Johnson and Sharpe

FAMILY COURT OF AUSTRALIA

JOHNSON & SHARPE

[2009] FamCA 703

FAMILY LAW – CONTRAVENTION – With whom a child spends time

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Gaunt (1978) FLC 90-468
Stavros and Stavros (1984) FLC 91-562
Stevenson v Hughes (1993) FLC 92-363

APPLICANT:

Mr Johnson

RESPONDENT:

Ms Sharpe

FILE NUMBER:

MLC

2008

DATE DELIVERED:

4 AUGUST 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

29 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR MCIVOR

SOLICITOR FOR THE APPLICANT:

CAREW COUNSEL LAWYERS

COUNSEL FOR THE RESPONDENT:

MS AGRESTA

SOLICITOR FOR THE RESPONDENT:

LAMPE FAMILY LAWYERS

Orders

UPON FINDING:
A.     That the wife has contravened the orders made on 15 May 2009;
B.     The wife did not have a reasonable excuse;
C.     The contravention falls within sub-division E; and
D.     That no previous order has been made in respect of contravention
IT IS ORDERED:

Notwithstanding an order has previously been made, each of the husband and the wife attend a post-separation parenting program in the western suburbs area and that each party for that purpose register within 14 days of these orders and request participation in the first available course.
That upon registration in such course and further upon completion of such course, each party provide to the other a letter signed by the relevant operator of the program of such registration and completion.
That upon the registration in such course, the solicitors for the wife (if she is represented) or the wife (if she is unrepresented) provide to the Registry Manager of the Family Court of Australia at Melbourne, a copy of the details of the program.
Upon receipt of the advice referred to, pursuant to s 70NEB(3), IT IS DIRECTED that the Registry Manager ensure that the provider of the said program is notified of the making of these orders and if necessary, at their request, is provided with a copy of these reasons.
That the solicitors for the wife currently on record rectify the orders improperly certified subsequent to the hearing on 15 May 2009 forthwith.
That the husband be at liberty to provide to the Principal of the school at which the child attends a copy of these orders together with the reasons for judgment.
That paragraph 3(a) of the orders made on 15 May 2009 be varied so that the husband spend time with K as and from 3.15pm on school days and 4.00pm if a non-school day. That the first of such periods commence on 7 August 2009.
That paragraph 4 of the said orders be varied so that subject to any view to the contrary held by the child’s school principal, the husband collect K from a place within the school nominated by the said school principal.
That paragraph 3(b) of the said orders be suspended until 31 December 2009.
That counts 1, 2 and 4 of the contravention application filed 15 June 2009 by the husband be otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That all proceedings be otherwise removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 70 of 2008

MR JOHNSON

Applicant

And

MS SHARPE

Respondent

REASONS FOR JUDGMENT

Final parenting orders were made by consent of the parties on 15 May 2009 providing for the husband to spend time with K, who was born in December 2000 on each alternate weekend from Friday through to Sunday at specific times. The child was normally to be collected by the husband from her school but on such days as she was not at school, then outside of a local supermarket.
It will be noted that although the orders were only made on 15 May 2009, time in any real sense between K and her father has not yet occurred. That has given rise to this contravention application.
The wife says that she has done all that she can to make the orders work and has no solutions. That forms a significant part of these proceedings having regard to her consent to the orders on 15 May 2009.
This case highlights the dilemma for a court where there is no respect, trust or communication between the parents and where the primary parent claims there is no way she can solve the dilemma other than by having the orders reconstructed to give them a completely different character. It has not been lost on the Court that as late as 15 May 2009, the parties consented to an order for equal shared parental responsibility.
There are four children of this long marriage. They are divided between the husband and the wife. The details do not affect what I am hearing. K is the youngest child. Her parents have been litigating for too long.
On 15 June 2009, the husband filed an application for contravention of the May 2009 orders in the Federal Magistrates Court of Australia. On 6 July 2009, O’Sullivan FM transferred the application to this Court and specifically requested that it be heard by me because of my earlier involvement in the parenting and property proceedings culminating in the final orders in May.
The contravention application was confusing because the practitioner who certified that the minutes correctly reflected the handwritten document that became the May orders, clearly did not check them before filing them. The certified minutes bear no resemblance to the handwritten and typed minutes promoted as the parties’ final position from which the orders were made. The Court needs to be able to rely upon the legal profession for its efficiency of production of orders. Practitioners need to be cautious about signing certificates to a judge who in turn relies upon that certificate for the execution of the orders. I propose in this case to order that the typed orders sealed and dated 15 May 2009 be amended once the practitioner rectifies properly what should have occurred in the first place.
The husband’s application sought to have four contraventions heard by the Court. The wife was the respondent. The four were:
1.A breach on 15 May 2009 at 3.30pm in that the wife without reasonable excuse refused to allow the applicant to spend time with K;
2.On 29 May 2009, the respondent without reasonable excuse refused to allow the applicant to spend time with the child K;
3.On 12 June 2009 at 3.30pm, the respondent without reasonable excuse refused to allow the applicant to spend time with the child K; and
4.On 22 May 2009, the wife failed within the seven day period subsequent to the orders of 15 May 2009 to make an appointment for intake and assessment at the family mediation centre at P for the purposes of a post-separation parenting course.
The fourth contravention was curious.
Paragraph 5 of the orders of 15 May 2009 required each of the husband and wife to make appointments with the family mediation centre at P to undertake the parenting course. It was ultimately common ground that that organisation referred people to a M centre because it did not do what was proposed by the orders. The husband initially sought that I read paragraph 5 of the orders to include M instead of P. That argument could not be sustained and I struck out the contravention. Like the typing of the orders, care needs to be taken about ensuring capability of these organisations to undertake the task in circumstances where there is no communication, trust or respect between the parties because they may want (and are entitled to) strict compliance with orders. In this case, attendance at the M centre was never contemplated by the parties on 15 May 2009 nor could it be having regard to the geographic distance involved from where the parties lived.
Contraventions 1 and 2 are that the wife failed to make K available to the husband on 15 May 2009 at 3.30pm and on 29 May 2009 at 3.30pm. To both of these “counts”, the wife denied any breach.
The husband did not assist his own cause in respect of either count.
The first observation to be made is that in respect of count 1, the wife was to make the child available to the husband at 3.30pm on the very day that the orders were made. The parties did not leave the court until about that time. Leaving aside the husband’s concession that he did not attend the school (but he would say for another reason), one wonders why the parties did not contemplate the impracticability of the very order they were pursuing. That is particularly so where they have no communication even at a court hearing. However, of some significance in that count was that the husband said in evidence that K rang him on the morning of 14 May 2009 (the day before the orders were made) and said “I’m not allowed to come”. Why the husband then agreed to the orders on the afternoon of 15 May 2009 escapes me. Why it was not a subject of discussion on that day is equally puzzling.
Thus, combined with the fact that the husband did not attend anyway, no communication about his impending dilemma was made known until after the event. It did little to add weight to the protestations of the husband about his desires to spend time with K.
In his evidence, the husband claimed and the wife later denied, letters were written about this particular contravention. No letters were produced to the Court notwithstanding they were called for. In the husband’s affidavit however he enclosed all of the correspondence in respect of Count 3 to which I shall turn.
Count 1 must therefore fail and is dismissed.
Count 2 was similarly odd and reflected poorly on the husband. It related to 29 May 2009, that is, the very first fortnight after the orders were made. The wife denied any breach occurred. The husband conceded he did not attend the school at 3.30pm.
The husband’s evidence was that on 28 May 2009 at 7.47 am, K telephoned him and simply said “Hello, I don’t want to come” and then hung up.
On the basis of his daughter’s call, the husband did not attend the school at 3.30pm on the due date. He said knowing the likelihood of K not being there, he did not want the risk of putting his job in jeopardy. Why he would accept his daughter’s statement as indicating she would not be at the school at the appointed time is puzzling. The wife’s evidence is that the child was at school with bag packed.
Count 2 must therefore be dismissed.
Count 3 alleges that the wife refused to allow the husband to spend time with K commencing at 3.30pm on 12 June 2009 which was not a school day. Handover was therefore to take place outside of the supermarket.
As will be seen from the evidence below, the wife did arrange the delivery of K that day but an unseemly incident occurred culminating in the distressed child being returned to her mother only minutes later.
The issue in dispute is whether or not a contravention actually occurred and even if it did, did the wife have a reasonable excuse for what occurred.
The husband’s evidence is that again on the day before the commencement of his time with K, he received a message from the child saying “I have other things to do this weekend”.
The message from K precipitated a fax on the same day from the husband’s solicitor to the solicitor for the wife. It simply threatened a contravention if the contact did not occur and the “draft application” had already been drawn.
On the night of 11 June 2009, the husband spoke to K who repeated that she had something else to do and could not come for the weekend. Not much more was said. On the following morning, the solicitor for the husband sent another letter to the solicitor for the wife repeating that the husband’s unequivocal instructions were that a contravention application would follow.
At 3.48pm on 12 June 2009, the husband said that he attended outside of the supermarket and at 4.00pm he saw K and a woman named LS walking towards him. The husband was with his 15 year old daughter. The two sisters cuddled at which point K handed to the husband a letter in her handwriting. In essence, the letter said that the child was not going with him for the weekend.
At the time that the husband was reading the letter, he was holding K. The husband conceded that she was distressed. He walked towards a bakery and the child began to cry. He then said that LS began yelling at him saying that he could not take K away because the child did not want to go. He said Ms LS said that she had “promised” not to give the child to him.
The husband said that thereafter an incident occurred in which Ms LS tugged at K and then at him during which K became more upset and traumatised so he headed towards the police station for assistance. A police car was nearby. The police officers intervened and the husband got into the car with K. At that point in time the wife arrived on the scene and negotiations between the police and the husband culminated in K going back to her mother.
The husband made two important points. The first was that the child was distressed. The second point was that the child had no change of clothes or toiletries.
When cross-examined, the husband said that he walked away from Ms LS initially to read the letter. For reasons best know to herself, Ms LS went towards the husband. It was put by counsel for the wife that the husband told Ms LS to “piss off” and initially the husband denied that but moments later conceded a different picture. He said unsolicited:
I walked away, I said “piss off”, I just want to talk to her. I then said “fuck off” I just want to talk to her for a couple of minutes.
The cross-examination from counsel for the wife simply reiterated what the husband had already acknowledged namely that K was distressed and the situation was not getting any better. The husband maintained that it was Ms LS who was yelling and swearing and as the two adults were close to each other, Ms LS had touched the outstretched hand of K.
The wife’s version in relation to this handover was very limited because she was not present. Her car was parked in the car park around the corner from the supermarket. Ms LS was her agent.
LS’s version of what happened was that she received a telephone call from the wife in the morning and agreed to take K to the handover point. She said that she met the wife and K at lunch and spoke to the child. She said she told the child that she was coming with her and that she would “stand there”. She said she told K “if you want me to (do anything) you will have to say so”. Ms LS said that she followed the wife to the supermarket and then walked to her car and collected K. She said they walked side by side with K “cowering” into her leg. She said she told K to “lift her head and to be confident”.
Ms LS said she saw the two sisters cuddle and then the husband cuddle K at which point K gave the husband the letter. She said no-one said anything to her. She said that whilst the husband was reading the letter. She heard him say to K that they would have a “little talk”. At that point in time, Ms LS was standing with K’s sister and she suggested to leave the husband and K to talk but the sister went over and joined her father. For reasons which perplex me, Ms LS said that she felt she had to go to the same spot. It was at that point that the husband told Ms LS to “piss off” and leave him alone. She said she was a few feet away and she could not hear what was being said to K because the husband was whispering to her. She said that K was crying. She then said that the husband walked towards her and K was upset so she grabbed K’s hand. The child had put her hand out to Ms LS. It was at that point that the husband told Ms LS to “fuck off” because he had a court order.
As the husband walked away carrying K, Ms LS said that she told the husband that she had promised K that she would be there for her as a result of which she followed. K at that point grabbed Ms LS’s blouse and soon thereafter, the scene ended with the husband heading towards the police and Ms LS returning to the wife.
Ms LS maintained that she was not screaming nor raising her voice.
In her evidence in chief, Ms LS added that she had promised the child that she would stay with her until she had “sorted it out”.
In that same evidence, counsel for the wife asked Ms LS whether in her mind, K was going to her father. She said “possibly” because the bag was there.
Both the husband and Ms LS deserve criticism. Ms LS lacked commonsense and objectivity and the husband failed to contain his anger and used appalling language in front of a distressed child.
I turn then to the evidence of the wife. She said that she knew K had contacted the husband by telephone but K was “melting down” by which she meant that the child was distressed. On the day in question, the wife had to work and took K with her because it was not a school day. She described K as crying hysterically saying to her that she was not going to go to her father’s. The wife’s response to the child’s distress was to say that she did not know what to do and suggested that the child write to her father because she had run out of ideas. This idea of writing had come from a counsellor, Ms R. The wife said that Ms R had told her not to bring up the weekend until just before it occurred.
At the wife’s work, K wrote the letter which was handed to the husband. The wife said she did not see it. She said on the day she rang Ms LS for the purposes of having a “neutral person” present. She said hopefully with Ms LS there, the child would be able to “speak to” her father. She then described what happened at the shopping centre.
Cross-examined by counsel for the husband, the wife said that she did not think that the existing orders were in K’s interests and alternative arrangements would be better. She said that that was her view on 15 May but that since then it had got worse. She maintained that she said in respect of the orders that she would do her best and she had voiced her opinion. As for what time was appropriate, the wife’s view was that it would be good to have less time providing that there was someone present with whom K was comfortable. In her view, that was what K would “cope with”.
Counsel for the husband asked the wife whether K was not comfortable with the husband. The wife’s only response was that that was what K said. She acknowledged that that was not the position as described to the family consultant in April 2009. She was asked how K’s views could have turned around between April and May 2009. The wife’s response was that K had not had the visits but was clear voicing her concern. She said she was better at school and not spending time in the wife’s bed. The wife’s position was she could not explain why the child was changing and at a very rapid rate.
The wife was able to explain the absence of the bag at the handover point by saying that the child refused to take it. When asked why Ms LS did not take it, the wife’s response was that K had expressed the view that she did not want to go and the wife thought that the child would not cope. Again, the wife repeated the fact that she had done everything within her power.
When asked why she could not be at the handover herself, she said the child would not separate from her.
The wife’s view was that she did not see anything wrong with what she was doing in requesting the child to write her thoughts for the husband on paper. She said she told the child that she could not do “it” for her because she was not “allowed to”. She said bluntly that she would do what happened again if she thought it would help K.
The wife made no secret of the fact that she has no time for the husband. Her anger towards him and her mistrust of him were palpable. In the courtroom sitting along the same bench seat, she had her back turned towards the husband for most of the time.

The wife called Ms R who is a counsellor. She has a diploma in counselling which she obtained in 1997 from the Australian Professional Institute of Counselling and a second four year part-time course qualification from Victoria University of Technology which she obtained in 2004. She is mentored through the Community Health Centre. Her studies have been supervised by a psychologist. She has 12 years experience in the area and six years in her current position which includes a managerial role. The mix of her work is both general and specific counselling.
Ms R said she had seen K seven times about once per month and usually part of that time was with the wife and part with K.
She conceded that she had known of the difficulties of K going to the husband and had discussed strategies with the wife. When asked what the problem was, Ms R said that K did not seem to want to go and that was something she had learned herself from the child. Her strategy was to “pull it back to start with incremental visits”. She said this advice was given prior to the orders being made and probably about April. She suggested that the next step would have been for K to ring the husband or if that was too difficult for her, than to write him a note. Her view was that this was empowering the child to let her father know how she felt. When asked about whether there were dangers for the child in all of this, Ms R said it was a method of communication but she conceded it could be a burden on the child.
Ms R also agreed that she was aware of the wife’s concerns and in particular acknowledged that the wife was both upset and anxious about the whole issue. She thought that this was really about behaviour. The wife’s evidence was that the child had been having nightmares but K told Ms R that that was about dogs. She said she worked on those issues with the child but that was again prior to the making of the orders. The child at that stage was still saying she did not want to go.
Ms R conceded that the child was guarded having worked with a lot of health professionals. There was no clear answer as to why she did not go but she felt the child was not at risk. She said that she was looking for a solution that would be okay for the child. In her own view however, the stronger anxiety was coming from the wife. She noted in her notes that in June this year, the child was needing to please both parents.
Ms R may be an experienced counsellor but she was dealing with a highly conflictual family where firm orders were in place after considerable input from a family consultant and where she had not met the husband nor read the material of which the Court was cognizant.
Ms R spent time counselling the wife and K and her sessions were therefore somewhat limited. In my view, in a hostile environment such as this family and with a lack of goodwill on the wife’s side, the advice she gave to the wife was fraught with danger. In my view it was irresponsible to empower a nine year old child caught in a tug of war with her parents in circumstances where on her own evidence, Ms R said the child wanted to please both parents.
I do not find however that Ms R was doing anything other than what she saw as correct. However the wife grabbed at the advice as a way of passing the responsibility for her own incapacity to face the reality. That reality was that she had to work out a solution that ensured that K would not contemplate something that she would have known her mother did not support.
The standard of proof in any civil proceeding under the Family Law Act 1975 (Cth) (“the Act”) is that set out in s 140 of the Evidence Act 1995 (Cth) namely the balance of probabilities. The findings I make therefore are based upon that standard.
The wife was not ignorant of how important the onus was upon her to make the orders work. That must be clear from the fact that she consented to the orders without any equivocation in May 2009. Attached to the orders is a set of clear directions which are derived from the Act itself and which are incorporated into the orders. It is important to note that the wife was represented by both solicitor and counsel when the orders were made.
The wife did not send K to the handover point with her bag. That must have sent a strong message to K and any words about coming back for the bag to a distressed child have a hollow ring about them.
The wife did not take K herself to the handover point but chose a person who lacked objectivity and who had given a commitment to K that could only have been understood by a nine year child as support for her not doing more than delivering her father a letter. Whatever the wife’s view was about the husband, the arrangements were bound to fail without a strong stance consistent with what Ms R understood was happening in K’s life. K was not at risk and was wanting to please both parents. The responsibility of parenthood fell upon the wife to find a solution if she could not communicate the child’s distress to the husband herself. I find the wife washed her hands of the dilemma and gave the problem to an under-briefed counsellor. That unwittingly or otherwise meant that the counsellor would say what the wife wanted to hear.
It is interesting to note that the wife gave no consideration even through her lawyers to the use of K’s sister as a conduit for the handover. Ms LS and the husband both say the sisters hugged one another.
The wife maintained that the time was too long for K to be away from her with the husband and that was the cause of the distress of the child. This was in the face of her consent only weeks before. The wife could not see how any time between the husband and K under any circumstances would be able to be commenced so the handover would be problematical whichever way one considered trying to find a solution.
There is no evidence before me that the wife told the husband of the dilemma nor of what work Ms R was doing with her and K. In those circumstances, normally, a counsellor’s advice could not be relied upon as a reasonable excuse if no effort was made to involve the other parent.
The husband too can take little comfort from the findings in this case because of his own contribution. He too must find a way to resolve the problem between he and the wife because without that, K will continue to try and please both parents and her current disquiet will not abate. The husband must accept that his delay has exacerbated the disquiet. He must be prepared to be inconvenienced by participating in a parenting program and to be inconvenienced in any way necessary to ensure that the orders work. If the parties cannot make the orders that I propose work, the whole parenting orders may have to be reconsidered.
The contravention application was the only application before me. No application was made by the wife to revisit the orders as such. Contraventions fall within Division 13A of the Act. That is not a provision about punishment but rather about making parenting orders work. The future for K being dragged through further litigation and constant problems at changeover does not auger well for a nine year old girl’s emotional stability.
Division 13A of Part VII deals with the powers of a court to make orders to enforce compliance with orders affecting children. The powers given to a court include varying a parenting order.
Section 70NAC provides:
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.
To determine whether the wife has contravened the order made on 15 May 2009, it is important to note s 70NAF(1) which reads:
(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.
The reference in s 70NAF to sub-section 3 is not relevant in this application.
For the purposes of these reasons, I say what follows are my findings determined on the balance of probabilities.
I find the wife who is bound by the orders of 15 May 2009 has made no reasonable attempt to comply.
Prior to 1 July 2006, the contravention provision in the Act was found in s 112AB(1). The similarity between s 112AB and s 70NAC is clear.
In Stavros and Stavros (1984) FLC 91-562 the Full Court said there was an obligation cast upon the custodial parent to make reasonable steps to make a child available for the other parent for the purposes of the order. Making a child “available” means more than simply standing there providing the child with an opportunity to resist attending. The delivering parent must be positive in indicating the child is going to the other parent as well as have the child prepared to do so. That did not happen here. The wife created a situation in which the child believed she did not have to attend and was most certainly returning to her mother with Ms LS.
In Stevenson v Hughes (1993) FLC 92-363 Nygh J as a member of the Full Court commenting on Stavros said at 79,814:
It is not open to the custodial parent to do more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all of her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep…It is quite clear that such an approach is wrong…
Fogarty J agreed with Nygh J and reiterated approval what the trial judge had said (at 79,816):
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.
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.
Here, the wife says she has tried everything and had a distressed child on her hands but she has figuratively folded her arms and claimed that she had complied and provided no solution to ensure the existing orders could work.
It is important again to remember that the objects of Part VII of which Division 13A is a part, set out that it is important to ensure 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 as well as ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. Parliament has reiterated that it is a principle underlying those objects that a child has the right to know and be cared for by both parents.
Those objects and principles are embodied in and reflected by court orders.
The evidence in this case is that the wife did not have K’s bag sent with Ms LS. Ms LS was of the view that K would only possibly go to her father. The wife passed the responsibility of finding a solution to Ms R and in turn, agreed to the child being empowered to negotiate with her father. That is not compliance with the principles and objects of Part VII nor compliance with the court order.
To simply assert as a sort of defence that the Court should go back to the starting point and restructure the orders without making any application to set aside or vary those existing orders is not appropriate. The orders were said to be in the best interests of K and that must remain so until there is a basis to revisit them.
The wife has not had an active or encouraging role. She has done little to make the arrangement work. She does not believe the orders are good for K. In Gaunt (1978) FLC 90-468, the Full Court said:
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 a court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
The only finding open to me is that the wife has contravened the order.
Section 70NAE(1) provides that there are circumstances in which a person may be taken to have had a reasonable excuse for contravening the Act.
It is important to note that the categories of justifiable excuse are not closed or limited by the provisions of the sub-sections that follow s 70NAE(1).
Section 70NAE(5) provides:
(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).
Section 70NAF(2) provides that a person who wishes to claim a reasonable excuse for contravening an order carries the onus of proof. The standard of proof to be applied is the balance of probabilities.
The onus of establishing any excuse whether it be a health and safety issue or otherwise having regard to the fact that the provision is unlimited, rests with the wife. Counsel for the wife said that she should be excused as having a reasonable excuse. I reject that because:
(a)there is no medical evidence or psychological evidence that the child’s health or safety needed protection;
(b)Counsellor Ms R saw no risk to the child but rather, anxiety on the part of the wife.
The wife offered no other evidence in justification than that there was nothing further she could do. Having regard to the timing of the orders, the absence of effort to have the orders work and the lack of discussion the husband how they together could settle any disturbance in K, I reject the wife’s defence that she has a reasonable excuse.
The parties have not completed the ordered post-separation parenting program. I propose that each have one month from these orders to enrol in such a program in the western suburbs area and for each to produce to the other evidence of having done so and then thereafter, having completed such course.
Without positive cooperation of the parties, it is difficult to envisage how the existing orders could be altered to make them more effective. The very concepts of a collection at school and the appointment of an otherwise neutral venue have proved problematic. There is no readily accessible children’s contact centre nearby. To make K travel to such a centre without some positive sign from her parents of its workability would only give rise to more possible frustration.
The neutral venue in this case was destined to be used where there was no school changeover. That seems to have proved unworkable because the parents cannot face one another.
As the school changeover would apply in most instances, I see little alternative. However, if the husband abides by the orders (noting that he did not initially) and makes an arrangement with a school principal who sadly will have to be given a copy of these reasons, it may be that a smooth transition can occur. I would defer to the principal and his teachers as to whether an early release of K might relieve her of some pressure. If possible, H might also be present and could be the conduit. I would expect the husband to attend to all clothing requirements including returning K on the Sunday to the wife with her uniform cleaned and pressed ready for the following Monday morning.
The telephone arrangements in this case have been (or have been an excuse by both parents) a source of contention in which K is caught in the middle. It is obvious that the telephone communication has not been used to foster the ongoing relationship between the husband and K. I see no value to K in that continuing at least until the end of this year and I propose to suspend that order accordingly. However, if (and only if) the child’s school is willing to facilitate a discussion between father and daughter during school hours in some way, I would encourage that as a replacement but I certainly would not order it.
I see every reason therefore to alter the orders minimally as well as requesting the school to understand the child’s dilemma and urge the parents to take a positive approach that neither or them has taken until now.
I would also be willing to hear submissions on costs arising out of these proceedings but having regard to my views about each parent, those submissions would have to be very strong to move my current views as to the responsiveness of both parents. I propose therefore to make orders.

I certify that the preceding Ninety Five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 4 August 2009

[2009] FamCA 703

4 August 2009

Key Legal Topics

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Family Law

Civil Procedure

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Appeal

Costs

Remedies

Procedural Fairness

Jurisdiction