Marsden and Marsden

FAMILY COURT OF AUSTRALIA

MARSDEN & MARSDEN

[2011] FamCA 991

FAMILY LAW – CONTRAVENTION OF PARENTING ORDERS

APPLICANT:

Mr Marsden

RESPONDENT:

Ms Marsden

FILE NUMBER:

SYC

6980

2009

DATE DELIVERED:

23 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

28 November 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Marsden in person

SOLICITOR FOR THE RESPONDENT:

Ms Caton,
Convenient Law Solutions

Orders

That the father’s application filed on 25 October 2011 is dismissed.
That the father pay the mother’s costs of and incidental to that application as agreed or taxed.

IT IS NOTED that publication of this judgment under the pseudonym Marsden & Marsden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6980 of 2009

Mr Marsden

Applicant

And

Ms Marsden

Respondent

REASONS FOR JUDGMENT

the proceedings

On 25 October 2011 the father, Mr Marsden, filed an application seeking that the mother, Ms Marsden, be dealt with for contravention of certain orders made by consent on 4 February 2011. It appears that the relevant orders were in fact made on 3 February 2011 but the mother raised no issue as to this discrepancy in dates.
The orders of 3 February 2011 concerned the parties’ three children:
M born in 2002 (8)
A born in 2004 (7) and
V born in 2007 (4).
These orders provided, inter alia, that the children live with the father and spend time with the mother each alternate weekend. The orders further provided:
7. The father shall forthwith arrange for the children to engage in counselling with the following services: -
a) B House
b) C Counselling
or such other services as may be advised by these services or agreed with the mother, and at such time as is deemed appropriate by those services.
8.      The mother will be at liberty to liaise with and attend upon the above services and with any other psychological service the children may attend.
9.         The parties shall comply with the reasonable recommendations of the services referred to in paragraphs 7 and 8 herein.
18.       Each party is restrained from denigrating the other party or the other party’s family to or within the hearing of the children; further, they shall use their best endeavours to ensure that no other person does so.
19.       The parties are restrained from using any form of physical punishment on any of the children and they shall use their best endeavours to ensure that no other person does so.
The father’s application alleged that the mother contravened these orders on three occasions. The mother admitted that she had knowledge of the orders and that the application was properly served upon her.
The father’s first allegation was that the mother contravened order 19 on 16 October 2011. The wording of this paragraph of the application was as follows:
After leaving the childrens football presentation the child has complained to the father, independently to the NSW police and a counsellor at [D Hospital] that his mother (the respondent) has continually punched him in the leg whilst driving in a rage, endangering the lives of all the passengers being the three children [M], [A] and [V] and breaching Order 19 of the attached orders by using physical force on the children. These actions are also undertaken whilst driving endangered the lives of the children as passengers and other road users. The Respondent admitted to Police that she did hit the child, whilst denying that she used a closed fist, or that she was the cause of the extensive bruising to the right upper thigh of the children [M]. All parties agree that [M] was sitting in the passenger seat, the respondent in the driver’s seat and this is supported by the severe bruising to the right upper thigh of the child. The orders clearly state that no physical force is to be used on the child. This is not the first complaint the children have made of physical force being used by the mother against them. The child was sleepless and continued to wake with nightmares after the incident.”
It seemed to me to be possible to identify that the father’s allegation was, essentially, that the mother contravened order 19 by punching M on his thigh on 16 October 2011.
The second allegation was that the mother contravened order 18 on 16 October 2011. The wording of this paragraph of the application was as follows:
On two separate occasions during the children’s football presentations, the respondent approached the applicant without provocation and started yelling. This was witnessed by numerous bystanders who commented and said words to the effect of ‘thank god the kids live with you’, or ‘is she crazy’. These comments were made by females and mothers of the children in the children’s football team and caused the children great embarrassment. Prior to this the respondents mother in the presence of the children and other parents said ‘I’m going to kill you’ to the applicant father. The ongoing abuse towards the Applicant Father, by the respondent and family is in breach of Order 18 by denigrating the father to the children.
The third allegation was that the mother contravened order 9 on a date “n/a” and time “n/a”. The wording of this paragraph of the application was as follows:
The respondent mother has been given reasonable recommendations by the Counsellor from [B House] to attend joint sessions with the children to help work on the relationship between the children and her. The respondent mother has not acknowledged these recommendations provided in writing and by email, nor has she returned the numerous attempts from the Counsellor to contact her by phone. These are reasonable recommendations and she has provided no detail to the counsellor as to why this should not occur, just chosen to ignore the recommendations.
In the final paragraph of his affidavit sworn on 21 October 2011, the father requested various changes to the existing orders, including:
a suspension of the mother’s time with the children…until further notice and the mother be assessed for Psychiatric disorders including and not limited to Bi-Polar, Schizophrenia and depression and treated as appropriate until such time as she is deemed stable by a court appointed professional to recommence time, first supervised then return to the current orders when suitable.
I was not taken to any Application in a Case by which the father sought these orders.
The father bore the onus of proof, on the balance of probabilities, that the mother contravened an order. It seemed to me that the contents of his application failed to identify any actions or omissions on the part of the mother which could constitute a breach of order 18 of 16 October 2011.
The paragraphs of the father’s affidavit which were relevant to this alleged contravention read as follows:
8.        I have asked [M] what the cause of this dispute with his mother was and he said,
‘First we got in the car and I said to mum why do you always scream at dad?’
Mum said ‘I hate your dad, he’s a bad person and I hate him’
[M] said ‘he’s not a bad person he’s my dad, don’t say bad things about him’
Mum said “I don’t care, I hate him’
[M] replied ‘Well then I hate you’
[M] said she then ‘got really angry and screamed like a crazy person and it didn’t make sense, then she started punching me’
I asked ‘How many times’
[M] replied ‘I don’t know I closed my eyes and put my legs up’
In the incident above as told to me, the police and the mental health worker at [D Hospital], [M’s] story has not changed and he is adamant it occurred this way. From the positioning of the bruising on his upper right thing, and him being seated in the passenger seat, I believe his version of events. He has been very distressed and says he does not want to see his mother any more. He is suffering from night terrors and has been withdrawn since it took place, insisting to sleep in my room, with the light on and awoken numerous times especially on Sunday and Monday nights. He is slowly going back to normal and sleeping in his room and not waking as often during the night. He did not attend school on Friday 21 October 2011 and [A] said he was to scared to go to school without his brother. They have both had to stay with my mother whilst I go to work, which goes further to my request to be allowed to relocate closer to my family. My mother is in her late 60s and the only help I can call upon during the week. From [D House] is at least a 1 and half hour commute by public transport.
10.      On two occasions on the 16^th October 2011 during the children’s football presentations, the mother approached the father without provocation and started yelling. This was witnessed by numerous bystanders who commented and said words to the effect of ‘Thank god the kids live with you’, or, ‘Is she crazy’. These comments were made by females and mothers of the children in [M’s] football team and caused the children great embarrassment. This caused the mother to go into a rage at which point she dragged the children kicking and screaming out of the venue.
11.      The other parents are well within their rights to make these comments as for the past two years they have witnessed the mother explode in episodes like this for no reason and caused awkwardness for all involved. On another occasion earlier in 2011 the respondents mother also at the football attacked the father for no reason and said in the presence of the children and other parents ‘I’m going to kill you’. This was witnessed by other parents and Police have spoken to and confirmed that people witnessed this and heard it. Understandably, the other parents whilst confirming to Police they heard this, did not wish to get involved by providing a statement.
12.      At the father’s previous residence of [E Street, Suburb O] a street which had numerous units for lease, the best friend of the mother leased and moved into the same block as the applicant father. This caused unprovoked attacks by the mother’s friend and caused the father to move out of the block of units. These attacks and threats almost always took place in front of the children.”
This material does not enable the mother to identify the person alleged to have moved into the father’s apartment block, nor the conduct which supposedly constituted a contravention by the mother of order 18 of 3 February 2011. In my view, therefore, paragraph 12 of the affidavit was incapable of supporting the father’s contention that the mother contravened order 18.
Paragraph 10 of the father’s affidavit amounts to no more than an allegation that the mother approached him on 16 October 2011 “and started yelling”. He offered no evidence of any words allegedly used by her on 16 October 2011 which could be construed as “denigration” of him. Paragraph 11 stated clearly that the mother’s alleged threat to kill the father was made on an unspecified occasion other than 16 October 2011.
The viability of the father’s contention that the mother contravened order 18 thus rested on the admissibility of and weight to be given to the alleged statements of M contained in paragraph 8 of the father’s affidavit. It seems clear that these statements are admissible pursuant to section 69ZV(2). Division 12A applies to contravention proceedings pursuant to section 69ZM(1) because Division 13A is wholly within Part VII of the Act.
The question of the weight, if any, to be given to this evidence of statements allegedly made by M is another matter entirely. Section 69ZV(2) provides that the weight to be attached to such evidence is a matter of discretion. This subsection provides:
(1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child‑related proceedings.
(2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
(3) The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).
(4) This section applies despite any other Act or rule of law.
(5) In this section:
child means a person under 18.
representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
I attach little or no weight to the father’s evidence of these statements allegedly made by M to him for a number of reasons. Firstly, the father’s own evidence was that there was an altercation between the parties on 16 October 2011. M lives primarily with the father, who asserted in his affidavit that the child has a poor relationship with and negative view of the mother. The tenor of the father’s application and affidavit indicates strongly that the father has an adverse opinion of the mother. Secondly, the father’s own evidence was that he initiated the conversation with the child but there was no indication of what was said prior to the alleged statements. It is thus impossible to discern what inducements, if any, the father offered to M to make the alleged statements. Thirdly, the nature of these proceedings lead me to approach with great caution the weight to be attached to the statements allegedly made by a child who is caught in a conflict between his parents.
For these reasons I held that the father failed to establish that the mother engaged in any conduct which could amount to denigration of him on 16 October 2011, as alleged in his application. I thus dismissed this paragraph of the father’s application.
The third alleged contravention suffered from similar deficiencies. The father adduced no evidence in admissible form that any counsellor had made a recommendation with which the mother failed to comply. As well, he specified no date upon which she was alleged to have contravened order 9 of 3 February 2011.
The father annexed to his affidavit a letter dated 20 October 2011 from Ms F, a psychologist who saw the parties and children through the auspices of B House. This evidence should have come directly from Ms F, so that the mother had the opportunity to test her assertions if she so wished. It was impossible for the mother to challenge any assertion contained in the report of Ms F in these circumstances. Otherwise, there was nothing in the material presented by the father which could be seen to establish that the mother breached this order. Accordingly, I dismissed this paragraph of the father’s application.
There thus remained the father’s allegation that the mother contravened order 19 by punching M on his thigh on 16 October 2011. I have referred already to the paragraphs of the father’s affidavit which relate to this alleged contravention.
The father deposed that he photographed bruising on M’s leg on 19 October 2011, that is, three days after the alleged incident. He annexed a copy of this photograph to his affidavit. The child can be seen holding up the leg of his pants to enable the bruise to be photographed.
The contents of paragraph 6 of the father’s affidavit suggested that he took the child to a police station on 16 October 2011. He adduced no evidence as to police involvement with the child or the parties on that day.
The father also annexed to his affidavit a discharge summary dated 16 October 2011 from D Hospital dated 16 October 2011. Relevantly, this summary stated:
“[M] presented to this facility with abrasion” and
“Today child states mother was punching him on right lateral thigh with hand in car front passenger seat on their way to cousin’s house.
He was playing Oz-tag on Thursday and had a graze on right lateral thigh.”
The discharge summary continued:
“Bruise on right lateral thigh of about 5x4cm with greenish colouration and another one of about 1.5cm in diameter.
Old superficial graze on right lateral thigh above the bruises of about 10cm area in diameter.
Old superficial graze in front of both knees.
Most serious: non-accidental injury
Most likely: non-accidental injury +/- old sports injury.”
I determined that, on the balance of probabilities, the father had established that conduct on the part of the mother could amount to a contravention of order 19 of 3 February 2011. At that point, the mother’s legal representative submitted her affidavit sworn on 28 November 2011. The father complained that he had not been provided with this affidavit at an earlier time but, obviously, he was not entitled to see the mother’s evidence until that stage of the proceedings. The mother appeared to assert that she had not contravened order 19 or, alternatively that, if her admitted conduct should properly so be construed, she had a reasonable excuse.
If the applicant establishes that a contravention has occurred, it is for the respondent to establish on the balance of probabilities that he or she had a reasonable excuse for non-compliance. The meaning of the term “reasonable excuse” is set out in section 70NAE of the Act which provides as follows:
70NAE Meaning of reasonable excuse for contravening an order
(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.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) 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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(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) 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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

It is clear that a “reasonable excuse” can be established outside the circumstances prescribed in section 70NAE. This issue was considered by Warnick J in Childers and Leslie (2008) FLC 93-356. His Honour said:
22. As earlier seen, s70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
The mother set out in her affidavit of 28 November 2011 her account of the events of 16 October 2011. She deposed that she observed “massive bruising and grazing along M’ right upper thigh” on the evening of Friday 14 October 2011, when she was preparing him for a shower. The child had been in the care of the father for the previous two weeks.
The mother asked M how he suffered this bruising and he said “I don’t know”. She then asked “Is it from football?” and M said “probably”. The mother deposed that she took the children to the boys’ football presentation on Sunday 16 October 2011. The father was present and, on the mother’s version of events, he approached her and the children. The mother claimed that he directed various unsavoury comments at her and purchased cans of Coca-Cola for the children, contrary to her wishes. When the time came for them to leave, M initially refused to go with her and stated that he wished to stay with the father.
The mother proceeded with the children to her car and, along the way, she disposed of the cans of Coca-Cola which the father had purchased for them. M sat in the front seat of the car with her and V and A were seated behind them. M began to swear at her and told her that he hated her. The mother deposed that he said to her words including the following: “You are retarded, everyone hates you and everyone loves my dad. You lie about my dad, I hate you, you are the worst mother. He used expletives including cunt”.
The mother’s affidavit continued:
[M] was in the front seat and [V] and [A] were in the back. [M] continued to say that he hates me over and over and repeating the words similar to 29 above. [M] then tried to reach for the car door handle and in an attempt to stop him from trying to get out of a moving car I smacked him with an open hand on his leg. I slapped him with my left hand whilst driving (I am right handed). I said to [M]: ‘don’t you dare move out of that seat.’ I smacked [M] for the purpose of restraining him from more physical danger. I did not smack [M] for the purposes of punishing him. He was trying to get out of a moving car. I was worried for his safety. [M] did not say I had hurt him and he did not cry at all.”
In her oral evidence the mother said: “I was angry and I hit him at least twice to restrain him from leaving the car. I can’t remember how many times he reached for the car door. I don’t remember all that happened. I could not have pulled over because we were on a busy road and I could not stop. Also if I had stopped he could have run.”
An initial issue is whether the mother’s conduct amounted to “physical punishment” of M, which is the phrase used in order 19 of 3 February 2011. The Oxford Dictionary defines “punishment” as:
the infliction or imposition of a penalty as retribution for an offence: crime demands just punishment.
It seems to me that it may be necessary for a person to have an intention to inflict or impose a penalty as retribution for an offence, if his or her conduct is to constitute “punishment”. The mother’s clear evidence was that she had no intention to punish M but sought to prevent him from jumping out of her car. I accept her evidence as to her motive and intention, which was in fact unchallenged.
Contrary to the father’s contention, order 19 of 3 February 2011 is not a blanket prohibition on “anyone hitting the children” in any circumstances. The order refers specifically to “physical punishment”. It could be that there are circumstances in which physical force would be necessary to protect a child from injury. Examples would be situations when a child is about to suffer an electric shock or burn or run into a stream of traffic on a busy street. A parent may have to take very swift action in those circumstances to ensure the child’s safety and may use physical contact with no intention whatsoever of punishment.
In any event, I am satisfied that the mother had a reasonable excuse for her conduct on 16 October 2011. I accept her evidence that she slapped M on his leg with an open hand and that she did not punch him. I accept that the child was attempting to jump out of a moving car on a busy road and that the mother had to take swift and strong action to ensure his safety.
For all of these reasons, I dismiss the father’s application filed on 25 October 2011. The mother sought an order that the father pay her costs in that event and nominated an amount of $2,000. I was not provided with a meaningful breakdown of that amount, thus I can only order that the father pay the mother’s costs as agreed or taxed.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on December 2011.

Associate:

Date: 23 December 2011

[2011] FamCA 991

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Breach

Costs