Kamano and Kamano
[2011] FMCAfam 221
•31 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAMANO & KAMANO | [2011] FMCAfam 221 |
| FAMILY LAW – Contravention of parenting orders – two boys aged 8½ years and 6½ years – whether reasonable steps taken by mother to comply with orders – whether mother could establish a reasonable excuse. |
| Family Law Act 1975 (Cth), Part VII, Division 13A |
| O’Brien (1992) 16 Fam LR 723; FLC 92-396 Stevenson & Hughes (1993) 16 Fam LR 443; FLC 92-363 Gaunt v Smith (1978) FLC 90-468 C v L (2008) 39 Fam LR 379 |
| Applicant: | MR KAMANO |
| Respondent: | MS KAMANO |
| File Number: | NCC 2413 of 2008 |
| Judgment of: | Coakes FM |
| Hearing dates: | 18 November 2010 23 February 2011 |
| Date of Last Submission: | 2 March 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 31 March 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr D Hannaway |
| Solicitors for the Applicant: | Hannaway Lawyers |
| Solcitor for the Respondent: | Mr K Byrnes |
| Solicitors for the Respondent: | Byrnes & Cox Lawyers |
ORDERS
The contravention by the mother on 10 July 2010 of order 4(v) of the orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 is found proved.
The mother has not proved she had a reasonable excuse for the said contravention.
The contravention by the mother on 30 July 2010 and 24 September 2010 of Order 4(i) of the Orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 is found proved.
The mother has not proved she had a reasonable excuse for the said contravention.
The contraventions by the mother on 21 July 2010, 4 August 2010 and 22 September 2010 of Order 4(ii) of the Orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 are found proved.
The mother has not proved she had a reasonable excuse for any of the three said contraventions.
The contraventions by the mother on 27 July 2010 and 21 September 2010 of Order 5 of the Orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 are found proved.
The mother has not proved she had a reasonable excuse for either of the said contraventions.
The contraventions by the mother in January 2010 of Order 13 of the Orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 are found proved.
The mother has not proved she had a reasonable excuse for either of the said contraventions.
The contraventions by the mother between June and September 2010 of Order 1 of the Orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 are found proved.
The mother has not proved she had a reasonable excuse for either of the said contraventions.
The contravention by the mother on 27 January 2010 of Order 4(ii) of the Orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 is found proved.
The mother has not proved she had a reasonable excuse for the said contravention.
The contravention by the mother on 24 March 2010 of Order 4(ii) of the Orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 is found proved.
The mother has not proved she had a reasonable excuse for the said contravention.
The contravention by the mother on 21 April 2010 of Order 4(ii) of the Orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 is found proved.
The mother has not proved she had a reasonable excuse for the said contravention.
The contravention by the mother on 28 April 2010 of Order 4(ii) of the Orders made in the Federal Magistrates Court of Australia at Newcastle on 26 September 2007 is found proved.
The mother has not proved she had a reasonable excuse for the said contravention.
IT IS NOTED that publication of this judgment under the pseudonym Kamano & Kamano is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2413 of 2008
| MR KAMANO |
Applicant
And
| MS KAMANO |
Respondent
REASONS FOR JUDGMENT
Introduction
The two children the subject of these contravention proceedings are [X] born [in] 2002 (“[X]”) now 8 years and 9 months of age and his younger brother [Y] born [in] 2004 (“[Y]”) now 6 years and 9 months of age.
[X] and [Y] are the only children of the marriage between Mr Kamano and his former wife Ms Kamano.
On 26 September 2007 final parenting Orders (“the Orders”) were made in this Court at Newcastle following a hearing which provided that the parties have equal shared parental responsibility for [X] and [Y], that the children live with the mother but spend time with the father each alternate weekend during school terms from 5.00pm on the Friday until 8.30am on the Monday, each Wednesday from 5.30pm until the following morning at 8.30am, for half of each school holiday period and other special occasions.
On 22 July 2010 the father, representing himself, filed a contravention application alleging a number of contraventions by the mother of the Orders of 26 September 2007.
The father then obtained legal representation and filed an amended application for contravention on 1 October 2010.
The proceedings
On the first day of hearing I dismissed three of the alleged contraventions, two for want of prosecution within a reasonable time and one for want of evidence.
Some of the contraventions alleged a number of breaches of the same order and I required the father to elect those upon which he intended to rely. Ultimately there were ten separate contraventions alleged.
It was common ground that the father had not spent any time with the children since 28 June 2010.
The contraventions alleged
In each case, the father alleged that the mother had contravened each order without reasonable excuse.
First contravention
The father asserted that the mother had failed to facilitate [X] and [Y] spending time with him during the second half of the school holidays from 10-18 July 2010 in contravention of Order 4(v) of the Orders which provide that the children spend time with the father for one half of each school holiday period applicable in the State of New South Wales, or failing agreement, to be the first half of all school holiday periods in odd numbered years and the second half in even numbered years.
The mother initially denied such allegation but later changed her plea to admit the contravention but relied upon a reasonable excuse.
The second contravention
The father asserted that the mother had failed to facilitate [X] and [Y] spending time with him on the weekend commencing Friday 30 July 2010 and Friday 24 September 2010 contrary to order 4(i) which provided that the children spend time with the father each alternate weekend during school terms from 5.00pm on the Friday until 8.30am on the Monday, with separate provisions for Mother’s Day and Father’s Day weekends.
The mother admitted the first contravention but relied upon a reasonable excuse and initially denied the second contravention but later changed her plea to admit the contravention and relied upon a reasonable excuse.
The third contravention
The father asserted that on three separate occasions, 21 July 2010, 4 August 2010 and 22 September 2010 the mother contravened Order 4(ii) of the Orders which provides that the children spend time with their father each Wednesday from 5.30pm until the next day at 8.30am.
The mother admitted the first two occasions, denied the third occasion but later changed her plea to admit the allegation but in each of the three cases relied upon a reasonable excuse.
The fourth contravention
The father asserted that on 27 July and 21 September 2010 the mother failed to facilitate the children communicating with the father by telephone contrary to Order 5 which provides that the children have communication by telephone with their father to be implemented by the mother telephoning a mobile telephone number nominated by the father and by the father ensuring he is able to receive such telephone call and with the mother ensuring that both children are present and able to speak to the father.
The mother admitted each contravention but relied upon a reasonable excuse.
The fifth contravention
The father asserted that in January 2010 and contrary to Order 13 of the Orders the mother enrolled [Y] at [H] School without consulting with the father and at the same time changed [X]’s school from [P] School to [H] School without consulting with the father, also contrary to Order 13.
Order 13 provides that without limiting the major long term issues about which the parents are to exercise equal shared parental responsibility pursuant to these Orders and in respect of which decisions are required, the parents are to consult with one another regarding the commencement of formal schooling for each child when each child reaches the appropriate age, the school at which each child is to be enrolled for his primary education, any change of schooling for either child and the school in which each child is to be enrolled for his secondary education.
The mother denied each of the two allegations.
The sixth contravention
The father asserted that without consulting with the father the mother made decisions unilaterally, the exercise of which fell within the meaning of the order for equal shared parental responsibility by engaging both [X] and [Y] in counselling with a Counsellor, Mr S without the knowledge or consent of the father and made arrangements for the children to see a child psychiatrist without the knowledge or consent of the father, contrary to order 1 of the Orders.
Order 1 provides for the parties to have equal shared parental responsibility for the children.
Initially the mother denied each of these allegations but later changed her plea to admitting each and relying upon a reasonable excuse.
The seventh contravention
The father asserted that on 27 January 2010 the mother failed to facilitate the children spending time with him that day contrary to Order 4 (ii) of the Orders.
Order 4(ii) provides for the children to spend time with the father each Wednesday from 5.30pm until the following day, Thursday at 8.30am.
The mother admitted the allegation and relied upon a reasonable excuse.
The eighth contravention
The father asserted that the mother failed to facilitate the children spending time with him on 24 March 2010 contrary to Order 4(ii) of the Orders which provides that the children spend time with the father each Wednesday from 5.30pm until Thursday 8.30am.
The mother admitted the allegation and relied upon a reasonable excuse.
The ninth contravention
The father asserted that on 21 April 2010 the mother failed to facilitate the children spending time with him that day, contrary also to Order 4(ii) of the Orders.
The mother admitted the contravention and relied upon a reasonable excuse.
The tenth contravention
The father asserted that on 28 April 2010 the mother failed to facilitate the children spending time with him that day contrary to Order 4(ii) of the Orders.
The mother admitted such contravention and relied upon a reasonable excuse.
The evidence
The father relied upon his affidavit sworn 27 September and filed 1 October 2010.
Upon the establishment of a prima facie case, the mother relied upon her affidavit sworn 17 November 2010[1].
[1] Exhibit M2
Both parties gave evidence in chief and were cross examined.
Mr S was called in the mother’s case and gave evidence in person and was cross examined.
Evidence was given by telephone by Mr C, a Family Consultant attached to the Newcastle Registry of the Family Courts of Australia who saw the father in person on 9 August 2010 and the mother by telephone and prepared a memorandum[2].
[2] Exhibit F1
Evidence was also given by Ms N in person in relation to an incident on 28 June 2010. Ms N’s affidavit was sworn 11 November and filed 18 November 2010[3].
[3] Exhibit M3
There were a number of exhibits.
The relevant law
The relevant law is found in Division 13A of Part VIII of the Family Law Act 1975.
The meaning of “contravened” an order is found in s.70NAC which is as follows:
“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.
Note: Parenting Orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order”.
Section 70NAF provides that the standard of proof to be applied in determining matters under the Division is proof on the balance of probabilities, subject to an exception which does not apply to the circumstances of this case, and that the same standard of proof applies to the determination of whether a person contravening an order affecting children had a reasonable excuse for the contravention[4].
[4] s. 70NAF(2)
Section 70NAE prescribes the circumstances in which a person may be taken to have had a reasonable excuse for contravening an order under the Act affecting children.
The mother relied upon a reasonable excuse in respect of the first, second, third, fourth, sixth, seventh, eighth, ninth and tenth alleged contraventions and asserted in relation to the first four that she relied upon the advice of Mr S that the children were traumatised as a result of the incident on 28 June 2010 and it was not appropriate for the father to spend further time with them until further counselling had occurred. The mother was concerned as to their health and safety if they spent time with their father, that the children would be traumatised if they spoke to their father by telephone, and that in relation to the seventh, eight, ninth and tenth allegations that either one child or the other was unwell and it was necessary for both children to stay at home.
Section 70NAE(5) is in the following terms:
“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).”
Consequently, the onus lay with the father to establish on the balance of probabilities that the mother had contravened Order 13 in January 2010 which related to the school enrolments and change of school (the fifth contravention). Conversely, the onus lay with the mother to establish that she had a reasonable excuse for contravening the other Orders as referred to above in detail by showing that she believed on reasonable grounds that not allowing the children to spend time with the father was necessary to protect their health or safety.
The hearing
The parties consented to the matters being dealt with together.
The fifth contravention
The father gave evidence in chief on the first day of hearing in respect of a number of matters for which I had given leave, including the school enrolments. The father said that [X] had been attending [P] School for three years in kindergarten and first and second years. The father said that [X] told him shortly after 29 January 2010 that he had changed schools and was now going to [H] School. [X] also told him that [Y] had started at [H] School at the same time. The father said he had expected [X] to stay at [P] School.
The father said that he was surprised when he found out about this, that there had been no discussion by the mother with him as to the change of school and that he was not aware of any reason why the school had been changed.
The father had deposed to being keen to attend [Y]’s first day of school and was disappointed that he did not know about his enrolment and consequently did not know about his first day[5].
[5] Paragraph 72 of the father’s affidavit
The father deposed to sending an SMS to the mother on about
20 January 2010 asking when [Y] was going to start school and then received a response the following week advising that [Y] had already started kindergarten at [H] School the week before[6].
[6] Paragraph 72 of the father’s affidavit
In response to a question from me as to whether he had received any notification at all from the mother of the enrolment of [Y] at [H] School, the father said he had not, and that he had expected [Y] to go to [P] School with his brother where he expected him to start on
29 January 2010.
During cross examination of the father by Mr Byrnes as to what steps the father had taken as to [Y]’s enrolment at school and to finding out where he was going to school, the father said that he anticipated [Y] would start school in 2010, and would be enrolled at the beginning of the year and knew that school started on 29 January 2010. He said that he was reluctant to make contact with the mother and did not do anything in that respect.
When asked by me as to why he had not communicated with the mother knowing that [Y] was about to commence school the father said that when attempting in the past to contact her he has never been able to and he was fearful that she would take out an AVO against him as she had done in the past.
It was put to the father that there had been discussion in July 2008 about schooling contained within the communication book[7] and that the father had responded that if the mother wished to change schools then he expected her to cover the school fees associated with the new school given he pays child support. The father recalled the entries. The father denied that there was any discussion about a change of school for [X] from [P] School in 2009.
[7] Paragraphs 74 and 75 of the mother’s affidavit Exhibit M2
In cross examination, which I find significant, the mother admitted that the change of school she had proposed in 2008 for [X] was [S] School.
The mother subsequently admitted in cross examination that she had no discussion at all with the father about [X] changing schools from [P] School to [H] School.
The mother further admitted in cross examination that she had no discussion with the father about enrolling [Y] at [H] School. The mother conceded that her entry in the communication book on
29 January 2010 was after [Y] had been enrolled at the school and that he had commenced school that day.
I find on the evidence that the onus lay clearly with the mother pursuant to Order 13 to raise with and discuss with the father the school at which [Y] was to be enrolled for his primary education.
I find on the evidence, and accept the father’s explanation that he had no reason to believe that [Y] would attend school other than at [P] School. That was the school [X] had attended for three years. The father had no reason to think the mother would change his school. The father had every reason to think that [Y] would be enrolled at the same school. Consequently, the primary responsibility lay with the mother to discuss the changes she proposed, and which she failed to do.
The purported explanation by the mother in her affidavit[8] is implausible given the mother well knew at that time that the particular school being considered was [S] School. On the evidence before me, [H] School had never been contemplated.
[8] Paragraph 78 of Exhibit M2
I find on the balance of probabilities that the mother well knew that there was an obligation upon her to consult with the father about the school she proposed [Y] attend, and that she proposed changing [X]’s school, and that she chose deliberately not to consult with the father. To that extent, I find the mother made a conscious and deliberate decision to exclude the father from this very important decision as to choice of school.
Consequently, I find that the fifth alleged contravention is established, and that the mother has not established any reasonable excuse for her conduct.
It is of no consequence in my view that the father no longer objects to the children attending [H] School, as indeed was his evidence, and that equally, it is of no consequence that the father did not complain or seek a change of school when he learned both boys were attending such school, save that the father said he was not happy when he learned that [X] had repeated second class during 2010.
The first, second, third and fourth contraventions
An incident occurred on 28 June 2010 which precipitated, as far as the mother was concerned, a need, as she perceived it to stop the children from spending any further time with the father and communicating with him by telephone to protect their health and safety. The mother perceived that the father’s behaviour on that occasion caused the children particular stress and anxiety. As a consequence of information she subsequently received from Mr S, a psychologist, she elected to suspend the existing arrangements for the children to spend time with and communicate with their father but did not bring any application to vary or discharge the existing Orders. The mother construed such information as advice to stop the boys from spending time with their father.
The father’s evidence as to what occurred at about 8.30am on Monday 28 June 2010 when he returned the children to the mother at [G], the agreed place of changeover is that the boys started pushing and kicking each other[9], and that this sort of behaviour was not unusual when they were to be returned to their mother as they often became difficult to manage and would push, kick and hit each other after they had left him. This was something the father had seen at changeovers[10].
[9] Paragraph 32 of the father’s affidavit
[10] Paragraph 33 of the father’s affidavit
In cross examination, the father said that the children were usually well behaved with him but that he often saw them start to fight with each other just after changeover[11] and that this had been going on for some months although he could not recall when it had started.
[11] Paragraph 70 of the father’s affidavit
The father said that the mother usually parks her car around the corner at a distance of about 100 metres.
Significantly, the father said that the children did not behave in this fashion at all when he collects the children from the mother at the beginning of his time and that the children were well behaved when they come into his care.
On 28 June, the mother was accompanied by a chaperone Ms N. The mother describes the boys leaving the father’s car and running towards her, shouting and pushing and shoving each other as they did so and falling over in the process[12].
[12] Paragraphs 21 – 23 inclusive of the mother’s affidavit exhibit M2
The father’s evidence is that the chaperone came toward him and that he said to her:
“She needs to control them from hurting each other.”
The father describes the chaperone as becoming very angry and yelling at him saying words to the effect of:
“You have no right to speak, considering you have been so violent to her in the past and how you have treated your ex wife. The boys are violent because of your violent nature and attitude. Ms Kamano is the way she is because you have suppressed her and abused her[13].”
[13] Paragraph 34 of the father’s affidavit
The mother deposed to saying to the boys when they reached her, calmly:
“That’s not acceptable behaviour.”
Ms N deposes to saying to the boys:
“Why are you acting like that[14].”
[14] Paragraph 15 of Ms N’s affidavit sworn 11 November 2010 Exhibit M3
Both the mother and Ms N then depose to the father shouting from a distance of about 10 metres:
“They don’t do that when they are with me. [Ms Kamano] is not a good mother.”
Ms N deposes to saying to the father, with which the mother agrees:
“[Ms Kamano] is a good mother. You should not say things like that in front of the children. You shouldn’t say she is a bad mother.”
Ms N deposes to the father then approaching her, standing close to her poking his finger at her and with his eyes wide open causing her to feel very threatened and intimidated.
Ms N deposes to the father saying to her:
“You don’t know [Ms Kamano] like I do. I have known her for 23 years and she has never changed.”
Ms N responded:
I do know [Ms Kamano], I have known her for 4 years. The children are always her number one priority.”
The mother deposes to the children hugging her whilst this incident occurred, an incident which she found very upsetting and confronting and which appeared to her to cause the children to be frightened and upset.
Both the mother and Ms N describe walking back to their car, going around the corner and [X] running to a metal garbage bin which he started to kick aggressively and appearing to the mother to be very upset. [Y] was described as holding onto a railing outside a sports store and refusing to let go.
Eventually, the mother was able to calm the children and put them in her car.
Ms N gave oral evidence, and in chief declined to disclose her residential address. When asked by me the reason for expressing that wish Ms N said that she wanted privacy and would not like the father to know her address. She said that she had found the father very angry and aggressive and intimidating toward her.
In relation to her description of [X]’s kicking of the metal garbage bin on this occasion, she thought it had happened more than once but she did not know how many times. She saw [X] crying and noticed he was upset.
In cross examination, Ms N said that she had accompanied the mother at least 20 times at change overs and said the father had become angry on more than one occasion and that he was angry and controlling on this particular occasion.
Ms N denied that she became very angry and yelled at the father but conceded that she became agitated. She said that she spoke normally. Ms N did not resile from her version of what occurred.
Ms N said that she had been there on that occasion to help and support the mother and had not asked her why she needed a chaperone. She had known the mother since about 2006 and had chaperoned on many occasions.
In cross examination, the father said that he had not taken any steps to deal with the boys behaviour as he observed it at changeover and had not made any enquires to ascertain an explanation of their behaviour.
The father denied that the reason for the boys behaving in this fashion is that whilst they are with him he gets angry and shouts at them and hurts them. The father said that he assumed that the boy’s behaviour was brought about by a lack of control by their mother and perhaps the boys did not want to go back to her, and that both boys had often said that to him.
The father conceded that whilst he had not seen the boy’s behaviour as described by the mother and Ms N, they could have been upset if they had seen what occurred.
In cross examination, the father denied that he had lost his temper or lost control or “lost it” on 28 June, and that when speaking to the chaperone he said only that [Ms Kamano] needs to learn how to control the children. He said the chaperone had come up to him, and then the boys ran off to their mother and it was then he had made that comment to the chaperone.
The father denied Ms N’s version of what occurred and in particular denied that he was loud and aggressive, that he had not said
[Ms Kamano] is not a good mother, and he had not pointed his finger at either of them and that he had not raised his voice. Further, he had not spoken to the mother on that occasion. He denied yelling at the chaperone and said that it was just a conversation during which he was arguing with her.
The father thought the children would not have been upset by what occurred.
The father did not resile from his version of what occurred.
It is not possible for me to conclude with certainty as to what occurred on this occasion given the competing versions. It seems to me that the most likely explanation is that the father opened the conversation by commenting to the chaperone that the mother needed to control the children from hurting each other, and that Ms N responded inappropriately and in a way protective of the mother and on which on the balance of probabilities caused the father to raise his voice in response and an argument then ensued between the father and Ms N.
I was left with the impression having observed Ms N giving evidence that she is no shrinking violet and would have been quite forthright when expressing her views. I find also on the balance of probabilities that Ms N was well aware that the mother required a chaperone because of the mother’s own perceived fears of the father. It is likely that the mother has influenced Ms N against the father as evidenced by her statement to the father set out in paragraph 72 above which I find was made by Ms N.
When I come to assess the likely affect on the children of this incident, it seems to me that the incident between the father and Ms N, by itself could not have brought about the adverse reaction of which the mother and Ms N give evidence.
The mother asserts that immediately following the incident, both boys said they did not want to go to school, as they would normally have done, and that they all went to the home of Ms N where the children took some time to settle with both boys remaining upset and tearful and [X] asserting to his mother that his father had lied and that they do fight all the time at his place[15] and [X] saying that his father had yelled at them all weekend[16].
[15] Paragraph 41 of the mother’s affidavit Exhibit M2
[16] Paragraph 43 of the mother’s affidavit Exhibit M2
The mother then made contact with Mr S, a psychologist who had previously seen the boys. The mother wanted to obtain some advice from him and made arrangements to see him the next day, 29 June 2010. In the meantime, following Mr S’s advice, the mother was able to encourage both children to go to school.
The evidence of the mother in relation to Mr S and the evidence of Mr S
The mother took both children to see Mr S on 29 June 2010 and deposed to [Y] being very upset and crying and [X] being very angry and upset during the interviews[17].
[17] Paragraph 48 of the mother’s affidavit Exhibit M2
The mother deposes to asking Mr S what she should do about the next time the boys are due to spend time with their father to which Mr S responded:
“I wouldn’t recommend they go and see their dad at the present time. They’re very traumatised. I think there needs to be some time for things to settle down before they see their father again.”
The mother saw Mr S again with the boys on 9 July 2010 and deposes to Mr S saying:
“I still don’t think the boys should see their father at the moment. They are still too upset to go[18].”
[18] Paragraph 52 of the mother’s affidavit Exhibit M2
The mother took the children to see Mr S again on 5 August 2010 and deposes to Mr S saying at the end of the meeting:
“The children are still too traumatised to see their father. I can’t see them anymore until they have been seen by a paediatric psychiatrist. You need to organise to see one[19].”
[19] Paragraph 54 of the mother’s affidavit Exhibit M2
Eventually, the mother was able to arrange for the children to see Dr J, a consultant paediatrician who prepared a report on 21 October 2010[20]. The same day, Dr J wrote to Mr S[21].
[20] Annexure C to the mother’s affidavit Exhibit M2
[21] Annexure D to the mother’s affidavit Exhibit M2
The mother confirms in her affidavit based upon the comments made to her by Mr S she did not believe it was in the children’s best interests to spend time with their father on the basis that if that were to occur it could have a significant and detrimental affect upon them. The mother deposed specifically to relying upon the comments which Mr S had made to her to the effect that the boys had been traumatised by the hostility which the father displayed toward her and as was demonstrated on 28 June 2010.
The report by Mr S of 9 July 2010 to Dr H[22], refers to both boys presenting to Mr S’s office that day as notably distressed, and noting that both boys at the past visit, presumably 29 June 2010, became physically aggressive and destructive following their own disclosure of an incident at changeover. Mr S noted that neither of the boys was prompted about the incident and freely spoke about their distress.
[22] Annexure A to the mother’s affidavit Exhibit M2
On 9 July 2010 Mr S noted that both boys still presented with high emotional fluctuations and emotional instability and with clear symptoms of traumatisation. Mr S expressed the opinion at that time that both boys were easily susceptible to being re-traumatised. Mr S expressed an opinion that a great deal of care must be given to their current emotional well being.
It is significant in my view that Mr S did not include in his report any suggestion or recommendation that the boys not see their father, nor that he had made such recommendation to the mother.
In his report of 6 August 2010[23], which was directed to the mother’s Solicitor, Mr Byrnes, Mr S set out reasons for the referral to him and the history given to him by the mother.
[23] Annexure B to the mother’s affidavit Exhibit M2
Mr S set out his observations following his consultation with the boys on 29 June 2010.
Mr S reports the following at about point 6 on the first page:
“During session, both boys have often reported they do not wish to see their father as he is angry and at times has hurt them. Both boys have recounted multiple times they are fearful of their father. These statements from the boys were during neutral conversations which were discussing emotions.”
Later in the report at the bottom of the first page Mr S reports as follows:
“Quite out of place both boys during session will often ask me if they have to go to their dad’s? As you know I will change the subject and move onto a different topic. The boys will often proceed to continue to question me why they have to go to their father’s.”
Mr S reports that both boys continue to present to him with signs of high emotional instability, both demonstrating quite aggressive acts involving kicking walls, punching each other, knocking over tables and swearing. Whilst it was hoped over time with the correct intervention these would cease, or at least decrease, Mr S says that has not occurred and that both boys continue to report a low desire to see their father and distress from the visitations and handovers. Mr S refers to the advisability of referring both boys for a paediatric psychiatric evaluation and makes a general observation that it is beneficial in a majority of cases for children of divorced couples to have access to both parents but the quantity and nature of visitations should take into account the past history of both parents and the current risk to the children and it is essential to ensure that the time spent with their parents will not further distress them or cause them physical or emotional duress.
Mr S at about point 4 on the second page reports as follows;
“As per our previous discussion it is my opinion that a great deal of care must be given to their current emotional wellbeing. As both boys continue to present with high levels of emotional instability my recommendations are to ensure specialist psychiatric evaluation and to reconsider the terms of handover. Both boys report finding handover incredibly distressing and as such would benefit from a more formalised process involving outside professionals overseeing the process.”
In the last paragraph Mr S comments that he has not met the children’s father but that as both boys continue to report high distress surrounding his visitations it is hoped that consideration be given from him as to how he can decrease the boys distress.
Again, it is significant in my view that Mr S did not include in his report any suggestion or recommendation that the boys not spend time with their father. Rather, he suggests supervised changeover in a more formalised process.
The third report from Mr S is dated 20 November 2010[24] although the mother reports that the appointment was for 22 November 2010. Nothing significant turns on this.
[24] Exhibit M1
In the third report, Mr S reported as follows:
“I spoke with both boys regarding what was making them angry. [Y] reported words to the effect of “all I want to do is go and get my toys from dad”. [Y] further reported “seeing dad makes me feel angry”. Both boys reported seeing friends of their father’s in public which they both reported scared them.
When questioned if they would like to see their dad alone, [X] stated “with someone”. I clarified with the boys if this meant a Counsellor whereby [Y] reported “yes”.
Mr S then expressed the opinion that in his view both boys had increased their aggression and both boys appear incredibly hesitant to see their father and both boys display genuine anger and fear when discussing the possibility of seeing their father.
Mr S reports that the next day the mother visited him and reported that both boys were quite fearful that seeing Mr S meant they would have to see their father soon.
Mr S reports on the second page of his report:
“In matters such as this it is my opinion utmost care must be taken not to traumatise children already displaying signs of emotional instability. As such I would suggest that at present the boys would not emotionally handle visitations with their father.
As both boys report the possibility of supervised access with their father in the future, [X] reporting once every six weeks, this may well be a consideration in the following months should their emotional stability improve.
It is my opinion any increase in visitations should be slow and graduated. Visitations should only occur if the boys can emotionally handle the interaction and with supervision”.
It is significant in my view that on the face of these reports alone, and with the exception of the third report[25] where there is a cautionary note to the effect that at present the boys would not emotionally handle visitations with their father, there is no specific reference in Mr S’s reports to him telling or advising the mother that the boys should not see their father at the moment as the mother deposed in her affidavit.
[25] Exhibit M1
In Dr J’s report of 21 October 2010 he reports as follows:
“The boys were allowed contact with their father at least weekly until an episode at the end of June where upon returning them from a visit he became physically and verbally aggressive with their mother and her friend. Mum’s now seeking custody and has a Court date in November.
Their behaviour at home and in some environments such as Doctor’s surgeries is quite oppositional. Interestingly though their behaviour at school is not like this. They are prone to becoming verbally and physically aggressive with each other and their mum at home. Certainly in Doctor’s surgeries they will become verbally aggressive.”
Dr J concluded that given their normal development and socialisation he did not think there was another diagnosis and opined that they are reacting to the aggression they have witnessed as they have grown up, and that continuing to see Mr S regularly will be most beneficial.
Dr J thought it may be necessary to consider medication if the aggressive behaviour became an issue at school or continued to escalate at home.
The significance of this report, and it is not in dispute that the father did not have any discussions with Dr J and that it seems therefore that he relied wholly upon the mothers account of events that when Dr J reports the father became “physically and verbally aggressive with their mother and her friend”, that is not the evidence of either the mother or Ms N. The only suggestion of physical aggression was the father poking his finger. It is not suggested that he assaulted either
Ms N or the mother with his finger, the mother was at least 10 metres away during the whole of the changeover and Dr J heard only one version.
There is no explanation as to how Dr J came to use the words “physically and verbally aggressive with their mother and her friend”. I infer such information must have come only from the mother whom it seems clear from the report spoke to Dr J when she took the boys to see him as an emergency appointment. I infer therefore that the mother either used the words “physically and verbally aggressive” or used words which conveyed clearly to Dr J that the father behaved in that way. If that interpretation is correct, then the mother exaggerated her account to Dr J.
Mr S was cross examined, and in relation to the second page of his report of 6 August 2010[26] said that if a psychiatric evaluation had taken place he thought that if the children were to continue to see their father then an outside agency would be appropriate such as Interrelate. He said in cross examination that he did not recommend that to the mother at that time.
[26] Annexure B to the mother’s affidavit Exhibit M2
He said that he had not discussed that report with the mother but had recommended during discussions with her beforehand that there were two separate issues namely supervised changeovers and a psychiatric evaluation.
When shown his report of 20 November 2010[27] Mr Hannaway asked Mr S if, by that stage, he had formed a view that the children should not be spending time with their father.
[27] Exhibit M1
Mr S said that he concluded in November that their emotional stability and distress needed to be taken into consideration and in November he concluded they should not see their father.
Mr S said he did not use words to the effect that they should not see their father, and then said specifically in cross examination in response to a question from Mr Hannaway:
“I have never said I do not think the children should not see their father.”
Further, Mr S said that on 29 June 2010 he did not tell the mother the children should not see their father, but rather he would have recommended it was not in their best interests to see their father.
In relation to the father making an appointment to see him, Mr S explained, and I accept his explanation that on the day he was due to see the father, the appointment was cancelled by his office because he was called at short notice to the hospital in relation to a patient suffering a serious psychiatric condition. He thought he would have instructed his staff to make another appointment but did not know if that had been done. Certainly, he had no objection to the father being involved in the interview process.
Mr S said that his knowledge of the mother’s circumstances and antecedent history was given to him by her and Dr S. He had not seen the Family Report or previous judgments and he had not seen the children with the father.
He said that his clinical judgment was based on observations and clinical assessment and said that the children were quite distressed and very anxious.
The mother had told Mr S of the history of disagreements between them with allegations of domestic violence and alleged sexual abuse of one of the children but which had not been substantiated. The mother had told him that she held concerns for her children as to their emotional wellbeing and potential physical harm whilst the children were with their father.
The mother had told him that it was quite concerning for her to be at changeovers and that the father could be verbally abusive. Mr S was aware that the mother took a chaperone with her each time and that she had told him that it was for her safety and for emotional support because she did not feel physically safe at changeovers.
Mr S said that he had suggested to her that changeovers take place at Interrelate but he was left with the impression that the mother would not entertain that possibility.
I find this evidence to be of significance for the reason that on the evidence before me this has never been suggested by the mother and could well have provided an appropriate means by which the children could pass to and from the father’s care and thus avoid completely the possibility of any confrontation.
In response to another question from Mr Hannaway, Mr S said:
“I am sure the children are aware of the mother’s fears”.
I find this evidence also to be significant.
Mr S said that both boys had reported only one incident when the father was “verbal”, and when [X] had subsequently kicked a bin at the last changeover.
Mr Hannaway put to Mr S if, as the father alleged, the mother made changeovers difficult for the children by saying things to them when they were due to come into his care such as “I love you”, “I will be sad without you”, “I will be lonely” and similar statements whether that would cause the children to assume some emotional responsibility for their mother. Mr S said he did not believe that it was unreasonable for the mother to make such statements to the children and that such statements could instil some confidence in the children.
Mr Hannaway suggested to Mr S that it was likely that if the children saw their mother distressed then the children would experience distress. Mr S thought that was likely and that their emotional state could be exacerbated if they saw their mother distressed.
During cross examination, the mother gave evidence of the father having visited the children’s sports carnival in about September 2010 or possibly a little earlier. The mother said that she was surprised that he was there and that the children had been traumatised by him being there at the end of a running race. She said that the father had positioned himself at the finishing line and had tried to hold or grab the children separately. The father had come with two work colleagues in uniform but they were at some distance behind them.
She said that [X] had told her after the sports carnival that he was sure that dad was going to take them away. The mother said that she reassured him by saying that could not happen because “the teachers are there” and “they are safe at school” and “dad can’t take you away.” The mother had later told the children that the father could not have taken them from the sporting carnival.
The mother said that the children had been traumatised by the father’s visits to their school since the end of June 2010. She said the father had come to the Christmas concert as well as a swimming carnival in early 2011. The father had received notices of school events from the school and that she had then made a complaint to the Regional Office as to the Principal of the school giving letters to the father.
The mother said she was unhappy when shoes and Christmas gifts had been sent by the father to the school.
In relation to Father’s Day and money being made available by the father for the children to purchase a Father’s Day gift, the mother said it was up to them as to what they wanted to do about that.
The mother gave evidence of a swimming carnival in early February 2011 at [omitted] where [X] took part in novelty events between about 9.30am and 2.30pm.
The mother saw the father at the pool at some time between 10.30am and 11.00am. The carnival had been mentioned in the school news letter.
The mother said that the father sat very close to the pool, about one metre distant and that [X] had to walk past him three or four times. She said that the father tried to talk to [X] but [X] ignored him and that the father left at about 12.00 noon.
The mother said that [X] had not wanted to go to school that day or take part in the swimming carnival because he thought his father would be there and that he had become very anxious. The mother said that he was upset at bedtime that day and that he had told her he did not want his father coming to the school.
The mother said that she again reassured him by telling him that he was safe and that nothing had happened.
When Mr Hannaway put to Mr S the mother’s statements in relation to the sporting event and the swimming carnival, for example, the father can’t take them, the teachers would not let him, they were safe at school, that Mr S believed that these statements would instil confidence in the children.
When it was suggested to Mr S that the nature of such statements reinforced the children’s fears, Mr S said that the boys have presented with fear of being taken by their father. In response to a question from me, Mr S said that such statements may well reinforce their fears.
In response to a question from me as to whether it would be preferable for the mother to have said, for example “don’t be silly, get on with it, you will be alright” Mr S thought that would be a more appropriate method of allaying their fears.
Mr S said that the children were most certainly aware of the high level of conflict between their parents and were aware of their mother’s emotions in relation to the father at handovers.
Mr S said that the children are aware that their mother dislikes their father and are also aware of their father’s feelings toward their mother. When asked if the children would tell their mother after spending a period of time with their father of events to please her and which were not necessarily true Mr S thought children of their age would not naturally tell the mother things just to please her. They could however elaborate on events but maintain an element of truth. Mr S thought it was possible the children were saying things to their mother which they thought she wanted to hear but did not think it was probable.
Mr S said that his last consultation with the children was on
20 November 2010 and that it was no longer appropriate for him to see them. They required a paediatric or psychiatric evaluation if their presentation did not improve and to be involved in a multidisciplinary approach.
As to whether the children had changed during the time he had seen them, Mr S thought that their presentations declined quite significantly after 28 June 2010 but had then become relatively stable.
Mr S said that he had formed the view that the cause of the children’s distress was something which happened in the father’s household and at handovers but conceded that was based entirely upon the mother’s statements to him and the children’s emotional responses.
When it was put by Mr Hannaway to Mr S that given the children had spent no time with their father from 28 June 2010, it would be reasonable to expect some change in their behaviour for the better, subject to the brief occasions at the sporting carnival and the swimming event. Mr S thought that their behaviour was not necessarily dependent upon the time spent with their father.
At the time of the August report Mr S told the mother of a view expressed by the boys, at one stage, that they would like to see their father about once a month, and that he had told the mother that but that handovers may be a problem.
Mr S said that at the time of the August report, he had not told the mother not to provide contact with their father but that by November he had formed the view that it was advisable for the children not to see their father. Mr S said that at the time of the August interviews he told the mother that it was not in the children’s best interests to spend time with their father and to reconsider handovers. Mr S conceded he had not included such opinion in his report.
In re-examination, Mr S said that when he saw the mother in June he had recommended that it was not emotionally in the best interests of the children for them to see their father at that time.
Whilst there is some ambiguity in Mr S’s evidence as to the advice he has given the mother from time to time as to the children seeing their father, I find when I weigh the whole of his evidence that he has never said to her that he thought the children should not see their father and that he has never told the mother not to promote contact with their father and that it was not until November for the first time that he told her in his opinion that the boys would not emotionally handle visitations with their father.
The difficulty arises in the mother’s apparent interpretation of Mr S’s statements to her, in June and July, and to which she deposed. Such statements which the mother attributes to Mr S are not in accord with the evidence of Mr S.
The mother’s interpretation of Mr S’s recommendation to her on
29 June 2010 is that the children not see their father at that time and that things had to settle before they see their father again.
The mother’s interpretation following the consultation on 9 July 2010 was that Mr S was saying that he did not think the boys should see their father at the moment as they were still too upset to go. That was not
Mr S’s evidence.
When the mother saw Mr S in August her interpretation of what he said was that the children were still too traumatised to see their father and therefore needed to see a paediatric psychiatrist and not spend time with their father.
I find on the balance of probabilities that the mother chose to adopt an interpretation of Mr S’s statements to her which she found favourable, and in accordance with her wishes that the children not spend time with their father, which I find on the evidence is her wish.
There is, in my view, a significant difference between a recommendation and an instruction.
It is clear from Mr S’s evidence that his advice to the mother fell far short of an instruction. It was for the mother to make her own decision as to whether or not to comply with the Orders.
The mother asserts that it was necessary to deprive the father of spending time with the children to protect the children’s emotional health and safety but the mother adduces no evidence at all that the children were at risk of either physical injury from the father or any risk to their emotional health or safety.
To establish the ground upon which she relies, it is necessary for the mother to prove more than her own subjective view as to the potential for the children to be subjected to emotional trauma through spending time with their father.
As to the defence upon which the mother relies, and the present section is in similar words to that available under section 112AC as it was when O’Brien and O’Brien[28] was decided, Smithers J said this:
“[22]….. it seems to me that the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.”
[28] O’Brien and O’Brien (1993) FLC 92-396
It follows in my view that the mother’s conduct must be measured on an objective basis.
The mother relies entirely upon the incident which occurred on 28 June 2010 as the cause of the children’s subsequent adverse behaviour as described by her and Mr S. It seems to me that it was not open to the mother to conclude objectively or safely that was the sole cause of the children’s subsequent behaviour. Consequently, I find that the mother has failed to establish she made an objective decision.
Rather, it seems to me that the mother made a subjective decision against a background of finding a reason for the children not to spend time with their father, which was probably her wish for a long period of time and then relying upon this single event.
The further difficulty the mother faces is that the mother, in my view, failed to weigh the manner in which the children behaved on this particular occasion. It could not be said that it was abnormal for two boys of this age to behave as they did toward each other when they went back to their mother, kicking, pushing and shoving as they did.
The other difficulty faced by the mother is whether she withheld the children from spending time with their father for no longer than was necessary to protect their health or safety.
The mother has not established that the time spent by the children with the father was detrimental to their health or safety and adduces no evidence to support such a contention. It is likely the mother had such perception, as indeed she claims but provides no evidence. Consequently, if she held the view that continuing to spend time with the father was detrimental to them then it seems to me the onus lay with her to bring an application to at least suspend the time with the father on an interim basis pending the determination of an application by her to vary or discharge the current Orders. The mother did not take those steps. The mother comes before the Court by way of the father’s application for contravention.
I am fortified in coming to this conclusion flowing from some evidence the mother gave in cross examination.
When asked whether she accepted the father’s evidence that the children were not aggressive with him and were not generally badly behaved with him, the mother said that she did not accept that evidence, relying upon what the children told her when they came back from spending time with the father.
The mother did not adopt or consider a different method of changeover as Mr S had suggested.
When it was suggested to the mother that in her view the father had little to offer the children, the mother said that the father was not aware of their medical issues, their safety, the use of a car seat, riding motor bikes without helmets, that he did not listen to the children and did not know their needs and wants, that he lacked appropriate parenting skills and that he exhibited anger to the children.
When it was suggested to the mother that in her view the father did not have much to offer the children as a parent the mother said:
“There are areas that can be worked on.”
The mother did not consider the children were aware of her feelings about the father.
The mother also said in cross examination:
“Currently, I perceive them to be at risk with the father, and on the advice of the psychologist I have stopped them from seeing their father.”
The sixth contravention
The father asserts that the mother did not consult with the father in relation to the children seeing Mr S and that the mother also made arrangements for the children to see a child psychiatrist, both without his knowledge or consent.
The Orders of 26 September 2007 provide that the parents have equal shared parental responsibility for the children.
Section 65DAC is in the following terms:
“Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court Orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”
In Section 4 of the Act, “major long-term issues” are defined as follows:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
Consequently, it is clear that any issue relating to a child’s health requires each parent to consult with the other in relation to the decision to be made about that issue and a further requirement that a genuine effort is made to come to a joint decision about that issue.
In my view, it is clear that the decision that the children see Mr S involved the children’s health and was a long term issue, as was the subsequent recommendation that the children see a paediatric psychiatrist.
The mother deposed in her affidavit to not understanding that she had an obligation to obtain the father’s consent to implement advice given to her by properly qualified and respected medical professionals. That is not the issue. The issue related to the decision to see the psychologist.
Of greater significance in my view is that the mother knew that she was giving only her version of events to Mr S and then acting upon that. It was open to the mother to invite the father to attend with her but she did not do so.
In cross examination in relation to this contravention, the mother said that in hindsight “I should have taken the father to the consultations with Mr S.”
When it was suggested to her that she knew the father had to be involved, she said she did not know she had to involve him.
I do not accept that evidence.
The mother denied the assertion that she was trying to create a case to stop the father from seeing the children.
I find on the whole of the evidence that the mother well knew that the decision to see Mr S, a psychologist was a matter involving the health of both children and it required consultation with the father before being put into place.
I find on the whole of the evidence that the mother perceived and recognised this to be an opportunity to give to the psychologist only her version of events of all previous matters affecting the children and her opinion as to the cause of the children’s behaviour, knowing full well that if the psychologist also spoke to the father, and received information from him as to how the children behave with him it was more likely that a balanced opinion would be expressed.
I find on the whole of the evidence that the mother well knew that she wanted the psychologist to hear only her version of events, and with a view to persuading the psychologist that it was the father’s conduct and past behaviour that cause the children to behave the way she described.
I find on the balance of probabilities that it is for these reasons that the mother failed to involve the father. Consequently, the contravention is established and the mother has not proved she had a reasonable excuse for her conduct on this occasion.
The seventh contravention
It is conceded by the mother that the father did not spend time with either child on Wednesday 27 January 2010 when, in accordance with the Orders both boys were due to spend time with him from 5.30pm that evening until the following morning at 8.30am.
The mother deposed to [X] on the previous Sunday suffering from a headache later developing into stomach pains and vomiting and that on the Monday, 25 January the mother obtained a medical certificate for him[29].
[29] Paragraph 108 of the mother’s affidavit Exhibit M2
The father confirmed having received a text message from the mother on the Wednesday morning to the effect that [X] had a gastro bug and would not be coming that night.
The mother deposed to not sending [Y] because she did not want to leave [X] at home on his own while she went to [G].
The medical certificate obtained by the mother signed by a Dr E certified that [X] was receiving medical treatment and that for the period Monday 25 January 2010 until Thursday 28 January 2010 inclusive:
“He will be unfit to continue his usual occupation”.
The certificate was issued 25 January 2010[30].
[30] See Annexure H to the father’s affidavit
It was put to the mother in cross examination that [X] could still have spent time with his father to which the mother responded that [X] was still on a liquid diet resting and sleeping during the day and that he may have had a temperature and was lethargic. The mother avoided answering the question.
It was suggested to the mother there was no reason why both children should not have been taken to [G] for the usual changeover and that the father could have continued to look after [X]. The mother’s response was that she did not think that [X] was well enough to travel.
It is also significant in my view that the mother deposes to seeking advice from her Solicitors about the interpretation and effect of the Orders of
26 September 2007 on a number of occasions and in particular as to her obligations if the children are not well enough to attend visits with the father. The mother deposes to having been advised to obtain a medical certificate to confirm that the children are unable to attend.The medical certificate does not support the contention by the mother that [X] was unable to travel. Further, the certificate is not to the effect that [X] should be kept at home or that he is unable to be looked after by his father.
The mother offers no valid reason at all as to why [Y] should not have spent time with his father. The evidence before me is that the mother has a number of contacts and chaperones from whom she seeks help when implementing changeovers and no reason is advanced by the mother as to why she did not call upon such assistance again on this occasion.
I find on the evidence that the mother made a conscious decision not to implement time for both boys with their father on this occasion. I am satisfied that she was aware of her obligation pursuant to the Orders. The mother has failed to provide a reasonable excuse for not complying with the order.
More significantly, I find on the evidence on the balance of probabilities that this was another occasion when the mother was able to advance her cause that the children not spend time with their father.
I have no hesitation in coming to this conclusion for the reason that the mother took no steps at all to deliver the children for time with their father. It is as if the mother regards the father as an enemy who is to be thwarted wherever possible either by active steps or by passive resistance[31]. There can be no other interpretation of the mother’s conduct on this occasion.
[31] Stevenson v Hughes (1993) 16 Fam LR 443; FLC 92-363
I find the contravention proved and that the mother has failed to establish a reasonable excuse.
The eighth contravention
It is conceded by the mother that the father did not spend time with either boy on Wednesday 24 March 2010 when the father was again due to spend time with them from 5.30pm that evening until the following morning at 8.30am.
The mother deposes to bringing [Y] home early from school on the Monday of that week, 22 March when he had stomach pains and a bad cough.
The mother took [Y] to the Doctor’s the next day, Tuesday 23 March and he was seen by Dr E who issued a medical certificate[32] in exactly the same terms as that referred to in paragraph 212 above.
[32] Annexure I to the father’s affidavit
The father confirmed receiving a text message from the mother on the Wednesday that [Y] has a viral infection and that she had obtained a medical certificate for the period 23 March to Friday 26 March inclusive and that the boys would not be coming.
The mother deposed to her belief that it was not appropriate to send [Y] to spend time with his father as he was complaining about being unwell and she thought it best that he remain at home and continue to recuperate and that she was concerned that his condition may worsen if he was taken from home to [G] and then to the father’s home[33].
[33] Paragraph 111 of the mother’s affidavit Exhibit M2
The mother deposes to deciding to keep [X] at home so he could help her look after [Y] and also because she did not want to leave [Y] at home if she went to [G] with [X].
The mother has failed to establish a reasonable excuse for not enabling the children to spend time with the father on this occasion. There is no evidence of [Y] being unable to travel and there is no evidence that the father could not have looked after [Y] equally as well as the mother.
I find on the evidence that this is a further instance when the mother has chosen consciously and deliberately to thwart the children’s time with their father.
The evidence establishes that on the slightest pretext the mother will refuse to permit the children to spend time with their father. The mother adduces no evidence at all that it was necessary to keep [Y] at home on this occasion to protect his health or safety.
I find the contravention proved and that the mother has failed to establish a reasonable excuse.
The ninth contravention
The mother concedes that the children did not spend time with their father on Wednesday 21 April 2010 when they would have otherwise spent time with him from 5.30pm on the Wednesday until 8.30am the following morning.
The mother deposed to [Y] having scabs and sores around the back of his ear and that [Y] had complained on a number of occasions that his ear was sore and hurt. The mother collected [Y] from school on Tuesday 20 April at the school’s request as [Y] was complaining of ear pain.
The mother obtained a medical certificate, again from Dr E for the period Tuesday 20 April to Thursday 22 April inclusive and in the same terms as the previous medical certificates issued by her.
The father conceded the mother had sent him a text message on the Wednesday morning to the effect that [Y] had ear problems and that the children would not be spending time with him that evening.
The mother deposed that she did not believe it appropriate for [Y] to go on a visit when he was unwell and said she was concerned that his condition may deteriorate if he went out[34].
[34] Paragraph 114 of the mother’s affidavit Exhibit M2
It was put to the mother in cross examination that [Y]’s ear was not so sore that the father could not have looked after him. The mother responded saying:
“I was unsure if the father could look after him”.
When cross examined as to why [X] did not go and see his father the mother said:
“[X] did not want to go on his own”.
The mother has failed to adduce any evidence which would preclude [Y] and indeed [X] from spending time with their father that evening and overnight into the next morning.
The mother has adduced no evidence at all that is was necessary for her to keep [Y] in her care to protect his health or safety on this occasion. The mother adduces no evidence that there was any risk entailed for [Y] if he travelled to see his father.
The mother adduces no evidence to support her view, or at least uncertainty as to whether the father could look after [Y].
The mother made no reasonable attempt whatsoever to comply with the order, not only in relation to [Y] but also to [X]. I find on the balance of probabilities that the mother again took this opportunity to thwart the children’s relationship with their father.
I find on the evidence that the contravention is established and the mother has not proved she had a reasonable excuse.
Tenth Contravention
The mother conceded that she did not make the children available to spend time with their father on Wednesday 28 April 2010 when the father would otherwise have spent time with the children from 5.30pm that evening until the following morning at 8.30am.
The mother deposes to again collecting [Y] from school on Tuesday 27 April following a request from the school as [Y] was complaining about his ears. The mother obtained a doctor’s appointment and a prescription for ear drops that day and made a further appointment for Wednesday 28 April[35].
[35] See paragraph 115 of the mother’s affidavit Exhibit M2
The mother obtained a medical certificate for [Y][36] from Dr H dated
28 April 2010 which states as follows:
“This is to certify that [Y] has outer ear infection with pain in his L ear and needs to be managed by the parent, period of disability is 28 to 30 April inclusive”.
[36] Annexure K to the father’s affidavit
The mother deposes to forming the view that it was not appropriate for [Y] to spend time with his father on 28 April and deposes to [X] being extremely reluctant to visit on his own and who was quoted as saying to his mother:
“I don’t want to go and see dad on my own”.
The father conceded that the mother had sent a text message to him advising [Y] had hearing problems and that she had obtained a medical certificate and that [X] had come home with a headache and said he wanted to stay home.
The mother has failed to adduce any evidence that [Y] was unable to travel, or that his health or safety would be at risk if he spent time with his father.
Dr H did not issue a certificate to the affect that the father was incapable of managing [Y]. In any event, it is not suggested in the certificate that “managed” means anything more than observation and appropriate care.
In cross examination, the mother said that she had obtained drops for his ears and that his ears had to be covered and warm. The mother conceded that she could have made an entry to that effect in the communication book.
In cross examination, the mother said that [X] was not unwell on that occasion.
The mother offers no reason as to why [X] could not have spent time with his father on that occasion and clearly acquiesced in [X]’s request that he not see his father alone.
The mother adduces no evidence at all that she actively encouraged [X] to attend on that occasion as was required by the orders and I find on the balance of probabilities that she did not do so.
The evidence establishes that the mother chose again to thwart the children’s time with their father and deliberately chose not to comply with the orders.
I am satisfied the mother was aware of her obligation pursuant to the order, that the contravention is found proved in relation to both children and the mother has not proved that she had a reasonable excuse for the contravention.
Conclusion
The findings I have made above reveal a disturbing pattern by the mother prior to June to frustrate the children spending time with their father and for beliefs and concerns which the mother has not been able to support with any evidence. I am satisfied therefore that prior to the incident on
28 June 2010 the mother had deliberately thwarted the children spending time with their father on the occasions referred to above.I find it is established on the evidence that when the incident occurred on 28 June 2010 the mother was prepared to disregard the orders insofar as the children spending time with their father was concerned. The mother’s evidence in these proceedings is very clear that she perceives the father has very little, if anything, to offer the children. Further, the mother perceives that the father either punishes the children excessively or physically disciplines them or is not sufficiently vigilant to prevent them from injuring themselves.
The mother however adduces no evidence in support of these contentions and the father denies physically disciplining the children or physically rough handling either of them.
It is established on the evidence that the mother is unable to separate her feelings about the father from her responsibility as a parent to encourage and facilitate the children having a relationship with their father.
It was very clear from the manner in which the mother gave her evidence that she continues to be anxious and protective of the children. I am led to the conclusion that the mother is unable to make a valid assessment in her own mind whether or not they are at any risk when spending time with their father. The mother regards these issues only subjectively and not objectively. The mother accepts at face value complaints made by the children about their father and fails to make any objective evaluation of such complaints.
The consequence for the children is that they are well aware of their mother’s views about their father and the mother is unable or refuses to assess objectively any statement made by either of the children which is critical of their father or such that on the face of it their father perhaps did not behave appropriately at a particular time.
This leads to the necessity to consider the mother’s state of mind when she took the children to see Mr S on 29 June 2010 following an incident which on any interpretation was no more than a minor incident being, at its highest, an argument between the father and Ms N. There was no threat to the children at that time and the evidence does not enable me to conclude the extent to which they observed or were affected by the incident. Their behaviour was however quite aberrant but again could be interpreted as a degree of frustration rather than an outburst requiring psychological or psychiatric intervention.
It seems to me, and I find on the evidence that when the mother saw Mr S on the first and subsequent occasions during 2010 the mother did not approach the question of assessing the children psychologically with an open mind but rather was looking for an excuse or reason to unilaterally suspend the children’s time with their father.
It is clear, from the reasons I have given, that Mr S did not until November give an instruction, if it could be called that, to the mother to stop the children from seeing their father.
It is significant that the mother has not brought any application to vary or discharge the existing orders. I am satisfied the mother has not done so because she would be well aware from previous proceedings that once an application is brought it results ultimately in a hearing, and that by delaying bringing a hearing she was able to unilaterally continue her prevention of the children spending time with their father.
For those reasons, I find on the whole of the evidence that the mother has contravened the parenting orders after 28 June 2010 when she well knew what her obligations were insofar as ensuring the children spend time with their father pursuant to such orders, and further, that the mother has not established a reasonable excuse for each of the subsequent contraventions.
I will consider the issue of penalty in relation to each of the contraventions when the matter next comes before me.
I certify that the preceding two hundred and sixty-eight (268) paragraphs are a true copy of the reasons for judgment of Coakes FM
Date: 30 March 2011
0
0
1