Herbert and Mallard

[2017] FamCA 258

FAMILY COURT OF AUSTRALIA

HERBERT & MALLARD [2017] FamCA 258

FAMILY LAW – CHILDREN – CONTRAVENTION – Where the mother is found to have contravened orders without reasonable excuse on three occasions – Where it is ordered that the mother attend a parenting program – Where the application is otherwise dismissed.

Family Law Act 1975 (Cth) Part VII Division 13A, ss 60B, 65N, 70NAC, 70NAD, 70NAE, 70NAF, 70NEB, 70NECA, 70NFB, 70NFF

Childers and Leslie (2008) FLC 93-356
Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341
In the Marriage of Gaunt (1978) FLC 90-468
Stevenson v Hughes (1993) FLC 92-363

APPLICANT: Mr Herbert

RESPONDENT: Ms Mallard

FILE NUMBER: BRC 5145 of 2012

DATE DELIVERED: 28 April 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 13 April 2017

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: Self-represented

Orders

it is ordered

1. The alleged contravention of paragraph 8(d) of the Order made 14 February 2014 particularised in paragraph 9 of the Application – Contravention filed 27 January 2017 as occurring on 5 March 2016 is dismissed.

2. The alleged contravention of paragraph 11 of the Order made 14 February 2014 particularised in paragraph 19 of the Application – Contravention filed 27 January 2017 as occurring on 21 April 2014 is dismissed.

the court having made the following findings

(a)       That the respondent mother contravened paragraph 4 of the Order made 14 February 2014  without reasonable excuse by failing to fulfil her obligations to cause the child, X born … 2010 to spend time with the applicant father for the weekend commencing Saturday 9 August 2014.

(b)       That the respondent mother contravened paragraph 4 of the Order made 14 February 2014  without reasonable excuse by failing to fulfil her obligations to cause the child, X born … 2010 to spend time with the applicant father for the weekend commencing Saturday 5 March 2016.

(c)       That the respondent mother contravened paragraph 6 of the Order made 14 February 2014  without reasonable excuse by failing to fulfil her obligations to cause the child, X born … 2010 to spend time with the applicant father for the holiday time commencing Saturday 16 September 2016.

it is further ordered

1. For the contravention on 9 August 2014 of paragraph 4 of the Order without reasonable excuse and pursuant to subdivision E of Division 13A of Part VII of the Family Law Act (Cth):

   The respondent mother shall within 90 days enrol in and complete a post separation parenting program namely a Parenting Orders Program conducted by Relationships Australia.

2. For the contravention on 5 March 2016 of paragraph 4 of the Order without reasonable excuse and pursuant to subdivision E of Division 13A of Part VII of the Family Law Act (Cth):

   The respondent mother shall within 90 days enrol in and complete a post separation parenting program namely a Parenting Orders Program conducted by Relationships Australia.

3. For the contravention on 16 September 2016 of paragraph 6 of the Order without reasonable excuse and pursuant to subdivision E of Division 13A of Part VII of the Family Law Act (Cth):

   The respondent mother shall within 90 days enrol in and complete a post separation parenting program namely a Parenting Orders Program conducted by Relationships Australia.

it is further ordered by consent

1. The Application – Contravention filed 27 January 2017 is otherwise dismissed.

notation

1. It is intended by this order that the mother enrol in and complete one Parenting Orders Program.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5145 of 2012

Mr Herbert

Applicant

And

Ms Mallard

Respondent

REASONS FOR JUDGMENT

1. An Application – Contravention was filed by the applicant father on 27 January 2017. The alleged contraventions relate to a parenting order made on 14 February 2014 (“the order”).

2. At the commencement of the hearing the father elected to proceed with five counts of contravention and the balance are dismissed by consent.

3. The five counts are as follows:

   a)Count one - That on 9 August 2014 the mother contravened paragraph 4 of the order without reasonable excuse.

   b)Count two - That on 5 March 2016 the mother contravened paragraph 4 of the order without reasonable excuse.

   c)Count three - That on 5 March 2016 the mother contravened paragraph (8)(d) of the order without reasonable excuse.

   d)Count four - That on 16 September 2016 the mother contravened paragraph 6 of the order without reasonable excuse.

   e)Count five - That on 21 April 2014 the mother contravened paragraph 11 of the order without reasonable excuse.

4. The mother admits contravening the order as alleged in counts one, two and four but claims she had a reasonable excuse.

5. The mother denies contravening the order as alleged in counts three and five.

6. I note that on 27 October 2016 various paragraphs of the order (including the paragraphs which are in contention before me) were suspended and the matter is due to return to court on 25 May 2017 before the Senior Registrar.

Determining an application for contravention

1. An Application-Contravention relating to an alleged contravention of a parenting order is governed by Part VII Division 13A of the Family Law Act 1975 (Cth) (“the Act”). There are three distinct questions to consider in determining such an Application:

   a)Has an order been contravened within the meaning of s70NAC;

   b)Does the respondent have a reasonable excuse within the meaning of s70NAE; and

   c)What sanction or other order should be made, if any (Subdivisions B, C, D, E or F).

2. The onus of proof rests upon the father to establish that the mother has contravened the order on the civil standard viz on the balance of probabilities (s70NAF(1)) unless the sanction to be imposed is as specified below.

3. If it is found that the mother has contravened the order then the mother must establish that she had a reasonable excuse on the balance of probabilities (ss 70NAE, 70NAF(2)).

4. Pursuant to s70NAF(3) if an order is to be made under subparagraphs 70NEB(1)(da) (fine for failure to enter into bond) or 70NECA(3)(a) (fine for failure to comply with a bond) or 70NFB(2)(a), (d) or (e) (community service order, fine or imprisonment) or 70NFF(3)(a) (fine for failure to comply with community service order or bond) then the Court must be satisfied beyond reasonable doubt that the grounds for making the order exist.

5. As to what is required of a ‘live with’ parent to comply with a ‘spend time with’ order, the Full Court’s decision in Stevenson v Hughes (1993) FLC 92-363 is apposite and in particular the quotation cited with approval from the trial judge’s reasons in the judgment of Fogarty J at 79,815-816:

   There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs.

   …

   I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: `You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter.

   Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.

   …

   ... the respondent has adopted on the occasions when those expressions have been used a passively obstructive stance inconsistent with her obligations under the order.

   It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance. That matter was emphasised as early as 1984 in Stavros and Stavros (1984) FLC 91-562, but I am afraid that the contrary attitude still appears to permeate the jurisdiction and the sooner that that misunderstanding is removed the better for everybody.

   (see also Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341 at [35])

6. The Full Court in Childers and Leslie (2008) FLC 93-356 considered what was involved in determining whether a respondent had a reasonable excuse for not complying with an order and held at [28]:

   …The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother's actions were excusable.

   …

   Such an order places serious obligations on persons in the position of the mother in this case.

7. The Full Court further held that in determining such an issue it was relevant to consider other sections of the Act, in particular: (at [30] – [32])

   Section 65N in relevant part provides that:

   (2) A person must not:

   (a) hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b) interfere with a person and a child benefiting from spending time with each other under the order.

   The objects of Part VII of the Act set out in s 60B include:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

   …

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   The principles underlying the objects are set out in s 60B(2) and include:

   (a) that children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together;

8. That s 65N also has relevance when considering whether a respondent has failed to make a reasonable attempt to comply with an order is apparent from s 70NAD which provides that a parenting order that deals with whom a child is to spend time is taken to include a requirement that people act in accordance with s 65N in relation to the order.

9. In In the Marriage of Gaunt (1978) FLC 90-468 the Full Court considered the nature of the enquiry relating to whether a respondent has a reasonable excuse and held at 77,398:

   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”…

Father’s evidence

1. The father relies upon the following evidence in support of his application:

   a)Affidavit filed 27 January 2017 (not all of which is relevant given his election to proceed with five counts only);

   b)Exhibit 1 (page from Queensland Police Service records setting out content of s93A police interview with the child on 1 August 2014);

   c)Exhibit 2 (two pages from hospital records relating to examination of the child on 27 July 2014).

Counts three and five

1. I will deal firstly with the two counts which are denied by the mother, namely, the alleged contravention on 5 March 2016 of paragraph (8)(d) of the order and the alleged contravention on 21 April 2014 of paragraph 11 of the order.

2. Paragraph (8)(d) of the order provides:

   (8)(d)Upon the child turning 4 years of age, the father will have telephone communication (or Skype if agreed) with the child on one occasion each week. The mother is to nominate the day of the week and the time (and this may be changed from time to time to accommodate the child’s activities). The call is to be no longer than ten minutes, after which time the mother is permitted to terminate the call. The mother is also permitted to terminate the call if the child becomes distressed.

3. The father conceded that 5 March 2016 was a Saturday and that telephone calls took place on either a Tuesday or a Wednesday. Accordingly this alleged contravention is dismissed.

4. Paragraph 11 of the order provides:

   (11)At the time these Orders are issued, the Contact Centre is to be the [E] Contact Centre and when not available, the [L] Centre is to be utilised. Thereafter, if such contact centre is unavailable, the Contact Centre will be a Contact Centre as nominated by the mother, from time to time.

5. The father contended that the E Contact Centre was available on 21 April 2014 but conceded he had no evidence to support that contention. According this alleged contravention is dismissed.

Count one

1. The mother admits contravening paragraph 4 of the order on 9 August 2014 but claims to have had a reasonable excuse.

2. Paragraph 4 of the order provides as follows:

   (4)The Father is to spend time with the child only at times agreed between the parties in writing and failing agreement, from 9:00 am Saturday until 4:30 pm Sunday, each alternate weekend commencing as and from today NOTING that the coming weekend, namely 15 and 16 February 2014, is the child’s weekend with the mother.

3. In support of her claim that she had a reasonable excuse the mother relies upon the following evidence:

   a)Paragraphs 16 – 55 of her affidavit filed 17 September 2014 including paragraph 37 of annexure B (reasons for judgment 14 February 2014), annexures D (photographs), E and F;

   b)Annexure A to her affidavit filed 29 September 2014 (a letter from Mr B, psychologist).

4. It is common ground that on or about 26 July 2014 the child suffered an injury to her face near her eye while in her father’s care. Photographs of the injury are before me. The mother contends that she had a reasonable excuse to contravene the order because:

   a)The father was unable (initially at least) to explain how the injury occurred;

   b)The father provided various reasons which were at times inconsistent;

   c)The father has previously been found to be dishonest;

   d)The child was exhibiting emotional distress.

5. On the morning of 27 July 2014 the father emailed the mother and said “[The child] bumped her eye during the night and has slight bruising”. In the afternoon of that day he again emailed the mother and said:

   Step by step

   ·Got up this morning went into [the child’s] bedroom at 7am

   ·Immediately saw [the child’s] eye was red and swollen

   ·Very worried I asked her what happened

   ·[The child] assures me she does not know

   ·At no point was she crying distressed or upset or complained of headaches etc

   ·Placed betadine on it to help the healing process

   ·I have asked [the child] on numerous occasions what happened and she assures me over and over again she does not know

   ·She was fine when going to bed last night and the only thing I can think of is she may have knocked her head on the side of the bed however this does not seem right as there was not much bed exposed so could also be she slept walked and ran into a wall.

   I’m really not sure.

   I hope this satisfies your requirements.

   (errors in original)

6. On 27 July  2014 at 6:02 pm the child was examined by Dr C at the D Hospital and the records created by Dr C at 7:48 pm that evening state the following:

   3 year old
   Presents with mother as she is concerned that child sustained a small abrasion to the left eyebrow while at the father’s place. According to mother her father sent an email to mother stating that the child had sustained the injury possibly due to sleep walking. According to the mother the child never sleep walks.
   [The child] has minimal verbal skill and when asked directly is unsure how she hurt her eye.
   No history of other injuries sustained while in fathers care. According to mother the father hits his other children.
   Otherwise well child. No other concerns by mother.
   O&E
   Minor abrasion to left eyebrow with some minimal bruising below eye.
   HS due nil added
   Abdomen SNT
   No other bruising on limbs or torso
   Imp/
   Minor injury consistent with a fall
   d/w [Dr H] who advised to make child safety notification.
   d/w with child safety who advised that likely complain would not be recorded given the nature of the injury (inconsistent with physical abuse)
   plan/
   GP letter sent
   Child notification faxed regardless outlining concerns by mother.

7. On 1 August 2014 the child was interviewed by police. The police records reveal the following:

   Investigations reveal that it is highly doubtful the offence occurred because on 1/8/14 at about 9:00am the victim child participated in 93A interview and made no disclosures … the child was very well spoken for a 3 and a half year old. The child stated …that she went to bed at dad’s house without her eye feeling saw and then has woken up in the morning with a sore eye. The child stated that she does not know how she did it only that it happened whilst she was asleep… She said she was not scared to be at dads. … she was asked if dad or someone else had hit her and she said no. She said that I don’t even get smacked at dad’s house because I am a good girl. She said that no one has hit her and the other children don’t even play rough. Police then spoke with mum and informed her that the child had made no disclosures. Card given. Report to be unsubstantiated.

   (errors in original)

8. On 30 July 2014, the child’s psychologist, Mr B, contacted the Department of Communities, Child Safety and Disability Services (“the Department”) regarding his concerns about the child being at risk of harm. He did this by letter. He describes being “extremely alarmed when I saw [the child] for a Psychology session yesterday (July 29 2014), and learned of the black eye she experienced on Saturday night while staying over at her father’s house”. I observe that neither the photos taken by the mother that are before me, nor the medical evidence, support Mr B’s reference to a black eye. His letter goes on to refer to information provided to him by the mother and his speculation about various matters. Likewise his letter dated 20 April 2016 does not reveal any independent evidence but rather reports what he was told by the mother in relation to this incident and his own speculation.

9. On 4 August 2014 at 4:01 pm the mother informed the father by email that she did not accept the father’s explanation as to how the injury occurred and coupled with her “escalating concerns about the child’s emotional welfare” she told the father that she would be suspending the child’s time with her father although she proposed supervised time.  

1. On the same day at 7:55 pm the father wrote a further email to the mother in which he advised that he had since learnt from his daughter-in-law, F, that the evening before the child was returned to her mother, she was playing with his grandson, G, at about 7:30 pm. G had a plastic wand and when G and the child ran into each other the wand hit the child in the side of the face. the child was asked if she was okay and responded that she was and there were no tears and the children kept playing. The father was not present when this occurred and the child did not mention anything to him. He explained that he did not notice any mark but said perhaps that was because when he said goodnight to the child the bedroom light was not on.

2. I find that the child suffered a minor injury to her face in circumstances where there had been no previous history of her suffering injury while in the care of the father. It is apparent that the child was subjected to interrogation about the injury by at least, the father, mother, police and a doctor. the child made no statement implicating the father in causing the injury. the child has a history of anxiety which is discussed in the Reasons for Judgment of 14 February 2014 largely related it seems to the conflict between the parties. On 4 August 2014 the mother belatedly received a plausible explanation for how the injury occurred.

3. In the circumstances I am not satisfied that the mother had a reasonable excuse to contravene the order on 9 August 2014.

Count two

1. The mother admits contravening paragraph 4 of the order on 5 March 2016 but claims to have had a reasonable excuse.

2. The only evidence relied upon by the mother are annexures C (the report from Mr B dated 20 April 2016) and E (black and white photos) to her affidavit filed 16 September 2016.

3. Relevantly, Mr B’s report states that on 22 February 2016 the child said to him when asked if she was feeling sad about anything:

   “Daddy punching mum in the face” the child stated she heard her father say to his partner All (sic) that he would do this, but that the child thought he didn’t think she heard him say this.

   “[J] (step sister) said she would get her cousin to give the child a gun so the child could shoot her mum”

4. And when asked if she was feeling worried about anything, the child stated:

   “Daddy coming into our house and hurting mum”

5. And when asked if she felt angry about anything, the child stated:

   “Daddy wants to hurt mum”

6. I note that the child’s step-sister was born in 2009.

7. Mr B says that “as a result” he informed police and the Department of his concern for the child’s wellbeing while in the care of her father. Mr B then refers to information he was provided by an undisclosed source (but presumably the mother) that the child had made a statement in front of her Prep class about her step-sister J “telling the child to get a gun from her cousin so the child could shoot her mother”. Mr B refers to the child’s concern about her mother being hurt by the father being noted prior to this event with a picture drawn on 8 February 2015 showing bars on the front door of her house which the child said were to protect her mother. It is not clear from his report whether the child did the drawing in front of him and although his report states the drawing is attached it does not form part of the annexure.

8. As best I can fathom, the mother’s reasonable excuse in contravening the order by preventing the child from spending time with the father on the weekend commencing 5 March 2016 was that the child was anxious about harm that may befall her mother at the hands of the father. As already observed, the child exhibiting signs consistent with anxiety is not something new for this child. Her parents have been at war for years and she is caught in the middle. However, I am not satisfied on the evidence before me that the comments made by the child to Mr B and the mother’s assertions about the reasons for the child’s anxiety amount to a reasonable excuse for failing to comply with the order.

Count four

1. The mother admits contravening paragraph 4 of the order on 16 September 2016 but claims to have had a reasonable excuse.

2. Paragraph 6 of the order relevantly provides as follows:

   (6) After the school holidays commence in 2015, the father is to have one half of all gazetted school holidays …

3. The only evidence relied upon by the mother is the report from Mr B dated 20 April 2016 (annexure C to the mother’s affidavit filed 16 September 2016) and paragraphs 57- 60, 94, 97 and 98 of the report by Ms I dated 24 October 2016 (annexure E to Ms I’s affidavit filed 24 October 2016).

4. The relevant parts of Mr B’s report refer to general information provided to him by Dr K (who provided a referral for the child under a new mental health care plan), the mother and the child. The information provided to him by the mother indicated that the child was exhibiting signs of hypervigilance at home arising because of the asserted concern that the father may hurt the mother. In response to questions from Mr B, the child said she was not sad - “I try not to think about dad”; not worried - “I try not to think about dad”; and not angry - “I try not to think about dad”. Mr B stated that he believed the child had been displaying “escalating signs of anxiety, fear and trauma” and that she was at risk of harm if placed into the care of the father and his family until “an independent party examines the issues and the child’s safety can be guaranteed”. Mr B does not report personally observing any behaviours of anxiety, fear or trauma.

5. Ms I prepared a family report for the ongoing dispute between these parties dated 24 October 2016.  Interviews were conducted on 13 September 2016 between Ms I and the parties and other persons and on 18 October 2016 with the child, the parties and other persons. The only paragraphs of Ms I’s report relied upon by the mother post-date the alleged date of the contravention and refer to things said by the child to Ms I and observed by her on 18 October 2016. I am not persuaded that the fact that Ms I made an assessment that it would not be “appropriate or feasible” to have the child spend time with the paternal family on the day of the interviews provides a sufficient evidentiary basis to conclude that the mother had a reasonable excuse for contravening the order on 16 September 2016.

sanction

1. At the conclusion of the hearing I sought submissions on what sanction I should impose if I found that the mother had contravened the order without reasonable excuse. The father submitted that the only order he sought was for the mother to undertake a parenting orders program with Relationships Australia. He stated that such a course could be undertaken at no cost and focussed on parental conflict.

conclusion

1. As I have found that the mother contravened the order without reasonable excuse on three separate occasions I consider that an appropriate order is to require her to undertake a parenting course as sought by the father.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 28 April 2017.

Associate: 

Date:  28.04.2017