mr C referred to the Mother having returned to the Parramatta Registry with the child at about 2:30 PM. He referred to being subsequently advised by a family consultant that the Mother had continued to talk whilst the child was distressed. Mr C refers to the matter being relisted that afternoon. Mr C refers to, just before 3:30 PM, being advised that the Mother would take the child from the Court child care room, that he escorted the Mother into the room, and the child appeared pleased to see her and hugged her as they were leaving the room. He stated that the Mother and child then left the Registry.
The Court accepts the Father’s evidence set out in his Affidavit filed 2 December 2020 as to what occurred on Friday, 27 November 2020. In particular, that the Father had taken the child from the rear exit of the Court, ushered out by a family consultant, and a short time later the Mother walked towards the Father and the Mother took the child from the Father’s arms. The Father called his solicitor to explain what happened. A short time later, the child became extremely upset and the Mother refused to hand the child back to the Father. The parties and child then walked together and the Father bought a milkshake for the child “to calm him down”. The Father had asked the Mother whether he was going to hand the child back to him with the Mother stating words to the effect, “No Mr Heazlewood. What do you want me to do?” The Father observed the child being very upset and crying in the Mother’s arms. The Father did not spend further time with the child that afternoon.
The proceedings were relisted that afternoon before the Court. Jarrett J ordered that forthwith the Mother collect the child from the Parramatta Child Dispute Services, the child spend time with the Father from 10 AM to 5 PM on Saturday, 28 November 2020, with changeover to occur at the Suburb B Police Station. The matter was adjourned for directions on 4 December 2020.
The Court finds that on Saturday, 28 November 2020, as set out in the Father’s Affidavit filed 2 December 2020, at the Suburb B Police Station, the Father having arrived there at 9:50 AM, the police told the Father at 10:08 AM that the Mother and child were outside in the car and the child was extremely upset and did not want to get out of the car. The police officer told the Mother and child to leave and that he would write a report on the Mother’s behalf. The Father did not spend time with the child or see the child on Saturday, 28 November 2020.
On 4 December 2020, Jarrett J ordered, inter alia, that judgment in relation to the outstanding application be reserved; the application was adjourned to 11 December 2020 at 9:30 AM QLD time for delivery of judgement; personal appearance of the parties is required; the child be brought to the Parramatta Child Dispute Services on 11 December 2020 to be placed in childcare, and with the child to remain in childcare until further Order of the Court.
On 11 December 2020 the Court, having found that the Mother had contravened Orders of 22 June 2018 on 10 August 2019, 17 August 2019, 24 August 2019, 31 August 2019, 1 September 2019 and 7 September 2019, the Court ordered:
1.Pursuant to s.70NFB(2)(e) of the Family Law Act 1975 the respondent is sentenced to thirty (30) days imprisonment.
2.The period of imprisonment specified in Order 1 hereof be forthwith wholly suspended and shall remain suspended conditional upon the Respondent’s continued observance and compliance with the Orders of Judge Harman dated 2 December 2019 or as varied by Order of the Court from time to time.
3.The suspension specified in Order 2 hereof remain in place for a period of two years.
4.The Orders of Judge Dunkley dated 22 June 2018 be suspended until further Order of the Court.
5.The Father collect the child X born in 2013 from Child Dispute Services, Parramatta to spend time with the child until 4:00pm 11 December 2020 with changeover at the conclusion of time to occur at the Suburb B Police Station.
6.The Mother be prohibited and an injunction hereby issues restraining the Mother from coming within two hundred (200) metres of the Father and child whilst the child is spending time with the Father.
The Court observes that on 11 December 2020 at Court Mr Murray had appeared for the Father and the Mother appeared in person.
In Exhibit D, a further Memorandum from Mr C, senior family consultant, Parramatta Registry, dated 11 December 2020, addressed to the Chambers of Jarrett J, he states, inter alia, that he was advised by Chambers that an Order had been made that provided for the Father to take the child from the Court child care room and to return him to the Mother’s care at 4 PM that afternoon at Suburb B police station.
Mr C states that at about 1 PM the Father was located and directed to the Court child care room. He states that when the Father entered the Court child care room with him, the child became upset and said repeatedly that he did not want to go with the Father. At times the child said that he was scared to go with the Father. The Father offered to hug the child but the child declined. The child became increasingly distressed, repeatedly screaming “I don’t want to go” and pleading with Mr C to tell the Judge this. When the Father approached the child, the child moved away from him (he moved around the block of chairs and tables in the centre of the child caring). This occurred a number of times. When Mr C approached the child, the child moved such that Mr C was between him and the Father but remained in close physical proximity to Mr C. During this period the Father demonstrated limited capacity to engage with or settle the child. The child remained highly distressed.
Mr C stated that at about 1:25 PM he opened the childcare room door and the child ran past him and hid behind a security guard who was standing in the corridor outside the child care room. The Father was then able to pick the child up. The child remained distressed and continued screaming as the Father carried him to the front door of the Registry and out towards where his vehicle was parked.
Mr C stated in his Memorandum, “It is noted that there remains an unresolved application for final Orders in this matter. I would be concerned about further distress or psychological harm for the child should there be a further requirement for him to attend the Registry for the purpose of transitions between his parent’s care or for assessment.”
Mr C gave oral evidence and that evidence is discussed below.
In the Affidavit of the Father filed 9 December 2021, he states, inter alia, that he has not spent time with the child since December 2018, except for two occasions initiated by the Court on 4 and 5 December 2020. The Court finds that the child did not spend time with the Father on Friday 4 December 2020 and there had been no prior Order that he spend time with the child on that day. The Father did spend some time with the child on Saturday 5 December 2020. The Court finds that the Father spent time during the afternoon of 11 December 2020 pursuant to Jarrett J’s Orders of 11 December 2020 with, again, Mr C, family consultant, having overseen the child coming into the Father’s care that afternoon.
The Court accepts the Father’s Affidavit evidence (Affidavit filed 9 December 2021) that on various dates (being Saturdays) beginning on 12 December 2020 up to 5 June 2021 that he attended at the Suburb B Police Station so that the ordered changeover could occur. He states that he attended on each occasion at or before 10 AM in the foyer of the police station as required by the Orders. He states that on each of those dates the Mother did not attend for the purpose of complying with the Orders of the Court regarding time with the child; but for 12 December 2020, on which date the Court finds the Mother did attend the police station with the child (albeit the police station carpark), the Court accepts this evidence of the Father.
Oral evidence of Father
In relation to attending the Suburb B Police station on 12 December 2020, the Father stated that he came to the station a little before 10 AM and sat in the foyer. He stated that two police officers came inside about 10:15 AM and told him that the child and Mother were outside and that the child was “not doing well in the car” and said “we’re not doing well”. They told the Father that the child was upset. The police had told the Mother to leave with the child. The Father left the police station.
The Father stated that he was not surprised that on 12 December 2020 the child was upset because of what had occurred the day before with the child.
The Father stated that on 11 December 2020 he had attended Child Dispute Services at the Parramatta Registry of the Court to collect the child. The Father agreed that the child was very distressed. The Father agreed that the child was screaming when he and the child left the Court precincts. The Father stated that he drove home with the child. The child had said “I’ll call Mum” on the way home. The police attended the Father’s home enquiring if the child had been fed. He later took the child to McDonald’s restaurant where the child had food. He later returned the child to the Suburb B police station foyer.
The Father stated that on Saturday, 5 December 2020, he spent time with the child, taking him to an arcade, “assisted by Ms Harksen” (the Mother) in the morning. He had initially attended changeover at the police station with his children. The child arrived a bit anxious, holding onto the Mother. The Father spoke to the police telling them that they were there for changeover and the Mother had stated that the child did not want to go. The police had discussions with the parties and they were there for about an hour. The Mother came with the Father and child to the arcade. Then she left and the Father spent several hours with the child and other children. At the end of his time he returned the child to the police station.
Oral evidence of Mother and her affidavit filed 3 March 2022
The Mother gave oral evidence on 25 February and 3 March 2022.
The Mother, in her oral evidence of 25 February 2022, stated that the only time she could get the child to go with the Father “was that time at the arcade” which the Court finds was probably a reference to Saturday 5 December 2020 when the child spent some time with the Father.
The Mother, in her oral evidence on 3 March 2022, relied upon an Affidavit of herself sworn 2 March 2022.
In relation to the Mother’s recounting of events that she said occurred on 11 December 2020 and referred to in her above Affidavit filed in Court on 3 March 2022, the Court accepts paragraph 5 of the Mother’s evidence, namely that she delivered the child to the children services room after Jarrett J had ordered time that day between the child and the Father. The Court does not accept that the Mother heard the child yelling as referred to in paragraph 6.
It is likely, in relation to paragraphs 7 and 8 of the Mother’s Affidavit filed 3 March 2022, that the Mother was referring to certain events which occurred on 27 November 2020 outside Court after Jarrett J had ordered the child to spend some time with the Father that day, and after the Mother had taken the child from the Father. The Court does not accept the Mother’s evidence in paragraphs 9, 10 and 11 of her affidavit as to alleged events that she stated occurred on 11 December 2020. The Court does not accept the words attributed to Jarrett J on 11 December 2020 in paragraph 11 of the Mother’s Affidavit filed 3 March 2022.
In relation to events which occurred on 11 December 2020, in relation to the child, the Court prefers the evidence of the Father, Mr C, family consultant, including Mr C’s Memorandum of that date, and the actual Orders of Jarrett J made on 11 December 2020.
The Court also refers to, inter alia, the email communication from the Associate of Jarrett J to the Mother’s solicitor of 10 November 2021 indicating that an audit “of both the manual and electronic Court lists and recorded outcomes in this matter do not indicate that the matter was returned to Court at any time after 11:40 AM on that date (being 11 December 2020).”
The Mother stated in her oral evidence, and the Court accepts, that on 12 December 2020 at the Suburb B Police Station the child was oppositional to spending time with the Father. The police had spoken to the child asking him why he would not get out of the car. The police told the Father that the child would not be handed over as the child was extremely upset. The Court accepts the substance of paragraph 13 of the Mother’s affidavit filed 3 March 2022 to the effect that the Mother did seek to facilitate the child spending time with the Father on Saturday, 12 December 2020 but, due to opposition by the child to spending time with the Father, the police told the Mother she should leave the police station (with the child).
The Court finds that the Mother and the child probably did not attend the Suburb B Police Station on any Saturday after 12 December 2020 and up to and including 5 June 2021.
The Mother was asked whether she saw any benefit in the child spending time with the Father, to which the Mother stated there was no such benefit. In this regard she stated that this was because of how erratic and upset the child becomes and how scared he is of the Father from what had happened multiple times on previous occasions.
The Mother gave this evidence:
Ms Harksen, is it your belief that it is in X’s best interests not to spend time with Mr Heazlewood? At X’s age, and maturity, and level of understanding, and what he has said and asked – and, yes, he’s a little boy with a voice – I do not think that it is relevant, as he has begged – and as a Mother I feel that it is my duty to protect X, and if he can’t trust in me to protect him, well, who can he trust. And he begs for him not to see his dad. And, like I said, previous occasions that have happened and – and every previous occasion has been negative.
Well, do you think that Mr Heazlewood has any positive qualities that would benefit X? If Mr Heazlewood was a – a normal dad, and relaxed a bit, maybe, and got a bit of help for his anger issues and whatever else he has got going on and – then he could be, but I don’t think so at this time, because X is at that level of development where he needs to be – feel safe.
Well, Ms Harksen, I will put the question to you again. Do you think the Father has any positive qualities to offer and benefit X: yes, or no? No – no, I don’t.
Ms Harksen, what have you done to encourage X’s relationship with his Father? I’ve – there’s a photo in X’s room of Dad – his dad. I’ve sat at the police station. I’ve encouraged X. I don’t speak negative of Mr Heazlewood. I’ve tried to have communication with Mr Heazlewood, but he’s just grumpy. So I ..... a grumpy old man that has problems. I’m not sure. I don’t know what goes on in his life, but – I’m not sure. I haven’t given – I’m great with my older kid’s dad. I just don’t understand why we can’t get a relationship the same as what – with X’s dad.
What have you said to X to encourage the relationship between him and his Father? That he’s – you know, “You’ve got to spend time with your little brother and Dad’s got your little boy – like, a little brother now, and Dad’s” – you know,
“He might not be as angry as what you think, like, and what you’ve been – experienced.” Like, “Give it a go.” I’ve tried to encourage him every possible way.
Yes, but how? By encouraging him
What have you done? and taking him to obviously see Mr Heazlewood. I’ve sent Mr Heazlewood photos previously. And I’ve just got emails in return and, excuse me language, but effin’ this and effin’ that and Mr Heazlewood has just been a negative figure in X’s life. He doesn’t contribute to his upbringing. He doesn’t want to have – participate in any of his, like, sporting or events or whenever he turns up at places, he’s always angry. And X was a very placid, timid, little boy. And plus the violence that he has seen.
Oral evidence of Mr C, senior family consultant
The Mother called Mr C to give oral evidence.
Mr C’s evidence was significantly confirmatory of his previous Memoranda dated 27 November and 11 December 2020.
The Court accepts Mr C’s evidence including his Memoranda.
Legislation
The meaning of “contravened an Order” is set out in s.70NAC of the Act.
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;
…
The meaning of “reasonable excuse” is, relevantly, found in s.70NAE of the Act, which reads:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an Order under this Act affecting children include but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(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.
……
(5) 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).
As to the standard of proof to be applied in determining matters in proceedings under Division 13A of the Act, section 70NAF provides:
(1)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.
(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an Order under this Act affecting children had a reasonable excuse for the contravention.
(3)The Court may only make an Order under:
(aa)paragraph 70NEB(1)(da); or
(ab)paragraph 70NECA(3)(a); or
(a)paragraph 70NFB(2)(a), (d) or (e); or
(b)paragraph 70NFF(3)(a);
if the Court is satisfied beyond reasonable doubt that the grounds for making the Order exist.
Determination of Father’s amended contravention application
The Mother contends that she did not, at the time of the contraventions, understand the obligations imposed by the Orders of Jarrett J made on 11 December 2020. In the Mother’s affidavit filed 3 March 2022, in particular, she alleges that she had a certain understanding of what Jarrett J had stated in Court on 11 December 2020 and what Orders he had made that day; see paragraphs 11 and 12 of that affidavit.
That is, pursuant to section 70 NAE subsection (2) of the Act, the Mother contends that she had a reasonable excuse for failing to facilitate the child spending time with the Father after 12 December 2020 and up to 5 June 2021, and thereby contravened previous Court Orders in relation to the child spending time with the Father, because, or substantially because, she did not, at the time of the contraventions, understand the obligations imposed by the Orders of Jarrett J made on 11 December 2020, and the Court should be satisfied that the Mother ought to be excused in respect of the contraventions. The Court rejects this contended reasonable excuse, for the following reasons.
The Mother was in attendance at Court when Jarrett J made his Orders of 11 December 2020. The Mother refers to her attendance at court on 11 December 2020 in her Affidavit filed 3 March 2022.
The following actions and statements of the Mother are inconsistent with her alleged understanding of the Orders of Jarrett J made on 11 December 2020.
Jarrett J had, inter alia, on 11 December 2020, ordered that the Father collect the child from Child Dispute Services, Parramatta to spend time with the child until 4 PM on that day. The Mother herself states that on 11 December 2020 she delivered the child “to the children services room downstairs and left the court as the judge imposed an injunction on me about remaining within a certain distance of X.” The Mother’s reference to this injunction is consistent with the terms of Jarrett J’s injunction in Order 6 of the Court’s Orders of 11 December 2020. And then the Mother having taken the child to the police station the next day on 12 December 2020 is also consistent with the Mother probably understanding Jarrett J’s Orders of 11 December 2020.
The Court further observes that Jarrett J’s Orders of 11 December 2020 did not refer to any prior Order being “discharged”, contrary to the allegation of the Mother.
The Court does not accept, on the balance of probabilities, that the Mother has established that she did not at the time of the contraventions understand the obligations imposed by the Orders of Jarrett J made on 11 December 2020 and that the Court should be satisfied that she ought to be excused in respect of the contraventions.
The remaining reasonable excuse contended for by the Mother was that pursuant to section 70 NAE (5), the Mother believed on reasonable grounds that not allowing the child and the Father to spend time together on and after 12 December 2020 and up to and including 5 June 2021, was necessary to protect the health or safety of the child, and the period during which, because of the contraventions, the child and the Father did not spend time together was not longer than was necessary to protect the health or safety of the child.
In relation to this contended reasonable excuse, the Court accepts the Mother’s evidence that at least prior to 13 December 2020:
a) the child had told the Mother that the Father had turned up at his school swearing and the child had wet his pants;
b) the child had become erratic and upset prior to scheduled time with the Father;
c) the child had witnessed violence in relation to the Father;
d) the Mother believed that the child was scared of the Father in view of previous occasions where the child had had contact with the Father;
e) the child had begged the Mother not to have to spend time with the Father.
Further, in this context, the Court refers to the following evidence relating to the child’s emotional distress relating to spending time with the Father between 27 November 2020 and 12 December 2020 and which the Court accepts:
(a)the child’s behaviour on 27 November 2020 as observed by Mr C, senior family consultant. Mr C had initially spoken to the Mother who had expressed concern to him about the child’s well-being in the Father’s care and anticipated that he may be distressed if required to accompany the Father. Mr C had a short time later told the child that he would go with the Father and then return to the Mother later that afternoon with the child appearing apprehensive but not “significantly” distressed. The child told Mr C that he did not want to go with the Father. Whilst the child had been escorted from the Child Care Room by the Father, the child had earlier refused a hug from the Father. Mr C stated that the child again said he did not want to go with the Father, and had refused the Father’s offer to carry him. Mr C had stated that whilst there were no indications that the child was overwhelmed by strong emotions or frozen with fear, this did not exclude the possibility that the child was feeling fearful. The Court refers to the Memorandum of Mr C dated 27 November 2020 in this context;
(b)the child’s significant distress at changeover at the police station on 28 November 2020; the Mother and child had attended Suburb B police station and by reason of the child’s distress and opposition to spending time with the Father, and after police had sought unsuccessfully to have the child transition into the Father’s care at the police station, the police had directed the Mother and child to leave the police station. The Father himself states in his Affidavit filed 2 December 2020 that he had been told by Constable D that the child was extremely upset and did not want to get out of the car;
(c)on 5 December 2020 at the changeover at the police station the Father had given evidence that initially the child was reluctant to leave the police station with him. The parties and child had spent at least an hour at the station before they left to go to the arcade;
(d)the child’s significant distress relating to spending time with the Father on 11 December 2020 within the Court’s precincts and prior to the Father taking the child with him from the Court’s precincts; the Court refers to the child’s distress and other oppositional behaviour as recounted in the Memorandum of Mr C, senior family consultant, dated 11 December 2020, including:
i.the child’s repeated requests to Mr C not to go with the Father,
ii.the child’s statements to Mr C that he was scared to go with the Father,
iii.the child declining to hug the Father,
iv.the child’s increasing distress and screaming that he did not want to go with the Father and pleading with Mr C to tell the judge this,
v.the child moving away from the Father within the Child Care Room a number of times with the child remaining highly distressed during this period,
vi.the child running past Mr C after Mr C opened the Child Care Room door and hiding behind a security guard,
vii.the child remaining distressed and continuing to scream after the Father picked him up.
The Court takes into account, and regards as important, the opinion of Mr C in his Memorandum dated 11 December 2020 that he would be concerned “about further distress or psychological harm for X should there be a further requirement for him to attend the Registry for the purpose of transitions between his parents’ care or for assessment.” (Court’s italics) In this context, the Court would observe that if a senior family consultant had such concerns in relation to transitions at the Registry where a family consultant would be assisting in transitions, then transitions at a police station without the presence of a family consultant but only a police officer may well pose an increased risk of such distress or psychological harm to the child.
The Court takes into account the evidence that Mr C’s Memorandum dated 11 December 2020 was mailed to the Mother from the Court and that she received that Memorandum and read it.
(e)the child’s distress in the context of his opposition to spending time with the Father on 12 December 2020; the Mother and child had attended Suburb B police station and by reason of the child’s distress and opposition to spending time with the Father, the police had directed the Mother and child to leave the police station to which the Mother reasonably complied.
The Court finds that from at least 27 November 2020 to 12 December 2020 inclusive, at police station changeovers and Court assisted changeovers, there was increasingly oppositional behaviour by the child to spending time with the Father, with associated distress in the child (as discussed above in these Reasons). The Court again refers to the evidence of Mr C, senior family consultant, in his Memorandum of 11 December 2020, that he “would be concerned about further distress or psychological harm for X should there be a further requirement for him to attend the Registry for the purposes of transitions between his parents’ care or for assessment” (Court’s italics).
Taking into account the above discussed evidence and related findings, the Court finds that the Mother probably felt that it was her duty to protect the health or safety of the child by not facilitating time between the child and the Father on and from 12 December 2020 and up to and including 5 June 2021.
The Court finds that it probably was necessary to protect the health or safety of the child that the Mother did not facilitate the child spending time with the Father on and from 12 December 2020 and up to 5 June 2021 inclusive. The Court finds that had the Mother facilitated time between the child and the Father on and from 12 December 2020 and up to 5 June 2021 inclusive, the child would probably have experienced further distress or psychological harm.
The Court observes that there was no specific cross examination of the Mother by the Father to the effect that the Mother had influenced the child to not want to spend time with the Father.
The Court observes that at the conclusion of the Mother’s evidence, the Father, through his solicitor, was asked by the Court whether he had any case in reply and to which the Father’s solicitor answered in the negative. It was theoretically open for the Father, in a case in reply, to have given further oral evidence in relation to the Mother’s evidence and to have sought to tender relevant documents.
Taking into account the above discussed matters relating to this second contended reasonable excuse of the Mother, the Court finds that pursuant to section 70 NAE (5):
a)the Mother probably believed on reasonable grounds that not allowing the child and the Father to spend time together on and after 12 December 2020 and up to and including 5 June 2021, was necessary to protect the health or safety of the child, and
b)the period during which, because of the contraventions, the child and the Father did not spend time together was not longer than was necessary to protect the health or safety of the child.
Accordingly, the Court will dismiss the Father’s Amended Contravention Application filed 8 June 2021.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 25 March 2022
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