Mitchell and Mitchell

[2020] FamCA 168

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL [2020] FamCA 168

FAMILY LAW – CHILDREN – Orders – Contravention – Sanctions – Where the mother alleges the three counts of the father’s contravention of interim parenting orders – Where the mother withdrew one count – Where the Court is satisfied on the balance of probabilities that the remaining two counts are established – Where the father withheld the children on two occasions without reasonable excuse – Where the father is sanctioned under Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Ordered the respondent father enter into two conditional Good Behaviour Bonds – Where each bond is for a period of six months to be served concurrently – No order as to costs.

Family Law Act 1975 (Cth) ss 70NAE, 70NAF, 70NDA, 70NEA, 70NFA

Family Law Rules 2004 (Cth) r 21.08

Jones v Dunkel (1959) 101 CLR 298
KatsilisvBroken Hill Pty Ltd (1977) 18 ALR 181
Mitchell & Mitchell [2019] FamCA 213

APPLICANT: Ms Mitchell

RESPONDENT: Mr Mitchell

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1730 of 2017

DATE DELIVERED: 23 March 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 9 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sundstrom

SOLICITOR FOR THE APPLICANT: NLS Law

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Toronto Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

Orders

1. For the two proven contraventions of the Orders made on 12 April 2019 (being Counts 1 and 2 in the Application-Contravention filed on 10 December 2019), pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth), the respondent father shall forthwith enter into two Good Behaviour Bonds upon the following conditions:

   (a)       The bonds shall be without surety or security;

   (b)The father must be of good behavior for the duration of the bonds, which shall include compliance with all existing and future orders made between the parties under the Family Law Act 1975 (Cth); and

   (c)The bonds shall be for periods of six months each, served concurrently, commencing on the date the respondent father enters into the bonds.

2. Otherwise, the Application-Contravention filed on 10 December 2019 is dismissed.

3. No order as to costs.

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 Mitchell & Mitchell 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 NEWCASTLE

FILE NUMBER: NCC 1730 of 2017

Ms Mitchell

Applicant

And

Mr Mitchell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The parties are engaged in unfinished litigation under Part VII of the Family Law Act 1975 (Cth) (“the Act”) over the orders needed to govern the care of their six children.

2. The proceedings were heard at trial in April 2019, but at that time I decided to make only interim orders to test whether the father would adhere to his promise to ensure the children would spend time with the mother. At the time, I reasoned (Mitchell & Mitchell [2019] FamCA 213):

   107.If the children’s residence with the father is settled on a final basis, there would be little point making any orders to try and revive and retain the children’s relationships with the mother because he would probably not be able to ensure compliance with orders requiring the children to spend time with her. He has convincingly demonstrated that over the past 10 months by his contravention of the interim orders made in July 2017.

   108.If, alternatively, the children’s residence with the father is only provisional, he might be induced to ensure the children revive and retain their relationships with the mother for fear of the possibility of ultimately losing the children’s residence because of his intransigence. The father asserted during cross-examination that he could ensure the children would spend time with the mother if, following the trial, orders were made to that effect. He will now have the opportunity to prove he was not lying or mistaken. The risks of harm posed by the mother to the children are not now so pronounced that the children cannot safely spend modest amounts of time with her.

   …

   110.If the father, as he said he could and would, ensures the children spend time with the mother then, when the interim orders are reviewed several months hence, there might be good reason to consensually transform the interim regime (or something like it) into a final regime. The mother might still be inclined to contest the children’s residence but, in that event, she would need to present more convincing evidence of her overall parenting capacity than she was able to adduce at this trial. Absent any final consent orders, a further trial would be necessary.

   …

   121.The orders re-list the proceedings for consideration of final orders on a date approximately six months hence. If the orders are unreasonably breached, liberty is granted for the proceedings to be re-listed in advance of that date.

   (Original emphasis)

3. The proceedings were re-listed on 2 December 2019 for review, at which time the mother’s counsel alleged the father was in continuing breach of the interim orders made in April 2019. The father was not personally present and his lawyer was represented by an agent who could not impart any useful information about the father’s alleged breach, so the proceedings were adjourned for two weeks and the father and his lawyers were ordered to attend the next Court event.

4. In the meantime, on 10 December 2019, the mother filed an Application-Contravention, together with an affidavit in which she gave evidence of the father’s alleged contraventions.

5. On 16 December 2019, the father and his lawyer appeared before the Court. The father’s lawyer was asked about the alleged contraventions of the April 2019 orders, whereupon the contraventions were admitted, but in respect of which it was contended the father had reasonable cause. There was no suggestion, express or implied, that the father did not understand his obligations under the interim parenting orders.

6. Accordingly, the mother’s Application-Contravention was listed for hearing and it was then noted:

   B.In relation to the Application-Contravention filed by the mother on 10 December 2019, the father admits the alleged contraventions of the interim parenting orders made on 12 April 2019 and does not require the mother for cross examination, but asserts that he has a reasonable excuse for such contraventions.

7. The father later filed an affidavit on 12 February 2020 in which he set out the evidence upon which he relied to establish the “reasonable excuse” for his contraventions.

8. These reasons now determine the Application-Contravention.

Legal context

1. The provisions of Division 13A of Part VII of the Act prescribe the manner in which a party’s failure to comply with orders relating to children is assessed and sanctioned.

2. Relevantly for present purposes, the onus falls upon the father to establish the existence of reasonable excuse (s 70NDA(c)) and the standard of proof required is on the balance of probabilities (s 70NAF).

3. In respect of Counts 1 and 2, which aver the father’s failure to make the children available to spend time with the mother on two occasions in November 2019, the father’s defence hinged entirely upon his ability to prove the existence of reasonable excuse pursuant to the provisions of s 70NAE(5) of the Act. His defence of those counts did not rely upon any other circumstances (s 70NAE(1)).

4. Section 70NAE(5) provides as follows:

   (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).

   (Emphasis added)

5. Count 3 was withdrawn before the hearing began and so there is no need to give it any further consideration.

6. The procedure for the conduct of contravention hearings is prescribed by r 21.08 of the Family Law Rules 2004 (Cth), which procedure was followed.

Counts 1 and 2

1. The father admitted that, in breach of Order 5(g)(i) made on 12 April 2019, he failed to make the children available to spend time with the mother on the weekends of 1 to 3 and 22 to 24 November 2019.

2. In advance of those weekends, on 23 October 2019, the father’s solicitor wrote to the mother requesting that she agree to suspend the children’s visit on the first weekend. The reason given by the father was that three of the six children were expressing resistance to spending time with the mother.

3. On 28 October 2019, the mother’s solicitor replied, agreeing to suspend the upcoming weekend visit, but only in respect of the three children allegedly expressing their resistance. The mother insisted on the other three children still being made available.

4. On 31 October 2019, the day before the children were due to be delivered to the mother, the father sent a text message to the mother informing her that he would not be delivering any of the children to the changeover venue.

5. The children were not delivered by the father to the mother that weekend.

6. After the missed weekend visit, the mother’s solicitor wrote to the father enquiring about the prospect of the children spending some make-up time with her. The father replied on 12 November 2019, saying:

   I am still waiting for new legal representation, therefore I will not be answering any questions without legal advice.

7. On 21 November 2019, the mother’s solicitor emailed the father enquiring about his production of the children to the mother for the coming weekend. The father responded by saying:

   I am still waiting for new legal representation, until then I will not be answering any questions.

8. The mother also sent a text message to the father asking about his production of the children for the upcoming weekend and he replied:

   No, the girls will not be attending visit [sic].

9. The children were not delivered by the father to the mother that weekend.

10. None of those facts was disputed by the father.

11. The father’s purported “reasonable excuse” for his contraventions of the April 2019 orders is encapsulated in his statement:[1]

    I am concerned about the impact that [the mother]’s encouragement is having on the mental and psychological health of the girls.

    [1] Father’s affidavit, para 177

12. According to the father’s evidence, his “concern” about the children’s “mental and psychological health” is sourced back to statements made by the children over preceding months upon their return from visits with the mother.

13. On Sunday 30 June 2019, upon the children’s return to the father, they reported the mother did not feed them enough, denigrated the father, and forced them to watch a movie they did not like. Two children (“T” and “X”) also alleged sexualised misconduct by the maternal grandfather.[2] The father reported the sexual misconduct allegations to both the child welfare authority and the police,[3] which were then investigated, including by interviews of both T and X,[4] but the allegations were not substantiated.[5] The children thereafter continued to see the mother as the April 2019 orders required.

    [2] Father’s affidavit, paras 43-44

    [3] Father’s affidavit, para 45

    [4] Father’s affidavit, para 49

    [5] Father’s affidavit, para 57

14. In early September 2019, some of the younger children began seeing a sexual assault counsellor,[6] though the father’s evidence is silent about why that was necessary. The allegations of sexual misconduct made against the maternal grandfather in June 2019 related to only T and X and were not substantiated in any event.

    [6] Father’s affidavit, para 99

15. On 18 September 2019, X told the father that T had been “cutting herself again”, but the father gave no evidence of having confirmed it. He did not say he spoke to T about it or that he checked her body for any injury. Surely he would have given direct evidence of her self-inflicted injury if it was true, particularly when it had been an issue at trial in April 2019. The strongest inference is that X’s report was untrue and T was not inflicting injury upon herself at all.

16. The father deposed the sexual assault counsellor told him on Friday 20 September 2019 that she made a mandatory report about the children to the child welfare authority concerning their experiences with the mother and, further, she encouraged him to somehow stop the children’s visits.[7] Nevertheless, the father allowed the children to visit the mother that weekend but, upon their return, X complained she had broken her wrist and had been forced to kiss the maternal grandfather.[8]

    [7] Father’s affidavit, para 112

    [8] Father’s affidavit, paras 116-121

17. The father reported X’s allegations to the child welfare authority on Monday 23 September 2019 and he deposed he was told by a staff member of the child welfare authority:[9]

    What you are describing falls under psychological harm… take X to the Police and make a statement of continued sexual assault.

    [9] Father’s affidavit, para 122

18. On 24 September 2019, the father took X to see the sexual assault counsellor, who later informed him she made another mandatory report to the child welfare authority.[10]

    [10] Father’s affidavit, para 123

19. On 25 September 2019, the father deposed he was told by a caseworker that she made a mandatory report and that the former sexual assault investigation would be reactivated.[11] The father deposed the caseworker told him she was prepared to give evidence as a witness on his behalf in these proceedings.[12]

    [11] Father’s affidavit, paras 125-129

    [12] Father’s affidavit, para 180

20. Several days later, the father made another report about the mother to the child welfare authority, though the genesis of his complaint remains entirely unclear. He alleged he was told his report “falls under psychological harm”.[13]

    [13] Father’s affidavit, paras 130-132

21. Having heard nothing more from the child welfare authority since the report made on 23 September 2019, the father took X to the police. His objective was to obtain an apprehended violence order to protect X from the maternal grandfather. The police informed him there was insufficient evidence to obtain such an order.[14]

    [14] Father’s affidavit, paras 133-134

22. In early October 2019, during the children’s weekend visit with the mother, X telephoned the father. The parties then became embroiled in an argument over the telephone. Even though the father admits the incident calmed down, he reported the incident to the child welfare authority.[15]

    [15] Father’s affidavit, paras 136-145

23. During the children’s next visit with the mother in mid-October 2019, one of the children called the father late at night due to an argument between the mother and the two eldest children. The father caused his partner to call the police and he waited on the telephone for over an hour until the police arrived at the mother’s home to conduct a welfare check.[16] The father spoke to one of the police officers, whom the father deposed told him he should not send the children back to the mother, regardless of the April 2019 orders. The father also deposed the police officer was willing to give evidence on the father’s behalf in these proceedings.[17]

    [16] Father’s affidavit, paras 151-156

    [17] Father’s affidavit, paras 157-158

24. Since then, the father deposed the children have made a litany of complaints about the mother’s neglect and misconduct, which the father said he reported to the caseworker and the child welfare authority.[18]

    [18] Father’s affidavit, paras 159-171

25. The two eldest children (but, inferentially, not the other four children) told the father they did not want to visit the mother any more.[19] However, it will be recalled that, on 23 October 2019, the father’s solicitor wrote to the mother advising her that three (not two) children did not wish to spend time with her.

    [19] Father’s affidavit, para 175

26. Despite three (or four) children not expressing any resistance to spending time with the mother, none of the children spent time with her on the two weekends which are the subject of Counts 1 and 2.

27. As things stand on the evidence:

    a)none of the allegations made of the mother’s parental neglect or misconduct has been substantiated by the child welfare authority or the police;

    b)none of the allegations made of the maternal grandfather’s sexual misconduct has been substantiated by the child welfare authority or the police;

    c)despite multiple notifications being made about the mother and/or maternal grandfather, the child welfare authority has not stepped in, utilising powers available to it under State legislation, to protect the children from any risk of “serious harm” whilst in the mother’s care;

    d)the police have not charged the mother or the maternal grandfather with any criminal offence;

    e)the police have been unwilling to either provisionally issue or apply to the State court for an apprehended violence order to protect the children;

    f)the caseworker who told the father she was prepared to give evidence as his witness was not called;

    g)the police officer who told the father he was prepared to give evidence as his witness was not called; and

    h)the father failed to explain why the three (or four) children who did not express any resistance to spending time with the mother and who must therefore have been willing to spend time with her were not delivered for their visits in November 2019.

28. The father failed to offer any explanation for why relevant child welfare authority and police records were not tendered. Nor did he say why he failed to call the allegedly willing witnesses to give evidence in support of his case. The inference is therefore readily available that neither the records (KatsilisvBroken Hill Pty Ltd (1977) 18 ALR 181 at 197) nor the witnesses (Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320-321) would have assisted the father’s case. Surely such evidence would have been adduced if it corroborated the father’s evidence. Having regard to his evidence about the many interventions of counsellors, staff of the child welfare authority and police officers in the affairs of the family, there could be no shortage of independent records.

29. It may be accepted that one or more of the children often made complaints to the father about the mother and/or maternal grandfather, but that does not mean their complaints were true or reasonably based. The April 2019 orders were made in the context of the children’s immersion in deep parental antipathy, of which they were acutely conscious. It would be unsurprising if the children made untrue or exaggerated reports to the father about the mother and the maternal grandfather because they believed the father would gratefully receive them.

30. While the father purported to act on the advice of third parties, no aspect of the evidence enabled a finding that he did so reasonably. Even if he was advised by others to disobey court orders, the evidence did not establish such advice was well informed. The persons offering such advice may not have been appraised of all relevant information.

1. Although the father said he is “concerned” about the children’s “mental and psychological health”,[20] his professed concern falls short of proving his “belief” that stopping the children from spending time with the mother was “necessary” to protect their health or safety, as s 70NAE(5) of the Act requires.

   [20] Father’s affidavit, para 177

2. Even if it was accepted the father honestly believed that stopping the children from spending time with the mother was necessary to protect their health or safety, due to the children being exposed to the risk of harm by the mother (or the maternal grandfather), his genuine belief is insufficient of itself to prove his “reasonable excuse” for disobeying the April 2019 orders. The test for “reasonable excuse” is objective, not subjective. The father’s evidence about the children’s exposure to the risk of their psychological harm while in the mother’s care seemed alarmist and was not objectively corroborated.

3. Objectively, the evidence does not establish the father had reasonable grounds to believe his disobedience of the April 2019 orders on the two nominated weekends in November 2019 was necessary to protect the health or safety of any of the children. Accordingly, his defence of “reasonable excuse” is rejected and Counts 1 and 2 are proven.

Sanction

1. The Act prescribes two levels of sanctions for contraventions of orders without reasonable excuse. The first category falls under Subdivision E and the second category under Subdivision F of Division 13A of Part VII.

2. Subdivision E applies if no previous sanction has been imposed for a past contravention or if, irrespective, the Court considers it is more appropriate to apply Subdivision E (ss 70NEA(1), (2), (3); and s 70NFA(4)).

3. Subdivision F applies if the respondent’s contravention manifested serious disregard of the obligations created by the subject order (s 70NEA(4); and ss 70NFA(1), (2)).

4. The mother conceded this was the first occasion upon which the father’s contraventions of court orders without reasonable excuse has been proven. She conceded the current contraventions should be sanctioned under Subdivision E.

5. In the course of submissions, the mother asserted and the father agreed, he should be sanctioned by the imposition of good behaviour bonds.

6. Neither party wanted to be heard against the imposition of concurrent good behaviour bonds of six months duration, without security or surety, conditioned that the father faithfully observe all existing and future orders made between the parties. Sanctions in those terms are appropriate.

7. Orders will therefore be made in those terms.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 March 2020.

Associate: 

Date:  23 March 2020