NP & AP (No. 2) - [2006] FamCA 869

[2006] FamCA 869

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: 10 July 2006

Date of Judgment: 10 July 2006

JUDGMENT OF THE COURT (SANCTIONS)

The Act provides in s 65N that where a contact order is in force a person must not hinder or prevent a person and a child from having contact in accordance with the order or interfere with the contact that the person and the child are supposed to have with each other.
In s 70NC the Act then deals with what is a contravention of the order. It says a person is taken for purposes of this division to have contravened an order under this Act affecting children if and only if:
·where the person is bound by the order, he or she has intentionally failed to comply with the order or has made no reasonable attempt to comply with the order; or
·otherwise, he or she has intentionally prevented compliance with the order by a person who is bound by it or has aided or abetted contravention of the order by a person who is bound by it.
The provisions are fairly wide and it is clear from the legislation and certainly from the decided cases that a parent who is bound by a contact order cannot sit his or her hands and just not do nothing. That is not making a reasonable attempt to comply with the order.
In your case, of course, the finding that I have made is that the contravention has been intentional.
The Act does not distinguish between good parents and bad parents in terms of their parenting obligations in those provisions and requires the Court to apply an objective standard. So whilst you may have emotional problems or other problems that prevent you from really understanding or having insight into the effect of your behaviour on your child, that is not a matter that mitigates against a finding that you have intentionally contravened the order. Your obligation as a parent is the same as any other parent. That is reasonable compliance with your obligations under the orders.
It is not sufficient for a parent to say, for example, when a child expresses reluctance to go on contact, that therefore the contact should not occur or the parent has no obligation then to do more. That is not the case. Parenting involves parents imposing on children, and not in a physical or ugly way, but in a very careful and caring way, parents' judgments about what children should do or should not do. If it were left to children to decide, most small children would not go to school, would not go to a dentist, probably would not go to a doctor, and would not leave a place where they are enjoying themselves to go home.
But most parents manage to have their children do all those things because their children respect them and respect their wishes. That level of sophistication is beyond some parents but that is the parenting standard that a child should be able to expect. It is a reasonable standard; not the standard of a parent who is less than adequate in his or her parenting capacity.
The provisions of the Family Law Act dealing with contraventions of orders were amended as from 1 July 2006. But because these contraventions occurred and orders were made in these proceedings before that day, the previous provisions apply. Under the relevant provisions there are three levels of sanctions and other things the Court can do in relation to these contraventions. I take the view that in your case I should adopt the most severe level which is the level under Subdivision C.
I say that because Subsec 70NJ(1) says the subdivision will apply if subsection 70NJ(1A) applies and that 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 71NG(1)(c) adjourned proceedings in respect of a contravention 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.”
The finding that I make is that there has been no prior order imposing a sanction or action in respect of a contravention and there has been no adjournment of the type referred to, but your conduct in relation each of the 26 contraventions showed a serious disregard of your obligations under the primary order.
Why do I say it is a serious disregard? Well, there are two reasons for that. One is that I find that you had no intention of supporting the orders, but you were intent on finding an excuse not to implement them. So that all of the contraventions were intentional and, indeed, from the very first occasion of contact after the consent order of

23 October 2005 you contravened the order and did that on 25 occasions. Then when there were already contravention proceedings commenced against you, you consented to the orders of 4 April, but continued your obsessive conduct seeking excuses to refuse contact, at an even more frenzied pace, and contravened that order only 2 weeks later.
The second reason I regard it as a serious disregard is because these orders were made for the benefit of a two year old child and your conduct has been seriously prejudicial to him. That child is powerless in this process. You disregarded that and took control of the situation for your own means, for your purposes in terms of your conflict with the father and your hostility towards him. And in the process of desperately trying to find an excuse to frustrate the contact, and indeed, you tried to rely on numerous excuses, you did various damaging things to this child.
You denied him contact with his father, you failed to provide him with reality testing to assist him to understand the difference between reality and fantasy, you allowed him for your gratification to make statements that were negative about his father without checking him and supporting his father as your fellow parent, you subjected him to an inordinate scrutiny of his behaviour which would cause any child stress and feelings of disquiet and worry, you questioned him, closely observed him even when asleep, you conversed with him repeatedly about his father and his activities with him and you subjected him to other scrutiny.
You exposed him to your negativity towards his father because you accepted negative statements he made about his father without any attempt to check them or disagree with them. He would have found the questioning of him about his father to be quite stressful because he knows that your views of his father are negative and that you are interested in knowing negative things about him. You encouraged and heightened anxiety for him about his conduct and about his father. You undermined his relationship with his father by all of these processes. You subjected him to examinations and interviews by doctors, health professionals, police and others that were unnecessary, unjustified and unreasonable. You had him out at late hours of the night and awake at late hours of the night because it suited your agenda of trying to find excuses to stop his contact with his father.
Your conduct through all of these matters was abusive of the child. That, to my mind, establishes a very high level of culpability.
Whilst I am not satisfied that this is a situation where you should go to gaol and I do not even think it is a situation where it requires a suspended gaol sentence, I am satisfied that there should be serious sanctions imposed in each of the charges and with a suspension of those sanctions but on onerous conditions.

ORDERS

The orders are:
(1)the mother is fined $150 on each of the 26 contravention charges, giving total fines of $3,900;
(2)the orders of 23 August 2005 are varied so that:
(i)until 24 July 2005 the child spends time with his father from 9 am to 5 pm on Saturday 15 July and from 10 am on Saturday 22 July to 10 am on Sunday 23 July instead of the contact under the orders of 23 August, and;
(ii)the changeovers are to occur at McDonalds Family Restaurant instead of the mother's home;

(3)the fines are suspended on the following conditions:
(i)the mother for two years from today complies with all parenting orders concerning the child spending time with his father;
(ii)the mother attends and completes a course in parenting after separation approved or nominated by the Director of Mediation of the Family Court of Australia;
(iii)the mother contacts the Director of Mediation within seven days and obtains the necessary approval or nomination;
(iv)the mother pays any reasonable fees for the course;
(v)for two years from today the mother does not,
(a)question or converse with the child about his father or their time together;
(b)permit the child to be interviewed or examined by any medical practitioner, representative of DOCS or police officer or other public official in relation to any suspected abuse or mistreatment in the father's care except by the agreement of the independent lawyer for the child or;
(c)record in writing, by tape recorder or video any conversations of the child or with the child about his father or their time together.

I should explain some other things to you, Ms P. The sentence that I have imposed today is already imposed. If you breach the conditions there is no discretion in the Court at that stage. Once you have breached the conditions you will then be liable to pay the fines of $3,900.
The intention in this of the Court is that from these orders the child will hopefully have the benefit of your parenting capacity being improved by the Parenting After Separation Course. If you think that is not happening, then you should be seeking out someone with some expertise who is able to assist you by referring you also to a Parenting course, particularly for you to acquire insight about the effect of your conduct on Peter and particularly to learn more about a two year old child and how reliable their statements are, especially when they are exposed to this sort of conflict that you and the father apparently have and behaviour such as your behaviour has been.
The child is not a normal child. His context includes the negativity that you have towards his father. (I do not know what the father’s attitude toward you is; it may well be the same.) That is a handicap in the child’s life, and it may well prejudice his ability to form a good relationship with either of you. In the long term the child may well hold you accountable if he thinks that you have stopped him seeing his father and making his own judgments about his father. That could have very serious consequences for you if he decides to walk away from you in his teenage years and live with his father.
Children in their adolescence often have simplistic views of relationship issues. If he thinks that you have deprived him of the opportunity to spend time with his father and make his own judgments about his father, he may take that very seriously. At 15 or 16 he might vote with his feet and end up living with his father and wanting to isolate himself from you.
It is a big responsibility that you have to implement the contact with his father; but even bigger because you have some very negative views about his dad. But it is no less your responsibility