ORR & PINTER - [2014] FamCA 119

FAMILY COURT OF AUSTRALIA

ORR & PINTER

[2014] FamCA 119

FAMILY LAW – ORDERS – Contravention – Where the mother alleges the father contravened parenting orders by not providing the child for time with the mother – Where the father states he has a reasonable excuse for not providing the child – Where the mother alleges the child made disclosures relating to possible sexual abuse – Where the father alleges that he was protecting the child from emotional harm by withholding him from the mother.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE.

APPLICANT:

Ms Orr

RESPONDENT:

Mr Pinter

INDEPENDENT CHILDREN’S LAWYER:

Suthers Lawyers

FILE NUMBER:

BRC

4156

2009

DATE DELIVERED:

7 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

JUDGMENT OF:

Hogan J

HEARING DATE:

12 November 2013

REPRESENTATION

FOR THE APPLICANT:

Ms Orr in person

COUNSEL FOR THE RESPONDENT:

Mr Kissick

SOLICITOR FOR THE RESPONDENT:

Payne Butler Lang

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Suthers Lawyers

it is ordered that

The Respondent had a reasonable excuse for contravening the Order made 21 February 2012 on 10 April 2012 and, in so far as the Application for Contravention filed 8 November 2012 relates to this date, it is dismissed.
Between 5 June 2012 and 23 October 2012, the Respondent, without reasonable excuse, contravened the Order made 21 February 2012 on each of the occasions particularised in the Application for Contravention filed 8 November 2012.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4156 of 2009

Ms Orr

Applicant

And

Mr Pinter

Respondent

REASONS FOR JUDGMENT

On 8 November 2012 the applicant mother filed an Application for Contravention (“the contravention application”) alleging that on specified occasions the respondent father contravened the terms of a final Consent Order entered into by the parties on February 2012 (“the February 2012 Order”).
The February 2012 Order provided that the child live with the father, who has sole parental responsibility for him, and spend unsupervised time with the mother, initially on one occasion each week from 10.00 am until 4.00 pm and – after the expiration of three months – in addition, from 9.00 am to 5.00 pm each Saturday.
The February 2012 Order also provided that, upon the mother undertaking and successfully completing a six week Driving with Care Level 1 Course with the Alcohol and Drug Foundation and not earlier than six months from the date of the order (that is, from no earlier than about 21 August 2012) the child’s time with the mother would occur each alternate weekend from 4.00 pm Friday till 4.00 pm Sunday. Further provision was made for the child’s time with the mother once he starts Prep: namely, that he spend overnight each Tuesday and from Friday to school Monday each alternate weekend.
The matter returned to Court after the February 2012 Order was made.
On 23 October 2012 Federal Magistrate Coates (as his Honour then was) suspended the operation of the February 2012 Order in so far as it provided for the child to spend time with the mother.
On 8 November 2012 the mother filed the Application for Contravention (“the Contravention Application”) which is before this Court. In the absence of reasons outlining the basis upon which his Honour determined to act as he did, I do not know why his Honour did not deal with this Application prior to making an order, on 25 February 2013, that the matter be transferred to this Court.
On 25 February 2013 (“the February 2013 Order”) Federal Magistrate Coates ordered, by way of interim order, that the child spend supervised time with the mother for periods of up to two hours each week at the Town C Contact Centre if it was available to accommodate such time and, if it was unavailable to facilitate weekly time, that such time occur on a fortnightly basis. This time has not occurred.
His Honour also ordered that, within seven days of the Contact Centre opening, the parties attend for an Intake Session and comply with all Centre requirements to enable the facilitation of supervised time between the child and the mother. An Independent Children’s Lawyer was appointed and the matter transferred to this Court.

The alleged contraventions

The father does not dispute that the child did not spend time with the mother on the occasions she particularises in the Contravention Application. He accepts that he contravened[1], the February 2012 Order on the occasions particularised but asserts that he had a reasonable excuse for contravening the order on those occasions.
[1] s 70NAC of the Family Law Act 1975 (Cth)
The father bears the onus of establishing, on the balance of probabilities, that he had a reasonable excuse for contravention on each of the occasions particularised.
Section 70NAE of the Family Law Act 1975 (“ the Act”) provides that a person may be taken to have had a reasonable excuse for contravening an order in circumstances including, but not limited to, those set out in subsections 2, 4, 5, 6 and 7 of the section.
The father relies in particular upon s 70NAE (5) of the Act which provides that a person 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)that person believed on reasonable grounds that not allowing the child and the other 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 above.

Did the father have a reasonable excuse for failing to make the child available to spend time with the mother on 10 April 2012?

The child spent time with the mother on 3 April 2012. She says that, on this occasion, he ran into a doorframe and received a bruise to his face while he and his half-brother were engaged in an Easter egg hunt. She says that she attended to his injury and told the father about it at a changeover at the Town C Police Station. She also contacted the Department of Child Safety to inform them about the incident.
The child was due to spend time with the mother on 10 April 2012 but he was not presented by the father at the commencement time. Rather, the mother was telephoned by an Officer of the Department of Child Safety who said that the Department wanted to interview her and the child’s half-brother.
The father gave evidence, which I accept, that he acted to prevent the child spending time with the mother on 10 April 2012 because of his concerns about the manner in which the injury to the child’s face occurred. He said that the injury was to the soft fleshy part of the child’s cheek and that he considered that this could not have occurred in the manner described by the mother. He formed the conclusion that the injury had been caused by blunt force but later accepted that it may have been accidental.
The father provided the child to spend time with the mother on 17 April 2012 and his time with her continued until the end of May 2012 when it ceased.
I accept that the father believed on reasonable grounds that not allowing the child to spend time with the mother was necessary to protect the child’s health and safety. I also find, given that the child recommenced spending time with the mother on 17 April 2012 and did so until 2 June 2012, that the period during which, because of his contravention, the child and the mother did not spend time together was not longer than was necessary to protect the child’s health and safety.
For these reasons I find that the father had a reasonable excuse for contravening the February 2012 Order on 10 April 2012.

Did the father have a reasonable excuse for failing to make the child available to spend time with the mother from June 2012?

The child continued to spend time with mother until the end of May 2012.
The mother asserts that, on 22 May 2012, during a conversation with the child in the car, the child told her that his uncle had minded him. When she asked whether he had had a good day and what he had done, he said “[Mr B] showed me his natural part.” She then asked him “what, his bottom beautiful?” to which she says the child replied: “No mummy, [Mr B] showed me his natural parts; he shows me his bum, we do what is natural.”
The mother says that by this stage she was ‘horrified’ about what the child had said and asked the child’s half-brother to help her to use her phone to record the child’s comments. Once her phone was working, she asked the child to repeat what he had said to her and he did so. She said that she was able to record his comments to her. The mother says that, after this, she contacted the Department. She was told at some stage that an investigation had commenced.
The child spent time with the mother on 29 May 2012.
The mother says that, on 2 June 2012, the father sent her a text telling her that the Department and the Police had told him not to bring the child to spend time with her. However, she also says that, when she contacted the Department they told her that they had not told the father not to take the child to spend time with her. She also says that similar enquiries of the Police led her to believe that that service had not told the father to cease the child’s time with her.
In correspondence dated 5 June 2012 the Department confirms that, following concerns being raised about the child, a Child Protection Notification was recorded. Further, the Department advised that neither the child nor his brother were deemed to be in need of protection: the outcome of the Notification was “unsubstantiated”.
I did not understand the father to dispute that he acted to prevent the child spending time with the mother because he had learned of the investigation arising out of the matter referred to above. In fact, he says that he had a reasonable excuse for doing so because he acted to protect the child from the harm arising from exposure to ‘coaching’ by the mother - as he says occurred on 22 May 2012.
I am not persuaded that the father believed on reasonable grounds that preventing the child from spending time with the mother in accordance with the February 2012 Order was necessary to protect the physical health or safety of the child. The father had clearly determined that the child was not physically at risk in spending unsupervised time with the mother - he had acted on this view by providing the child to spend time with her in the period from 17 April 2012 until 29 May 2012.
However, the father says that he had a reasonable excuse for failing to provide the child to spend time with the mother since 29 May 2012 because he believed, on reasonable grounds, that to do so was necessary to protect the child’s psychological health and to prevent him from suffering psychological harm resulting from exposure to the mother’s questioning him about his interactions with his uncle (“the paternal uncle”).
The father said that, after the Police attended at his home to inform him about the allegations outlined in paragraphs 20 and 21 above, he took legal advice and spoke with the Department and the Police. He says that the legal advice he received was that it was not in the child’s best interests to spend time with the mother until investigations were completed, that the Department told him not to permit the child to spend time with the mother and that the Police told him not to permit the child to spend time with the mother because there was a risk of further ‘coaching’.
The father says that the reasonableness of his response in acting to prevent the child from spending time with the mother must be assessed in the circumstances where, previously, the mother has:
a)alleged that the child has, in some way, been inappropriately dealt with by the paternal uncle;
b)consistently made threats to allege sexual abuse by members of his family toward the child.
He says he acted protectively to prevent the child from suffering harm as a result of the mother’s attempts – as demonstrated by her own account of what happened on 22 May 2012 – to ‘coach’ the child to make allegations of inappropriate behaviour by the paternal uncle.
Counsel for the father submitted that the father had acted appropriately. He said that the child’s time with the mother would have continued, following its recommencement on 17 April 2012, but for the mother’s conduct in “interrogating” the child in late May 2012. He submitted that, as she had done in the past, the mother “floated” the notion that the paternal uncle had, in some way, acted inappropriately toward him.
Counsel submitted that the mother’s actions in enlisting the child’s brother to participate in recording the child was a further action which caused the father, reasonably, to suspend the child’s time with the mother until the matter was otherwise before the Court. This submission would have force if the father had taken any steps to return the mother to Court. Instead, the father decided simply to continue not to provide the child for time with the mother despite the continued operation of the Order.
Counsel further submitted that I would conclude that the mother was fixated on demonstrating the existence of something that did not exist – namely that the paternal uncle poses some sort of risk to the child – and that her fixation in establishing the same itself amounts to a risk to the child from which he should be protected. Further, it was imperative that the child be protected from the potential of the mother coaching him to make spurious assertions or accusations in relation to sexual abuse.
Counsel submitted that for these reasons, the father had a reasonable excuse for failing to comply with the terms of the February 2012 Order.
The mother submitted that I should not be persuaded that the father had a reasonable excuse for contravening the order from late May 2012 onward because I should conclude that his actions are part of a long-standing and determined course of conduct designed to fracture the relationship between the child and the mother and his half-brother and to prevent the development of a meaningful relationship between them. She reiterated that she had not intended to coach, coerce or badger the child to repeat the comments. The mother said that, in recording the child’s comments to her, she was not coaching him but ‘simply’ attempting to obtain “evidence” of what he had said to her. She said that she did not mean to cause the child any harm and did not otherwise know how to get assistance or to gather “evidence”. She reiterated that recording the child’s comments was the only way she could obtain “evidence” of what the child had said to her.
She said that she was not accusing ‘anyone’ of having sexually abused the child. I consider the last submission to be disingenuous.
I am not persuaded that the father has established a reasonable excuse for contravening the February 2012 Order in the manner that has occurred since the end of May 2012. I consider that his concerns about the impact on the child of exposure to questioning by the mother during time with her could have been met by suggesting a return to supervised time rather than a complete cessation of time. Such supervision of the child’s time with the mother would have provided a mechanism by which the father could have been reassured that the mother could not continue to engage in questioning of the child.
I consider that the father has, without reasonable excuse, contravened the February 2012 Order on the occasions particularised in the Contravention Application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 March 2014.

Associate:

Date: 7 March 2014