NP & AP

[2006] FamCA 870

[2006] FamCA 870

FAMILY LAW ACT, 1975

FAMILY COURT OF AUSTRALIA
  No NC of 2005
AT NEWCASTLE  

IN THE MATTER OF:           NP        (Applicant Father)

AND:               AP  (Respondent Mother)

CORAM:  THE HONOURABLE JUSTICE MULLANE

Date of Hearing:  13 June 2006

Date of Judgment:  30 June 2006

JUDGMENT OF THE COURT

INTRODUCTION

1. This was a hearing of 3 contravention applications issued by the father of a child P, alleging the mother on 26 occasions contravened orders for contact by P with his father.  P was born on 14 April 2003 and at the time of the alleged contraventions was two.

2. The mother admits she contravened the orders as alleged on each of the 26 occasions but relied on the defence of reasonable excuse.

CONTRAVENTION OF THE ORDERS OF 23 AUGUST 2005

1. The Orders of 23 August 2005, to which the mother consented, provide:

   1         That the child [P] born 14 April 2003 live with the mother.

   2         That the child have contact with the father as follows:­

   2.1On Saturday 27 August 2005 from 10.00 am to 12 noon.

   2.2On Sunday 4 September 2005 from 10.00 am to 2.00 pm.

   2.3On Saturday 10 September 2005 from 10.00 am to 4.00 pm.

   2.4On Saturday 17 September 2005 from 9.00 am to 5.00 pm.

   2.5From 10.00 am Saturday to 10.00 am Sunday, each weekend for a period of 3 months, commencing Saturday 24 September 2005 and concluding (and including) Saturday 10/ Sunday 11 December 2005.

   2.6From 5.00 pm Friday to 5.00 pm Sunday each weekend, commencing Friday 16 December 2005.

   3         In the event that Mother's Day falls on a contact weekend, contact is suspended on that weekend at 5.00 pm on Mother's Day Eve for the balance of that weekend.

   4         During all contact provided with the father, the child is to reside at the home of the paternal grandparents or the paternal aunt.

   5         Contact is to be effected by either the paternal aunt or one of the paternal grandparents collecting the child from the mother's residence at the start of contact and returning the child to the mother's residence at the end of contact.

   6         In the event that the child's birthday falls on a non-contact weekend, the child shall have contact with the father from 2.00 pm to 6.00 pm on such day and in the event of such birthday falling in a contact period, the child have contact with the mother from 2.00 pm to 6.00 pm on such day.

   7         That whichever party has the care of the child is responsible for making decisions about the day to day care, welfare and development of the child during such periods that the child is in his or her care.

   8         That the father provide to the children's representative in writing within 72 hours of any written request to do so the results of urinalysis for prescription and non-prescription drugs.

   9         That the father provide to the separate representative within 14 days of the making of these Orders a written authority for the child’s representative to discuss the father's progress in respect of mental health and illicit drug usage with any treating medical practitioner(s) of the father and include the name of such professionals in such authority.

   10       In the event that the father exhibits signs of mental ill-health or illicit drug usage during contact, the paternal aunt or one of the paternal grandparents  must assume the care of the child and return him to the care of the mother as the earliest opportunity.

   11       Each of the parties keep the other advised at all times of their residential address and phone contact numbers.

2. The mother admits that she contravened those orders on the following dates for contact indicated by not making P available for the contact indicated:

   27 August 2005   4 hours

   4 September 2005                   4 hours

   10 September 2005                 6 hours

   17 September 2005                 8 hours

   24 September 2005                 24 hours

   1 October 2005  24 hours

   8 October 2005  24 hours

   15 October 2005  24 hours

   22 October 2005  24 hours

   29 October 2005           24 hours

   5 November 2005                   24 hours

   12 November 2005                 24 hours

   19 November 2005                 24 hours

   26 November 2005                 24 hours

   3 December 2005                   24 hours

   10 December 2005                 24 hours

   23 December 2005                 48 hours

   30 December 2005                 48 hours

   6 January 2006           48 hours

   13 January 2006  48 hours

   20 January 2006  48 hours

   27 January 2006  48 hours

   3 February 2006  48 hours

   10 February 2006                   48 hours

   17 March 2006  48 hours

CONTRAVENTION OF THE ORDERS OF 4 APRIL 2006

1. The Orders of 4 April 2006 provide:

   1.        That Orders 2, 3, 5 and 6 made 23rd August 2005 be suspended until 26th April 2006. 2. That pending further order the father have contact with [P] born 14 April 2003 from 9.00am to 4.30pm on the 8th, 11th, 15th, 18th, 22nd and 25th April 2006.

   3.        That pending further order contact be implemented by the paternal grandmother or the paternal aunt collecting the child from and returning the child to the mother at her residence.

   4.        That pending further order the father is not to attend at collection or return of the child.

2. The mother contravened those Orders by not facilitating’s contact with his father on 18 April 2006.  She alleges she had reasonable excuse.

MEANING OF “REASONABLE EXCUSE”

1. “Reasonable Excuse” is defined by the Parliament in section 70NE of the Family Law Act as including, but not being limited to:

   (1A)    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.

   (1B)     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 (1A)(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.

   (2)       A person (the respondent ) is taken to have had a reasonable excuse for contravening a residence order in a way that resulted in a 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).

   (3)       A person (the respondent ) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:

   (a) the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b) the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (4)       A person (the respondent ) is taken to have had a reasonable excuse for contravening a specific issues order 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).

2. The standard of proof for a finding of reasonable excuse is in proof on the balance of probabilities (Section 70NEA).

3. In the previous provision of the Act (Section 70(3)) instead of “reasonable excuse”, the Parliament referred to “reasonable cause”.

4. In its decision of Gaunt and Gaunt (1978) FLC 90-468 the Full Court of the Family Court considered a fact situation where a father had failed to comply with an interim order for contact by his 2 children with their mother. The order was made by a Judge without the father’s agreement. He alleged he had “reasonable cause” for the contravention because the children were upset at the prospect of seeing their mother and if they were forced to do so against their wishes they could suffer harm. He called expert witnesses who testified that resumption of contact by the children with the mother could be harmful.

5. The Full Court said:

   The essential question is this ¾  can a party who does not agree with a Court's decision about access defy the order and then plead 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 compliance with the Court's order or from the consequences of non-compliance would undermine the purposed and intentions 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 v. 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. 

6. In O’Brien and O’Brien (1993) FLC 92-396 the mother failed to facilitate contact ordered for a child with the father, and relied upon reasonable excuse. She alleged she did not understand the obligations of the orders place on her and it was not in the child’s interest to have contact.

7. Smithers J said (at p.80,044-5 of the report):

   The wife also contends that it was appropriate for her to deny access, and that she was not culpable under section 112AD if she did so on the basis that it was not in the interests of the child for access to take place.  Counsel on behalf of the wife referred to a number of cases in which the principle of the paramountcy of the welfare of the child was referred to.  It seems to me that those cases are largely cases dealing with the question as to whether an order for access should be made in the first place, and not with enforcement.

   I do appreciate, however, that in the case of Cavanough and Cavanough(1980) FLC 90-851 it was said by the learned judge, Justice Connor, that the question of the welfare of the child was to be taken into account in relation to a prosecution for breach of an access order. Nevertheless, at page 75,371 of that judgment, His Honour said as to the custodial parent:

   “I also accept that his attempts to give access to his wife have been genuine attempts and have been frustrated by the attitude of the children.”

   In Cavanough’s case it seems to have been quite clear that the husband genuinely desire the children to go on access in accordance with the court order.  That case is thus completely different from this one.  I am satisfied, insofar as it may be necessary for me to make this finding of fact, that the wife’s attitude on the dates referred to in the application, was, contrary to her own evidence, that she did not want the child to go on access to the father.  I am quite satisfied as to that and on the necessary criminal standard of proof.

   Whatever one may say about Cavanough’s case, and the suggestion that one has to take into account the welfare of the child in determining whether a person has reasonable excuse for not complying with the access order, it seems to me that the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person.  It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child.  The question is whether it is necessary to protect the health or safety of a person, including the child.  That ground has certainly not been established in this case.  Indeed, to the contrary, there is nothing to suggest that refusal of access was necessary to protect the health or safety of the child or any other person.  There was no basis upon which the wife might have believed on reasonable grounds that this was so.  The wife gave no evidence in relation to any concern for the health or safety of the child except in the most general sense, in that she said that if she told the child she had to go on access that might in some way diminish the very close relationship and trust between her and the child.

THE MOTHER’S CASE OF REASONABLE EXCUSE FOR CONTRAVENING THE ORDERS OF 23 AUGUST 2005 PRIOR TO 17 MARCH

1. The mother consented to the orders of 23 August 2005.  The allegations for reasonable excuse emerges from the mother’s affidavit of 25 May 2006, where she swore:

   8         I did not comply with those Orders after they were made as I felt that undue pressure was placed on me by my then solicitor and indirectly, the child representative to sign them.  I was told if I did not do so that I would lose the care of [P].  I do not think the Orders made were in [P]’s best interests.

2. The statement in the first sentence is merely a submission; not evidence of any undue pressure by any one.  The allegation in the second sentence is objectionable as to form and the evidence does not disclose who is alleged to have made the statement.  The statement in the third sentence that “I do not think the orders made were in P’s best interests” is in the present tense and does not go to the issue of whether she thought the orders were in P’s best interests when she consented to them or to the issue of whether she thought they weren’t when she contravened them.

3. That is the extent of the evidence of such alleged reasonable excuse.  It does not establish the allegation on the balance of probabilities.

4. Based on the evidence in the mother’s case, particularly a Notice of Risk of Child Abuse she filed on 15 September 2005, it appears a second possible ground of reasonable excuse may be that there was a risk of abuse to P on contact.

5. But there are serious defects in any such argument.  One is that the 2 events the mother referred to in the notice occurred in mid-2003 and December 2004 and she was aware of them when she consented to the orders of 25 August 2005.  Another is that the notice is not on affidavit and there is no evidence supporting the allegations in the Notice.  A third problem is that the notice, in relation to the earlier incident, alleges a film was “pornographic” which is an opinion, rather than evidence of what the film depicted. Even if it were sworn evidence it could not establish the allegation.

6. There is no evidence offered on the matters in the Notice of Child Abuse and no reasonable excuse is established on the basis of the matters alleged in the Notice of Child Abuse.

7. The evidence does not establish any reasonable excuse in respect of the 24 contraventions of the orders of 23 August 2005 prior to 17 March 2006.  The evidence establishes beyond reasonable doubt that the alleged contraventions of that order occurred and were without reasonable excuse.

THE MOTHER’S CASE OF REASONABLE EXCUSE FOR THE CONTRAVENTIONS OF 17 MARCH AND 18 APRIL 2006

1. For the contravention of 17 March 2006, the defences of reasonable excuse already discussed in relation to the prior contraventions of the orders of 23 August, for reasons set out above, have not been established.  

2. Although the mother swore in her affidavit that contact occurred on 18 April, at the hearing she conceded through her lawyer that it did not and that she contravened the order on that occasion.  The allegations in the notice of child abuse filed 15 September 2005 were not shown to have any relevance to her defence to the contravention of 18 April.  Those allegations were known to the mother when she consented to the orders of 4 April 2006, only 14 days before this contravention, and, as earlier found, those allegations were not supported by evidence.

3. There is extensive evidence in the mother’s case of events after 18 April, but they are not directly relevant to whether on 17 March or 18 April she had reasonable excuse for contravening the respective orders.  That depends on her knowledge, state of mind, and intention at the time of the particular contravention.

4. But the mother relies upon events leading up to the contravention of 17 March and events leading up to the contravention of 18 April to establish the defence of reasonable excuse.  The evidence relevant to this defence appears to be paras 1 to 137 of the mother’s affidavit, the affidavit of RP, paras 1-42 of the affidavit of BL, the affidavit of DK and exhibits M1 and H1.   

5. The father has for some time been undertaking voluntary urine tests for drugs.  On 10 December he tested positive for Opiates.  The test result was clear for 6 other groups of drugs.  It was also clear for the specific opiates Codeine, Morphine and 6-Monoacetyl Morphine.  The type of Opiate was not identified.  The pathology report includes the following comment:  

   Opiates are a class of drugs made up of the following:  morphine, codeine and monoacetylmorphine (heroin metabolite).

   Opiates will normally be detected in low concentrations when the patient has consumed these in the last several days.  (In rare cases even poppy seeds could be detected by this screening test).  A positive confirmation test for morphine shows a very high likelihood of illicit drug use but could occasionally be due to high dose codeine metabolism.

6. The father had consulted his doctor on 21 November for a throat infection, chesty cough and bronchitis and been prescribed Augmentin.  His doctor recorded that on 14 December, when told the pathology result of the sample of 10 December, the father denied consumption of opiates and gave another sample, which when tested for drugs was clear. 

7. Evidence of the positive drug result was from records produced on subpoena by the father’s general practitioner.  There is no evidence that the mother was aware there had been a positive result of any drug screen as at 17 March or 18 April.  Given the evidence of the mother’s repeated contraventions and scrutiny of and conversations with P after contact, there is no doubt that if she had been aware of any positive drug test, she would have had her solicitors raise the issue in correspondence with the father’s solicitor and relied on it to stop contact.  But there is no evidence of it being raised and no evidence that she ever relied upon it to refuse contact. 

8. Indeed even on 21 April when she refused further contact, the letter by her solicitors notifying the father’s solicitors of her decision says “the reason for the mother’s attitude is due to the content of disclosures made to her by the child”.  

1. The parties were in court on 13 February 2006 on the return date of the father’s first contravention application.  On that occasion the Judicial Registrar made an interim order suspending the contact until 14 March 2006 and ordered that there be 4 hours of contact on each of 15 & 22 February and 6 hours of contact on each of 1 & 8 March, with the contact to be supervised by the father’s sister.  The contact occurred and there is no evidence that it was not supervised as ordered.  P was collected and returned each time. 

2. There is evidence of the mother and Ms L of P’s behaviour and statements after contact.  The evidence about P from 15 February and through to 17 April is of close and detailed scrutiny of his presentation, behaviour and conversation by the mother and other witnesses in her case.  He was 2 years of age.  The level of scrutiny was severe.   There are numerous reported statements by him that on the face of it are likely to be, or possibly. fantasy.  The evidence is that the mother did not reality test or reject any of them.

3. She gives evidence of interpreting P’s appearance after contact on 15 February to infer he was “dazed and not knowing where he was or who was around him”, very drowsy, very lethargic, didn’t comprehend what she was saying, didn’t recognise her voice, “his eyes appeared to be very glassed and out of focus”, “something was very wrong with [P]”, and “he was unable to control himself”.   She also apparently considered it relevant that P had a scratch between his genitals and his anus and alleged it was “fresh”. But there is no evidence as to what she relied upon in drawing each of these inferences or conclusions.  P said several times, pointing to the palm of his hand, “my hand is sore” and then when the mother displayed interest in his hand, said, “Sore, mummy, sore.  Daddy biting my fingers.”  That statement is inherently unlikely and she apparently observed no mark or injury, but the mother did not reject it.  The clear message to P was that she would give entertain such negative statements about his father. 

4. It is important to note that the supervised contact of 4 hours on 15 February was the first contact P had attended at least since the orders of 23 August 2005 and would have been a significant event for him, probably associated with some anxiety.   Such anxiety would probably be heightened by scrutiny by the mother and others on his return.Although the mother has not given evidence as to what she deduced and thought about these matters, it appears she suspected someone may have drugged P.  The evidence discloses no reasonable basis for such a suspicion. 

5. They promptly took P to a doctor.  P was examined and apparently appeared normal.   They then took P to a pathology laboratory.  After one unsuccessful attempt to obtain a urine sample, they took P home, gave him lemonade and returned to the pathology premises.   The urine sample was taken within an hour of P’s return from contact, and when the sample was analysed by the pathology laboratory it showed no trace of any drug. 

6. It appears from her evidence that P did not go to bed until 7.45 pm on 15 February and that then the mother sat by P from when he went to bed in her bed until at least 9.00pm and then also observed him while asleep.  She observed his sleep was disturbed:  “tossing and turning and screaming out ‘mummy’ and was crying at intervals in his sleep”.  Given his attendance at contact, the subsequent events and the fact that he didn’t go to sleep until 9.00pm, he would have been very overtired when he did go to sleep and it is likely that he would have also been affected by what appear to have been a high level of anxiety on his mother’s part from when he returned home, as she apparently thought someone had drugged him.

7. It would not be surprising if P was tired and irritable the next day, given the events the previous evening and night.  He went to day care for the day.  When he was collected, the day carer told the mother P was quiet, didn’t want to be touched, and sat most of the day on a chair “not wanting to interact with other children”.  He had 3 mosquito bites on his arm, scratched them and “would not allow me to treat them” and  “He was very hard to talk to whereas previously he would be very chatty”.  The day carer reported these matters to the mother.  

8. After 4 hours contact on 22 February the mother thought P was “tired and listless and again could not recall what he had done” and he wanted to sleep in her bed.  She did not give evidence of the observations on which she based these conclusions, but obviously she questioned him about what he had done with his father.  The next day the day carer told the mother P had said “don’t smack me” when she attempted to assist with his shorts when he was to use the toilet and he wet himself.  The Court takes judicial notice of the fact that it is not unusual for a 2 year old, even after becoming toilet trained, to wet himself.  The mother’s evidence is that P’s toilet training was not yet completed at the time.  It is of concern that the mother apparently considered it significant that P wet himself.

9. The mother alleged that when P returned from 6 hours of contact on 1 March, “he was very quiet and did not recall what he had done that day”.  Obviously she questioned him about his time with his father.  When she put him to bed that night he told her “I had 2 medicines” and when she asked “why?” he replied “”cause I was naughty”.  The mother infers that this was a comment about his contact.  She testifies he said nothing else about the contact.  After day care the next day the day carer told the mother “[P] had not liked to be asked to do anything and objected to being given rules for games,” and “he became stubborn and refused to join in any group activities” and this was very out of character for him.     He had said he had been given 2 medicines and he “was acting as if he had been in a lot of trouble”.    There is no evidence of the basis for that conclusion and no evidence of the mother having any information to suggest the day carer had any expertise to support it.

10. When P was returned from 6 hours contact on 8 March, he alighted from the car and ran to the mother and began hitting her.  The supervisor said to the mother, “Yes he was doing that to his father today, too”.  The mother then testified, “I could see that he was not himself.  He had no colour in his face and had very dark circles under his eyes.”  She testifies that about a half hour later he was much improved.

11. When the mother was putting P to bed, they had a conversation, in which P said, “Daddy smacked me”.  The mother then said, “Why?”, to which P replied, “Daddy smack me, you naughty boy, I smack you.”  She continued the conversation for about 10 minutes.  P told her, “I bumped my head at aunty’s house.  Oh, I hurt myself.”  She asked how he bumped his head and he replied, “I bumped my head and Daddy told to stop it”.  The mother testified that he also told her, “I was scared and had to block my ears at aunty’s house”, and, “He constantly brought up the fact that he had been smacked and even pointed out that it had been done on his hip and that the smack ‘really hurt’.”

12. The mother does not testify that she bothered to look to see whether there were any marks on P.  The obvious inference from her evidence is that she did, and there were none.

13. The mother’s further evidence is that on the following day when she collected P from the family day care centre, he pushed her onto the floor and hit her in the face, around the shoulders and upper body, and pinched her.  She said he threw things at her.  She does not identify what he threw at her.  He had calmed down half an hour later and she put him in the car and took him home.  At home he hit her again and he was put in his room.  She alleges that in the next 2 weeks (i.e. until 22 March) “[P] continued to sleep in my bed, refusing to be out of my sight.  He continued to be aggressive without reason although a little more controlled.”  She repeatedly fails to give evidence of observations to support various inferences, conclusions and opinions she gives.  But she says that his carer at day care advised that he had “appeared to be a little more settled and back into a routine at the centre”. 

14. His toilet training proceeded.  The day carer assisted the mother in this regard.  The mother proposed contact limited to 8 ½ hours on Saturday, 25 March.  When P was preparing to go he refused to wear his underwear and demanded to wear a nappy.  He was reluctant to when the paternal grandfather arrived at the mother’s home to collect him.  He was returned 4 hours later.  When returned, she said “he became aggressive towards” his half sister.  When the mother put him to bed that evening he spoke to her about “locking the bedroom door and having to be very quiet”.  She testified, “Over the next week [P] continued to exhibit bout {sic} of violent behaviour towards his sister, his carer and I.  [P] also started to injure himself.  He would head butt the walls and throw himself backwards from a standing position where I only just managed to catch him before his head hit the floor.” 

15. Her evidence is in many respects comprised of conclusions or opinions, rather than observations that might have founded conclusions or opinions.  The mother alleges that during the week after 25 March the day carer told her, “Over the past few weeks [P] has started to become aggressive towards me and has started to push his best friend C around”.

16. The mother gave sworn evidence that “[P] only appears to become aggressive with females and this was totally out of character for him.  He is normally a loving and generous little boy.”  At the hearing her legal representative, apparently on her instructions, told the Court the mother’s primary concern was “about the treatment of females and aggression”.   But her own evidence is that the supervisor of the contact the paternal aunt, had told the mother on 8 March that during contact that day P had been behaving similarly towards the father.  The mother consented to the orders appointing that person to supervise the contact.  The mother does not provide any evidence that she does not trust that person or did not believe her.  In that context and also taking into account that the mother did not at any stage raise alleged concerns about P behaving aggressively towards females (specifically) with the supervisor, the father or his solicitors, the Court does not accept on the balance of probabilities that she did have such a concern.    

17. The mother testified that the day carer also spoke to one of her superiors about P’s behaviour and was told that it was like that of “a child at the centre who had witnessed domestic violence”.  The mother testifies that although in the 8 months after the parents separated, P at times was disobedient and aggressive, it was not “at the level” she observed after contact resumed on 15 February.

18. On 31 March the mother’s solicitors sent a letter on her instructions to the father’s solicitors and in that letter they stated:

    We are preparing a full and comprehensive response to the father in respect to reasons why the mother has taken the attitude she has to overnight contact occurring at this stage.

    That information will be supplied hopefully by next Monday.

    In essence her major concerns are the separation anxiety of the child from being separated by the mother for such period without any experience of that previously occurring, the impact on her and the older child of [P] being away from the home for an extended period and the change in [P]'s behaviour which has occurred since contact has been exercised by the father.

    The primary change is the increased level of aggressiveness the child shows to the significant females in his life being the mother, his sister and the carer who has been looking after him for 18 months. He has also started to display aggressive behaviour towards his best friend at pre-school….

    Since September 2005 our client has been seeking the assistance of a counsellor at the G Family Support Service. We have asked that counsellor to prepare a report in relation to her observations of the mother and the older child since the issue of overnight contact between the father and the child has arisen.

    We expect to have that report available for you by Monday next.

    We will also be preparing an Affidavit by our client and the carer setting out events since September 2005 which have resulted in our client's non-compliance with the orders she agreed with at that time.  

19. If, as her solicitor’s letter says, the mother’s concern was separation anxiety, there is no evidence of the mother as to whether or why she decided on that basis that P’s interests would be addressed by not providing weekend contact ordered to commence on 17 March.    

20. The mother testified that that evening P told her, “Daddy smacked my arm and he hurt me.  He made me sad.  Aunty put cream on my arm because it was a big, big hurt.”  (He was holding his right arm.)  Then he said, “Daddy smacked my head.  He hurt my head and told me to stop.” (P was holding the back of his head.)  P also said, “Daddy bite me and pinch me”.  There is no evidence by the mother that she checked to see if there were any marks on P or other signs of an assault.  The obvious inference (in the absence of any evidence from her to the contrary) is that she did, and there were no such marks or other signs.  She did not reject or reality test any of these statements of a 2 year old.

21. On 4 April 2006 the mother consented to the orders of that date.

22. On 5 April the mother’s daughter was ill and the mother took her to a doctor and then to hospital.  A friend cared for P at home.  It was the first night that the mother had been separated from P.  P was asleep in the mother’s bed when she left.  The mother’s friend observed P to be “agitated in his sleep.  He was tossing and turning.  I heard him say whilst asleep words to the effect of, ‘Daddy hit me.  No.  Daddy hit me on the tummy.  I just called Mummy.  Mummy, Daddy hit my tummy.”  The mother’s friend slept with P.  The mother arrived home at about 7.15 am after P had awakened and P was pleased to see her.  But later he started hitting out at the mother and her friend with an open hand.  The mother told him to stop and left the room.  P followed her and went up behind her in the kitchen hitting her on the back of the legs.  He said, “Women are bad.” 

23. The following night the mother again stayed at the hospital with her daughter and her friend stayed at the home with P.  The mother put P to bed, but he did not go to sleep until about 10pm, whereupon the mother left for the hospital.  The mother’s friend again watched P from time to time while he was asleep.  He was restless.  At about 1am he awoke, sat up in bed and was screaming and crying.  When the friend went to him, he became hysterical.  Her evidence is that, “For an hour and a half he was throwing himself around from one end of the bed to the other, hitting the pillows and saying, ‘Get out, go away, leave me along.  I want my Mummy.  It’s my Mummy!’.”  When the mother arrived home at 8.30am the next morning P was happy to see her.

24. The mother had visitors on the evening of Saturday, 8 April 2006, being the same friend and Mr & Mrs B.  P was not put to bed until about 8.30pm.  At about that time he told those present, “Daddy hit my head and he hurt me like this and Daddy make me sad.  You patted Mummy?”  He hit the top of his head.  Then he said, “Daddy hurt me all the time.  Daddy pushed me and hurt me and bumped my head.”  He also said, “I had 2 medicines”.  The mother did not reality test or contradict these statements of a 2 year old.  On the contrary, she was prepared for this conversation and tape recorded it.  She gave the tape recording to the Joint Investigation Response Team, presumably in support of allegations of abuse by the father of P. 

25. She also subsequently tape recorded conversations with P on 9 April and 11 April and referred these to the Police as well.   On the afternoon of 10 April 2006 the mother was informed by the day carer that she had overhead P say to another little boy, “My Daddy hit me.  He hurt me and make me sad.”  Again there is no evidence of anyone reality testing the statement.

26. On the morning of 11 April 2006, when the mother told P that he was going to his father’s, P told her, “Daddy hurt me all the time”.  When he asked her again where they were going, and she told him, to his father’s, he then said, “Oh, I’m sick of that”.  But he went to the contact and after he was returned there was a conversation between him and his half sister.  He told her, “I was scared”.  When she questioned him as to why, he said, “Cause I hurt myself on my back.”  When he was questioned further as to “How?”, he said, “Cause Daddy hurt me like this on my tummy.”   His sister said, “That’s not nice” and P said, “Aunty like that game.  I go to water.”.  She asked, “Did you have fun?” and he replied that he did and that he had got a game.  When she asked, “And what else?”, he replied  “He pinching me.”   When asked, “Who?” he said, “Daddy”.  When asked “Why?”, he said, “He hurt me and he hurt me and he smacked me like this on the head.”  He demonstrated with a closed fist to the top of his head.  He said, “He punched my head again cause I wanted to go back.”  The mother was listening to this conversation and made notes of it.  No one rejected or reality tested the negative statements about his father.  Presumably the mother examined him and found no marks or other evidence to support the negative statements about his father.

27. P went to contact on Saturday, 15 April 2006.  He returned at 4.30pm.  The left side of his nose was swollen and there were 2 scratches under his left eye, 6 scratches on his right cheek and a number of scattered scratches on other parts of his body.  The evidence does not disclose where the scratches were or the size of the scratches.  It appears they were not serious, as the mother did not make any enquiries of the father or anyone else regarding the scratches and did not take P for any medical attention.  She did not report any suspicion of abuse to the Department of Community Services and did not say in her affidavit that she had any such suspicion.  Her evidence is that P was “extremely hungry” and “relatively quiet” although she did not give evidence as to what observations lead to those conclusions.   

28. At about 7.20pm the mother took P to put him to bed.  When she was putting his nappy on, she observed that “around P’s anus it was extremely red and swollen in a large almost perfect circle”.  She testified:

    116. I asked [P], "How did you hurt your bot bot?' He did not answer. [P] would not allow me to put his nappy on. For 15 minutes [P] ran up and down the bed just being a monkey. [P] then said "He smacked me and he hurt me and then I saw red and then came the priest-man" [P] then asked me to take all his clothes off and to lie down next to him. [P] then told me and demonstrated to me how he had to lie down on his back with his legs in the air and spread apart and then demonstrated to me how the" funny man" was waving his arms around.

    117. I was so distraught by this that I took [P] to ... hospital. This was around 8: 15pm. We were taken straight through to children's emergency and seen by a social worker. The social worker rang DOCS.

    118. When the nurse was taking [P]'s vitals, [P] said to her, "Look, I was covered in smelly poo." He then said, "Look, look there I was covered in smelly poo." [P] was pointing to a small dirt mark on his left hand.

    119. [P] was questioned by the social worker at 11 :30pm. All she could get out of him            was about "Chloe" and "Jesse and the naughty priest-man."

    120. At around 12:20am [P] was finally seen by the paediatric registrar. After a very brief examination she said that she could not rule out sexual abuse but in her opinion it could be diarrhoea. I told her that [P] did not have diarrhoea and the swelling and redness around [P]’s anus what I had witnessed with [P] when he had a sore bottom or diarrhoea in the past. [sic]

1. The mother’s evidence is that P passed a motion at about 11.45pm at the hospital and it was not diarrhoea.  Her opinion was that the faeces smelt “very offensive, more so than was usual”.

2. P was discharged from the hospital at 1am.  The mother’s evidence is that “the social worker told me to report this incident to the Police” but what the social worker actually said was not provided in evidence.  P went to bed at 1.20am that night. 

3. The mother’s evidence is:

   124. At 3:20am [P] whilst still asleep started screaming hysterically and throwing his arms and legs around while saying, "No! No! Don't touch me." I tried to wake up [P], as I could not calm him down while he was asleep. Once awake he continued crying and screaming. He was throwing himself around the bed and launching himself towards the wall.

   125. At 4:10am as [P] had not settled I decided to ring the hospital. I was put on hold for 15minutes. During this time, in the lounge room [P] fell asleep in my arms. Finally when connected the nurse instructed me as did the social worker to contact the police.

   126. I rang the police on Sunday 16 April, 2006 at around 11 am and reported my concerns.

   127. Two policemen arrived at my house at around 2pm.1 told them everything that had occurred and gave them photos of [P]'s face and bottom. I also gave them a tape recording of what [P] had told me. They remained with us until around 4:30pm

   128. At their request [P] and I went to ... Hospital. One police officer stayed with us at the hospital until he was called away at around 6pm. The police officer told me to insist that a sexual assault kit ("SAK") be done on [P] and if they refused to get them to document their decision on record.

   129. We were seen by another social worker at 7pm. [P] was distraught by this time as he was looking forward to going to the 'monster trucks' show I had promised to take him to. I told the social worker that I will return to the hospital after the show finished at 10pm.

   130. [P] later that evening did a bowel motion that was hard and pebbly with no indication of diarrhoea.

   131. Whilst at the monster trucks [P] went to give me a kiss and tried to put his tongue in my mouth. I moved him away and told him, "That is disgusting. Why would you do that?" [P] replied, "Daddy does it".

   132. We returned to the hospital at 10:10pm and were finally seen by a third social worker at midnight. This ladies name was [D]. I explained what had happened and she told me to take the children home so they could sleep. She said that she would call me when she was available to follow the matter up.

   133. Dana, the social worker rang me at 2:30am to get further information for DOCs and then again at 3am.

   134. [D] told me she had great concerns about the state of [P]'s anus, what [P] had said & demonstrated to me. We decided that it was not appropriate to remove the children from their beds at 4am in the cold. I agreed to return to the hospital when [P] awoke in the morning.

   135. On Monday the 17th of April 2006 at midday, [P] and I went to the hospital and saw fourth social worker. As instructed by the police I asked for a SAK kit being done. The social worker refused to carry out the test and informed me that a doctor would not even speak to me let alone examine [P] as they had already done a report on the Saturday night.

   136. Whilst waiting for the social workers return, [P] became violent towards me.

   137. Soon after leaving the hospital and as I was driving to pick up Mary I asked [P], 'Why do you always hurt me?" [P] replied, "Cause you're a girl." I asked, 'What does that mean?' [P] said, "Daddy told me to." This attitude was totally out of character for [P].

CONCLUSIONS REGARDING CONTRAVENTION ON 17 MARCH

1. The mother has not established on the balance of probabilities that on 17 March she had any reasonable excuse for not implementing the weekend contact ordered to commence that day.   Accordingly, it is established beyond reasonable doubt that on 17 March 2006 the mother contravened the contact order without reasonable excuse.  

CONCLUSION REGARDING CONTRAVENTION ON 18 APRIL

1. The evidence of events leading up to 18 April establishes on the balance of probabilities that the mother had no real commitment to implementing contact orders she had consented to in August 2005 and on 4 April 2006. 

2. On the contrary she was intent on finding evidence to justify not implementing the contact.   Increasingly this involved emotional abuse of P  by subjecting him to late and inconsistent bedtimes,  close observations at home by the mother and other adults, even when he was asleep, and at day care by the day carer, taking him to a doctor for a physical examination, subjecting him to the urine testing procedure, conversations between the day carer reporting to the mother, physical examinations by the mother searching for injuries,  and frequent questioning of him about his time with his father (the mother on one occasion making notes of his statements and later tape recording conversations with him).  

3. The conduct of the mother reached a level of hysteria on 15 April when she after she had been putting him to bed, she decided to suggest P might have been sexually abused  during contact.  She took him to hospital after 8.00pm, he was physically examined and he was there until 1.00am the next morning.  He did not get to bed until 1.20 am.   Then on 16 April similar conduct followed.  She photographed P’s bottom,  tape recorded a conversation with him, had the police to the house for about 2 and a half hours, took P to the hospital and had him there from about 4.30pm to about 6.00pm, then took him to a “monster trucks show” (as she had previously promised him) until about 10.00 pm at night, then returned to the hospital and did not take him home to be until after midnight when told to do so by a staff member.   The next morning she took him back to the hospital again.

4. The mother’s evidence suggests that in the time leading up to 18 April she was obsessed and in a state of very high anxiety about P’s contact.  The mother is clearly P’s strongest attachment.  He sleeps in her bed and he is dependant upon her for most of his care and nurturing.  It is likely that he sensed her obsession and anxiety about his contact with his father and this placed additional apprehension, stress and anxiety upon him, in addition to the anxiety of separating from his mother, which would have been particularly high when, after many months of no contact, the 2 year old commenced contact on 15 & 22 February, and when it was extended on 1, 8 & 25 March.  

5. It should have been in the mother’s contemplation that behavioural disturbance for P was a likely consequence of the contact, particularly if she did not ensure P had good and stable sleep and household routines and encourage P and convince him that she had no fears of the contact and was confident he would be safe.  On the contrary she aggravated any emotional difficulties P had and largely was responsible for the behavioural disturbance she sought to rely upon (among other factors) to refuse contact. The mother gave priority to her wish to find excuses for denying contact over P’s emotional wellbeing.    

6. The evidence does not establish on the balance of probabilities any reasonable excuse. The evidence establishes beyond reasonable doubt that on 18 April 2006 the mother contravened the contact orders of 4 April 2006 without reasonable excuse.

ORDERS

1. The Orders of the Court therefore are:

2. The Court finds the mother has without reasonable excuse contravened the contact orders of 23 August 2005 on 25 occasions as alleged in the father’s contravention applications filed 16 December 2005 and 6 April 2006.

1. The court finds the mother has on 18 April 2006 without reasonable excuse contravened the contact orders of 4 April 2006 as alleged in the father’s application filed 5 June, 2006.

1. The proceedings are adjourned to the Judge’s duty List on 10 July 2006 at 10am for hearing of submissions on penalty/sanctions.

1. The mother must attend Court on that occasion until the matter is finalised.

1. Bail is dispensed with.