Kent & Shaw (No. 3)
[2013] FamCA 475
•21 June 2013
FAMILY COURT OF AUSTRALIA
| KENT & SHAW (NO. 3) | [2013] FamCA 475 |
| FAMILY LAW – ORDERS – contravention – where the father’s application contained a total of two counts – where one of these two counts was dismissed – where the mother admitted the remaining count – where the mother was found not to have a reasonable excuse for the admitted count of contravention – consideration of what orders to make arising out of these findings – existing parenting orders varied pursuant to s 70NBA of the Family Law Act 1975 (Cth). |
| Family Law Act 1975 (Cth) ss 60CC, 70NBA, 70NCA, 70NCB, 70NDA, 70NDB, 70NDC |
| Sandler & Kerrington [2007] FamCA 479 (24 May 2007) Irvin & Carr [2007] FamCA 492 (29 May 2007) Spencer & Verity [2013] FamCAFC 210 (14 December 2012) Kent & Shaw [2013] FamCA 38 (4 February 2013) Kent & Shaw (No. 2) [2013] FamCA 238 (16 April 2013) |
| APPLICANT: | Mr Kent |
| RESPONDENT: | Ms Shaw |
| FILE NUMBER: | ADC | 4329 | of | 2007 |
| DATE DELIVERED: | 21 June 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 17 June 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
Paragraphs (4) to (11) of the Orders of Justice Strickland dated 15 July 2010 are discharged.
The parties engage in, and cause M born … May 2002 to engage in, therapy as follows:
(a) for the mother, to assist in:
(i)acceptance of the Judgment of the Honourable Justice Strickland dated 15 July 2010 as it relates to findings about the allegation the father has sexually abused the said child;
(ii)the mother’s parenting of the said child in circumstances where:
(1)the said child is being informed that her father did not sexually abuse her;
(2)the said child will be spending time with the father;
(b) for the said child to:
(i)be informed that her father did not sexually abuse her;
(ii)support her in having a relationship with her father;
(c) for the father, to assist in:
(1)managing his emotions associated with incorrectly being accused of sexually abusing the said child.
The therapist to undertake the therapy referred to above to be Ms C.
The regime of therapy referred to above be undertaken as follows:
(a)with the mother to commence her therapy from 3 September 2013, (on which date an appointment has already been arranged);
(b)with the child to continue her therapy with Ms C as soon as an appointment can be obtained by the mother;
(c)with the father to commence his therapy with Ms C as soon as an appointment can be obtained by the father.
The mother pay the costs associated with the therapy referred to above as it relates to the mother and the child.
The father pay the costs associated with the therapy referred to above as it relates to the father and to the joint therapy between the father and the child as referred to below at paragraph (9)(a) and the preamble in paragraph (10).
The mother provide Ms C with a copy of the reasons for judgment delivered today.
The father be permitted to provide any material from these proceedings that is relevant to the health, safety or welfare of the child to Ms C.
After the said child has undertaken such number of sessions with Ms C as Ms C deems appropriate:
(a)the said child be introduced to the father by Ms C; or if Ms C is unwilling to undertake this, then:
(b)the said child commence spending time with the father at the Y Contact Centre AND the parties do all such acts and things and sign all documents to enrol in the said service.
After the said child has had four [4] introductory sessions with the father in the presence of Ms C (or such other number of sessions as Ms C deems appropriate) or after four [4] supervised periods at the Y Contact Centre, the said child spend time with the father:
(a) on one [1] day of each alternate weekend, from 10:00 am until 2:30 pm;
(b)after four [4] periods pursuant to paragraph (10)(a) herein, on one [1] day each alternate weekend from 10:00 am until 5:00 pm;
(c)after four [4] periods pursuant to paragraph (10)(b) herein, on each alternate weekend from 10:00 am on the Saturday until 5:00 pm on the Sunday;
(d)after four [4] periods pursuant to paragraph (10)(c) herein, on each alternate weekend from 6:00 pm on the Friday until 6:00 pm on the Sunday;
(e)from 3:00 pm until 8:00 pm on Christmas Day 2013 PROVIDED THAT the said child has completed the four [4] introductory periods pursuant to paragraph (9) and the preamble in paragraph (10) herein.
(f)from 2014 PROVIDED THAT the said child has completed the periods pursuant to paragraphs (9) and (10) (a) to (d):
(i)on each alternate weekend from 6:00 pm on the Friday until 6:00 pm on the Sunday;
(ii)for one half of each of the short school holidays, and in default of agreement as to which half, for the second half of each such school holiday period;
(iii)for one half of the Christmas school holidays period commencing in 2014/2015, and in default of agreement as to which half, for the second half of each such school holiday period;
(iv)from 9:00 am on 24 December 2014 until 12 noon on 25 December 2014 and during the same times in each alternate year thereafter;
(v)from 12 noon on 25 December 2015 until 6:00 pm on 26 December 2015 and during the same period in each alternate year thereafter;
(vi)on the said child’s birthday, if the birthday is on a school day for two [2] hours from 3:30 pm until 5:30 pm and if the birthday is not on a school day, from 12 noon until 3:00 pm on that day;
(vii)on each Father’s Day from 10:00 am until 5:00 pm PROVIDED THAT if Mother’s Day falls on a day when the said child would otherwise be spending time with the father, then such period be suspended;
(viii)on the father’s birthday, if the child is attending school, from 3:30 pm until 5:30 pm, and if the birthday is not on a school day, from 12 noon until 3:00 pm on that day.
After the introductory periods referred to in paragraph (9) and the preamble in paragraph (10) herein, handovers be effected as follows:
(a) at the Y Contact Centre;
(b)on the occasions when the Y Contact Centre is not available, then inside the Suburb L Police Station.
The matter is adjourned to Tuesday 10 December 2013 at 9.15 am for mention before the Honourable Justice Dawe.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Shaw (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4329 of 2007
| Mr Kent |
Applicant
And
| Ms Shaw |
Respondent
REASONS FOR JUDGMENT
Introduction
I handed down a judgment which considered an application for contravention orders filed by Mr Kent (“the father”) on 16 April 2013 (see [2013] FamCA 238) (hereafter referred to as “the 16 April 2013 judgment”). These applications alleged that Ms Shaw (“the mother”) had contravened various orders of this Court relating to their child M (“the child”). The child was born in May 2002 and is accordingly 11 years of age.
The parties appeared before me on 17 June 2013 to make submissions as to the orders I should make consequent upon my findings in the 16 April 2013 judgment. Both parties were unrepresented. I reserved judgment in relation to the matter after hearing submissions from the parties.
The 16 April 2013 Judgment
The application for contravention orders considered in the 16 April 2013 judgment was filed by the father on 13 July 2012 (Document 45).
The alleged contraventions were said to have occurred “/about dec 2011/” which presumably means December 2011. When prompted on the form for the application for contravention orders to state the paragraph number of the orders which are alleged to have been contravened by the respondent, the applicant stated:
The mother failed to engage in therapy as ordered parag 4 [a] [b] [c] and parag 5 of order Justice Strickland 15-7-10 thereby not enabling the father to have contact with his daughter as set out in parag 9 and 10 of the said order and be advised of school progress as set out in parag 15 of the said order
Under a heading on the applicable form that asks for a statement of the alleged contravention, the applicant stated:
the mother as can be seen from report of [Ms B] dated the 22 may 2012 and attached to my affidavit filed with this application terminated the therapy ordered by Justice Strickland as set out above thereby preventing me from having time with my daughter
The orders of Justice Strickland dated 15 July 2010 provided:
Paragraph 4
That the parties engage, and cause the said child to engage, in therapy as follows:
(a)For the mother, to assist in:
(i)Acceptance of the Judgment as it relates to findings about the allegation the father has sexually abused the said child;
(ii)The mother’s parenting of the said child in circumstances where
(1)The said child is being informed that her father did not sexually abuse her;
(2)The said child will be spending time with the father;
(b)For the said child to:
(i)Be informed that her father did not sexually abuse her;
(ii)Support her in having a relationship with her father;
(c)For the father, to assist him in managing his emotions associated with incorrectly being accused of sexually abusing the said child.
Paragraph 5
That the regime of therapy referred to above be undertaken as follows:
(a)With the mother to communicate her therapy as soon as an appointment can be obtained;
(b)After the mother has had two [2] sessions of therapy, the said child to commence her therapy;
(c)The therapy for the mother and the said child be undertaken by the same therapist, if possible;
(d)The father to commence his therapy as soon as an appointment can be obtained;
(e)The therapy for the father be undertaken by the same therapist as sees the mother and the said child, if possible.
Paragraph 9
That after the said child has undertaken four [4] sessions of therapy (or such other number of sessions as the said child’s therapist deems appropriate AND the said therapist be at liberty to liaise with any separate therapist assisting the father in determining this):
(a)The said child be introduced to the father by the said child’s therapist; or, if the said child’s therapist is unwilling to undertake this, then:
(b)The said child commence spending time with the father at the [Y Contact Centre] in its supervised Contact Program AND the parties do all such acts and things and sign all such documents to enrol in the said Service.
Paragraph 10
That after the said child has had four [4] introductory sessions with the father in the presence of the therapist (or such other number of sessions as the said child’s therapist deems appropriate) or after four [4] supervised periods at the [Y Contact Centre], the said child spend time with the father:
(a) On one day of each alternate weekend, from 10:00am until 2:30pm;
(b)After four [4] periods pursuant to paragraph (10)(a) herein, on one day each alternate weekend from 10:00am until 5:00pm;
(c)After four [4] periods pursuant to paragraph (10)(b) herein, on each alternate weekend from 10:00am on the Saturday until 5:00pm on the Sunday;
(d)After four [4] periods pursuant to paragraph (10)(c) herein, on each alternate weekend from 6:00pm on the Friday until 6:00pm on the Sunday;
(e)From 3:00pm until 8:00pm Christmas Day 2010 PROVIDED THAT the said child has completed the four [4] introductory periods pursuant to paragraph (9) and the preamble in paragraph (10) herein.
(f)From 2011:
(i)For one half of each of the short school holidays, and in default of agreement as to which half, for the second half of each such school holiday period;
(ii)From one half of the Christmas school holidays commencing in 2011/2012, and in default of agreement as to which half, for the second half of each such school holiday period;
(iii)From 9:00am on 24 December 2011 until 12 noon on 25 December 2011 and during the same times in each alternate year thereafter;
(iv)From 12 noon on 25 December 2012 until 6:00pm on 26 December 2012 and during the same period in each alternate year thereafter;
(v)On the said child’s birthday, if the birthday is on a school day for two [2] hours from 3:30pm until 5:30pm and if the birthday is not on a school day, from 12 noon until 3:00pm on that day;
(vi)On each Father’s Day from 10:00am until 5:00pm PROVIDED THAT if Mother’s Day falls on a day when the said child would otherwise be spending time with the father, then such period be suspended;
(vii)On the father’s birthday, if the child is attending school, from 3:30pm until 5:30pm, and if the birthday is not on a school day, from 12 noon until 3:00pm on that day.
Paragraph 15
That the mother:
(a) Notify the father, and keep the father notified, of the schools which the said child attends;
(b)Authorise all such schools as the said child attends to release direct to the father copies of the said child’s school reports;
PROVIDED THAT the father be restrained, and an injunction is hereby granted restraining him, from attending at any school which the said child attends.
At the hearing on 4 February 2013, the father further clarified his claim. He specified two alleged contraventions:
a)That the respondent contravened paragraph 4(a) of the orders of Justice Strickland dated 15 July 2010 by terminating the therapy she was ordered to undergo by Justice Strickland, thus preventing the applicant from having time with the child (“the first alleged contravention”); and
b)That the respondent contravened paragraph 15(a) of the orders of Justice Strickland dated 15 July 2010 by failing to advise the applicant of the child’s progress in school (“the second alleged contravention”).
At the hearing on 4 February 2013, the respondent admitted the first alleged contravention but claimed to have a reasonable excuse. In the 16 April 2013 judgment, I found that the mother had succeeded in establishing a reasonable excuse on the balance of probabilities for this contravention (See generally [2013] FamCA 238, [29]–[33]).
I dismissed the second alleged contravention at the hearing on 4 February 2013 as I found nothing in either the application for contravention orders or the affidavits filed in support of said application that indicated any evidence upon which the alleged contravention could be based (see generally my reasons at [2013] FamCA 38, [5]–[11]).
The Law
The sections of the Family Law Act 1975 (Cth) (“the Act”) concerning applications for contravention orders are contained at Division 13A of Part VII of the Act.
Subdivisions C to F of Division 13A of Part VII of the Act provide the orders available to the Court that can be made in instances where:
c)the contravention has been alleged but not established (Subdivision C);
d)the contravention is established but reasonable excuse for the contravention is found (Subdivision D);
e)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (Subdivisions E); and
f)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (Subdivision F).
Subdivision D of Division 13A of Part VII of the Act is applicable for the first alleged contravention as I found that the mother has succeeded in establishing a reasonable excuse on the balance of probabilities for this contravention (s 70NDA of the Act).
The orders available to me in Subdivision D are contained in s 70NDB and s 70NDC of the Act. These sections state:
SECTION 70NDB
Order compensating person for time lost
(1)If:
(a)the primary order is a parenting order in relation to a child; and
(b)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court:
(c)may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and
(d)must consider making that kind of order.
Note:If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).
(2)The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so.
SECTION 70NDC
Costs
(1)If the court does not make an order under section 70NDB in relation to the current contravention, the court may make an order that the person who brought the proceedings (the applicant ) pay some or all of the costs of another party, or other parties, to the proceedings.
(2)The court must consider making an order under subsection (1) if:
(a)the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and
(b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NEB or 70NFB in relation to the contravention.
Subdivision C of Division 13A of Part VII of the Act is applicable for the second alleged contravention as I did not find that the mother had committed a contravention of the primary order as described in the second alleged contravention (s 70NCA of the Act).
The only orders available to me in Subdivision C are contained in s 70NCB of the Act. S 70NCB of the Act states:
SECTION 70NCB
Costs
(1)The court may make an order that the person who brought the proceedings (the applicant ) pay some or all of the costs of another party, or other parties, to the proceedings.
(2)The court must consider making an order under subsection (1) if:
(a)the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and
(b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NDC, 70NEB or 70NFB in relation to the contravention.
I directed the parties’ attention to s 70NBA of the Act in the 3 April 2013 judgment (see [2013] FamCA 238 at [36]). The power to vary existing parenting orders pursuant to s 70NBA of the Act is enlivened with regards to both counts of alleged contravention in the matter at hand (s 70NBA(1)(b)(i)–ii) of the Act). Section 70NBA of the Act reads:
SECTION 70NBA
Variation of parenting order
(1)A court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b)there was no post-separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
Submissions of the parties
The father delivered his oral submissions at the 17 June 2013 hearing first. The father stated that he wanted the existing orders of Justice Strickland dated 15 July 2010 strictly enforced.
The only variation of the orders that he sought was that the mother should be required to pay for the first five therapy sessions in the future.
The father concluded by noting that he had not seen the child in six years and that he just wants the orders complied with so he can see his child.
The mother then delivered her oral submissions. She stated that she had taken all reasonable steps to comply with the orders of Justice Strickland dated 15 July 2010. She claimed that her “first and foremost consideration” was the best interests of the child.
The mother did not suggest any specific variations to the existing orders, but asked me to consider certain factual matters in making any changes.
The mother tendered a brief report from clinical psychologist Ms C dated 13 June 2013 (“the Ms C report”) with the consent of the father.
Ms C referred to the following sources in preparing the report:
a)the judgment of Justice Strickland dated 15 July 2010 (Document 43);
b)email correspondence between family consultant Dr A and the child’s former therapist Ms B;
c)a letter from Ms B to the father dated 22 May 2012;
d)screen for Child Anxiety Related Disorders, Child Version as administered by Dr D; and
e)discussion with Ms B.
Ms C states that she did not have access to the Family Report of Dr A when preparing her report.
Ms C has had three sessions with the child on 27 November 2012; 2 April 2013 and 7 May 2013. It would appear that the mother was present for all of these sessions.
Ms C states that the child is “very much at the beginning stages of therapy” and that Ms C is “not in any position to suggest any recommendations” at this stage.
Elsewhere, Ms C states that “there is a further appointment scheduled for after I return from leave 3/9/13” for the mother alone. Ms C also states that she has “not had the opportunity to address [the mother’s] concerns about the father having future contact” and that the mother “has agreed to seek her own Mental Health Care Plan so that she can have individual appointments with me.”
Ms C also states that she has “made no contact with the father but [she is] willing to do so and [she] would welcome his making an appointment” to allow that to occur.
With reference to the Ms C report, the mother suggested that the orders should remain the same but with Ms C as the therapist as opposed to Ms B, the previous therapist.
In reply, the father suggested that I should appoint an alternative therapist as Ms C will be unavailable until September 2013. He abandoned this contention after I noted that arranging a new therapist for the child would probably take a similar amount of time, and would also undo the positive relationship the child has apparently established with Ms C.
The father also sought permission to present Ms C with any documents from these Family Law proceedings that he feels are relevant to the health, safety or welfare of the child.
Consideration
The first alleged contravention
Subdivision D of Division 13A of Part VII of the Act is applicable to the first alleged contravention. This is because the mother successfully established a reasonable excuse for this admitted contravention on the balance of probabilities (s 70NDA).
Two types of orders are available in Subdivision D.
Section 70NDB of the Act allows me to make “a further parenting order” that “compensates” the father for time he did not spend with the child as a result of the contravention (s 70NDB(1)(c)).
The preconditions to the making of such an order, namely, that “the primary order is a parenting order in relation to a child” (s 70NDB(1)(a)) and “the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period)” (s 70NDB(1)(b)), are satisfied in this matter.
I did not receive any submissions on this section from either party. Regardless, I am required to consider making such an order (s 70NDB(1)(d)). However, I must not make such an order if an order of that nature would not be in the best interests of the child (s 70NDB(2)).
I am satisfied that any order for “compensatory time” between the child and the father would not be in the best interests of the child at this stage. The father noted at the 17 June 2013 hearing that he has not seen the child for six years. The more appropriate course of action is to vary the existing orders which provide for a gradual reintroduction to the father for the child with appropriate safeguards to ensure a meaningful relationship can develop.
The other order available to me in Subdivision D is an order for costs (s 70NDC). If, and only if, I do not make an order compensating the father for time he did not spend with the child pursuant to s 70NDB, I “may make an order” that the father “pay some or all of the costs” of the mother (s 70NDC(1)).
The preconditions in s 70NDC(2) that would require me to consider making such an order are not enlivened in this case as the father has not previously brought contravention proceedings that were also dismissed.
The mother did not seek an order for costs. Regardless, it does not seem that the mother would have any compensable costs for the purposes of s 70NDC of the Act. The mother has been unrepresented for the duration of these contravention orders proceedings. I decline to make an order that the father pay costs pursuant to s70NDC of the Act.
The remaining matter to be considered with regards to this contravention is whether I should vary any of the existing parenting orders pursuant to s 70NBA of the Act. I referred the parties to this section in the 16 April 2013 judgment (See [2013] FamCA 238 at [36]).
Variations of parenting orders made pursuant to s 70NBA of the Act are to be approached “no differently to any other application for parenting orders” (Warnick J in Sandler & Kerrington [2007] FamCA 479 (24 May 2007) at [48]). Such variations may not be “properly effected in a more summary way than, or upon an enquiry abbreviated more than, is appropriate to an application for variation outside of Division 13A” (Warnick J in Sandler & Kerrington (Supra) at [41]). This approach was later acknowledged and adopted by the Full Court of the Family Court of Australia (composed of Finn, Warnick and Boland JJ) in Irvin & Carr [2007] FamCA 492 (29 May 2007) at [68].
Consideration must be given to the “sufficiency of any change in circumstance” that justifies the alteration of existing parenting orders (Warnick J in Sandler & Kerrington (Supra) at [49]). In that case, Warnick J acknowledged that the act of contravening the orders themselves may provide the sufficient change in circumstance necessary to justify altering existing parenting orders.
The variations that I intend to make are, in the words of Coleman J, variations “of a minor nature not much more than tinkering” (Spencer & Verity [2012] FamCAFC 210 (14 December 2012) at [85]).
Both parties chose to use their opportunity to make submissions at the 17 June 2013 hearing to suggest potential variations to the existing orders. Neither party suggested any major changes to the existing orders of Justice Strickland as made on 15 July 2010. Both parties agreed that I should merely “update” the orders of Justice Strickland to reflect the passage of time between the making of those orders and the present date. Both parties also agreed that Ms C should conduct the therapy provided for in Justice Strickland’s orders.
I find that making such changes would be in the best interests of the child. These changes will allow the child and her father to develop a relationship that has been totally non-existent for the past six years.
The variations I have made will allow the child and the father to be gradually reintroduced to one another on the same terms as Justice Strickland determined was appropriate and in the best interests of the child after a final hearing on the matter. Nothing has occurred in the intervening time between the delivery of that judgment and the preparation of this judgment that suggests that the regime outlined by Justice Strickland would no longer be in the best interests of the child.
The views of the child are a relevant consideration in determining the child’s best interests (s 60CC(3)(a)). On this point, Ms C does note in her report that the child “has expressed a strong aversion to seeing her father again.” However, she then qualifies this statement by stating that Ms C “genuinely believes this to be her position” but that Ms C “understands that [the child] has strong loyalties to her mother and that [the child] has been exposed to at least some of the mother’s allegations about the father.”
I am satisfied that the regime of therapy provided for in the orders of Justice Strickland dated 15 July 2010 would allow the child to develop a less hostile view of her father that is in accord with the findings in the judgment of Justice Strickland that the father did not sexually abuse her.
The therapy will also allow the mother to come to terms with the fact that this Court has found that the father did not sexually abuse the child, and that accordingly, the child will be spending time with the father in the near future. I believe the mother’s acceptance of these realities is also in the best interests of the child.
I remind the mother that paragraph (16) of the orders of Justice Strickland dated 15 July 2010 restrain her from denigrating the father in the presence or hearing of the child or from permitting any other person to do the same.
The second alleged contravention
Subdivision C of Division 13A of Part VII of the Act is applicable to the second alleged contravention. This is because the father failed to establish on the balance of probabilities that the mother had contravened the orders of this court in the manner suggested in this count (s 70NCA).
The only order I can make pursuant to Subdivision C is an order for costs (s 70NCB). Namely, I “may make an order” that the father “pay some or all of the costs of the mother” (s 70NCB(1)).
The mother did not seek an order for costs. It does not seem that the mother would have any compensable costs for the purposes of s 70NCB. The mother has been unrepresented for the duration of these contravention orders proceedings. I decline to make any order that the father pay costs pursuant to s70NCB of the Act.
The power in s 70NBA of the Act to vary the existing orders is also available. Neither of the parties made any submissions asking me to change the orders that were the subject of this alleged contravention.
I find it unlikely that the order that forms the subject of this alleged contravention, paragraph (15) of the orders of Justice Strickland dated 15 July 2010, will be the subject of any further disagreement between the parties. Now that the father understands that the child’s school has been granted authority by the mother to release copies of the child’s school reports, the father will be in a position to liaise with the school and obtain that documentation himself.
I decline to exercise the power in s 70NBA of the Act to make any further variations of the parenting orders outside the changes referred to in response to the first alleged contravention.
Conclusion
For the reasons provided in this judgment, I make the variations to the orders of Justice Strickland dated 15 July 2010 that commence at page 2 of this judgment.
The parties are to appear before me again at 9:15am on 10 December 2013. That hearing will provide an opportunity for both parties to confirm their compliance with all orders and to raise any practical issues that may have arisen with the implementation of the changes I have made to the existing orders.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 June 2013.
Associate:
Date: 21 June 2013
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