Lorde and Chu (No. 2)

[2017] FamCA 866

FAMILY COURT OF AUSTRALIA

LORDE & CHU (NO. 2) [2017] FamCA 866

FAMILY LAW – CONTRAVENTION – where contravention of orders without reasonable excuse

Family Law Act 1975 (Cth)

APPLICANT: Mr Lorde

RESPONDENT: Ms Chu

FILE NUMBER: CAC 478 of 2012

DATE DELIVERED: 1 November 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 1 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

IT IS NOTED THAT

Having found that on 3 June, 17 June, 29 July and 12 August 2017 that the respondent contravened Order 6(a)(ii) of the Orders of 20 March 2017 without reasonable excuse and having found that on 3, 4, 5 and 6 July 2017 the respondent contravened Order 6(b) of the Orders of 20 March 2017 without reasonable excuse but not yet having determined whether or what sanction or action may be taken in respect of those contraventions:

1. The proceedings are adjourned for further hearing to 12pm on 11 December 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lorde & Chu (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 478  of 2012

Mr Lorde

Applicant

And

Ms Chu

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. 20 March 2017 Order 6(a)(i) states that R and C are to spend time with the father as follows:

   a.During school term time:

   i.Each Wednesday and Thursday afternoon during school term time from after school until 7:30pm with the father to collect the children from school and to deliver them to the footpath at the front of the mother’s home; …

2. The allegation is that Ms Chu prevented or hindered this from happening by instructing the principal of R and C’s school not to allow the father to collect them from the school and that this prevented him from collecting them from the school on 7, 8, 14, 15, 21, 22, 28 and 29 June 2017 and 19, 20, 26 and 27 July 2017 and 2, 3, 9, 10, 16 and 17 August 2017.

3. The second set of allegations is that Ms Chu contravened order 6(a)(ii) of the Orders made by me on 20 March 2017.  Order 6(a)(ii) provides that R and C are to spend time with the father as follows:

   a.During school term time:

   ii.Each second Saturday during school term time commencing the Saturday at the end of the first week of term from 9am to 7:30pm with the mother to deliver R and C to the footpath at the front of the father’s residence and the father to deliver R and C to the footpath at the front of the mother’s residence.

   and that Ms Chu contravened this Order on 3 June, 17 June, 29 July and 12 August 2017. 

4. The third of the sets of allegations is that Ms Chu contravened order 6(b) of the Orders made by me on 20 March 2017.  Order 6(b) is that R and C are to spend time with their father as follows:

   b.At the school holidays at the end of term 1, 2 and 3 during the first week of each of those holiday periods on each Monday, Tuesday, Wednesday and Thursday from 9am until 7:30pm with the mother to deliver the children to the footpath at the front of the father’s residence and the father to return the children to the footpath at the front of the mother’s residence.

   and it is alleged that Ms Chu breached that obligation on the 3, 4, 5, 6 and 7 July 2017.

5. Ms Chu admitted contraventions occurring on 13 and 17 June, 29 July and 12 August 2017 to Order 6(a)(ii) of the final orders in which the father was to spend time each second Saturday with the children between 9am and 7:30pm.  Ms Chu also admitted contraventions on 3, 4, 5 and 6 July to Order 6(b) of the final orders which provided for the father to spend time with the children on the school holidays on the Monday, Tuesday, Wednesday and Thursday of the first week of the school holidays between 9am and 7:30pm.  

6. Ms Chu asserted that there was a reasonable excuse for those contraventions.  The burden of showing that there is a reasonable excuse falls upon Ms Chu and she must prove the reasonable excuse in relation to each of the contraventions on the balance of probabilities. 

7. The reasonable excuse relied upon was that Ms Chu says that she believed on reasonable grounds that not allowing C and R to spend time with the father was necessary to protect the safety of the two children and that she did not stop them spending time with their father for longer than was necessary. 

8. Both the mother and the father gave evidence and were cross-examined.  The mother alleged that the children were delivered to her on 31 May 2017 at 7pm rather than 7:30pm.  The father agreed that on that day he had sought to deliver the children early, although he says the mother was not home and her car was not there.  When they were delivered the mother asserted that they were both crying and screaming at her door.  The father denied that this had occurred, saying that they played at the playground until the mother’s car had arrived and then he left the children and that was done without crying and screaming. 

9. The mother alleges that C had a red mark on her waist and indicated the area of her left hip bone and described the red mark as being 2cm x 3cm.  She says that C told her that the father had hit her onto the floor and that this had occurred in response to an argument about an overseas trip.  The mother asked whether or not the father had hit C onto the floor when cross-examining him, and when the mother gave evidence she asserted that C had been kicked, hence the allegation was made that C had been kicked by her father.  The mother describes C as being 23kg or 24kg and about 112cm tall, that is, she is tiny in comparison to either her father or her mother.  She says that R described to her that he tried to rescue C and in her questioning put to the father that he had kicked R and R had tumbled to the floor.  When giving evidence the mother said that R described that he been kicked and tumbled although not to the floor.  The father denied that he had hurt either of the children.  The mother says that she called the police and then obtained an Interim Protection Order which then became a Final Protection Order by consent without admissions.  She called no evidence from the police at all, notwithstanding that the police may have been capable of supporting the injury or complaint.  No medical attention was sought for C; no application was made by the mother to the Family Court of Australia. The mother stated that this was in case the Judge became angry given that final orders had just been made. 

10. The mother has now commenced allowing the children to see the father again and says that she will now comply with the orders.  The Interim Protection Order has become a Final Protection Order without admissions. 

Has the mother discharged the onus to prove reasonable excuse?

1. The conflict in the evidence between the mother and the father regarding the behaviour of the children at handover means that I am unable to conclude that the mother’s account of what occurred at the doorstep should be accepted over the father’s, that is, I am not satisfied that the children presented to the mother in the fashion that she describes. 

2. There is some inconsistency between the mother’s questioning of the father and her assertions about whether there were hits or kicks to the floor or not to the floor.  I give low weight to any inconsistencies between the mother’s questioning and the evidence as asserted however, it causes some degree of uncertainty.  As I said this has low weight. 

3. Despite alleging injury the mother sought no medical attention for C.  This to some degree undermines the account that she has given, she described that there was a red mark on C 2cm to 3cm in its dimensions caused allegedly by the father kicking C to the ground.  The not seeking of medical attention to some degree undermines her account.  There is no calling by the mother of the police who attended to give evidence, nor for their records.  They may not have been able to support the mother’s claims in respect of the injury, again this is a matter which is not conclusive but undermines to some degree the mother’s case. 

4. The mother has now recommenced allowing time between C and R and the father.  She explained that she thought that the children had time for her to teach them protective behaviours, there is a Final Protection Order in place.  She says that she will now comply with the orders.

5. It is difficult to see how a resolution of the risk as she describes it has occurred by teaching the children protective behaviours given that she says the children described to her that they were unable to escape the home because they were locked in. Again the resumption of time causes some concerns as to the genuineness of the mother’s concerns.  Each of these matters identified are marginal however, considering these matters the mother has not discharged the onus to prove reasonable excuse in relation to any of the counts on the balance of probabilities.  I am not satisfied on the balance of probabilities that the children described to her that they had been assaulted in the fashion that she describes.

6. It follows then that I find that the mother has contravened without reasonable excuse the orders on eight occasions.  The repeated nature of these contravention calls into question how they are to be characterised and whether they will be characterised as less serious or more serious contraventions.  Because of the extent of the contraventions I intend to adjourn these proceedings to enable the mother to obtain legal advice before hearing the matter further to determine what, if any, sanctions may be imposed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 1 November 2017.

Associate: 

Date:  1 November 2017