Lavan-Thornett and Small

[2009] FamCA 248

FAMILY COURT OF AUSTRALIA

LAVAN-THORNETT & SMALL [2009] FamCA 248

FAMILY LAW – ORDERS - CONTRAVENTION – application alleging the father contravened orders for the two older children to spend time with the mother – long history of  proceedings – where the orders the subject of the contravention application were made in 2001 – where the children are now aged 16 and 13 – where the children have expressed that they do not want to spend time with the mother as provided in the orders – whether the father had a reasonable excuse – where the father has made reasonable attempts to encourage the children to spend time with the mother – reasonable excuse established – parties to be heard as to any final orders to be made under ss 70NDM and 70NDC

Family Law Act 1975 (Cth) ss 65N, 70NAA, 70NAC, 70NAD, 70NAE, 70NAF, 70NDA, 70NDB, 70NDC & 70NEB

Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Dobbs & Brayson (2007) FLC 93-345
Gaunt and Gaunt (1978) FLC 90-468
Stevenson v Hughes (1993) FLC 92-363

APPLICANT: Ms Lavan-Thornett

RESPONDENT: Mr Small

INDEPENDENT CHILDREN’S LAWYER: Ashley Malcolm Kent

FILE NUMBER: ADC 92 of 2007

DATE DELIVERED: 6 April 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Lindsay

SOLICITOR FOR THE APPLICANT: North East Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. Sub-division D of Part 13A applies if, in accordance with section 70NDA, the Court is satisfied that a person has committed a contravention of the primary order and the respondent proves that he has reasonable excuse for the current contravention. The Court therefore may make orders under sections 70NDB and 70NDC.

2. Before dismissing the application for contravention it will therefore be necessary to hear the parties as to what final orders, if any, should be made.

3. This matter is adjourned for submissions as to any orders to be made other than dismiss the contravention to 9.15 am on the 14 April 2009 before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment under the pseudonym Lavan-Thornett & Small is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 92  of 2007

MS LAVAN-THORNETT

Applicant

And

MR SMALL

Respondent

REASONS FOR JUDGMENT

introduction  

1. On the 4 March 2008 the mother Ms Lavan-Thornett filed an application in relation to an alleged contravention by the father, Mr Small.  The contravention concerned orders made in 2001 which provided that the father give, and the mother have, contact with the children B born in December 1992, J born in June 1995 and H born in February 1998.

2. The contravention proceedings related only to the children B and J.

Trial

1. The proceedings were commenced in the Federal Magistrates Court in March 2008.  They came on before a Federal Magistrate several times for directions.  On the 4 August 2008 the Federal Magistrate listed the contravention for final hearing on the 16 September 2008.

2. In September 2008 the Federal Magistrate transferred the proceedings to the Family Court of Australia.

3. In November 2008 the contravention was listed for final hearing before me on the 17 February 2009.

4. At the final hearing on the 17 February 2009 the mother was represented by Mrs Lindsay of counsel.  The father was unrepresented.

5. I heard the evidence of both parties and submissions of Mrs Lindsay and the father.  I reserved my decision on the 17 February 2009.

6. Counsel for the Independent Children’s Lawyer did not seek to be heard on the contravention application.

Contraventions

1. The application filed on the 4 March 2008 in the Federal Magistrates Court was filed by the mother when she was unrepresented.  It has some defects.  Nowhere in the actual contravention does the mother indicate which order of the Court has been contravened.  The affidavit filed at the same time has annexed to it the order of the Honourable Justice Strickland made on the 7 March 2001, which at the hearing before me the parties agreed was the order which the mother alleged had been contravened.

2. The mother completed paragraph 7 in Part D alleging that there were contraventions on the 2 and 9 November 2007 at 5.00 pm.  In the section headed “Statement of the alleged contravention” on that page the mother has written “The respondent without reasonable excuse refused to allow the applicant to spend time with [B]”.  There is then attached a hand-written page which recites dates, times and places.

3. At the hearing before me the mother withdrew the contravention so far as it related to the 19 and 26 February 2008. The remainder related to contraventions concerning the child B on the 23 and 30 November 2007, on the 9 January 2008 and the 15 February 2008.

4. These contraventions were described as “The respondent without reasonable excuse refushed (sic) to allow the applicant to spend time or have contact with [B]”.

5. There are then two further occasions being the 15 February 2008 and 23 February 2008 which relate to the child J in which the mother alleges “The respondent without reasonable excuse refushed (sic) to allow the applicant to spend time or have contact with [J]”.

6. In paragraph 8 of Part D (which deals with the paragraphs of the attached order which is alleged to have been contravened) the mother has written, “5.1, 5.3, 6, 11”.

7. In section 9 there are no particulars provided.  Rather the mother refers to “see attached”.  There is no document attached but it is assumed that the mother is referring to the affidavit which was filed at the same time.

8. Much of the affidavit material of the mother refers to matters of history.  Much of the material is of its nature hearsay.  The father did not agree with the facts and conclusions in the annexures to the affidavit from the school and a psychologist.  They were not called to give evidence.

9. The father admitted that B did not spend time with the mother on the 2, 9, 23 or 30 November 2007 nor on the 9 January and 15 February 2008.  He said however that he had a reasonable excuse.

10. The father also admitted that J did not spend time with the mother on the 15 or 23 February 2008, but said that he had reasonable excuse.

11. At the hearing before me it was conceded that the allegations concerning contravention related to paragraph 5.1 of the order of Justice Strickland of the 7 March 2001 save and except that the contravention alleged on the 9 January 2008 related to paragraph 5.3 of the order.

Background

1. The first proceedings between the parties commenced in 1999.  The order of Justice Strickland of the 7 March 2001 was made when the father was represented by counsel and counsel appeared for the Child Representative.  That order provided that the parties have joint responsibility for the long term care, welfare and development of the three infant children, that from the 7 March 2001 the children reside with the father and that he “have sole responsibility for their day to day care, welfare and development”.  The father was ordered to give the mother contact with the children as follows:

   “…

   5.1from 5pm on the Friday until 5pm on the Sunday on the first two consecutive weekends out of every three weekends commencing on Friday the 23^rd March 2001;

   5.2with the child [H] from 9am to 5pm on the Wednesday of each week until he commences kindergarten, commencing on Wednesday the 28^th March 2001;

   5.3for one half of all school holiday periods;

   5.4from 12noon on the 24^th December 2001 to 2.30pm on the 25^th December 2001 and during the same times in each alternate years;

   5.5from 2.30 pm on the 25^th December 2002 to 12noon on the 26^th December 2002 and between the same times in each alternate year;

   5.6for such period of time on the children’s birthdays and on Mother’s day each year as may be agreed between the parties.

   6.That the wife have telephone contact with the children at 6pm on the Tuesday of each week.

   7.That for the purposes of each period of contact the handover take place at the husband’s residence from time to time, or at such other place as may be agreed.

   8.That the contact provided for in paragraphs 5.1, 5.2 and 6 hereof be suspended during each school holiday period.

   9.That the contact provided for in paragraphs 5.1 and 5.2 hereof be suspended for such period of time as may be agreed between the parties if such contact falls on one of the children’s birthdays or on Father’s Day.

   Other Orders made were:

   10.That as soon as practicable the wife undergo indepth insight oriented psychotherapy with a female psychiatrist as recommended by Dr [L] in his evidence given in these proceedings.

   11.That the parties utilise a communication book to be passed between them at contact handover.

   12.That the wife be restrained and an injunction be granted restraining her from taking the children or any of them to consult with any medical practitioner, specialist, or counsellor in respect of any allegation of child sexual abuse.

   13.That the wife be restrained and an injunction be granted restraining her from discussing allegations of sexual abuse and any of the issues that have arisen in these proceedings with the children or any of them.

   14.That the wife have liberty to attend the children’s sporting activities, and that she take the children to their sporting and other commitments during her contact periods.

   15.That the wife have liberty to attend at school and kindergarten functions and meetings ordinarily attended by parents.

   16.That the wife receive copies of school reports as they become available.

   17.That forthwith each party inform the other of any medical emergency arising in relation to any of the children.

   18.That each party keep the other informed of the names of the children’s medical practitioners.

   19.That subject to the delivery up of the children in accordance with my orders made this day that the order appointing a child representative made herein on the 25^th February 1999 be discharged.”

2. Following the orders made by Justice Strickland in March 2001 the mother made an unsuccessful appeal to the Full Court.  Subsequently, since the judgment of Justice Strickland in March 2001 there have been further proceedings in the Family Court of Australia and the Federal Magistrates Court.  Since March 2001, there have been in excess of 60 further documents filed in either the Family Court of Australia or the Federal Magistrates Court in relation to the children.

3. Amongst the orders made in subsequent proceedings was an order made by me on the 10 June 2005 which dismissed the mother’s application filed in April 2005 and further ordered:

   “2.That UNTIL FURTHER ORDER the wife [Ms Lavan-Thornett] must not without leave of a court having jurisdiction under the Family Law Act institute proceedings, not including proceedings for contravention, under the Act for residence, contact or other parenting orders in relation to the three children of the relationship [B] born on the […] December 1992, [J] born on the […] June 1995 and [H] born on the […] February 1998.”

4. There have been previous contravention proceedings in the Federal Magistrates Court and the Family Court of Australia.  The father informed the Court that an order had been made in the Federal Magistrates Court in relation to one occasion in the past when it was found that he had contravened the order of Justice Strickland of the 7 March 2001.

5. On the 13 December 2005, Federal Magistrate Mead dealt with the Contravention Application brought by the mother.  She dismissed all of the counts except one, directing the parties to attend a post-separation programme and ordering “pursuant to section s.70NG(1) (b) of the said Act, the father give and the mother take contact with the child [B] from 5pm on17 February 2006 to 5pm on 19 February 2006.”

6. The mother again commenced contravention proceedings in January 2007.  Further orders were made by Federal Magistrate Mead in February 2007 which noted that the mother did not attend at the recommended post-separation parenting course in 2006 following the orders made by the Court. 

7. On the 25 January 2007 the father filed contravention and contempt proceedings.

8. Further contravention proceedings were filed in the Federal Magistrates Court in July 2007 by the mother.

9. Two further Applications for Contraventions were filed by the mother in October 2007.

10. On the 11 September 2007, Federal Magistrate Mead transferred the proceedings to the Family Court of Australia.  When the matter came on before Judicial Registrar Forbes on the 1 November 2007 the mother appeared in person, the father and the Independent Children’s Lawyer were represented by counsel.  A consent order provided, amongst other orders, that the mother withdrew her Contravention applications filed on the 8 January 2007, 27 July 2007, 22 October 2007 and 30 October 2007.  The father withdrew his application for contravention filed on the 25 January 2007 and the Contempt application filed on the 25 January 2007.

11. Other applications were also dismissed and removed from the pending cases list.  By consent the order provided that the parties attend the Family Relationships Centre with a view to resolving the disputes concerning the children.

12. Notwithstanding attempts at mediation and conciliation the relationship between the mother and father continues to be one of conflict and disagreement.

13. On the 4 March 2008 the mother filed the Contravention proceedings which are the subject of this judgment.

14. The mother filed proceedings by way of application for final orders on the 12 September 2008 following a hearing before Federal Magistrate Mead.  For reasons which I gave on the 17 February 2009 I dismissed that final application as the mother had not obtained leave to file it.

15. At the hearing before me there were discussions about the possibility of the father bringing proceedings to vary the orders concerning the children to provide that they spend time with the mother at times as previously ordered, but that this take place only in accordance with each of the children’s wishes.

Law

1. Division 13A of Part VII of the Family Law Act is entitled “Consequences of failure to comply with orders, and other obligations, that affect children”. Section 70NAA is headed “Simplified Outline of Division” and states:

   (1)This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.

   (2)The court always has the power to vary the order under Subdivision B. In doing so, the court will have regard to any parenting plan that has been entered into since the order was made (see section 70NBB).

   (3)The other orders that the court can make depend on whether:

   (a)a contravention is alleged to have occurred but is not established (Subdivision C); or

   (b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or

   (c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).

2. Section 70NAC “Meaning of Contravened an Order” provides:

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)     where the person is bound by the order--he or she has:

   (i)     intentionally failed to comply with the order; or

   (ii)     made no reasonable attempt to comply with the order; 

   …

3. Paragraph 70NAD (b) provides:

   For the purposes of this Division:

   …

   (b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order;

4. Section 65N provides:

   General obligations created by parenting order that deals with whom a child spends time with

   (1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

   (2)     A person must not:

   (a)hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b)interfere with a person and the child benefiting from spending time with each other under the order.

5. Section 70NAE “Meaning of Reasonable Excuse for Contravening an Order” states:

   (1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   (2)A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

   …

   …

   (5)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

6. Section 70NAF sets out the standard of proof. The section in itself is difficult to apply in that it requires the Court to apply a different standard of proof depending upon the type of penalty that might be considered if the contravention is found to have been proved.

   (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

   (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)     The court may only make an order under:

   (a)     paragraph 70NFB(2)(a), (d) or (e); or

   (b)     paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

7. Various sub-divisions of the Division set out powers of the Court that can be exercised depending on the findings of the Court.

8. Mrs Lindsay of counsel informed the Court at the commencement of hearing that the mother was seeking to have the matter dealt with as a less serious contravention, which if the father failed to prove reasonable excuse, would mean the matter is dealt with under Sub-division E.

9. The father conceded that there had been a finding that he had previously contravened the primary order.

10. If the Court therefore were to find that the father did not have a reasonable excuse for the current contravention then the provisions of section 70NEB(3) would apply.  It is necessary however to determine whether the contravention has occurred without reasonable excuse.

1. The Full Court in Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 at paragraphs 47 and 48 state:

   “47.The matter is further confused by the provisions of s 70NAF which provide that the standard of proof in proceedings under the relevant division is proof on the balance of probabilities but then goes on to provide that an order can only be made for community service, a fine or imprisonment if the Court is satisfied beyond reasonable doubt that the grounds for making the order exist. 

   48.The section is both confusing and ambiguous and raises issues of interpretation which will exercise this court on another occasion. However in this matter these considerations are not relevant because for whatever reason the trial judge indicated from the beginning of his judgment that his findings and determinations were made beyond reasonable doubt”.

2. In the Full Court matter of Dobbs & Brayson (2007) FLC 93-345 it was stated:

   “32.Although we discussed the meaning of s 70NAF (standard of proof) with the legal representatives during the hearing of the appeal, because, as will be later seen, it is unnecessary in arguing or deciding the instant appeal to choose between the possibilities next addressed, that discussion was abbreviated.

   33.Nonetheless, the question of the meaning and effect of the provision being before us, we think we should deal with it, at least in so far as it had necessary application to the instant case.

   34.In Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 the Full Court said of s 70NAF:

   47.The matter is further confused by the provisions of s 70NAF which provides that the standard of proof in proceedings under the relevant division is proof on the balance of probabilities but then goes on to provide that an order can only be made for community service, a fine or imprisonment if the Court is satisfied beyond reasonable doubt that the grounds for making the order exist. 

   48.The section is both confusing and ambiguous and raises issues of interpretation which will exercise this court on another occasion.…

   35.We certainly agree that at the least, the section attracts close scrutiny.  This is because, while read in the abstract its terms may seem plain enough, its application may be at least surprising.

   36.On one interpretation, s 70NAF has potential to require an unusual process; an application might commence and proceed on one standard of proof, but ultimately be determined according to another. The standard will be the balance of probabilities, unless the court decides to make one of the orders referred to in subsection 70NAF(3) (as seen, a community service order, a fine, imprisonment or a fine upon breach of a community service order or bond). However, a court may not reach a conclusion about the order to be made until after addresses, or even after a decision has been reserved.

   37.The intellectual exercise for the judge of retrospectively reviewing the evidence upon a “new” standard of proof, may often be, at the least, difficult. For the moment, we leave aside any problems arising from that.  A more palpable difficulty is that the integrity of proceedings may suffer if a case conducted on the civil standard (balance of probabilities) is decided upon the criminal standard.

   38.True it is that, if a prospect of injustice becomes apparent once the need to be satisfied beyond reasonable doubt is identified, a further opportunity to address might be readily enough granted, but the prospect of re-opening the evidence is more daunting.

   39.Against these concerns might be the argument that litigants commence relevant proceedings knowing that the standard of proof initially applied is “the balance of probabilities” and that either that standard or that of “beyond reasonable doubt” will ultimately apply.  Therefore parties ought conduct their cases accordingly and cannot complain if they do not.

   40.But even if that is a sufficient response, the “oddity” of the process, rather than obvious ambiguity in the subsection, tends to make one examine the section to see if other interpretations are open.

   41.The “oddity” to which we have referred only arises if the term in s 70NAF(3), “… the grounds for making the order”, refers to all the elements of a contravention which must be established by the applicant before an order of the type referred to can be made.  This “oddity” of process would be diminished if “the grounds for making the order” referred, not to the proof of a contravention itself but only to those further matters which, after a contravention is proved, must be established before an order of the type referred to in s 70NAF(3) is made.

   42.This is not to say that on this alternative interpretation no concerns would remain, for example the imposition of a punitive sentence for a wrong established only according to the civil standard.  Nonetheless, because its impact is less extensive and thus less surprising, we next examine this alternative interpretation.”

Father’s Evidence

1. The father conceded that B did not spend time with the mother (or have contact with the mother) on the weekends of the 2, 9, 23, 30 November 2007 and 15 February 2008.  He also conceded that B did not spend time with the mother for half the school holidays commencing on the 9 January 2008.  The father also conceded that J did not spend time with the mother on the weekends of the 15 and the 23 February 2008.

2. The father’s evidence was that B has informed the mother that she does not want to attend on overnight contact or spend any sleepovers at her home.  His evidence was that B has attended at the mother’s home during the daytime or in the evening returning home at night before bedtime.  The father’s evidence was that B had explained to her mother her wishes several times on the telephone.  The father’s evidence was that B had told him that it is not that she does not want to see her mother, but that she wants to see her in accordance with her own wishes. 

3. The father has indicated to B that she should go to see the mother but he is “unable to, and will not, physically force her” to spend time with her mother.

4. B has spent some time with her mother on special occasions such as Christmas Day and birthdays. 

5. The father said in sworn evidence that the children were “sick of being interrogated, that the mother disturbs them and makes it uncomfortable for them”. 

6. Since early 2008 J has also explained to his mother on the telephone that he will not be attending the weekend contact.  He is also refusing to attend.  J also attends special occasions such as Christmas, birthdays and Easter.

7. The father’s evidence was that within an hour of the children not attending to spend time with the mother the police attended at the father’s home with the mother.  His evidence was that on the occasions that B did not attend, she would refuse to speak to the mother, but would speak to the police telling them why she did not want to spend time with the mother.  Similarly, when J refused to attend upon contact he also told the police (when they arrived at the father’s home) why he did not want to spend time with his mother. 

8. The father’s evidence was that he would always tell the children that they should go to see their mother but he listened to their complaints and understood why they did not want to go.

9. The father’s evidence was that on seven occasions the police had attended at his home and spoken to the children.

10. During cross-examination Mrs Lindsay asked the father whether he was concerned for the safety of the children in the care of the mother.  His reply was that “I am always concerned”.  He admitted however that he let H go and that H is currently attending to spend time with the mother in accordance with the orders.

11. When asked whether he was aware that he could bring an application to discharge the orders he said that he had done that once.  The Federal Magistrate had directed that they attend mediation.  The mediation was not successful.

12. When shown a letter from the police (Exhibit 1) the father did not agree that it set out all of the dates upon which the police had attended at his home following B’s or J’s refusal to attend to spend time with the mother.  He said there were more.

13. The mother produced Exhibit 1.  It is a letter addressed to her and headed “Re: Freedom of Information Act Application” from the South Australian Police.  The letter is dated the 23 July 2008, but refers to

    “…copies of all Stand by Breach of Peace which I had to ring to obtain contact to my children [N Street, W], 40 [F Street, L], [H Primary Schol] and [H Street, G] since 2001 until November 2008.  [Father] […]/01/1959.  I need this as evidence for Family Court as the Magistrate is requesting substantial evidence for orders to be changed.”

    (My underlining).

14. This appears to be the information which has apparently been taken from the mother’s application made pursuant to the Freedom of Information Act. All of the incidents referred to in the police letter related to H Street, G, and all relate to “Patrol attended for Standby Breach of Peace”.  There is one for the 13^th February 2004, 5^th August 2005, 25^th January 2006, 6^th July 2007, 6^th October 2007 and 15^th February 2008.

15. The letter also says:

    “After extraneous research, it is determined to advise that South Australia Police (SAPOL) has been unable to locate a record of patrol attendance at the addresses of [N Street, W], F Street, L] and [H Primary School].”

16. I am not able to understand the use of the word “extraneous” in relation to a Freedom of Information request.

17. The father did not accept that these were the only occasions that the police attended with the mother at his home, following upon the children’s failure to attend to spend time with the mother.  The specific reference to “Standby Breach of Peace” in the letter suggests that this does not purport to provide the Court with information about all attendances for whatever purpose or whatever nature at the premises at H Street, G.

18. During cross-examination the father did not accept the conclusions or findings of the psychologist, Ms S, which were put to him by the mother’s counsel. 

19. During cross-examination the father again confirmed that he tells the children that they should see their mother.  He also said that they want to see her and still do see her from time to time. 

20. When asked in cross-examination whether he tells the children they must go to their mother he said “yes” he “had said that”. 

21. He conceded in cross-examination that there were occasions (referred to as contraventions) when B had not been in the car when J and H had been taken to spend time with their mother and that there were also occasions that J had not been in the car at the time of handover in accordance with the Court orders.

22. The father was direct in his evidence.  He was straight-forward when cross-examined.  I accept his evidence that he has told both B and J that they should spend time with the mother as ordered.

Mother’s Evidence

1. The mother gave evidence that there had been “lots of conversations”.  She referred to one long telephone call when she said that the father had told her that he believed that B did not want to come to spend time with the mother and that they had argued about that.  She gave evidence that she did not accept that B did not want to spend time with her.  Nor does she accept that J does not want to spend time with her.

2. The mother described B as the “meat in the sandwich” between the two parents.  She referred to the father arranging activities for the children such as sporting activities and go-kart activities which they preferred to attend.

3. The mother did not accept that the father encouraged the children to attend on contact and said “no the opposite, does everything to undermine me”. 

4. During cross-examination the mother conceded that she had arranged for the police to attend at the father’s home after handovers had taken place but B or J had not attended.  When asked why she had arranged for the police to attend at the father’s home, she said that it was to have them to be “on standby for a breach of the peace” to come to his residence to negotiate with the children.  She did not concede that there were more occasions than indicated in the letter from the police(Exhibit 1).

5. The mother said that the police at first made her wait whilst they went to the door and then they would invite her over to the front door.  When asked whether on these occasions the police had told her what the children had said to them she said that they had not and all that they had told her was that she “needed to go back to Court”. 

6. During cross-examination the mother said that she thought the reason that B and J did not want to go was because the father had made them choose between them and that he had undermined her relationship with B.  She again used the description of B being the “meat in the sandwich”.  She also stated that the father had coached the children what to say and what to do.

7. Towards the end of the cross-examination the mother indicated that B blames her for taking the father to Court.

8. The mother’s evidence focussed upon her view that the father was to blame.  She did not concede that the children B and J had expressed a genuine wish not to continue with the two out of three weekends and half the school holiday arrangements.

Evidence and Findings on Reasonable Excuse

1. When assessing whether the father had reasonable excuse it is appropriate to take into account the authorities to which Mrs Lindsay of Counsel referred. 

2. She is correct to emphasise that the Court acts in accordance with the principles in the Full Court decision of Gaunt and Gaunt (1978) FLC 90-468. The headnote summarises the findings as follows:

   “The question of the child's welfare is the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make a dependent decision on that issue and to rely on that decision to escape from compliance with the Court's order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.”

3. The Full Court authority of Stevenson v Hughes (1993) FLC 92-363 also emphasises that an order for access (as it was then described) imposed certain obligations. Again, the headnote summarises the findings of the Full Court as follows:

   “In every access order there is an ''implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have a meaning in a context and effect. It is not a sufficient discharge of a custodian's obligations ... to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go' and thereafter to figuratively fold their arms as if that were the end of the matter. Theirs is an active role with an obligation to positively encourage access.”   (See paragraph 7 of the Headnote).

4. The Full Court in the matter of Elspeth & Peter; Mark & Peter; and John & Peter (Supra) said at paragraphs 23 et seq:

   “23.There was no dispute surrounding the agreed facts that the children did not spend time with their father on 14 January 2007 as a result of their expressing a persistent and unwavering view that they did not want to go.  What ultimately was in issue in the proceedings was whether the mother could rely upon the children’s reluctance or unwillingness to go with their father as constituting a reasonable excuse for her failure to ensure that they spent the time with their father that the Court had ordered. 

   24.The statutory obligations have already been set out. It was implicit in counsels’ submissions that in addition to the statutory obligations the matters expressed by the Full Court in Stevenson and Hughes (1993) FLC 92-363; (1993) 16 Fam LR 443 appropriately defined the mother’s obligations. There the Full Court examined an obligation on a parent to take reasonable steps to ensure that an order made for a child to spend time with the other parent is effective. Nygh J said at 79,814; 447 citing a passage from Stavros and Stavros (1984) FLC 91-562; (1984) 9 Fam LR 1025:

   … there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.

   Fogarty J said at 79,815; 450:

   Section 112AB(1) provides in effect that where a person is bound by an order such as an access order, a breach may occur where that person makes no reasonable attempt to comply with the order. That is a statutory statement of the obligation but thought that her Honour explained aspects of that in several passages of her judgment which I think should be reproduced. At p 8 of the appeal book her Honour said this: “There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs”.

   Then at pp 11 to 12 of the appeal book there is the following passage which, although lengthy, is worthy of being repeated and it is as follows:

   “I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian’s obligations, express or implied, to point to words and actions and to say, in effect: ‘You see I tried. But the child does not want to go,’ and thereafter to figuratively fold their arms as if that were end [sic] of the matter.

   Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.”

   …

   It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are [sic] to be thwarted wherever possible either by active steps or by passive resistance. That matter was emphasised as early as 1984 in In the Marriage of Stavros (1984) 9 Fam LR 1025; [1984] FLC 91-562, but I am afraid that the contrary attitude still appears to permeate the jurisdiction and the sooner that that misunderstanding is removed the better for everybody.

   25.It was not urged upon us that the sentiments expressed in Stevenson and Hughes (supra) no longer apply to orders made under the Family Law Act 1975 (Cth) (“the Act”) as it presently stands. The obligation to ensure compliance with a parenting order carries with it more than merely an obligation to remain passive. It requires a positive application of parental authority. A parent cannot be said to deny a child medical or dental treatment or an education merely on the basis that such denial complies with a child’s expressed wishes. A parent has an obligation to ensure, so far as possible, compliance with the orders of the Court where those orders reflect the Court’s determination of what is in the best interests of the child.

   26.    …

   27.The sole issue to be determined in the contravention application vis a vis the mother was whether she was in breach of the orders by simply relying upon or complying with the children’s stated wishes and not actively encouraging the children to go with their father on 14 January 2007.  …”

1. It is particularly relevant in this case to consider the legislation and the authorities in the context of the facts as they present themselves for these children.  The litigation in relation to these children commenced in the Family Court in 1999.  For a considerable part of the time since then there has been litigation in this Court. 

2. At the time the orders were made in 2001, B was eight years old.  She is now 16.  In March 2001 J was five years old.  He is now 13.  (I take into account that the contraventions were alleged to have taken place in late 2007, early 2008 when the children were approximately one year younger).

3. The evidence also indicates that the children are clearly aware (from the attendance of the police at their home sent by the mother) of the ongoing obligation of the father to comply with the orders of the Court providing that they spend time with the mother. 

4. The mother did not accept the evidence of the father that B and J had expressed a genuine wish not to continue with the arrangements made for contact in accordance with the 2001 order.  However I accept the evidence of the father that he has attempted to comply with the Court Order.  Whilst the children B and J have not been delivered up to the place of handover on the relevant occasions, I am satisfied that the father made reasonable attempts to encourage both B and J to attend to spend time with their mother but that they were not willing to do so.

5. The evidence before the Court does not establish that the reasonable excuse is made out in terms of paragraph section 70NAE (5). (I am not satisfied that the father has established that he believed on reasonable grounds that not allowing B and J to spend time with the mother was necessary to protect their health or safety). Section 70NAE (1) clearly indicates however that the circumstances are not limited to those set out in sub-sections following section 70NAE (1).

6. The evidence of the father establishes on the balance of probabilities that the father has taken reasonable steps to do what he could to ensure that the children spend time with the mother in accordance with the Court orders.  I am satisfied that the history of this matter, and the context in which the alleged contraventions occurred, do not place this matter in the category of those cases in which the custodial parent has done nothing to encourage the children to attend to spend time with the other parent.  I am satisfied that the father has established in the unusual circumstances of this long running case that he has the reasonable excuse based upon the children’s refusal to attend.

Summary and Conclusions

1. The father admitted that the children did not attend to spend time with the mother on the dates referred to in the contravention application.  I am satisfied that the father has established on the balance of probabilities that he had reasonable excuse for failing to provide both B and J on the dates referred to in the contravention application.

2. I therefore find that for each of the contraventions alleged by the mother the father had reasonable excuse for contravening the order of Justice Strickland of the 7 March 2001.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  6 April 2009