Lewis & Mitchell
[2022] FedCFamC2F 771
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lewis & Mitchell [2022] FedCFamC2F 771
File number(s): HBC 1025 of 2021
HBC 1055 of 2021Judgment of: JUDGE TAGLIERI Date of judgment: 16 June 2022 Catchwords: FAMILY LAW – contravention – parenting orders – admissions on grounds of reasonable excuse – whether reasonable excuse – two counts of contravention found to be without reasonable excuse – six months bond to be on good behaviour entered in to Legislation: Family Law Act 1975 Division 13A, ss 70NAE, 70NAF Cases cited: Childers & Leslie [2008] FamCAFC 5
Fooks & Clarke [2004] FamCA 212
Hatch & Vining [2019] FCCA 1705
Malberd & Malberd & Anor (No 2) [2010] FamCA 586
O'Brien & O’Brien (1993) FLC ¶92-396
P & P [2002] FMCAfam 315
Stevenson v Hughes (1993) FLC ¶92-363
TVT & TLM [2006] FMCAfam 20
Division: Division 2 Family Law Number of paragraphs: 64 Date of hearing: 18 May 2022 Place: Hobart Counsel for the Applicant: Ms Mooney of Senior Counsel Solicitor for the Applicant: Bishops Barristers & Solicitors Counsel for the Respondent: Mr Verney of Counsel Solicitor for the Respondent: Matthew Verney Solicitors Solicitor for the Independent Children’s Lawyer: Ms Hunt Counsel for the Independent Children’s Lawyer: Tasmanian Legal Aid ORDERS
HBC 1025 of 2021
HBC 1055 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LEWIS
Applicant
AND: MS MITCHELL
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.Leave be granted to the Mother to amend paragraph 8 and 10 of the Contravention Application filed 9 August 2021, to refer to 4(a)(i).
2.HBC1025/2021 (Mitchell & Lewis) be listed for a Judicial Settlement Conference in respect of the Application in a Proceeding filed 30 September 2021 before Judge Taglieri at 9.30am on 19 May 2022.
THE COURT FINDS THAT:
3.The Respondent with reasonable excuse contravened 4(a)(ii) of the Orders of 15 April 2021 on the following occasion:
(a)22 July 2021 at 4.00pm
THE COURT FINDS THAT:
4.The Respondent without reasonable excuse contravened 4(a)(i) of the Orders of 15 April 2021 on the following occasions:
(a)28 July 2021 at 4.00pm; and
(b)30 July 2021 at 4.00pm.
THE COURT ORDERS THAT:
5.The Respondent is to enter into a bond to be on good behaviour for six months, the final written terms of which are to be determined and commencing on 19 May 2022.
THE COURT NOTES THAT:
A.Written reasons for judgment in relation to the Contravention Application filed 9 August 2022 and the findings made today will be delivered as soon as practicable.
B.The Respondent will enter into and sign the written bond pursuant to s.70NEC of the Family Law Act 1975 when the matter is before the Court on 19 May 2022.
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 Lewis & Mitchell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
This judgment contains my written reasons for the orders made on 18 May 2021 in respect of a Contravention Application filed on 9 August 2021.
BACKGROUND
On 15 April 2021, final parenting orders were made by consent (“the final orders”) in proceedings between the father Mr Lewis (“the father”) and the mother Ms Mitchell (“the mother”).[1] The final parenting orders concerned X born 2006 and Y born 2007 (collectively “the children”).
[1] File number LNC474/2020.
Prior to the making of the final orders, there had been previous parenting orders which provided that the children live primarily in the mother’s care and spend time with the father (“the original orders”).[2]
[2] Orders made 13 January 2021 by consent in file number LNC634/2010.
It appears from the court record that some years after the original orders were made, difficulties arose in relation to the parenting arrangements and this led to the father filing proceedings in 2020 and subsequently the making of the final orders referred to in [2] above which reversed the children’s living arrangements.
The final orders made provision for the mother’s time with the children. In so far as relevant to the contravention application that came before me, the relevant orders are those concerning the child Y and are contained in Paragraph 4 of the final orders, which state:
4. That [Y] spend time and communicate with the mother as follows:
(a)During the school term, in a fortnightly rotation as follows:
(i)In Week One from 4.00 pm Wednesday unless otherwise agreed to 7.30 pm in the [B Town] area, and from 5 pm Friday (or 5.00 pm Thursday if Friday is a student free day) until 8.00pm Sunday (or 8.00 pm Monday if Monday is a student free day).
(ii)In Week Two from 4.00pm Thursday unless otherwise agreed to 7:30 pm in the [B Town] area.
In the Application for Contravention,[3] it is alleged by the mother that on three occasions the father contravened orders referred to at [5] above. Those occasions were:
(a)22nd July 2021 at 4:00pm at B Town ;
(b)28 July 2022 at 4:00pm at B Town; and
(c)30 July 2021 at 4:00pm at C Town.
[3] Commencing file number LNC1055/2021.
It was not in dispute that until 18 July 2021, Y spent time with her mother without any relevant difficulty and in accordance with the final orders. Further, the parties’ respective cases disclose without contest that on 18 July 2021 certain communications and circumstances arose, after which Y no longer spent time with the mother.
On 30 September 2021, the father filed an Application for Final Orders and an Application in a Proceeding.[4] The effect of both applications is to seek suspension of the final orders concerning Y spending time with her mother, on an interim and final basis.
[4] Commencing file number LNC1025/2021.
The mother’s contravention application and the father’s applications were case managed by various officers of the Court, but on the 5 May 2022 all proceedings came before me for case management. After hearing from the parties and without opposition, I ordered that the father’s Application in a Proceeding seeking interim orders and the mother’s contravention application be listed for hearing at the same time on 18 May 2022. I made other procedural orders regarding filing evidence relied upon and requiring the parties to file case summaries.
A Child Impact Report had been prepared by a Court Child Expert dated 7 February 2022,[5] but despite the views and recommendations she expressed the parties had not been able to reach agreement in relation to disposition of the various applications. Both parties relied on parts of this report during submissions made by their counsel and it was received in evidence.
[5] Filed against LNC1025/2021.
At the hearing on 18 May 2022, both parties were represented by counsel. Senior counsel for the father raised the particulars of contravention alleged by the mother and observed that there appeared to be a clerical error at paragraphs 8 and 10 of the contravention application. I was referred to Malberd & Malberd & Anor (No 2) [2010] FamCA 586 at [12], but senior counsel properly indicated that she doubted I would be persuaded to dismiss the contraventions on the basis of a typographical error.
Without opposition, an order was made that the contravention application be amended so that it particularised the alleged contraventions of:
(a)Paragraph 4(a)(ii) of the final orders on 22 July 2021 at 4:00pm; and
(b)Paragraph 4(a)(i) of the final orders on 28 July 2021 and 30th of July 2021 at 4:00pm.
After the father’s witnesses had been cross-examined and during cross-examination of the mother, noting the evidence as it had been given, I suggested the parties may consider the option of the Court adjudicating on the Contravention application, but adjourning the father’s Application in a Case to the next day for the conduct of a judicial settlement conference.
This suggestion was on the basis that I would only proceed in the suggested manner if the parties agreed and on the condition that I would not conduct the final hearing of the Application for Final Orders should the matter proceed to final hearing. The suggestion was made because the evidence given by the mother suggested that the parties may be able to reach agreement about what interim orders ought to be made on the Application in a Proceeding filed 30 September 2021.
The parties agreed to the suggestion and I made orders on the Contravention Application on 18 May 2021 after hearing submissions from each counsel. I indicated that written reasons would be given subsequently. On 19 May 2021 after the Judicial Settlement Conference, I made interim orders by consent.
THE PLEA IN THE CONTRAVENTION APPLICATION
Following the amendment referred to at [12] above, I received a plea of guilty on behalf of the father through his counsel in respect of all three counts alleged on the basis that the contraventions were said to be on the basis of reasonable excuse.
Noting the plea received from the father, the only issues for determination by the Court were:
(a)whether the contraventions were with reasonable excuse; and
(b)depending on the conclusion to the question in (a), what consequential orders ought to be made pursuant to Division 13A of the Family Law Act 1975 (Cth)(“the Act”).
The Father’s case as to reasonable excuse
The father relied upon three affidavits, being:
·the affidavit of the father filed 30 September 2021;
·the affidavit of the father filed 13 May 2022; and
·the affidavit of Ms D (“the stepmother”), filed 13 May 2022.
All three affidavits had been read unopposed. The Child Impact Report of 7 February 2022 prepared by the Court Child Expert was also relied upon.
The Father’s Evidence
Evidence was elicited in chief from the father in relation to the circumstances surrounding the admitted contraventions. His evidence was mostly general in nature and to the effect that on each occasion he had tried to get Y to leave with him to travel to the changeover location for her time with the mother, and she had simply refused. He said that she would go to her room, become distressed, shutdown and would not talk with him. She would say that she was tired and was going to her bedroom.
When asked by his counsel to focus specifically on each particular occasion of breach which were individually put to him, the father’s evidence was as follows.
In relation to the first occasion on 22 July 2021, he admitted that he had sent a text to the mother, stating simply “she is not coming”, but could not otherwise be more specific than what his evidence in general had been.
In respect of the second occasion on 28 July 2021, the father added that because the child was so distressed, he offered to arrange an appointment with Mr E, the Independent Children’s Lawyer who had been involved the in the 2020 proceedings. However, he had not been able to organise this as Mr E was no longer working in the role.
Regarding the third occasion on 30 July 2021, he agreed that he had told the mother that the child had not wanted to speak to her on the phone. He explained what the practice had been for weekend changeovers on Friday, stating they would carpool with Mr F, as W, the child of Mr F and the mother, had changeovers at the same time.
He said that on 30 July 2021 the child was very upset, that she did not want to talk and was laying on her bed. Asked what he did, he said he would “lie with her for hours” also asking “what’s wrong?”, but she would not say very much and shutdown. Asked if he had contacted the mother to communicate that the child was not going to be at changeover, he stated that he had “asked Mr F to pass on the message to the mother”.
Under cross-examination, the father agreed that something had occurred on 18 July 2021, being the last time that the child spent time with her mother. He agreed that it had been school holiday time and that the child was spending extra time with the mother, being the whole holiday period, by agreement between the parties.
The father agreed that the child had been content to spend two weeks with her mother from 2 July 2021. He admitted that on 18 July 2021 text messages had been exchanged between the stepmother and the child about returning from the mother’s care on the Sunday rather than the Monday. He also agreed that:
·there had been multiple text messages between the stepmother and the child;
·that the messages included sentiments from the stepmother which were critical of the mother;
·the messages were likely to have been confusing for the child; and
·the messages were sent by the stepmother at a time when he was present and that he was aware of the content of the messages.
He said that he did not foresee any difficulty with the nature of the messages being exchanged with the child at the time, but that they were not sent at his instigation. When asked if he saw that the messages had potential to play on Y’s mind, he stated he had not thought of that at the time, but now agreed they had likely potential to be disruptive to the mother’s time with the child.
The father also agreed that :
·texts had been sent daily or multiple times a day during the period of time that the child was with the mother, and that some messages were encouraging her to leave the mother’s care early;
·the agreement between the parties had been for the child's time with the mother to end on Monday 19 July 2021, not Sunday 18 July 2021;
·it was a subsequent decision on the part of himself and the stepmother that it would be better for the child to return on the Sunday 18 July 2021;
·the text messages had generated the disagreement on 18 July 2021 about the return time, and that he regrets this.
When referred to his affidavit of 30 September 2021 at [44], he admitted being angry with the mother and blamed her for the disagreement. The father agreed with counsel for the mother that he considered the stepmother to be blameless.
Asked about when he had sought to arrange for Y to see Mr E, he could not recall. Regarding if he had arranged for Y to see a psychologist, he stated that the stepmother had arranged for that to occur with Mr G, whom the child had previously seen.
Counsel for the mother referred the father to statements in the Child Impact Report where he is reported to hold the view that Y did not need a relationship with the mother. The father disagreed, but admitted that he had made those statements to the Court Child Expert as noted at [22] of the Child Impact Report. The father clarified his evidence, stating that Y needs a relationship with the mother, but not in those circumstances. The reference to “those circumstances” is unclear.
The father also agreed that he had told the Court Child Expert that he hated the mother and that he had only changed his opinion about Y having a need to have a relationship with the mother since these proceedings commenced. He admitted that what he told the Court Child Expert was accurate at the time he was interviewed.
The Stepmother’s Evidence
The stepmother affirmed her affidavit to be true and then gave evidence in cross-examination. She admitted that:
·Y’s time with the mother was proceeding smoothly after April 2021 until 18 July 2021;
·Y’s time with the mother was working well under the final orders;
·the parties had been able to agree that the Y’s time in the July 2021 school holidays would be for the whole holidays rather than half of them;
·something happened on 18 July 2021, in that the arrangement had been for Y to return on Monday 19 July 2021 and that on Sunday 18 July 2021 the stepmother decided that she should come back a day early;
·neither the stepmother nor the father spoke to the mother about wanting Y to come back early, on the Sunday;
·she had exchanged text messages with Y during the two weeks that she was with her mother, including a number of messages on 18 July 2021 about her returning early;
·she had encouraged Y to return early;
·she told Y that Y herself was the only one that could ask to return early. Asked if this would have been confusing for Y, the stepmother agreed;
·her text messages to Y had conveyed criticism of the mother and this too would have been confusing for Y, adding that she should not have sent them.
Counsel for the mother put to the stepmother that the only difference between Y’s attitude to the mother before and after 18 July 2021, was the text messages that the stepmother had sent. She replied “yes”. However, when asked whether she agreed that her text messages had generated a disagreement or argument which was a catalyst for Y’s change in attitude to spending time with the mother, she stated that she did not believe that to be the case. The stepmother added that Y had told her that her attitude changed as, during the argument on 18 July 2021, the mother told her “to get out of the car”, “not to come back”, and that the mother “didn’t love her”.
Further, the stepmother said she regretted sending the text messages and can see that it has done harm to Y’s relationship with the mother.
The stepmother was asked about her affidavit concerning Y seeing Mr G. The stepmother stated that this had been on three occasions in total from when the children had gone to live with them full-time, being sometime in 2020, and once after Y had stopped spending time with the mother. She could not recall when the one occasion was.
The stepmother volunteered that the sessions with Mr G were expensive, costing $200 per visit, and that Y had stated that she did not need to go so they had discontinued the appointments.
The evidence of the step-mother did not present as genuine and demonstrated absence of insight and inconsistency about her role in bringing about the disagreement and subsequent contravention of the orders. On the one hand, she acknowledged how her text messages could harm the mother/child relationship, but she refused to accept that she had instigated the disagreement on 18 July 2021 and sought to attribute responsibility solely to the mother, based on statements she says the child made to her months after the contraventions in issue occurred.
The Mother’s Evidence relevant to the contraventions
As relevant to the three contraventions, the mother relied on an affidavit filed on 9 August 2021 and was cross-examined by senior counsel for the father about what Y told the stepmother had happened on 18 July 2021 when the mother dropped her off for collection by the father. This evidence appears in the stepmother’s affidavit filed 13 May 2022 at [53] and is quoted to be as follows:
...she yelled at me as follows “Do you want to know what happened that night in the car? When I gave her a kiss goodbye, she pushed me away. She told me she didn’t love me, and she didn’t want me to ever come back so why is it all of a sudden she wants to talk to me? Why is it all of a sudden she loves me again? It does not work that way. You can’t push someone away; tell them you don’t love them then all of a sudden you love them and want to talk to then [sic] again. I went to give her a kiss goodbye, she took a sip of her drink and ignored me. She then told me she did not love me, now she does… [original emphasis]
Somewhat similar statements were made by Y to the Court Child Expert and the mother was asked about it [9] and [10] of the Child Impact Report.
The mother’s evidence was that, on 18 July 2021:
·she did not push Y away when Y tried to give her a kiss goodbye, and did not push her out of the car;
·she did not tell Y not to come back or that she did not love her, either on 18 July 2021 or on any other occasion;
·she recalls taking a sip of her drink when she pulled up the car at changeover, but did not do so to ignore Y;
·she admitted that she was upset at the situation in which Y had been put and that she had been forced to lie to both parents;
·she admitted that she had been crying and had explained why to Y, but also stated that she was not distressed or sobbing; and
·“Not much had been said at all” while the mother and Y were in the car together, and that while the mother had spoken to Y about the text messages with the stepmother Y had not responded.
Senior counsel for the father questioned the mother about Y’s assertion to the Court Child Expert that the mother made Y read aloud the text message conversations which occurred on 18 July 2022.[6] The mother denied that she had done so, but admitted that she had read the messages. She said that she does read Y’s messages on occasion and that in this instance Y had handed her the phone, the implication being that Y wanted her to read the messages. When asked directly if Y had lied to the Court Child Expert about this, the mother replied “unfortunately, yes”.
[6] Child Impact Report at [9].
RELEVANT LAW
There did not appear to be any particular controversy about the law applicable to the questions to be decided. Sections 70NAE and 70NAF of the Act apply and importantly in deciding if a party had a reasonable excuse for contravening an order, the applicable standard of proof is on the balance of probabilities.
Very usefully, Reithmuller FM as he then was in TVT & TLM [2006] FMCAfam 20 summarised the applicable principles as follows which have since been followed on many occasions:
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].
DELIBERATIONS ABOUT NATURE OF CONTRAVENTIONS
Based on the evidence of the father and the stepmother, and importantly their many concessions highlighted in the reasons above, the following findings are appropriate and are made:
(a)the conduct by the stepmother sending the text messages to Y instigated a disagreement about when Y should return to the father’s care;
(b)the disagreement arose because the stepmother involved Y in her request for a Sunday return rather than Monday as had been previously agreed;
(c)the text messages had been sent with the knowledge of the father, who approved or acquiesced of them being sent; and
(d)the content of some of the text messages were critical of the mother and were likely to have been confusing for Y by:
(i)putting her in the middle of discussions that ought to have been between adults and separate from her; and
(ii)conflicting her view or opinion of the mother, given how positively experienced the preceding two weeks had been.
On the basis of the mother’s evidence, which impressed me as genuine and generally reliable, I find that she was upset about the dispute about changeover and likely said to Y that she had been put in a position of lying to each parent. I do not accept that she pushed her out of the car or told her she did not love Y. More likely, I consider this was the child’s perception of the events which were clearly distressing and confusing for her and perhaps also because the mother may have used emotive language tone due to her own upset. The apparent silence from the child during discussion referred to in the mother’s evidence noted at [43], “sounds true” and I infer is reflective of the tension that had arisen and the child’s knowledge of it and that she was caught between conflicting views of her parents.
The above findings establish that the text messages between Y and the stepmother set in train the tension between Y and the mother and related distress that each experienced over the question of when changeover should occur. The distress and tension and Y’s interpretation of the interactions with the mother then caused Y’s subsequent refusal to cooperate with the father to attend changeovers on 22, 28 and 30 July 2021 to spend time with the mother.
The evidence of the father and the stepmother about what the child said had caused her refusal to spend time with the mother after 18 July 2021, which was similarly reported to the Court Child Expert by Y, may also have played a contribution. However, these reports are inevitably influenced by the child’s own distress and confusion. Also, her perception of what the mother had said and done, probably influenced by her knowledge of the views of the father and stepmother about the disagreement and that of her mother, which placed her in between the conflict.
I note the evidence by the stepmother of what Y said to her, but I prefer the evidence of the mother about what she actually did in the car on 18 July 2021 for the following reasons:
·There is some inconsistency between what the step-mother’s evidence says Y told her and what Y said to the Court Child Expert about 3 months earlier;
·There is internal inconsistency in the evidence of the step-mother about what the child said. The inconsistency is between the two statements, one referring to pushing out of the car, the other not mentioning it[7];
·The account given by the stepmother is not consistent with the explanation of the child’s views referred to in the father’s evidence at [39] to [43] of his affidavit filed 30 September 2021;
·Y’s statements to the stepmother referred to at [40] of these reasons were given several months after the events on 18 July 2021 and could well be influenced by her still being confused and conflicted by the step-mother and father’s attitude of the mother. This is supported by the view reported at [11] and [12] of the Child Impact Report, which demonstrates the continuation of confusion on Y’s part about messages from both her father and mother.
[7] See [40] above
The factual findings at [46] to [50] above are important contextual considerations when assessing what the father was reasonably obliged to do to facilitate compliance with the orders he breached. I consider he was obliged to recognise and admit immediately that his actions and those of the stepmother triggered and caused the distress that arose between Y and the mother. Had he done so, he ought to have been able to communicate with and encourage Y to spend time with the mother and with a likely effect of Y not refusing to spend time with the mother.
A short time elapsed between the disagreement and accompanying distress on 18 July 2022 and the first contravention. There was little time and opportunity to have useful discussion with the child and to ascertain what was necessary to fairly and reasonably address what the father described as Y’s “refusal” to go to spend time with the mother. This is particularly so given Y’s age and that I infer from the evidence she was attending school between 20 and 22 July 2021. For that reason, I find that the contravention on 22 July 2021 was with reasonable excuse.
However, after Y’s first refusal to spend time with the mother on 22 July 2021, it ought to have been apparent to the father that Y’s reason for refusal needed to be proactively addressed. It also ought to have been apparent that in addressing this he and the step mother ought to have taken and admitted responsibility for their part in causing the disagreement, confusion and distress to Y and the mother on 18 July 2021.
As the father's attitude at that time was that the mother was to blame for the disagreement and the child’s upset and that the stepmother had no blame, I consider it is highly likely and I find that he took no action to encourage, explain or correct Y’s belief about spending time with the mother. In this regard, what the father told the Court Child Expert about his attitude to the mother is extreme and lacks insight into the likely impact of holding such views on his capacity to encourage a meaningful relationship between Y and her mother, which is needed for the child’s emotional wellbeing.[8]
[8] Child Impact Report at [15], [22] and [24].
There is no evidence of the father taking some responsibility and explaining to Y that they ought not have involved her in the discussions about changing the previously agreed changeover arrangement, and that the stepmother ought not have been critical of the mother.
Further, there is only generalised evidence about Y’s refusal to spend time with her mother. The father’s evidence was not persuasive and lacked sufficient detail about what reasonable actions he took to ensure compliance with the orders on the latter two occasions on 28 and 30 July 2021. The only evidence is that he asked what was wrong and “lay with her on the bed for hours”. Noting the child’s age and that she would “shut down”, the latter seems implausible.
There is no evidence that he sought to arrange counselling for Y before those visits or that he had apologised to Y for putting her in the position in which she had been placed or for causing the disagreement and consequent distress about the changeover on 18 July 2021. Although he made an enquiry of Mr E’s office, it was not likely to be of any utility as the Independent Children’s Lawyer’s appointment was not ongoing and the evidence is silent as to whether that occurred before or after 28 July 2021.
Based on the father’s evidence and concessions referred to at [10] to [25] it is open to infer that he either said nothing to encourage Y to spend time with the mother and/or reinforced Y’s belief that the mother was to blame for what occurred on 18 July 2021 by the attitude he held of the mother.
Generally, I agree with counsel for the mother that there are some parallels in this case with the circumstances described by Riethmuller FM in TVT & TLM [2006] FMCAfam 20. The father did not encourage Y, apologise to her or take any responsibility for causing the disagreement and distress on 18 July 2021. Nor did he take sufficiently prompt action to arrange counselling. These are all actions that reasonably ought to have been taken.
Senior counsel for the mother cited the appeal decision in Fooks & Clarke [2004] FamCA 212 as applicable and supportive of the contention that there was reasonable excuse for contravening the orders on the three occasions. The submission was that although a parent has a positive obligation to provide “contact” it is not reasonable to force the child into a position where they are resisting. On the appeal, the court held at [45]:
In our view, it was clearly open to her Honour to conclude that, at the relevant time, A was so upset that it would not have been reasonable for the mother to have taken further steps to require the child to attend on contact on that day …
But in this case, the evidence does not persuade me that Y was so upset or distraught on 28 and 30 July 2021. I consider the father simply acquiesced to the child’s noncooperation and avoidance, given his view that Y had the choice of whether she spent time with the mother.[9] Further, as the child was of sufficient age and maturity to be alert to her father’s views of the mother, which he conceded were critical of her, this likely operated to discourage the child from spending time with the mother.[10] In addition, the child’s distress was instigated by the actions of the stepmother and his acquiescence to those.
[9] Child Impact Report at [18].
[10] Child Impact Report at [19].
Senior counsel for the father also referred me to Hatch & Vining [2019] FCCA 1705 at [87] and Childers & Leslie [2008] FamCAFC 5 at [22]-[24], and I have considered the relevant passages cited. They provide useful guidance to courts dealing with contravention applications, but it is trite to observe that every case ultimately is determined on its own facts.
In this case, on the facts I have found, I consider the father ought to have exercised parental authority reasonably and objectivity by acting in the manner set out at [59] above. The father ought to have used reasoning and persuasion to encourage the child to attend, but there is no evidence that he did so.
I do not ignore the possibility that the mother’s conduct has also to an extent contributed to Y’s distress on 18 July 2021, due the perceptions Y reported to others as detailed above. However, that does not detract from the findings made elsewhere against the father and lack of reasonable excuse on his part on the two latter occasions.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 16 June 2022
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