HUNTER & MORRISON (CONTRAVENTION)
[2014] FamCA 198
FAMILY COURT OF AUSTRALIA
| HUNTER & MORRISON (CONTRAVENTION) | [2014] FamCA 198 |
| FAMILY LAW – CONTRAVENTION – Different standard of proof to be satisfied depending on the type of breach – Where standard of proof for less serious contraventions is on the balance of probabilities – Where standard of proof for more serious contraventions is beyond reasonable doubt – Where penalties available for contravention – Where imposing a sanction of bond requires relevant matters be satisfied on the balance of probabilities – Where imposing community service only available in the event of more serious contravention and requires relevant matters be satisfied beyond reasonable doubt. FAMILY LAW – CONTRAVENTION – Contravention application made by the mother against the father alleging 4 counts of contravention with respect to consent parenting orders – Where orders require father to achieve delivery and collection of children without imposing an obligation for him to be physically present – Where father withheld children from contact with the mother on 3 occasions – Where father admits contraventions of the Orders – Where father argued reasonable excuse on the basis of necessity to protect the children’s safety – Where question is whether reasonable grounds for that belief – Where mother allegedly a physical and emotional risk to the children by virtue of her alleged suicidal ideation – Where found reasonable foundation for beliefs – Where no contraventions made out – Where contravention application dismissed. |
Family Law Act 1975 (Cth) ss 70NAE, 70 NAC, 70NFA, 70NAF, 70NEB, 70NFB, 70NFF, 70NECA
Dobbs v Brayson [2007] FamCA 1261
Gaunt & Gaunt (1978) FLC 90-468
| APPLICANT: | Ms Morrison |
| RESPONDENT: | Mr Hunter |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Berck |
| FILE NUMBER: | TVC | 13 | of | 2010 |
| DATE DELIVERED: | 28 March 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 18 March 2013 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr McGregor |
| SOLICITORS FOR THE RESPONDENT: | McAlisters Cartmill |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER | Berck Solicitors |
Orders
The Mother’s Application – Contravention filed 31 March 2011 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunter & Morrison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: TVC13/2010
| Ms Morrison |
Applicant
And
| Mr Hunter |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 12 August 2009, Magistrate J Hodgins made final orders with the consent of the parties in relation to both children’s and property matters. By her Contravention Application filed 31 March 2011, the mother asserts that the father has committed four contraventions of the parenting orders. In her submissions before me, she identified that the penalty which she seeks to have imposed for those contraventions was “at least” a bond or Community Service Orders. That has implications as I will discuss later in these reasons. The father either denies the contraventions, or alternatively asserts that he had a reasonable excuse for contravening the orders.
THE LAW
The bulk of legislative provisions relevant to the mother’s Contravention Application are contained in Division 13A of Part VII of the Family Law Act. Numerous judicial officers have previously noted the complexity of those provisions.
At the outset it is useful to note that Division 13A differentiates between, on the one hand, less serious contraventions (dealt with in sub-division E) and on the other hand more serious contraventions (dealt with in sub-division F). Amongst other differences between those concepts, as one would expect, the range of penalties available in consequence of a finding of a more serious contravention, and their severity, are increased.
S 70NEA prescribes the circumstances in which the provisions in subdivision E apply. Relevant to these proceedings s 70NEA provides as follows:
(1) Subject to subsection (4), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies;
and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
(2) For the purposes of paragraph (1)(d), this subsection applies if no court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(3) For the purposes of paragraph(1)(d), this subsection applies if:
(a) a court has previously:
(i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
(4) This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.
The notion of contravention is dealt with in s 70NAC. As relevant to these proceedings, that section provides as follows:
70NAC A person is taken for the purposes for this Division to have contravened an order under this Act affecting children if, and only if:
(a)where the person is bound by the order – he or she has;
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b)…
Likewise, the notion of a reasonable excuse for the contravention is illuminated by s 70NE, which, relevant to these proceedings, provides as follows:
(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 and 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.
(3) …
(4) …
(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).
…
Both of these provisions are relevant to more serious contraventions as well.
S 70NFA details when sub-division F will apply. S 70NFA provides as follows:
(1) Subject to subsection (2), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies.
(2) For the purposes of paragraph (1)(d), this subsection applies if:
(a) no court has previously:
(i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
(3) For the purposes of paragraph (1)(d), this subsection applies if a court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB (1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4) This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5) This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
As I have previously indicated, the powers of the court to punish or impose a sanction for contravention differ depending upon whether the contravention is a less or more serious one. Whilst I do not stay to set out the provisions which contain the relevant powers, I do note that one of the sanctions which the mother seeks here, namely a bond, is available under both subdivisions, however the second sanction which she seeks, namely a Community Service Order, is only available if there is a finding of a more serious contravention.
A further level of complexity is introduced because, by s 70NAF, the standard of proof required depends upon the order to be made. S 70NAF provides as follows:
(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 ground for making the order exist.
The Order under s 70NEB(1)(da) is a fine imposed consequent upon the contravener failing to enter in to a bond as required by an Order. It is one of the powers of the court applicable in the case of less serious contraventions. S 70NECA(3)(a) empowers the court to impose a fine in the course of enforcing a previously ordered and given bond. Again, it is one of the powers of the court contained within subdivision E, which deals with less serious contraventions.
S 70NFB(2)(a), (d) and (e) are all within subdivision F, which deals with more serious contraventions. Sub-paragraph (a) empowers the court to make a Community Service Order; sub-paragraph (d) empowers the court to impose a fine; sub-paragraph (e) empowers the court to impose a sentence of imprisonment.
S NFF(3)(a) is analogous to s 70NECA(3)(a) in that, in the course of enforcing a Community Service Order or bond, the court is empowered to impose a fine. Necessarily, this only could apply in the case of a more serious contravention.
It can therefore be seen that in order to impose the sanction of a bond upon the respondent, I would only need to be satisfied on the balance of probabilities of the relevant matters, whereas before I could order community service – which is only available in the event that I find that there has been a more serious contravention – I would need to be satisfied beyond reasonable doubt.
The Full Court remarked upon the practical difficulty which the differing standards of proof generate in Dobbs & Brayson [2007] FamCA 1261. Relevant paragraphs of that decision are as follows:
31. Accordingly, we identify four categories of fact to which questions of the appropriate standard of proof relate, namely those going to:
(i) whether the alleged contravention occurred;
(ii) whether a reasonable excuse for the contravention existed;
(iii)whether a contravention without reasonable excuse was “less” or “more” serious; and
(iv) what order should be made, including whether an order should be made under s 70NFB(2)(a)(d) or (e) or s 70NFF3(a).
…
47. Returning to the interpretation first discussed, namely that, before a sentence of imprisonment can be imposed, s 70NAF requires the court to be satisfied beyond reasonable doubt of all of the following elements: the commission of a contravention, that the contravention was “more serious” and that other available orders were inappropriate; we note that each of these matters is a “step” required by provisions in Division 13A. Each “step”, in our view, is readily enough seen as a “ground” for making one of the orders in question. This interpretation we think consistent also with general principle, as emerges from the following authorities.
…
62. In any event, this discussion relates at most to what is likely to be a small “pocket” of facts that arises in a small number of cases. We have already concluded that the terms of s 70NAF of the Act mean that all the facts which the applicant must establish before an order of the type referred to in s 70NAF(3) can be made, must be proved beyond reasonable doubt. Cases where other facts are relevant to the particular order made may well be rare. However, in our view, even in respect of those facts, if adverse to the respondent, they must be proved beyond reasonable doubt.
CONTRAVENTION 1
The Consent Orders relevant to this contravention reads as follows:
4. That the children spend time with the mother at all times as agreed between the parties and failing agreement as follows:
(i) every alternative Sunday from 10:00am until 8:00pm;
…
12. That all changeovers, except as otherwise agreed, shall take place at the [B Shopping Centre] at the allocated times, with the father to deliver the children to that location and collect the children from that location.
The alleged contravention is expressed in the following terms:
The respondent failed to personally collect the children from [B Shopping Centre] at the agreed time of 8:00pm on 19 February 2011, instead sending the respondent’s daughter [D] and her partner.
The circumstances behind this alleged contravention are not in contest. Saturday 19 February 2011 was a day on which, pursuant to the orders, the mother was to spend time with all four of the parties’ children. However for reasons which are not directly relevant to the alleged contraventions, in fact the mother only spent time with the younger two children, T and F. It does not seem controversial that at 8:00pm on the relevant Saturday, one of the other children, Y, was due to finish work in her part-time employment at Business C. The respondent requested the eldest child, D (who was then nearly 18) to collect the two youngest children from the changeover location. D agreed and she and her boyfriend did so. The respondent collected Y from Business C.
To this alleged contravention, the respondent firstly contends that the relevant order did not oblige him to personally attend the changeover, but if he is wrong as to that, says that he had a reasonable excuse for contravening the order because he did not, at the time of the contravention, understand that the order obliged him to personally attend the changeover. In the further alternative, he says that he had a reasonable excuse for contravening the order in that he was obliged to, in effect, be in two places at once, and sending D to pick up the two younger children from the changeover location was a reasonable thing to do in the circumstances.
At the heart of the dispute between the parties is whether the words “father to deliver the children… and collect the children” means that he was personally obliged to both deliver and collect them, or whether he could use others to do that instead. In my view the father’s construction of the order is the correct one. As I inquired of the mother during the course of her submissions to me, her construction could have unintended consequences; for instance if the father were too ill or otherwise impaired to drive, the order would, on her construction, nonetheless require him to, if not actually drive the children, then at least to be present at the moment of delivery and collection. Had the parties intended to require strict personal attendance, then they ought to have used more precise language to achieve that outcome. In my view, all that the order requires is for the father to achieve delivery and collection of the children, without imposing upon him the obligation of being personally, physically present on those occasions.
If I am wrong as to that, then in my view it seems plain – indeed unchallenged – that the father did not understand the order to require personal compliance in the way suggested by the mother, and I am satisfied that he has established a reasonable excuse in respect of the alleged contravention.
CONTRAVENTION 2
This contravention relates to the same orders as pertained to alleged contravention 1. This contravention is said to be that:
The respondent failed to deliver the children to [B Shopping Centre] at 10:00am on 5 March 2011, this being the alternate Sunday the children were to spend with the applicant.
The father does not deny failing to deliver the children to the changeover point on 5 March: he admits it. However he says that he has a reasonable excuse for the contravention because he believed on reasonable grounds that withholding the children was necessary to protect their safety.
Whilst there is some controversy in relation to the facts pertaining to this alleged contravention, as will be seen, one of the critical matters was not the subject of challenge by the mother.
Relevant parts of the father’s affidavit are as follows:
14.When I arrived home at approximately 8:45pm after collecting [Y], I noted [T] (12) was on the telephone speaking to the Respondent Mother. [F] (10) was lying on her bed crying. I spoke briefly with [D] and was advised there had been an incident between [D] and her mother at changeover however [D] did not go into any great detail at that time. She herself seemed somewhat upset and [F] was also noticeably upset. As a result I did not press the children for information but rather attempted to settle them down before bed by watching a movie together.
15.Two (2) nights later on Monday, 21 February 2011, I was reading [F] a bedtime story. I took this opportunity to direct the conversation towards the changeover events. In response to [F’s] comments, I asked her “what scared you the most on Saturday night?” [F] replied that he Respondent Mother had informed them (the children) of her thoughts about driving off the road into a tree, killing herself, because she was so sad. [F] also told me that the Respondent Mother repeated these sentiments when speaking with her on the phone that afternoon.
16.I immediately sought out [D] to ascertain what actually happened. [D] told me the Respondent Mother had been upset at changeover and at one stage whilst the two younger children were standing beside [D], the Respondent Mother indicated that the reasons she had relocated away from the Sunshine Coast was because she had considered killing herself if was to remain living here. [D] said that the changeover was quite traumatic for all parties with the Respondent Mother being quite upset at [D] and [D] retaliating. Unfortunately, the children had witnessed the interaction between [D] and the Respondent Mother and had heard the Respondent Mother make statements about driving off the road into a tree and killing herself. It is natural for a child to be traumatised as a result of hearing such statements and witnessing an unpleasant exchange between mother and daughter. Apparently, according to [D], it took some fifteen to twenty minutes for the incident to settle down and for the children to be calm enough to go with [D].
17.Following the information from [D] about what had occurred and what had been said at the changeover, coupled with concerns I have held for some time in relation to the Respondent Mother’s state of mind, I caused a letter to be sent to the Respondent Mother’s solicitor on 24 February 2011. I placed the Respondent Mother on notice that I felt it was necessary to safeguard the children’s physical and emotional wellbeing and as such would temporarily withhold the children until such time as the Respondent Mother was able to arrange supervised contact with the children and/or a psychiatric assessment to satisfy my concerns for the children’s safety. Annexed hereto and marked with the letters “RJH5” is a true and correct copy of this correspondence.
18.On 2 March 2011 my solicitors received a response by facsimile dated 1 March 2011 which had demanded a reply by 4:00pm on 2 March 2011. The facsimile confirmed the Respondent Mother had been in an emotional state at that time and found interaction with our daughter, [D], to be confronting. The Respondent Mother denied that she had yelled and screamed at the children however did not deny she had made disclosures and reference to self harm.
19.The facsimile passed on information allegedly provided to the Respondent Mother by a psychologist, Mr. [A]. The advice of Mr. [A] as contained in that correspondence was that the Respondent Mother commenced psychological sessions after separation and had presented with symptoms of depression. It did not address the Respondent Mother’s state of mind at the time of that correspondence and it is not clear how recently Mr [A] had consulted with the Respondent Mother.
20.The Respondent Mother further states in that correspondence that she had spoken to the children in an age appropriate manner about her emotional wellbeing. As a father, I do not think that telling your child about your suicidal thoughts is appropriate in any way.
21.The Respondent Mother sought to rationalise her behaviour by saying she was merely trying to express the sadness she felt post separation and the loss at having only “limited access to the children.” I note “access to the children” has only been further “limited” since that time owing to the Respondent Mother’s relocation away from the children. Annexed hereto and marked with the letters “RJH6” is a true and correct copy of this correspondence.
…
24.As well as the damaging emotional effects such allegations would naturally have upon children of such a young age as [F] and [T], the nature of the act the Respondent Mothers’ spoke about, namely driving off the road and into a tree, is an act from the which the children would not be able to escape. I cannot help but reflect upon recent news stories where a parent drove off the road with young children strapped into the car and were unable to escape, and the tragic case in Melbourne where a child was driven to the top of a bridge and thrown to her death as a result of the stress associated with ongoing family law proceeding. Whist this may sound slightly melodramatic the Respondent Mother’s behaviour and interactions with the children since separation has been at times irrational and highly emotional. The Mother’s recent behaviour at the changeover coupled with her disclosures about her overwhelming sadness and suicidal thoughts, naturally gave rise to my grave fears for the safety of the children, not only emotionally, but now physically, whilst in the care of the Respondent Mother.
25.I note the Respondent Mother has stated that these thoughts and overwhelming sadness issues were related to her time on the Sunshine Coast and as a result she subsequently moved away. I note the Respondent Mother was at the time of the incident involving these disclosures, again residing on the Sunshine Coast at least temporarily.
26.On 3 March 2011 I caused a letter to be sent to the Respondent Mother’s solicitors advising I continued to have genuine fears for the safety and wellbeing of the children and as such I would be withholding the children from contact pursuant to Section 70 NAE of the Family Law Act. Annexed hereto and marked with the letters “RJH&” is a true and correct copy of this correspondence.
…
The mother’s version of events is set out in her affidavit filed 31 March 2011 in the following terms:
5.On 24 February 2011, I received a copy of a facsimile sent to Greenhalgh Pickard Solicitors from McAlister & Cartmill Solicitors (Solicitor for the Respondent). In the said facsimile, McAlister & Cartmill Solicitors refer to an incident which occurred on Saturday 19 March 2011, where they allege that:
(a) I commenced yelling and screaming at [D] (my eldest daughter) when her and her boyfriend attended the changeover location;
(b)That I had advised [T] and [F] that I had considered driving off the road into a tree and killing myself;
(c)That I had advised [F] that I sometimes considered ‘doing that’ because I am so sad; and
(d)That I had moved to [North Queensland] because I was considering killing myself living down here.
…
7.On 1 March 2011, I instructed Greenhalgh Pickard Solicitors to respond to McAllister & Cartmill Solicitors facsimile of 24 February 2011 by facsimile. In this facsimile I categorically denied that I commenced yelling or screaming at [D] at the changeover location on 19 February 2011.
8.Further, It was explained that the changeover was a fairly emotional experience for me, given that I have had limited contact with [D] since separating from [the father], and I had not expected to see [D] at the changeover location. On top of this, [D] made a number of allegations, including words to the effect of “I abandoned them [the children]”, and “I don’t love them [the children] or care about them anymore”, and that I “only see them [the children] when it suits me”. These allegations are both unfounded and untrue.
9.In response to these allegations I explained to [D], [T] and [F] that I had felt deep sadness and loss as a result of having my children withheld from me and that I am much stronger emotionally now then I was when I left their father and that I looked forward to spending a lot more quality time with them.
10. I concede that [T] and [F] were upset when [D] arrived to collect them from the changeover location as they did not want to go home, as [F] had indicated earlier that she ‘didn’t want to go home’ and that she wanted to live with me.
11.In the said facsimile, I advised that [the father] had no reason to be concerned for my mental health and stability, and that I will vehemently oppose any application filed by McAlister & Cartmill Solicitors to vary the terms of the current Consent Orders in relation to [the father] withholding the children from me until supervised care has been arranged.
12.On this basis, I requested that the children be made available at 10.00am on Saturday 5 March 2010 at [B Shopping Centre].
Attached to this affidavit and marked “JJM-3” is a true copy of said facsimile dated 1 March 2011.
13.On 3 March 2011, I received a copy of a facsimile dated 3 March 2011 sent to Greenhalgh Pickard Solicitors by McAlister & Cartmill Solicitors advising that whilst I had attempted to explain my actions surrounding the events, I failed however to specially address the issue of what they allege were my ‘suicidal tendencies’.
14.As such, I was advised that the children would not be made available at 10.00am on Saturday, 5 March 2011.
Attached to this affidavit and marked “JJM-4” is a true copy of said facsimile dated 3 March 2011.
As Mr McGregor, counsel for the respondent father said during the course of his submissions, on the face of the competing affidavits, the factual dispute between the parties is really as to what transpired during the course of the changeover on 19 February. The father appears to assert that the mother told the children that she had, or was, contemplating taking her own life; the mother fervently denies that. During the course of her evidence the mother gave further elaboration as to what she said to the children, namely that in the course of the conversation, she referred to having seen a road sign which read “Drowsy Drivers Die.” On any view, the reference to that in the course of a conversation in the presence of the two young children was unwise, because, particularly given the emotionally charged environment in which the conversation was taking place, it was liable to be misinterpreted, or given a significance which it otherwise may not have deserved.
However as Mr McGregor submitted, it is not what was said in the conversation on 19 February which is critical: it is what the father was told by his children had occurred during that conversation. The father was not challenged at all in relation to what he said in paras.15 and 16 as to what both F and D had said to him, and further, it is correct that in her solicitor’s letter of 2 March 2011 the mother did not deny making statements about her alleged suicidal tendencies to and in the presence of the children.
The issue of supervision of the mother’s time with the children was first raised by the father’s solicitors in their letter of 24 February 2011 in the following terms:
In light of the disclosures by your client, our client has very serious concerns about your client’s mental health and stability. Because of his concerns about your client’s mental health and stability our client holds grave fears for the physical and emotional safety for the children should they be left unsupervised in you client’s care.
As such, our client considers it necessary to withhold any further contact between your client and the children as such time as supervised contact can be arranged…
Curiously, this was never responded to or otherwise addressed in the mother’s solicitor’s subsequent correspondence. Particularly, there was no suggestion in any subsequent correspondence that a supervisor had been arranged, such that the mother’s time with the children could be supervised. Further, there was no mention of any supervisor having been arranged by the mother in her affidavit filed 31 March 2011. However, during the course of her cross-examination by Mr McGregor, for the first time in these proceedings she asserted that indeed she had arranged supervisors, commencing with a friend of hers who she had arranged to supervise her time with the children on 5 March. She said that she had advised the father of that by text message, although the text message was not otherwise in evidence.
Whilst I cannot be altogether sure, (largely because of the quite unsatisfactory way in which the issue of, and evidence in relation to, supervision unfolded), it appears that the father did not accept the supervision of the mother’s friend, because he had had poor dealings with her in the past.
Although not specifically addressed in this way, it appears as though the mother’s case is that I should not be satisfied on the balance of probabilities that the father believed that it was necessary to protect the safety of the children by withholding them, or alternatively I should reject his assertion that he had reasonable grounds for that belief, because a supervisor was available for the mother’s time.
It is pertinent to observe that the mother’s solicitors did not seek to argue this at the relevant time. Moreover, there was not even any discussion as to the nature of supervision which the father was requiring by his solicitor’s letter of 24 February. The mother’s case appears to be that any supervisor would be appropriate; the father’s evidence under cross-examination was that he was looking for “professional supervision.” I am not sure precisely what “professional supervision” could comprise, unless it be at a contact centre. However at the very least, it seems to me that the supervision contemplated by the father’s solicitors needed to be of a kind which could address the concerns of the father, namely that the mother presented a physical and emotional risk to the children by virtue of her alleged suicidal ideation. Therefore at the least there would have needed to be agreement between the father and the mother as to the identity and suitability of the proposed supervisor: it was not simply sufficient for the mother to unilaterally advise that she had located a supervisor. There is no assertion that the father ever agreed to any supervisor. Absent agreement – or even discussion – between the parties as to supervision, I do not regard it as a relevant matter to this contravention, or to the extent it may be relevant, deserving of any weight.
The respondent’s assertion that he had “grave fears for the safety of the children” was not challenged in cross-examination. I accept that he had those fears which, in the language of s 70NAE(4)(a) was a belief that withholding the children was necessary to protect their safety.
The real question is whether the respondent had reasonable grounds for that belief. In my view he did. It was not challenged that on the evening of 19 February, F was very upset. It was not challenged that on 21 February, F told the father that the mother had told the children that she had thought about driving off the road into a tree, and killing herself because she was so sad. The respondent was not challenged that F told him that the mother had repeated those sentiments when speaking to her on the phone on the afternoon of 21 February. He was further not challenged that D had told him words to the effect that the mother had “relocated away from the Sunshine Coast .. because she had considered killing herself if she was to remain living here,” nor was he challenged that D had told the father that it took some 15 to 20 minutes after the conversation on 19 February between D and the mother to settle the children down to be calm enough to go with her. Finally, it is plain that the mother’s solicitor’s correspondence of 1 March 2011 did traverse in detail some of the allegations made in the respondent’s solicitor’s letter of 24 February 2011, but did not deny the allegation that she had informed both F and T that she “had considered driving off the road into a tree and killing herself.”
In my view, all of those matters provided a reasonable foundation for the respondent’s belief.
In her submissions before me, the mother continually pressed that the prospect of her taking her own life at the time was nil: however that is not to the point. The point is what the respondent believed, and whether there were reasonable grounds for that belief.
CONTRAVENTION 3
This contravention arises from the same orders as the previous two contraventions. The contravention is said to be as follows:
The respondent failed to deliver the children to [B Shopping Centre] at 10:00am on 19 March 2011, this being the alternate Sunday the children were to spend with the Applicant.
It is common ground that 19 March 2011 was the Saturday which, pursuant to the orders, the children were to spend with the mother. Again, the father admits that there was a contravention of the order, but says, as he did in relation to contravention 2, that he had a reasonable excuse for the contravention, in that he believed on reasonable grounds that withholding the children was necessary to protect their safety.
There had been no further exchange of correspondence between the solicitors for the parties between 5 March and 19 March. Further, there had been nothing done – or more precisely nothing communicated to the father – which could have ameliorated the concerns which he had in relation to the mother. The “grave fears for the safety of the children” which he had, remained unabated. In my view, not only did he continue to hold a belief that it was necessary to protect the safety of the children by withholding them, but as there was in relation to the second alleged contravention, there were reasonable grounds for that belief.
Supervision was, as in the case of the second contravention, not raised by contemporaneous solicitors’ correspondence in 2011, nor in the mother’s affidavit material, but was raised relevant to this contravention in her evidence given under cross-examination, and in her cross-examination of the father. It appears as though some time subsequent to 5 March, she arranged with her mother to be available to supervise her time scheduled to spend with the children as required. The evidence was not clear as to whether this was ever communicated to the father, and particularly whether it was ever communicated to him in relation to 19 March 2011.
Even if there was communication by the mother to the father that the maternal grandmother was prepared to supervise, the father had not agreed to her supervision. Given the state of the evidence, or more likely the lack of evidence, in relation to supervision on this occasion, I am unable to conclude that it is a relevant matter for my consideration in relation to this contravention.
I therefore find that the respondent believed on reasonable grounds that withholding the children was necessary to protect their safety, and therefore he has a reasonable excuse for the alleged contravention on 19 March.
CONTRAVENTION 4
This contravention relates to Order 4(iii) and Order 12. Order 4(3) provides:
That the children spend time with the mother at all times as agreed between the parties and failing agreement as follows:
…
iii In the year 2009 and each alternate year thereafter, for the first half of each school holiday period.
The contravention is said to comprise the following:
The respondent failed to deliver the children to [B Shopping Centre] at 5:00pm on 25 March 2011, this being the first day of the children’s school holiday, and the alternate year in which the children were to spend the first week with the applicant.
The father admits the contravention but says that he has a reasonable excuse for it because he believed on reasonable grounds that withholding the children was necessary to protect their safety.
The mother’s affidavit filed 31 March 2011 relevantly says as follows:
18.On 23 March 2011, I instructed Greenhalgh Pickard Solicitors to send a facsimile to McAlister & Cartmill Solicitors responding to their facsimile of 24 February 2011 and 3 March 2011. This facsimile confirmed that despite [the father] allegedly having ‘genuine’ concerns for the safety and welfare of the children, he has not yet filed an application to vary the consent orders or to seek a psychiatric assessment.
19.Further, despite my total disdain at being requested to produce evidence of my ability to care for my children, for the sake of seeing my children only, I provided McAlister & Cartmill Solicitors with a copy of the letter from [Mr A] dated 9 March 2011.
20. Again I requested that the children be made available on 25 March 2011 at 5.00pm at [B Shopping Centre].
Attached to this affidavit and marked “JJM-6” is a true copy of said facsimile dated 23 March 2011.
21.On 25 March 2011, I received a copy of a facsimile sent to Greenhalgh Pickard Solicitors from McAlister & Cartmill Solicitors. In the said facsimile I was informed that despite having provided a letter from my treating psychologist [Mr A], that [the father] now had some concerns in regards to the completeness of the report from [Mr A] and requested the following further information before he could make the children available to me:
(a)Why the report dated 9th March 2011 and not provide to us until 24th March 2011;
(b)A detailed list of all the correspondence and information provided to [Mr A] prior to the preparation of his letter dated 9 March 2011. In particular we enquire as to whether or no [Mr A] was provided with a copy of our letter to me detailing the incident that occurred on Saturday 19 February 2011 and my subsequent response to that incident on 1 March 2011; and
(c)A full list of dates your client has seen [Mr A]. Specifically they enquired as to when [Mr A] last saw me.
Furthermore, [the father] sought Mr [A’s] professional assurances as to the safety of the children such as to alleviate his ongoing concerns.
Attached to this affidavit and marked “JJM-7” is a true copy of said facsimile dated 25 March 2011.
22.On 25 March 2011, I instructed Greenhalgh Pickard Solicitors to send a facsimile to McAlister & Cartmill Solicitor responding to their facsimile of 25 March 2011. This facsimile stated that is not reasonable to answer all of these questions prior to this weekend’s due time to spend with the children. I noted that these questions could have been duly answered and further reports could have been commissioned if [the father] had filed an application with respect to the children.
23.I requested that [the father] make the children available at 5.00pm on Friday 25 March 2011 at [B Shopping Centre], and confirmed that I would make the children available for collection at 5.00pm on 2 April 2011 at [B Shopping Centre].
24.The said facsimile advised McAlister & Cartmill Solicitors that a contravention application would be filed this coming Monday if [the father] again breached the orders.
Attached to this affidavit and marked “JJM-8” us a true copy of said facsimile dated 25 March 2011.
25.Despite [the father] instructing McAlister & Cartmill Solicitors on 24 February 2011 that an application be made to the Court to vary the current orders and seek a psychiatric assessment, at no time have I received such an application. Meanwhile, [the father] has continued to contravene the current Consent Orders, without reasonable cause, despite my every effort to comply with his onerous demands.
The material relied upon by the father in response to that is contained in paras.17 to 25 of his affidavit of 14 July 2011, which provides as follows:
17.I admit that on 25 March 2011 I contravened Order 4 (i) by failing to provide the children to the Applicant Mother for changeover but rely upon a reasonable excuse pursuant to Section 70 NAE of the Family Law Act and as outlined below.
18.On 23 March 2011 correspondence was received by my solicitors from the Applicant Mother’s solicitors. This correspondence demanded that I make the children available for changeover on 25 March 2011 and send a response by no later than 4.00pm on 24 March 2011. This correspondence and attachment have been previously annexed to this Affidavit as “RJH8”.
19.Annexed to this correspondence was a letter from Mr [A] dated 9 March 2011. Despite the assertions in the Applicant Mother’s correspondence that this letter “alleviates any concerns” it only resulted in an increase to my genuine concerns for the welfare of the children.
In this letter Mr [A] confirms the Applicant Mother suffered from Major Expressive Episode – Moderate. The contents of this letter allege many things about my conduct throughout the marriage and the previous Court proceedings, but do not directly respond to my concerns regarding the Applicant Mother’s ongoing conduct and stability. It is also unknown how recently Mr [A] had met with the Applicant Mother, whether there had been ongoing contact and whether he was aware of the disclosures made by the Applicant Mother and my ongoing concerns.
20.I confirm the Applicant Mother’s request at that time.
21. On 25 March 2011 I caused correspondence to be sent to Applicant Mother’s solicitors. The letter advised we appreciated the Applicant Mother’s efforts to address the safety concerns for the children, however noted that the letter from Mr [A] did not address my main concern and fear for the safety and welfare of the children. This correspondence confirmed that school holiday time with the Applicant Mother could be effected should she provide us with further clarifying information from her psychologist. This correspondence has been previously annexed to this Affidavit as “RJH9”.
22. On Monday, 28 March 2011 my solicitor received an email from the Applicant Mother’s solicitors that was in fact dated 25 March 2011 but had been sent to the incorrect email address. The email complained the Applicant Mother did not have sufficient times to answer the questions pursuant to my correspondence dated 25 March 2011 referenced above. To this end, I note that the Applicant Mother only provided the letter from Mr [A] which was dated 9 March 2011 at the later dated of 23 March 2011. Had the Applicant Mother provided the letter from Mr [A] dated 9 March 2011 at an earlier time the Applicant Mother may have had a chance to answer some of the questions I raised in correspondence dated 25 March 2011.
23.I confirm the Applicant Mother again sought time with the children and has now alleged a contravention by me as a result of not providing the children on 25 March 2011. I admit that I contravened Orders 4(1) of the dated 12 August 2009 but rely upon the reasonable excuse pursuant to Section 70 NAE of the Family Law Act in doing so.
24.I confirm that the facsimile received on 28 March 2011 but dated 25 March 2011 advised the Applicant Mother would be filing a Contravention Application.
25.I confirm I have not yet made Application to the Court to vary the children’s Orders. I note that this incident occurred over the course of a single month and was under the impression the Applicant Mother was attempting to cooperate and satisfy my concerns in this regard. I was hopeful that the Applicant Mother would seek the necessary information from her psychologist and provide it to me to alleviate any ongoing fears that I may continue to hold.
I therefore turn to consider whether or not the respondent believed on reasonable grounds that withholding the children from holiday contact was necessary to protect their health or safety.
Critical to the father’s thinking was the letter from Mr A dated 9 March 2011. It provided as follows:
I have seen [the mother] on 15 occasions in my psychology practice from 27 August 2010 to current. I found she met criteria for a Major Depressive Episode – Moderate. This diagnosis is in the context of reports of leaving a controlling, emotionally abusive and empty marriage of nearly 18 years.
The immense grief and loss [the mother] reports was an alleged result of her ex-husband withholding their children following the time of separation and prior to consent orders being signed in August 2009. [The mother] appears to have managed the grief and be quiet resilient given these adversities.
In the period I have been seeing [the mother] I have found her to be mentally stable and functioning at a high level given the level of distress she reports. Not only has she been allegedly refused access to her children but severely handicapped by the required time and resources required in attempting to have her ex-husband comply with his financial and parental responsibilities under consent orders.
I would suggest that for the psychological wellbeing of [the mother] and her children, that regular contact be maintained and encouraged to continue the strong and healthy mother-child bonds, and that lack of this contact may have some detrimental effect on the psychological wellbeing of the children and [the mother].
Essentially the criticism made by the father is that the report did not respond to his concerns concerning the mother’s ongoing conduct and stability. Particularly, and I think pertinently, there is no advertence in Mr A’s report as to whether he was aware of the alleged disclosures that the children were saying the mother had made to them in relation to the possibility of her self-harming. That was the central concern of the father. It was only, at best, addressed inferentially by the general comments of Mr A.
Whilst the correspondence of the father’s solicitor of 25 March, which, amongst other things, sought Mr A’s “assurances and guarantee of the safety of the children whilst in [the mother’s] care” clearly was of itself unreasonable, it was not unreasonable for the father to seek clarification of Mr A’s opinion specifically in relation to the prospect of the mother experiencing and, if she experienced, entertaining, suicidal ideation whilst having the children in her care.
I accept that the respective solicitor’s correspondence, by this stage, evidenced a degree of strategy and posturing, however I am not asked to assess the reasonableness of the solicitor’s positions: I am required to assess the respondent father’s belief, and particularly whether it was on reasonable grounds.
In my view, whilst the report of Mr A showed that the mother’s solicitors were taking steps to comply with the requests of the father made via his solicitors, the provision of the report, without more, did not go far enough. It ought to have addressed specifically the question of suicidal ideation, and to have made it clear that Mr A had been appraised of the mother’s recent alleged disclosures to the children. Absent that sort of specificity, it was nothing more than a general statement which inevitably would be insufficient to placate the beliefs of the father.
I therefore conclude that the father believed that it was necessary to withhold the children from their holiday contact with the mother in order to protect them from risk of harm, should she experience or entertain or act upon suicidal ideation whilst the children were in her care, and that the father’s belief was based on reasonable grounds.
This case is in a different category to the kind of cases of which Gaunt & Gaunt (1978) FLC 90-468 is a leading example. In that case the Full Court said 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 6to 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.
This is not a case where a party was simply reluctant to conform to orders upon no different facts from those which were before the trial court – here plainly there was a major development, being the mother’s alleged suicidal ideation, which had emerged and caused the father to reconsider the children’s safety. Whilst it may have been best, or better, if he had done that which his solicitors had said was his intention in their letter of 24 February 2011 – namely to make application to the court to vary their current orders and seek a psychiatric assessment of the mother – ultimately the failure to do so does not mean that the father’s belief was not based on reasonable grounds.
This contravention is not established.
CONCLUSION
None of the contraventions alleged by the mother are made out. Her Application – Contravention filed 31 March 2011 will be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 March 2014.
Associate:
Date: 28 March 2014
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