Leopold & Leopold
[2022] FedCFamC1F 977
Federal Circuit and Family Court of Australia
(DIVISION 1)
Leopold & Leopold [2022] FedCFamC1F 977
File number(s): PAC 2869 of 2020 Judgment of: RIETHMULLER J Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – CHILDREN – Contravention – Enforcement of orders relating to children – Whether the mother had reasonable excuse for failing to make the children available for handover –– Where the eldest child commenced therapy for fear and anxiety with respect to spending time with the father – Whether anxiety of child sufficient to establish reasonable excuse where anxiety contributed to by mother – Operation of s 70NAE(5) of the Family Law Act 1975 (Cth) as deeming provision Legislation: Family Law Act 1975 (Cth) ss 70NAE, 70NDA Cases cited: TVT & TLM [2006] FMCAfam 20 Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 20 July 2022 & 11 August 2022 Place: Parramatta Counsel for the Applicant: Ms Ingenito Solicitor for the Applicant: Kirby Edwards Lawyers Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Frank Law ORDERS
PAC 2869 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LEOPOLD
Applicant
AND: MS LEOPOLD
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
9 DECEMBER 2022
THE COURT FINDS THAT:
A.The respondent mother contravened Order 7 of the orders made 18 August 2020 by not ensuring that the children X, born 2010, and Y, born 2015, spent time with the applicant father on:
(a) 17 October 2020;
(b) 24 October 2020;
(c) 31 October 2020;
(d) 7 November 2020;
(e) 14 November 2020;
(f) 21 November 2020;
(g) 28 November 2020;
(h) 5 December 2020;
(i) 12 December 2020;
(j) 19 December 2020; and
(k) 26 December 2020.
B.That the respondent had a reasonable excuse within the meaning of s 70NAE(5) of the Family Law Act 1975 (Cth) for the contraventions with respect to the child X born 2010.
THE COURT ORDERS THAT:
1.The applicant is granted leave to amend count two of his Contravention Application filed 9 August 2021 by replacing the words “the applicant” with the words “the children”.
2.The matter be adjourned to a date to be fixed with respect to the mother’s interim application contained within the Amended Initiating Application filed 28 October 2020.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leopold & Leopold has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction
Both the father and the mother were born in 1979. The parties commenced their relationship in 1998 and were married in 2004. The parties separated on a final basis on 4 February 2017, and are not yet divorced.
On 18 August 2020 Judge Myers made interim parenting orders (“the Orders”) for the parties’ two children (X, born 2010, and Y, born 2015). In substance, the parenting orders provided for the children to spend time with the father each Saturday from 10am to 4pm.
The mother failed to make the children available for handover in accordance with the Orders between October and December 2020. As a result, the father filed a Contravention Application on 9 August 2021 (“the Contravention Application”).
The substantive Family Law Act 1975 (Cth) proceedings between the parties with respect to both parenting and property, which were commenced on 15 June 2020, remain before the Court.
Contraventions alleged by the father
The father alleges the mother has contravened the Orders by failing to make the children available to spend time with him in accordance with Order 7, which provides that:
7.The children [X] born […] 2010 and [Y] born […] 2015 spend time with the Father each Saturday from 10 am to 4:00 pm. For the purposes of the handover, the Parties shall meet at McDonald’s Family Restaurant on the corner of [B Street] and [C Street], [Suburb D].
(Emphasis in original)
The father alleges 11 counts of contravention by the mother. The contraventions each arise from the failure of the mother to make the children available for weekend contact, as set out in Part D of the Contravention Application, and are said to have occurred on the following occasions:
(1)17 October 2020;
(2)24 October 2020;
(3)31 October 2020;
(4)7 November 2020;
(5)14 November 2020;
(6)21 November 2020;
(7)28 November 2020;
(8)5 December 2020;
(9)12 December 2020;
(10)19 December 2020; and
(11)26 December 2020.
The father’s statements as to the alleged contraventions within Part D read as follows:
Count 1 and 3: The Respondent without reasonable excuse refused to allow the children to spend time with father, the Applicant, [Mr Leopold]
Count 2: The respondent without reasonable excuse refused to allow the applicant [sic] to spend time with the father, [Mr Leopold]
Count 4-11: The respondent without reasonable excuse refused to allow the applicant to spend time with the children, [X] and [Y]
No issue was taken with respect to the obvious typographical error in count 2, and I will formally grant the father leave to amend this count to refer to the children.
It was not alleged that the mother made the children available on the relevant dates, nor that the dates were not the dates when contact was to take place under the Orders. I therefore find that the mother has not complied with the Orders as alleged in the application.
The real issue in the proceedings is whether the mother had a reasonable excuse for not complying with the Orders. The mother argues that she had a reasonable excuse for not complying with the Orders on the basis that it was “was necessary to protect the children’s mental health”: see Mother’s written submissions dated 29 August, paragraph 1(a).
Reasonable excuse
Section 70NAE of the Family Law Act 1975 (Cth) (“the Act”) sets out the circumstances under which a person may be taken to have had a “reasonable excuse for contravening an order”. Whilst there is no specific limit upon circumstances that may constitute a reasonable excuse in a given case, s 70NAE of the Act provides for a number of circumstances that are “taken” to be a reasonable excuse, including, relevantly in the current proceedings, s 70NAE(5) of the Act which provides that:
Meaning of reasonable excuse for contravening an order
…
(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).
When considering whether a reasonable excuse is established it is important to distinguish circumstances where a parent believes that contact as ordered is not in a child’s best interests from situations where it is necessary to protect the health or safety of a child. If this distinction is not made, any parent who disagreed with the orders of the Court would have a reasonable excuse for not complying with those orders.
It is also necessary that parents appropriately encourage children to comply with parenting orders, if they are to avoid contravening orders. As I set out in TVT & TLM [2006] FMCAfam 20 this obligation has been described in a variety of ways in different cases:
33.Whether steps taken are a ‘reasonable attempt to comply’ with a children’s contact order will ultimately depend upon the facts and circumstances of each case. However, it is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner. The way that the obligation has been expressed in different cases throws further light on the extent of the obligation:
a)The residence parent must actively encourage the chid to attend contact as ordered.
b)‘The courts have been careful to consider whether in reality, not just on the face of things, the [residence] person has taken reasonable steps to deliver the child for [contact]’: see O’Brien & O’Brien (1993) FLC 92-396 at [13].
c)‘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’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [25].
d)Similarly, a mere request that the child telephone, or come to the telephone is insufficient.
e)Once an order for contact has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O’Brien & O’Brien (1993) FLC 92-396 at [11].
f)A residence parent ought to make ‘the child understand that it was the [residence parent’s] attitude that the child had to go on [contact]’: see O’Brien & O’Brien (1993) FLC 92-396 at [8].
g)The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See P & P [2002] FMCAfam 315 (Unrep.) at [14].
h)It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.’ Such an invitation is insufficient: see Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [26].
i)‘[I]t 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’: see Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [6].
j)‘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 an end of the matter’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [6].
k)The residence parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [8].
…
40.Of course there may be cases where a child is so resistant and distressed that a refusal of contact will be excused: Fooks & Clark [2004] FamCA 212 is one example. However such cases are rare in the absence of precipitating conduct by the contact parent, or otherwise ‘changed circumstances’. The circumstances often (not always) demonstrate that the residence parent has not taken appropriate steps to ensure that the child attends on contact: an example of where these issues are considered is W & N [2003] FMCAfam 240.
In the mother’s Case Outline filed 20 July 2022, the mother asserts:
… The father has known at all times that the orders relied upon were no longer in the interests of the children and that the mother had reasonable excuse for not acting upon those orders.
The mother claims that from 16 October 2020, one day prior to the first contravention alleged by the father, the father was aware that the parties’ eldest child, X, was being treated by a therapist as a result of X’s anxiety and fear allegedly arising after his time with the father.
On 28 October 2020, the mother filed an Amended Initiating Application seeking that the Orders requiring the children to spend time with the father be suspended. That application is yet to be heard by the Court, although it will now be dealt with immediately following the determination of the father’s Contravention Application in these reasons.
The mother relies upon her concerns as to X’s mental health. She gave evidence of her observations of his behaviour around the times he spent time with the father in 2020, and the treating therapist, Ms E’s, initial diagnosis of X of Panic Disorder, General Anxiety Disorder and Post Traumatic Stress Disorder (“PTSD”) said to arise from fear of being abducted by the father, in support of her claim that the Orders were not “in the interests of the children”. The mother’s defence, framed in this way, misconceives the relevant test in s 70NAE(5) of the Act which does not refer to “the interests of a child” but whether it “was necessary to protect the health and safety of the child”.
The evidence
Both parents gave evidence and were cross-examined. The father presented as overly confident in the witness box. The mother presented as somewhat nervous and worried. Despite their different presentations in the witness box, I accept that they were both generally honest in their evidence, although note that each saw the events from their own perspective.
The mother called the counsellor, Ms E, who has been seeing X at the mother’s request. Ms E’s evidence was far from impressive. She often gave answers framed in a way that avoided a clear statement. She gave evidence denying that she had made any recommendations to the mother and saying that she does not give advice due to the “Code of Ethics”. However, her evidence appeared evasive, using many contemporary terms that have ambiguous meanings, for example saying that she did not give advice but gave “strategies”, that some aspects were out of her “scope”, and she preferred to describe the father’s objection to X seeing her as him simply being “not on board”, even though he was clearly opposed to her engagement.
Ms E was unclear as to whether she saw X on the first day or just the mother, despite her notes being available. She also said she was unaware of Court proceedings, although her notes indicate otherwise. She continued seeing X despite being aware of the father’s opposition, relying upon a supervision session where she said that her supervisor agreed to her continuing without the father’s consent. Whilst she said that she does not diagnose mental illnesses, she nonetheless made a number of diagnosis of serious mental health issues for a child of this age: including PTSD, general anxiety disorder, and panic disorder.
It does not appear that Ms E had any real insight into family counselling or the complex dynamics of such circumstances and the pressures they place upon children. She was unclear whether she discussed referring the family to a family therapist. Her approach seemed to have been simplistic therapy in the form of breathing and relaxation exercises for X, yet she had not explored or even identified the underlying sources of distress for him nor, in particular, any misguided thoughts or feelings X may be experiencing as a result of the parental conflict. In short, despite a lack of qualifications and experience she was quick to simply diagnose X with significant mental health issues rather than exploring whether X was simply reacting to the highly conflictual environment in which he is living.
The only part of her evidence on which I place any weight was her observations of X displaying physical signs of stress when attending her sessions (shaking or shivering and losing breath). Unfortunately, I have little confidence that her evidence of what she told the mother is a reliable account of the statements (and importantly the effect of what the mother would have reasonably understood from her) and prefer the mother’s account in this regard.
It appears that the Ms E’s involvement not only failed to prompt any changes by the adults to improve the circumstances of X, but by failing to identify and address the cause of his distress, may well have entrenched the difficulties.
The events surrounding the contraventions
Prior to the Orders being made in August 2020 by Judge Myers (for the children to spend six hours with the father each Saturday), the father had not spent time with the children since January 2020 (on the youngest child, Y’s, first day of school in 2020). Following the Orders, the father spent time with the children for six Saturdays, which he says were without incident, providing in his affidavits some photos of the children enjoying themselves when he took them to the beach.
On Saturday 10 October 2020, X was sent on contact (wearing warm clothes, long sleeves and long pants) despite it being a warm spring day. The children became sweaty when playing in the park, however X would not take off his jumper. The father noticed that there was a bulge around X’s wrist and one in his pants which appeared odd. X had mentioned that he received a new wrist watch the previous week but was reluctant to show the father. When the father saw the device it transpired that the watch was a GPS device and that there was also a GPS tracker pinned inside X’s trousers. Not surprisingly X was embarrassed when his father saw these devices and said that he was told not to take his clothes off and that he didn’t want to upset his mother. The father said he comforted X who then removed his jumper and went to play. Later they went to the beach and were returned without incident to the mother. The clothes (some wet from the beach) were in the boot of the car, and the father didn’t return them all, intending to wash them for the next week.
Whilst one may have expected that the mother would have been embarrassed to have embarked upon a plan to secretly track (or stalk) the children whilst with the father, she instead complained to the police that the father had stolen the devices. The father was contacted by the police concerning allegations by the mother that he had stolen the tracking devices that had been secreted on X. He returned the devices to the police.
On 17 October 2020, the following Saturday the father attended at the McDonalds changeover location. When the mother did not arrive he tried to call her mobile phone but she did not answer. He sent a text message and received no response. He waited for an hour. The father then checked his emails and noticed an email from the mother’s solicitors, enclosing a letter dated 16 October 2020, which provided, inter alia, that:
We are instructed that on Saturday 10 October 2020 you removed a watch and GPS device from [X]. We note that as a result of the incident [X] returned home to our client in tears.
We are further instructed that following our client reporting the theft to the police, on 11 October 2020 you returned to items to [Suburb F] Police Station. On our client’s arrival home it became apparent that both the watch and the GPS device had been tampered with and now can no longer be used.
We are instructed that on [X] discovering that the watch and GPS device could no longer be used be became extremely anxious and inconsolable. [X] has since informed our client that he does not feel safe with you and does not wish to see you this Saturday. This is such that [X] has made a report to the police.
We are instructed that our client is extremely concerned by your actions and the mental health of [X].
Please confirm that until [X] is in a therapeutic relationship with a counsellor, and you become involved in the same, you will not press for time with the children. We advise to this effect that our client has taken [X] to visit a counsellor this morning and will advise the outcome.
In the circumstances, our client does not consider that it is in the best of the children to spend time with you on an unsupervised basis. Accordingly, we hereby place you on notice that until such a time as a counsellor or psychologist considers that it is in the best interests of [X] to spend time with you, the time you spend with the children on Saturday will be suspended.
Our client verily considers that the events of the past weekend amount to a reasonable excuse for contravention of the Orders dated 18 August 2020.
The letter shows a remarkable disregard for the mother’s obligations pursuant to the Court orders, purporting to arrogate the power to determining the child’s best interests to an unknown psychologist. Thereafter the mother ceased sending the children to contact visits. The mother unilaterally arranged counselling sessions for X with Ms E.
Since this time the relationship between the children and the father has further deteriorated, as is identified in a recent Child Responsive Program Memorandum referred to in cross-examination of the father. For example, the youngest child now expressing the view that the father “is lying”. When asked what he is lying about, Y explained that “he took the money, he just lied, he has to apologise back to my Mum” (Child Responsive Program Memorandum dated 5 March 2021, paragraph 21).
The mothers evidence as to the events surrounding the contraventions
The mother alleges that the children stopped seeing the father in January 2020 as a result of an incident which occurred between the parents at changeover where the father had put both children into his vehicle and told the mother he would return them when he decided to, since there were no current parenting orders in place. The mother alleges this was not the first occasion where the father had made a threat of this nature to her. The mother removed the children from the father’s vehicle and took them into her own car. The mother says that when she tried to leave the carpark, the father blocked her vehicle from reversing by parking behind her. The police were called to the incident. The mother said that as a result of the incident in January 2020 X was very anxious and stressed.
It was put to the father in cross examination that he attended X’s school in May 2020 and asked X to go with him and X refused. The father said he could only recall attending in January 2020 (when Y started school). Whilst not put to the father, nor the subject of any records that might have been subpoenaed from the school, the mother gave evidence that “there had been a few instances where [the father] had attended the school and tried to remove [X] from school” (Transcript 11 August 2022, p.12 lines 24–25). As a result, the mother says that X developed concerns about being taken by the father, becoming highly anxious and stressed, and constantly worried. For example, the mother says that X would react if he saw a man of similar stature to the father and would insist that the mother and he return home immediately. The mother says that X would tell her that he is “scared of being taken away”, and that he would often not sleep properly, or be reluctant to leave the house without encouragement (Transcript 11 August 2022, p.12 line 33).
Although there has been considerable conflict in this family, Judge Myers made interim contact orders after hearing the parties on 18 August 2020. Whilst there was no evidence of the terms of the argument before Judge Myers, it was not suggested before me that the children were at any risk of physical harm with the father. The Orders would not have been made if Judge Myer’s had found that there was an unacceptable risk of the father abducting the children, yet the central issue in the contravention, which it was argued gave rise to X being too distressed to attend at contact, was said to be a fear that the father would abduct him.
The mother said that as a result of X’s ongoing anxiety about being “taken away”, X requested GPS tracking devices. The mother purchased a GPS device for X and X wore the device to his time with the father on 10 October 2020. The mother did not disclose to the father that she had purchased the GPS device for X nor advise the father of the issues and the strange steps she had taken. That the issue is so significant in the mind of X is difficult to understand as it is objectively irrational to think, in the context of this case (given X’s age and existing court orders), that there was any real prospect of the father abducting the children. Had he failed to return the children in accordance with the court orders the mother could easily have obtained a recovery order and the father would bear a heavy persuasive onus to avoid having his time with the children suspended.
The purchase of the GPS devices and participation in secreting them upon X’s person were wholly inappropriate responses by the mother. This did nothing to reassure X that abduction was not a realistic possibility, and that abduction could never succeed in any event. Worse, it was obvious the devices were likely to be discovered by the father and therefore cause much embarrassment to X and much distress to the father to find he was likely being secretly electronically monitored by the mother using the child for that purpose.
Unsurprisingly, the devices were discovered. The father’s response, on his case, appears to have been particularly child focused, despite the outrageous nature of the circumstances, in that he said he made no issue of the devices. The mother said, however that:
When [X] came home, he told me that – he said, ‘Mum, Dad has found the devices. He was really angry. He said it was an invasion of his privacy and that he was going to go to the police about you’. [X] said that – he said ‘he has taken them, and he has kept them and I’m afraid because that was my peace of mind. I’m really upset and I’m really genuinely scared’, and [X] was. He was crying. He was shaking and he was hyperventilating on the day when he told me [about the discovery of the GPS devices].
(Transcript 11 August 2022, p.13 lines 28–34)
Despite the distress the mother said X was suffering, the mother chose to escalate the difficulties by then taking X to the police to complain that the devices had been stolen. To have X attend and speak to the police about the issues cannot have been expected to lead to anything but a significant deterioration in his relationship with the father.
It was only during cross-examination that the mother reluctantly admitted that X accompanied her to the police station, although then claimed that X did not give a statement about the GPS devices, and did not speak to the police about spending time with his father. However, material from a subpoena answered by the New South Wales Police (a police report from the 10 October 2020 incident), recorded that X had “disclosed his dislike for having to go around to his fathers from time to time”.
The mother also recounted that when she told X the GPS devices were no longer working, he had a meltdown, breathing heavily, crying, and saying it “isn’t fair”, that he “felt safe” with the devices, and that the father is “trying to get to you [the mother]”, “I’m just collateral damage”, “he’s hurting me”, and “I don’t feel safe anymore” (Transcript 11 August 2022, p.14 lines 1-6). The mother said that later that evening, that X again said that he “didn’t feel safe”, and also that “he didn’t want to see his dad” (Transcript 11 August 2022, p.14 lines 13-14).
The mother recounted that following the incident, she sought advice from her solicitors and X saw the counsellor, Ms E, at this time. At the initial consultation with Ms E, the mother says Ms E told her that “it would be risky to [X’s] mental health and emotional wellbeing for him to spend time with his dad at this point” (Transcript 11 August 2022, p.15 lines 22-24).
The mother also said that the first weekend after she did not take the children to see the father (the weekend of 17-18 October 2022), she took the children to the local shopping centre, which is nearby their house. She said that at one point she heard X start screaming, saying “dad is here, run, run, run”, before both he and Y came running over to her. The mother says she could see the father pacing backward and forward nearby. When cross-examined about this incident, the father says he was “not aware the children were there”, and that he was “pacing on the phone talking to my friend” (Transcript 22 July 2022, p. 50 lines 30-31). The mother says this incident left X stressed and crying.
The mother also said that X has dreams and flashbacks about the January 2020 incident, and that the series of events (including the GPS devices incident) have lead X to feel significant anxiety and insecurity about seeing the father.
During her evidence, the mother did not provide any particular detail about the youngest child, Y’s, response to time with the father, other than the brief comment that she had been anxious in the lead up to the first visit with the father in August 2020. It does not appear that Y had any real difficulties with respect to contact.
Conclusions
This case must be seen in the context of the significant conflict between the parents with respect to their own relationship and the parenting of the children. For example, X’s comments that the father is “only doing this to get at [the mother]” and Y’s comments to the Family Consultant during her interviews for the Child Responsive Program Memorandum show that even the parental conflict over financial issues is significant and that the children have become aware of it and adopted the mother’s views. It was also apparent that the mother remained focused upon the January 2020 incident when arguably she was “gate-keeping” and the father threatening “self-help”.
There is no question that the mother did not provide the children for contact in accordance with the Orders. The basis for the mother’s claim to have a “reasonable excuse” relates, in effect, only to X. I am not persuaded that this is a basis for not sending Y on contact as ordered. I therefore find that the mother has contravened the Orders with respect to Y without reasonable excuse.
With respect to X, I accept that the course of events on the visit with the GPS devices, followed by the police involvement, and then the involvement of Ms E (for counselling), resulted in X becoming so distressed that sending him on contact with the father presented a real risk to his mental health.
However, there had been a number of visits before this event that went well (on the father’s evidence, including photos) or at worst these visits were accompanied by some anxiety by X on the mother’s case. There is no reason to expect that any concerns about the January 2020 incident (which did not result in the father even leaving with the children) would grow rather than fade with time and repeated positive experiences, unless those concerns were reinforced.
The conduct of the mother with respect to the GPS devices was not likely to have led to any outcome that was positive for the relationship between X and the father. In buying GPS tracking devices, surreptitiously placing them on X, and having X participate in this subterfuge, must have significantly undermined the father in X’s eyes, and closely aligned him to her in a secret conspiracy. X’s anxieties must have been fuelled. To attempt to explain the situation as her acquiescing to X is an abdication of parental responsibility and shifting responsibility for poor parental conduct onto a child. The mother’s conduct reinforced X’s irrational concerns, and set the scene for X to be ashamed and fearful when the father inevitably discovered the secreted GPS devices. I do not accept that an adult would not have foreseen this inevitable outcome. The result was dreadful for X, however the mother’s conduct in then taking X to the police further aggravated the effects of the incident.
I am persuaded that X’s distress following the GPS devices incident is a basis for not sending him on contact. However, the distress he now suffers is largely the result of a failure of the mother to appropriately encourage and reassure him with respect to contact with the father (following a number of visits without incident) and the mother’s wholly inappropriate conduct with respect to the GPS devices. Having regard to the course of events I am not persuaded that the mother was taking reasonable steps to facilitate contact. As a result, I am not persuaded that she has shown a “reasonable excuse” for contravening the orders with respect to X, at least on the ordinary reading of the phrase as it appears in s 70NDA(c) of the Act.
However, the term “reasonable excuse” is given an extended definition in s 70NAE of the Act. In this case, the effect of s 70NAE(5) of the Act is the central issue (the sub-section is set out at [11] above). It appears that X was so distressed by the course of events that s 70NAE(5) of the Act was satisfied, at least at the point in time of the failure to attend on contact. It appears counter-intuitive that the mother would be “taken” to have a “reasonable excuse” if the mother’s conduct was the substantial cause of the child’s distress, however the words of the provision are clear. As a result, I find that the mother is “taken” to have a “reasonable excuse” as a result of satisfying s 70NAE(5)(a) and s 70NAE(5)(b) of the Act, with respect to X.
Whilst some submissions were made with respect to what was described as “penalty”, this presents three difficulties. Firstly, the primary purpose of the provisions is to encourage compliance and not to penalise; secondly, these reasons for judgment are necessary information for the parties when framing their submissions on consequential orders; and thirdly, it remains possible that there are matters which were inadmissible on the hearing which may be relevant on the question of consequential orders. I will therefore list the matter for submissions with respect to consequential orders and for determination of the interim parenting application.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 9 December 2022
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