JAMIESON & COTTER
[2017] FamCA 590
•14 August 2017
FAMILY COURT OF AUSTRALIA
| JAMIESON & COTTER | [2017] FamCA 590 |
| FAMILY LAW – CHILDREN – Contravention – six counts of contravention alleged by father against the mother – three counts of contravention dismissed on basis of no case to answer – finding that the mother contravened the final orders for Allegations 1 and 2 by failing to provide make-up time and contravened the final orders for Allegation 6 but that there was a reasonable excuse for the contraventions on the balance of probabilities – contravention application dismissed. | |
| Family Law Act 1975 (Cth), ss 70NAA(3), 70NAC, 70NAE, 70NAF | |
| APPLICANT: | Mr Jamieson |
| RESPONDENT: | Ms Cotter |
| FILE NUMBER: | MLC | 3969 | of | 2007 |
| DATE DELIVERED: | 14 August 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 7 June 2017 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Weerappah |
| SOLICITOR FOR THE RESPONDENT: | Bayside Solicitors |
Orders
The applicant’s Application – Contravention filed 19 April 2017 be dismissed.
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 Jamieson & Cotter 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 MELBOURNE |
FILE NUMBER: MLC 3969 of 2007
| Mr Jamieson |
Applicant
And
| Ms Cotter |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application brought by the father alleging contraventions of final parenting orders made by consent on 15 August 2016 before MacMillan J. The contraventions are denied by the mother. D, the child the subject of the orders, is aged 11 years and pursuant to those final orders lives with the mother and spends time with the father.
The allegations
The father’s Application – Contravention filed 19 April 2017 alleged six counts of contravention as follows:
(1)On 20 March 2017 at 12.07pm at [B Street, Suburb C], the Respondant [sic] without reasonable excuse refused to allow me to speak to [D (the child)] after the Respondant [sic] notified me that [the child] was sick with Gastro. I then rung [the child] directly on his phone and it was switched off. I then texted [the child] but did not receive a response. Furthermore the Repondant [sic] did not provide me with a medical certificate and did not detail how as a result of such health issue [the child] was to remain in the Respondants [sic] care instead of spending time with me from the 18th March until the 21st March 2017. I have not been provided make up time with [the child] so that [the child] can spend an equal amount of time with me (Paragraph 6; Paragraph 8; Paragraph 25 i and ii);
(2)On 29 March 2017 at 2.12pm at [B Street, Suburb C], the Respondant [sic] without reasonable excuse refused to allow [the child] to sleep over on Wednesday the 29th March 2017. The Respondant [sic] notified me that [the child] wasn’t well enough to go to my place. I was not allowed to speak to [the child]. Furthermore the Respondant [sic] did not provide me with a medical certificate and did not detail how as a result of such health issue [the child] was to remain in the Respondants [sic] care instead of spending time with me from the 29th March until the 30th March 2017. I have not been provided make up time with [the child] so that [the child] can spend an equal amount of time with me (Paragraph 4(e); Paragraph 6; Paragraph 25 i and ii);
(3)On 2 January 2017 to 16 January 2017 at [B Street, Suburb C], the Respondant [sic] constantly texted messaged [the child] whilst [the child] was in my care over the school holidays undermining my time with [the child] and interrupting my time with him. The Respondant [sic] was often expressing negative feelings to [the child]. The contact that the Respondant [sic] had with [the child] was intense and far from reasonable (Paragraph 7);
(4)On 15 October 2016 at [B Street, Suburb C], the Respondant [sic] constantly texted messaged [the child] whilst [the child] was in my care undermining and interrupting my time with him (Paragraph 7);
(5)On 16 January 2016 at 10.19am at [B Street, Suburb C], the Respondant [sic] without reasonable excuse created a scene in front of our son by calling the Police and falsely accusing me of stealing [the childs] [sic] phone (Paragraph 13(d));
(6)On 9 April 2017 at 3.30pm at McDonald’s [Suburb C], the Respondant [sic] has failed to turn up with [the child] to allow me to have spent time with [the child] for half of the school holidays (Paragraph 5(a)ii).
At the hearing, the applicant father was self-represented and the respondent mother was represented by counsel.
The respondent denied all six allegations and counsel for the respondent submitted that all of the allegations should be dismissed on the basis that the applicant had not complied with the Family Law Rules 2004 (Cth) (“the Rules”) by failing to annex a copy of the final orders made 15 August 2016 to his application.
Before this submission was made, the applicant had been cross examined by counsel for the respondent on the basis of the final orders made 15 August 2016, therefore the respondent was in no doubt that each of the allegations referred to the contravention of the final orders made 15 August 2016. On the basis that there would be no prejudice to the respondent having regard to the cross-examination, I was satisfied that it was appropriate to dispense with the rule that a copy of the final orders should be attached to the contravention application.
Certain technical objections in terms of the dates and times were raised by counsel for the respondent and the applicant, after being advised of his right to make an application to amend his contravention application, elected not to make any application to amend the allegations but to proceed with the allegations as they had been served upon the respondent.
A further application was made by counsel for the respondent that each contravention application should be dismissed on the basis that there was no case to answer.
The contraventions of paragraphs 6 and 8 of the final orders alleged as part of Allegation 1 were dismissed on the basis that there was no case to answer. Accordingly, only the contravention of paragraphs 25(i) and (ii) of the final orders made 15 August 2016 in Allegation 1 remained before the Court.
The contraventions of paragraphs 4(e) and 6 of the final orders made 15 August 2016 alleged as part of Allegation 2 were dismissed on the basis that there was no case to answer. Accordingly, only the contravention of paragraph 25(i) and (ii) of the final orders made 15 August 2016 of Allegation 2 remained before the Court.
Allegations 3, 4 and 5 were dismissed on the basis that there was no case to answer and I found that there was a case to answer regarding Allegation 6.
The remaining allegations
Ultimately, the following three allegations of contravention remained before the Court:
(1)That on 20 March 2017 at 12:07 pm at B Street, Suburb C when the father did not spend time with child that he was not provided with make-up time in contravention of paragraph 25(ii) of the final orders made 15 August 2016;
(2)That on 29 March 2017 at 2:12 pm at B Street, Suburb C the applicant was not provided with a medical certificate for the spend time arrangement on 29 March 2017 which did not occur or make up time to spend with the child in contravention of paragraph 25(i) and (ii) of the final orders made 15 August 2016; and
(6)That on 9 April 2017 at 3:30 pm at McDonald’s Suburb C, the respondent failed to “turn up with [the child] to allow me to have spent time with [the child] for half of the school holidays” in contravention of paragraph 5(a)(ii) of the final orders made 15 August 2016.
The applicant sought leave to amend Allegations 1 and 2 of his contravention application after counsel for the respondent made an application that there was no case to answer because of the date alleged in the remaining Allegations 1 and 2. I granted the applicant leave to amend Allegations 1 and 2 as the substance of the allegations remained the same and the objections raised related to the phrasing of the allegation. This did not involve any prejudice to the respondent because the timing of the allegation related to the same matter alleged.
Amended Allegations 1 and 2 were as follows:
(1)On 21 March 2017 at 8.30pm at B Street, Suburb C, the respondent has not provided me with a medical certificate detailing the health issue affecting the child and has not provided me with makeup time for the benefit of the child from 5pm on the 18 March 2017 until 8.30pm on the 21 March 2017 (Paragraph 25 i and ii of the final orders 2016)
(2)On 30 March 2017 at 8.30pm at B Street, Suburb C the respondent has not provided me with makeup time for the benefit of the child from 3.30pm on the 29 March 2017 until 8.30pm on the 30 March 2017 (Paragraph 25(ii) of the final orders).
Final parenting orders
The final parenting orders made by consent on 15 August 2016 provided, amongst other things, for the parents to have equal shared parental responsibility for the child and for the child to live with the mother and to spend time and communicate with the father.
Amended Allegation 1 alleged a contravention of paragraph 25(i) and (ii) and amended Allegation 2 alleged a contravention of paragraph 25(ii) of the final orders. Paragraph 25 of the final orders is in the following terms:
25.In the event of a health issue affecting the child prior to the commencement of his time with the Father pursuant to these orders unless the Mother provides the Father a medical certificate detailing:
i.the health issue affecting the child; and
ii.how as a result of such health issue the child is to remain in the Mother’s care instead of spending time with the Father
then the child must spend time with the Father pursuant to these orders and in the event the mother fails to provide the father with the said medical certificate and/or the child does not spent time with the father pursuant to these orders then the mother must provide make- up time for the benefit of the child so that the child spends an equal amount of time with the father that was denied to him as a result of these orders not been complied with.
Allegation 6 alleged a contravention of paragraph 5(a)(ii) of the final orders made 15 August 2016. Relevantly, paragraph 5(a) of the final orders is in the following terms:
5.For purposes of school term and long summer school holidays, the child spend time with the Father as follows:
(a)commencing from the first gazetted Victorian school term holiday in 2017 (i.e. from 31.03.2017 until 17.04.2017) and each school term holiday thereafter for half of all holidays as agreed between the parties in writing, and failing agreement:
i.the first half in even numbered years from the conclusion of school on the last day of school term until 3.30pm on the day calculated to be halfway through the said holiday; and
ii.the second half in odd numbered years from the day calculated to be halfway through the said holiday until the commencement of school the next school term.
The Procedure
The procedure for the hearing of a contravention application is set out under Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) which was applied in this case.
The details of the remaining three allegations (being Allegations 1, 2 and 6 outlined earlier) were confirmed and each allegation was denied by the respondent.
Evidence
The applicant father relied upon the following documents:
· Application - Contravention filed 19 April 2017; and
· Father’s affidavit filed 19 April 2017.
The respondent mother relied upon the following documents:
· Mother’s affidavit filed 5 June 2017; and
· Notice of Child Abuse or Family Violence or Risk of Family Violence filed 20 April 2017.
Each party was cross-examined and oral submissions were made at the conclusion of the evidence.
Evidence of the applicant father
Allegation 1
In his affidavit, the father deposed to being informed by the mother on 18 March 2017 that the child was “unwell with Gastro” and that:
[H]e would be unable to be in my care from 18th March until the 21 March 2017. On Saturday the 18th March I asked the mother is [sic] she was going to allow me make up time with [the child] and she said yes. I suggest the following weekend of the 25th March 2017 and the mother does not respond to this.
The father deposed that on 20 March 2017 he sent a text to the mother to ask how the child was and if he was going to school. He deposed that the mother did not give him any updates and that he then called the child’s phone and it was switched off. He deposed to sending the mother a text to ask her if the child was free and to the mother responding that the child was not up to talking with him. He deposed to the mother telling him that he could not see the child on the weekend of 25 March 2017 and failing to advise him of any make up time. He deposed to not receiving a medical certificate.
Allegation 2
The father deposed that on 29 March 2017 the mother advised him at 2:12 pm just prior to the time when he was due to collect the child from school at 3:30 pm that the child was not well enough to be in his care and that she had made a doctor’s appointment and would provide him with a doctor’s certificate. He deposed that the mother has not provided him with a doctor’s certificate or provided him with make-up time and that he was informed by the school that the child had attended school that day and the mother had picked him up.
Allegation 6
The father deposed that he attended at Suburb C McDonald’s at 3:26 pm on Sunday 9 April 2017 to collect the child for his allocated time for half of the school holidays and sent a text to the mother informing her that he had arrived. He deposed that he received a response from the mother asking him to stop messaging her and that his behaviour is frightening and that her solicitor has asked him to liaise with him. He deposed that he has not been able to see or speak to his son.
In cross-examination, the father conceded that he had become aware of the child’s anxiety having met with representatives at school on 25 March 2017 and that he was aware of the letter from Dr E dated 29 March 2017. He did not agree that the school principal had said to him that the child was anxious about spending time with him. He also conceded that the mother informed him that she had a medical certificate indicating that the child had infectious gastritis on 19 March 2017; however he maintained that he had not received that certificate until two months later.
In re-examination, the father gave evidence that he had made a mistake in failing to provide the school with a copy of the final parenting orders. He complained that the mother had not provided the school with a copy of the final orders until 20 March 2017. He conceded that he met with the head of the school on 25 March 2017 at 9:30 am and that he had been made aware of the child’s anxiety about spending time with him and feeling uncomfortable at his home in correspondence he had received from psychologist, Ms F, who had been counselling the child at the school (annexure RMC 3 of the mother’s affidavit) and the head of school before his contravention application was filed.
Evidence of the respondent mother
The mother deposed to making an application on 16 January 2017 for family therapy at G Group in Suburb C by agreement with the father. She deposed to meeting with Ms H twice before potentially meeting with the child. She deposed to communicating with the father about the child feeling anxious about spending time with him over the long summer vacation in 2016.
The mother deposed to a chronology of abusive behaviour and family violence directed by the father towards the child which is contained in the Notice of Child Abuse filed 20 April 2017 which refers to the child not wishing to see his father because he is scared of him. The mother deposed that these matters have been outlined by the child to a number of professionals and she relied upon the letters attached to the Notice of Child Abuse.
The mother deposed to an interim intervention order being made against the father on the application of Victoria Police, which names the child as the affected family member. She deposed to discussions between the school and the father and recommendations to engage in family therapy through G Group in order to repair the relationship between the father and the child.
The mother deposed that a meeting was arranged for the father with the school psychologist and school principal on 24 March 2017 and that she believed that the father was advised of the presentment of the child at school.
The mother deposed to authorising the child’s general practitioner, Dr E, to speak to the father about the child’s anxiety problems to give him feedback and provide him with some insight into the current estrangement he has with his son. She deposed to the father meeting with Dr E on 10 May 2017.
The mother deposed in her affidavit that she received an outline of concern from the campus principal about the presentment of the child at school dated 20 March 2017 (annexure RMC-3 to the mother’s affidavit).
Annexure RMC-3 to the mother’s affidavit is a letter dated 31 March 2017 which is a statement of psychological services provided to the child signed by the psychologist from the school, Ms F. The letter records that a copy was sent to the father and that the statement was requested by the father. The letter outlines the work that the school psychologist has undertaken with the child at the request of the mother and the head of campus in order to help him regulate his anxiety while at school. It records that the child has been seen a total of 18 times since 5 May 2015 including nine sessions since March 2017. It records that the child independently seeks support for anxiety and emotional regulation and often presents for support on his own initiative. The writer records that the frequency of sessions since March represents an increase in the child seeking help and anxiety. The letter records the child’s concern centres around his relationship and visitations with his father and that both the head of campus and the school psychologist have been involved in helping to manage this anxiety while he is at school. The letter records that both parents have been recommended to organise an external support for the child (either via G Group in Suburb C, or an independent psychologist with a particular focus on improving family dynamics). It also records that agreement has been reached by discussions with both parents that the school psychologist will continue to assist the child when he is at school in managing his anxiety and that strategies and feedback will be provided to the parents when appropriate.
Annexure RMC–2 to the mother’s affidavit is a letter from the deputy principal of the school dated 30 March 2017 confirming the arrangements for the support of the child at school addressing his anxiety about staying with his Dad. It confirms that a recommendation has been made to the parents to organise external support for the child in that same terms as the correspondence from the school psychologist.
Annexure RMC–4 to the mother’s affidavit is an email addressed to the father from the school psychologist following up from a meeting and is dated 10 May 2017. The email confirms that the psychologist received a copy of the final orders dated August 2016 between 20 March 2017 and 23 March 2017 and records that until that point she was not aware of the specific orders. The email refers to previous emails forwarded to the father detailing some of the strategies used to support the child’s anxiety at home and informing the father of discussions with the child when he presents with anxiety at school. The email refers to strategies used to assist the child and the management of anxiety.
A Notice of Child Abuse or Family Violence or Risk of Family Violence was filed by the mother on 20 April 2017 and annexes a letter from the head of school detailing concerns for the emotional well-being of the child and suggesting that he needs protection from an unhealthy situation. The letter details the child speaking to the head of school after school on 1 March to say that he did not want to go home with his father and refers to his pronounced stuttering and presentation of anxiety. The letter refers to the mother informing the head of school that the child said “I don’t know how I am going to live my life this way.”
An interim intervention order brought by Victoria Police and made against the father at the Suburb C Magistrates’ Court on 10 April 2017 is also annexed to the Notice. This order names the child as the affected family member and records that the father was present at the hearing and agreed to the order being made. The terms of the order required the father not to commit family violence against the child.
Annexed to the Notice is a letter from a general practitioner, Dr E, dated 29 March 2017 recording that the child has consulted the doctor stating that he feels scared to visit his father and that his father gets angry over simple things. The doctor expresses an opinion that the child should stay with his mother until a further care arrangement is sorted out. The doctor states that the child is being caused a lot of stress visiting the father against his wishes.
The mother deposed that the Department of Health and Human Services had contacted her on 18 May 2017 and informed her that they had attended the school and interviewed the child in the presence of the principal and that on 24 May 2017 she was subsequently required to answer questions from a caseworker who was investigating a complaint concerning the child.
The mother deposed that the parents had agreed to undertaking family therapy at G Group but that the coordinator, Ms H, considered that it was appropriate for the investigation by the Department of Health and Human Services to be undertaken before meeting with the child again.
In cross-examination, the mother maintained that she was not contacted by the school until 20 March 2017 because of the confidentiality of the psychological counselling which the child had received from the school counsellor, Ms F.
The mother did not dispute that she had told the father that she agreed to him having make up time for the time that the child did not spend with him when the child was sick on 18 March 2017. The mother gave evidence that she had “hope” when the father contacted the school. The mother did not take issue with the fact that the make-up time did not occur and relied on her own affidavit evidence about the child’s reluctance to spend time with the father and the anxiety of the child referred to in the letters from the school principal, school psychologist and the general practitioner.
The mother maintained that she had followed the court orders as best she could and had encouraged the child to spend time with the father but there had been problems since the orders were made. She gave evidence that she tried to get help through the proposal from the school and the psychologist that the parents pursue support through G Group. She explained that the child had seen Ms H from G Group the year before and that she had made an appointment for the child to see Ms H from G Group. The mother conceded that she had cancelled that appointment after discussion with Ms H because the child had been interviewed by the Department of Health and Human Services at the school a few days previously and the child had also been interviewed by Victoria Police. The mother deposed that she was not present for the interview of the child by the police.
The Law
Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides for an application for contravention of orders made under the Act. The alleged contraventions here arise out of final parenting orders made by consent by Macmillan J on 15 August 2016.
Section 70NAA(3) of the Act provides that the orders that the Court can make depends on whether:
(a)a contravention is alleged to have occurred but it is not established (Subdivision C); or
(b)the Court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or
(c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
Subdivision E of Division 13A of Part VII provides for circumstances where the contravention is found to have occurred without reasonable excuse and the contravention is “less serious”.
Meaning of “contravened” an order
Section 70NAC of the Act provides that:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a)where the person is bound by the order – he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b)otherwise – he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
Standard of proof
Section 70NAF provides that:
(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.
Meaning of “reasonable excuse for contravening” an order
Section 70NAE provides for the meaning of “reasonable excuse for contravening” an order and is set out in the following terms:
(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.
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4)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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(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).
(6)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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Findings
Allegation 1
I am satisfied on the balance of probabilities that the mother did not provide any make-up time for the child to spend with the father as a result of him not spending time with the father from 18 to 21 March 2017 and that she contravened paragraph 25(ii) of the final orders made 15 August 2016. I find that the mother being a person bound by the order intentionally failed to comply with the order.
I find that the mother did agree to providing make up time because she was hopeful that the child’s anxiety would diminish and she was not aware of the information provided by the school because the child’s counselling at school was confidential. I am satisfied that the mother had a reasonable excuse for contravening the order. I do not rely on the subjective evidence of the mother alone.
I accept the evidence of the mother about the anxiety of the child and his reluctance to spend time with the father but to some extent this is corroborated by untested supporting material from the school psychologist, the principal of the school and the child’s general practitioner. The husband acknowledged that he was also aware of the child’s anxiety and had attended meetings with the school in March 2017. Although I can make no findings in relation to the interim intervention order made on the application of Victoria Police, it is clear that the father was present in court when he agreed to that order being made on 10 April 2017.
Although there is no conflict between the final parenting orders made in this Court and the interim intervention order, the father is clearly aware that there are issues which have been raised by the child with Victoria Police. In the knowledge of this interim intervention order having been made, the father pursued the contravention application which was filed on 19 April 2017.
I also note the content of the email dated 10 May 2017 sent to the father by the child’s psychologist, Ms F (Annexure RMC-4 to the mother’s affidavit) details the physiological reactions of the child to the anxiety which include “crying, feeling sick, shakey, heart beating fast”. In the context of the father’s meeting at the school in March 2017 this would appear in combination to amount to a reasonable excuse.
Allegation 2
I am satisfied that the mother did not provide make-up time for the child to spend with the father when the child did not spend time with the father from 3.30pm on 29 March until 8.30pm on 30 March 2017. I am satisfied that the mother, being a person bound by the order, intentionally failed to comply with paragraph 25(ii) of the final orders and therefore contravened that order.
Regarding the medical certificate for 21 March 2017, the father acknowledged in oral evidence that he had received a medical certificate two months later. I am not satisfied that there is evidence to prove that the medical certificate was not provided.
I am satisfied that the mother had a reasonable excuse for contravening the order for the same reasons outlined for Allegation 1. The father was aware of the child’s anxiety and on his evidence had a meeting with the school on 25 March 2017 before he was to spend time with the child and discussions were continuing to work towards alleviating the child’s anxiety with the assistance of professionals. The communications to the father from the school are evidence that the father was aware of the recommendations for obtaining external support for the child in the implementation of the spend time orders.
Allegation 6
I am satisfied that on 9 April 2017, the mother, being a person bound by the order, intentionally failed to comply with paragraph 5(a)(ii) of the final orders made on 15 August 2016.
However on all the evidence at that time, the police had made an application on behalf of the child for an intervention order against the father. The application was not determined until 10 April 2017 when the father was present at court and consented to a limited order.
There was limited evidence about the circumstances, the grounds or the hearing of the intervention order application in the Magistrates’ Court during the hearing before me but the order on its face is clear and the fact that the order was made was not disputed by the father. Given that the police application for an intervention order against the father on behalf of the child was pending on 9 April 2017, because it had not yet been determined, I am satisfied that the mother had reasonable grounds for contravening the order. This is particularly so where the intervention order was made on 10 April 2017 in the presence of the father as previously outlined.
Conclusion
I am satisfied on the balance of probabilities that for Allegation 1 on 20 March 2017 and for Allegation 2 on 29 March 2017 that the respondent mother contravened paragraph 25 of the final orders made on 15 August 2016 by failing to provide make-up time but that the respondent has proved on the balance of probabilities that she had a reasonable excuse for contravening that order on each occasion.
I am not satisfied that the applicant father has proven that the respondent contravened the final orders for Allegation 2 by failing to provide a medical certificate.
I am satisfied on the balance of probabilities that on 9 April 2017 the respondent mother contravened paragraph 5(a)(ii) of the final orders made on 15 August 2016 but that the respondent has proved on the balance of probabilities that she had a reasonable excuse for contravening that order.
Accordingly, the contravention application filed by the applicant on 19 April 2017 is dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 14 August 2017.
Associate:
Date: 14 August 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Charge
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Procedural Fairness
-
Remedies
0
3