Moulden and Tan (No 2)

[2010] FamCA 927

FAMILY COURT OF AUSTRALIA

MOULDEN & TAN (NO. 2) [2010] FamCA 927

FAMILY LAW – CONTRAVENTION – where the mother refused to attend an intake assessment for supervised time between the father and the children to occur – where the mother is of the belief that the children have been sexually abused by the father – where on previous occasions it was not established that such abuse had occurred – held that the mother had contravened Court orders without reasonable excuse

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NDA, 70NEA, 70NEB, 70NFA & 70NFI

Elspeth & Peter; Mark & Peter, and John & Peter (Penalty and Costs) (2007) FLC 93-341
In the Marriage of Gaunt & Gaunt (1978) FLC 90-468

APPLICANT: Mr Moulden

RESPONDENT: Ms Tan

FILE NUMBER: DNC 652 of 2007

DATE DELIVERED: 6 October 2010

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 4 & 5 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Morgan

SOLICITOR FOR THE APPLICANT: Maleys Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

Orders

UPON THE COURT FINDING that the mother contravened the Order of the Court being paragraph 2 of the Order dated 7 April 2010 without reasonable excuse

1. The mother attend the assessment/intake appointment at the Children’s Contact Services Catholic Care NT on Thursday 14 October 2010 at 11.30 am.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 652 of 2007

MR MOULDEN

Applicant

And

MS TAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. By application filed on 27 May 2010, the father brought proceedings seeking that the mother be dealt with for contravening the orders of the Court.  The application states in paragraph 6 that the order contravened was:

   “Order 2 of the order made in the Family Court of Australia at Darwin on 7 April 2010.”

2. In paragraph 7, it is alleged that between February and May 2010 the mother, without reasonable excuse, did not attend an intake appointment with Catholic Care Northern Territory, to enable the father to spend time with the children pursuant to orders made on 12 February 2010 and 7 April 2010.

3. The father filed an affidavit on 27 May 2010 which sets out the allegations about the contravention.  The relevant paragraphs of the Court orders are paragraph 3 of 12 February 2010 and paragraph 2 of the order of 7 April 2010.  Paragraph 3 of the order of 12 February 2010 provides:

   “The father spend time with the children, [S], born […] June 2006, and [H], for such periods of time and on such dates as are able to be made available to him by Catholic Care (formerly Centacare), with all such times to be supervised at all times by Catholic Care.”

   Paragraph 2 of the order of 7 April 2010 provides that:

   “The mother forthwith make all necessary appointments, attend all intake interviews, and pay all fees associated with arranging for the father to spend supervised time with the child, [S] and the child, [H], at and under the supervision of Catholic Care, pursuant to paragraph 3 of the orders made herein on 12 February 2010.”

4. I have considered those orders in the context of the other paragraphs of the orders made on those dates, and in the context that these are interim orders pending the final hearing of the children’s issues. 

5. The hearing before me, in relation to the Contravention Application, commenced on the afternoon of Monday, 4 October 2010.  For reasons given on 5 October, I refused to adjourn the contravention hearing on the application of the mother.

6. At the hearing, the father was represented by Ms Morgan and the mother was unrepresented.  When the allegations were put to the mother, she admitted that she had contravened the order by not attending the intake interviews with Catholic Care.  She said, however, that she had a reasonable excuse for not obeying the orders. 

7. On 22 September 2010, Justice Burr had ordered that:

   “At the earliest opportunity, but by no later than 4 pm on Thursday, 20 September 2010, the mother do file and serve an affidavit responding to the allegations of the father contained in his affidavit filed on 27 May 2010 in support of his aforesaid Contravention Application.”

8. The mother did not file any such affidavit.  Notwithstanding this, I gave the mother an opportunity to give oral evidence.  The mother was cross‑examined by father’s counsel.  The father gave brief oral evidence and was very briefly cross‑examined by the mother.

9. The mother asserted in her oral evidence that she had a reasonable excuse because, as a mother, it was her duty to protect her children from harm, that she believed the father had sexually abused their daughter S and her daughter by another relationship, T.  T was born in July 1995. 

10. The mother’s evidence was that she was concerned about the future harm S would suffer if, when she is older, she understands that notwithstanding the father had sexually abused her, according to the mother’s belief, she was nonetheless required to spend time with her father.  The mother gave evidence that her daughter, T, had told her many years ago about ongoing sexual abuse by Mr Moulden, the father of S.

11. The mother’s evidence confirmed the summary at the bottom of page 1 of the Department of Health and Families’ report of 19 July 2010, that:

    “[T] described to her that the stepfather, Mr [Moulden] sexually harmed her from the age of nine years to two years ago.”

12. The mother said in evidence that she was aware of the allegation about T being abused by the father when she consented, in November 2007, to an order which provided for the father to spend ongoing unsupervised time with S. 

13. Proceedings began again in relation to S in August 2009.  The mother’s allegations of sexual abuse of S were first brought before this Court in the affidavit of the mother filed and sworn on 16 November 2009. 

14. In that affidavit, the mother referred to statements S made to her on 8 November 2009.  S had spent time with her father from 4 November to 7 November 2009.  On 9 November 2009, the mother spoke to the police.  On 10 November 2009, the mother took S to the Sexual Assault Unit where she was examined. 

15. The Northern Territory Child Protection Service report of 18 January 2010 sets out, in detail, the steps taken to investigate and report on the allegations.  The report also sets out, in detail, comment about each of the parties and their version of events. 

16. When the orders of 12 February and 7 April 2010 were made by Justice Burr, the Court had before it the mother’s affidavit of 16 November 2009 and the Child Protection Service’s report of 18 January 2010.  Since then, the parties and the Court have received the family consultant, Mr V’s, report on 3 June 2010, and the short report being a summary of intervention by the Northern Territory Families and Communities of 19 July 2010.

17. It is noted that these two reports were written after the father lodged the Contravention Application, and after the dates of the alleged contravention. 

18. Those reports do not provide the mother with assistance in establishing her reasonable excuse. 

19. The mother gave evidence that she has made appointments of intake assessment on two occasions, but had not attended either.  Her evidence, at first, relied solely on her belief that she was protecting her children.  Later, her evidence changed and she referred to being in hospital at the time of one appointment.

20. She repeated, however, that she did not attend one appointment for the intake interview because she did not agree with the order.  She said on one occasion that she had had a panic attack.  During her oral evidence, the mother said that she now believed that the interim orders “may work in her favour”. 

21. After prompting by me, the mother returned after the luncheon adjournment and told the Court that she had an appointment for an intake assessment at Catholic Care for Thursday, 14 October at 11.30 am.  This was confirmed by a fax which is exhibit 1.  The mother said that she had every intention of attending that interview, although through his counsel the father indicated that he was not confident that she would do so. 

22. The mother referred to her attitude and fears, and those that were held by her concerning the children being at risk in the father’s care.  She also referred to her great distress about these factors because she herself had been a victim of sexual abuse.

23. The father relied on his affidavit.  The basis of the contravention was clearly established and confirmed by the mother’s admission that she was aware of the orders and had not complied with the orders that she attend an intake assessment.  The father’s evidence included evidence that recently, and since his children were living with the maternal grandparents, he had commenced telephone communication with S and, to a lesser extent, the young boy H.  The father denied, in cross-examination, that any abuse had ever occurred.

24. In this application for a contravention, it is not appropriate for the Court to determine, on a final basis, whether there has been any sexual abuse of the children.  The order which was contravened was an order which required the mother to attend an intake assessment for the purposes of arranging for the father to spend time with the children, which was to be carefully supervised by the Catholic Care centre.

25. Counsel for the father submitted that the mother had contravened the order, without reasonable excuse, and in a way which showed serious disregard for the Court’s orders.  The father did not seek any specific penalty, but did require that the findings be made to warn the mother that any further contravention would be treated very seriously.  The mother maintained in her submissions that she had had a reasonable excuse. 

26. When considering the law in this matter, I take into account specifically the provisions of Division 13A of Part VII of the Family Law Act (1975).  This division of the Act, which relates to contraventions, is long and complex.  Significant sections for the purposes of these proceedings are the following sections:

    Section 70NAC

    Meaning of contravened an order

    A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

    (a)where the person is bound by the order--he or she has:

    (i)intentionally failed to comply with the order; or

    (ii)made no reasonable attempt to comply with the order; or

    (b)      otherwise--he or she has:

    (i)intentionally prevented compliance with the order by a person who is bound by it; or

    (ii)aided or abetted a contravention of the order by a person who is bound by it.

    Note:   Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.

    Section 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).

    Section 70NAF

    Standard of proof

    (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

    (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

    (3)The court may only make an order under:

    (a)paragraph 70NFB(2)(a), (d) or (e); or

    (b)paragraph 70NFF(3)(a);

    if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

    Section 70NDA

    Application of Subdivision

    This Subdivision applies if:

    (a)a primary order has been made, whether before or after the commencement of this Subdivision; and

    (b)a court having jurisdiction under this Act is satisfied that a person (the respondent ) has, whether before or after the commencement, committed a contravention (the current contravention ) of the primary order; and

    (c)the respondent proves that he or she had a reasonable excuse for the current contravention.

    Note: The court may also vary the primary order under Subdivision B.

    Section 70NEA

    Application of Subdivision

    (1)Subject to subsection (4), this Subdivision applies if:

    (a)a primary order has been made, whether before or after the commencement of this Division; and

    (b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and

    (c)the person does not prove that he or she had a reasonable excuse for the current contravention; and

    (d)either subsection (2) or (3) applies;

    and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.

    (2)For the purposes of paragraph (1)(d), this subsection applies if no court has previously:

    (a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

    (b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

    (3)For the purposes of paragraph (1)(d), this subsection applies if:

    (a)a court has previously:

    (i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

    (ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and

    (b)the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.

    (4)This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.

    Section 70NEB

    Powers of court

    (1)If this Subdivision applies, the court may do any or all of the following:

    (a)make an order directing:

    (i)the person who committed the current contravention; or

    (ii)that person and another specified person;

    to attend a post‑separation parenting program;

    (b)if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

    (c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

    (d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;

    (e)if:

    (i)the current contravention is a contravention of a parenting order in relation to a child; and

    (ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

    (iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

    make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

    (f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

    (g)if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

    Note 1:The court may also vary the primary order under Subdivision B.

    Note 2: Paragraph (1)(a)--before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).

    (2)The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:

    (a)the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and

    (b)the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.

    (3)If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.

    (4)If:

    (a)the current contravention is a contravention of a parenting order in relation to a child; and

    (b)the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

    the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.

    (5)The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.

    (6)In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:

    (a)       whether the primary order was made by consent;

    (b)whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;

    (c)the length of the period between the making of the primary order and the occurrence of the current contravention;

    (d)any other matters that the court thinks relevant.

    (7)The court must consider making an order under paragraph (1)(g) if:

    (a)the person (the applicant ) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent ) who committed the current contravention committed a contravention of the primary order or that other primary order; and

    (b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:

    (i)was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or

    (ii)was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.

    Section 70NFA

    Application of Subdivision

    (1)Subject to subsection (2), this Subdivision applies if:

    (a)a primary order has been made, whether before or after the commencement of this Division; and

    (b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and

    (c)the person does not prove that he or she had a reasonable excuse for the current contravention; and

    (d)either subsection (2) or (3) applies.

    Note:For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.

    (2)For the purposes of paragraph (1)(d), this subsection applies if:

    (a)no court has previously:

    (i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

    (ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and

    (b)the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

    (3)For the purposes of paragraph (1)(d), this subsection applies if a court has previously:

    (a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

    (b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

    (4)This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.

    (5)This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.

    Section 70NFI

    Arrangements with States and Territories for carrying out of sentences and orders

    An arrangement made under section 112AN for or in relation to the carrying out of sentences imposed, or orders made, under Division 2 of Part XIIIA is taken to extend to the carrying out of sentences imposed, or orders made, under this Subdivision.

1. The decision of the Full Court of the Family Court of Australia, in In the Marriage of Gaunt & Gaunt (1978) FLC 90-468, has not been overruled by more recent decisions, and is still useful, notwithstanding the change to the legislation since 1978. At page 77‑398 the Full Court said:

   “The essential question is this -  can a party who does not agree with a Court’s decision about access defy the order and then plea that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child?  The question of the child’s welfare is, of course, the paramount consideration for the Court in determining the access question in the first place.  To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from the compliance with the Court’s order or from the consequences of non‑compliance would undermine the purpose and intention of the Act. 

   This is not to say that the Court’s decision, once reached, determines the matter for all time. It can be challenged by appeal and it can be reviewed and varied if new evidence or new circumstances dictate such a course of action (see Hayman & Hayman (1976) FLC 90-140). The husband did not appeal. Nor did he apply to vary the order. His reasons for failing to do so suggest that he was given bad advice but we cannot determine whether that is so. A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”. Evidence of changed circumstances or of matters not considered when the order was made might be.”

2. I turn to the discussion and findings in this matter.  The mother’s allegations of abuse were put before Justice Burr in the affidavit of the mother filed in November 2009 and the report of the Child Protection Service of January 2010. 

3. The interim decision and orders of February and April 2010 were, no doubt, made on the basis that the best interests of the children were the paramount consideration.  This includes an assessment of the evidence in relation to one of the primary considerations, being the need to protect the children from physical or psychological harm.  (section 60CA and section 60CC).

4. The mother admitted that she had contravened the order of 7 April 2010, paragraph 2, which required her to attend intake interviews, which were necessary to implement the order of 12 February 2010, which was providing for the father to have supervised time with the children as ordered on 12 February 2010.  The mother asserts that she believed that it was necessary for her to protect the children, and that she therefore had a reasonable excuse for failing to obey the Court order.

5. The authorities and, in particular, the quoted portion of Gaunt & Gaunt (Supra) make it clear that her view of the children’s welfare cannot override the decision of the Court.  The mother did not appeal either of the Court orders of February or April 2010, and no new evidence has come before the mother or the Court which could establish a relevant change in circumstances or which could justify the failure to comply with the orders.

6. The mother mentioned having a better understanding of the orders now but, in her evidence, admitted she knew about the orders and knew what was required to be done to obey the orders.  She has not established any misunderstanding which provides her with an appropriate defence or excuse.  The mother did not like the orders of Justice Burr;  she disagreed with them.  The mother’s evidence failed to establish, however, on the balance of probabilities, that she had a reasonable excuse for her failure to comply.

7. Were I contemplating orders of the type referred to in section 70NAF(3), I am also satisfied beyond reasonable doubt that the mother’s dislike of the orders, and her assertion that the children would suffer psychological harm if she obeyed the order, did not provide her with reasonable excuse.

8. Counsel for the father alleged that the mother’s behaviour showed serious disregard for her obligations under the order. Whilst the mother has failed to establish reasonable excuse in accordance with the requirements of section 70NAE, I do not find that the evidence taken as a whole establishes the necessary basis for a finding of serious disregard.

9. My findings, therefore, are that the mother has contravened the April 2010 order, and has not established a reasonable excuse, because she has not established that her belief was based on reasonable grounds.  I do not find that she has shown serious disregard.

10. The father does not seek any particular penalty. Counsel for the father sought a finding of contravention so that the mother was, in future, aware of the serious consequences which might flow if she did not obey Court orders. The powers of the Court in this matter are limited to those in section 70NBA and subdivision E of Division 13A and, in particular, section 70NEB.

11. Further orders have since been made in September of this year, providing for the father to spend time with the children.  The children now live with the maternal grandparents pursuant to an earlier order.  The Full Court in the matter of Elspeth & Peter, Mark & Peter, and John & Peter (Penalty and Costs) [2007] FLC 93-341 found that the provisions of subdivision E did not set out any consequences for failure to comply with a bond and said therefore, it was pointless to create an obligation that is likely to be ignored.

12. I am bound by the comments of the Full Court in the case of Elspeth & Peter, Mark & Peter, and John & Peter (Penalty and Costs) (Supra).  Therefore, the types of outcomes which are available to the Court to impose under the provisions which relate to the less serious contraventions without reasonable excuse are a limited number of options.

13. The father’s counsel conceded that the mother’s financial circumstances did not make an order for her to pay the father’s costs an appropriate penalty at this time. 

14. In these particular circumstances, and pending any final determination of the significant factual issues in this matter, an order that the mother attend a parenting program would be inappropriate.

15. The mother’s failure to attend the intake assessment was part of a parenting order providing for the father to spend supervised time with the children;  however, subsequently an order has been made that the children live with the maternal grandparents and spend supervised time with the father, pending the trial. 

16. Section 70NBA gives the Court power to vary the parenting order;  however, the primary order now in place makes provision already for the father to spend supervised time with the children whilst they live with the maternal grandparents.

17. The mother has made an appointment for an intake assessment at Catholic Care Northern Territory.  Whilst this may not be necessary to enable the children who are residing with the grandparents to spend supervised time with the father, it is likely to be of assistance. 

18. Therefore considering the limited powers of the Court, and the particular circumstances of this matter, I have made the findings that the mother has contravened the order of the Court without reasonable excuse.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 October 2010.

Associate: 

Date:  14 October 2010