LOCKE & JAMISON

[2020] FCCA 3292

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOCKE & JAMISON [2020] FCCA 3292

Catchwords:
FAMILY LAW – Parenting – contravention application – concerning a three year old child – where pursuant to previous consent orders the child lives with the mother and spends time with the father – where the mother admitted the breach of orders to not resume the child’s time with the father – satisfied the mother had a reasonable excuse in breaching orders –contravention not proved.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR LOCKE

Respondent: MS JAMISON

File Number: DNC 173 of 2018

Judgment of: Judge Young

Hearing date: 17 November 2020

Date of Last Submission: 17 November 2020

Delivered at: Darwin

Delivered on: 17 November 2020

REPRESENTATION

The Applicant: On his own behalf

Counsel for the Respondent: Mr Barry

Solicitors for the Respondent: Darwin Family Law

ORDERS

1. That pursuant to section 70NEC of the Family Law Act 1975 the court finds that the mother has not contravened order 4(a) of the orders made on 21 November 2019.

2. That the application for Contravention filed by the father on 1 September 2020 be dismissed.

3. That the application in a case filed by the mother on 2 October 2020 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 173 of 2018

MR LOCKE

Applicant

And

MS JAMISON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a contravention application brought by the father of a three year old child, X.  X lives with his mother and spends time with his father.  On 21 November 2019, the parties entered into consent orders which relevantly provided for the child to live with the mother and spend time with the father, commencing initially with some daytime on Sundays and then moving to overnight time once a fortnight, and in the other week daytime. 

3. The parties are deeply hostile to each other and lack all trust in each other, and, in those circumstances, it is hardly surprising that they have run into problems in less than a year after their consent orders.  The mother admitted the breach of orders, but said that she had a reasonable excuse.  She was not cross-examined on her affidavit by the father, and nor was the father cross-examined by the mother’s counsel.  So, subject to questions of plausibility and weight, and, indeed, relevance, I broadly accept what each of the parties has said. 

4. The mother says, and this is not challenged, that on 2 August 2020 when the child came into her care, he was irritated around his penis or genitals, and when she put the child in the bath later on he complained that his penis hurt and he looked in pain.  She said that the end of his penis looked a little bit red and inflamed.  She then said, and I quote from the affidavit:

   I said to him, “Has anything happened?”, and, “Has someone touched it?”  He said, “Daddy”.  I was shocked and paused for a moment and then said, “Was it in a naughty way?”, and he said, “Yes”.  After that, he wouldn’t say anything else, he clammed up.  I didn’t press him any further. 

5. The mother reported the matter to the child protection hotline and eventually she received a call from an officer with the Child Abuse Taskforce.  It seems that about four days later the child was examined at the hospital and nothing untoward was seen.  Somewhat disappointingly there is no medical evidence in the mother’s affidavit.  In other words, there is no evidence that what she says about the state of the child’s penis is actually correct but what she said is not challenged. 

6. Part of the reason for that is that apparently the child cavilled at the idea of having his penis examined by a doctor at the hospital and would not cooperate and the doctor did not pursue the matter.  Eventually, there was, it seems, an examination of some description or an investigation, and on 17 September 2020, approximately six or seven weeks later, Territory Families wrote a letter to the mother saying that the outcome of the investigation was that no abuse or neglect had been found. 

7. The mother received that letter on 24 September.  Nevertheless, she did not resume the child’s time with the father, so she continued to contravene the orders.  It seems that she then arranged or took steps to have the child attend on a play therapist, a Ms A, who is a psychologist, as I understand it.  Her object in doing so is not entirely clear, but while I do not believe I can make a finding about it, one might suspect that was done with a view to obtaining evidence, if there was any evidence, by way of further statements from the child. 

8. In any event, that did not turn out that way, and when the matter came before me on 5 October, I indicated to the mother’s counsel that the forensic deficiencies were inseparable.  There was, in fact, not a jot of evidence that the child had been abused by the father or anyone else.  I strongly recommended that the orders be complied with forthwith by the mother and it seems that soon after that, the child’s time with the father resumed, though apparently not entirely in conformity with the orders.  The first visit was not overnight as perhaps it should have been, but I am told that since early October, that is, a period of six weeks, the overnight time of the child with the father has resumed, apparently without further incident. 

9. As I said to the parties, in the circumstances of this case the question is whether the mother’s behaviour was reasonable.   I must say it appears to me quite borderline.  Certainly from a lawyer’s point of view, the mother’s leading questions to the child were of no forensic value whatsoever.  Mr Barry points out that while that may be true, the mother is not a person who is to be expected to be aware of the lack of real value in a directed cross-examination of a three year old child, suggesting to the child that he may have been abused by his father. 

10. Nevertheless, the mother was not cross-examined with a view to putting to her that what she said in her affidavit was untrue.  Accordingly, I accept what she says as true.  The test for a finding of contravention is, of course, the ordinary civil standard.  However, bearing in mind that the matter is in a sense quasi criminal, that is it has a penalty attached, arguably, in my view, I ought to only find a contravention if I am comfortably satisfied of those probabilities of the question in issue, that is, that the mother has without reasonable excuse contravened the orders. 

11. In the circumstances of this case, I am not satisfied of this and I am not satisfied that she has behaved unreasonably.   I do not consider that she has behaved particularly reasonably for the reasons I have indicated, but the onus of proof in a contravention application rests on the party alleging the contravention.  In the case of a defence based on reasonableness, the onus rests with the party asserting the conduct was reasonable.   As I say, I am not satisfied it was unreasonable and, indeed, I will say, I think it is quite borderline.  I do not find the contravention proved. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 3 December 2020