Oxbourne and Ewans and Anor
[2020] FamCA 125
•4 March 2020
FAMILY COURT OF AUSTRALIA
| OXBOURNE & EWANS AND ANOR | [2020] FamCA 125 |
| FAMILY LAW – CONTRAVENTION – Where respondent mothers found guilty of a prima facie case in respect of multiple breaches of Court Orders – Where respondent mothers plead a reasonable excuse in respect of all counts – Where reasonable excuse found in respect of one count only – Where standard of proof in respect of the defence of a reasonable excuse discussed – Where the breaches are serious. |
| Family Law Act 1975 (Cth), ss 79NAC, 79NAE, 70NAF, 70NEB(1)(d) |
| Northern Territory v GPAO [1999] 196 CLR 553 Vaughton & Randle (No. 2) [2013] FamCA 286 Saldo & Tindall [2012] FamCA 194 Stevenson v Hughes [1993] FamCA 14, (1993) FLC 92-363, (1993) 16 Fam LR 443 |
| APPLICANT: | Mr Oxbourne |
| RESPONDENT: | Ms Ewans |
| RESPONDENT: | Ms Rose |
| FILE NUMBER: | SYC | 1820 | of | 2014 |
| DATE DELIVERED: | 4 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 19 October 2018 and 23 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie SC |
| SOLICITOR FOR THE APPLICANT: | Dorter Family Lawyers and Mediators |
| COUNSEL FOR THE RESPONDENTS: | Mr Duane |
| SOLICITOR FOR THE RESPONDENTS: | NLS Law |
Orders
That the respondents are found guilty without reasonable excuse of breaching Orders 5 (c) of Judge Sexton’s Orders of 7 August 2015 on the following dates:
(a) 6 March 2016;
(b) 4 September 2016;
(c) 6 November 2016;
(d) 8 January 2017; and
(e) 7 January 2018.
That the respondents are found guilty without reasonable excuse of breaching Order 6 of Judge Sexton’s Orders of 7 August 2015 on the following dates:
(a) 27 March 2016;
(b) 8 July 2016;
(c) 11 November 2016;
(d) 25 December 2016;
(e) 5 March 2017; and
(f) 16 April 2017.
That by way of penalty the respondents to each enter into a bond under section 70NEB(1)(d) of the Family Law Act 1975 (Cth) to be of good behaviour for 12 months.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oxbourne & Ewans has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1820 of 2014
| Mr Oxbourne |
Applicant
And
| Ms Ewans and Ms Rose |
Respondent
REASONS FOR JUDGMENT
The matter of Oxbourne, Ewans and Anor relates to two Contravention Applications filed by Mr Oxbourne, the biological father of the child, X, born … 2006. There were multiple breaches alleged in each Application.
Ms Christie of Senior Counsel, represented the Applicant and Mr Duane of Counsel represented the Respondents. Only the First Respondent, Ms Ewans, gave evidence and was cross-examined, as was Mr Oxbourne the applicant.
The documents I read were as follows:
a)For the Applicant:
i)Contravention Applications of 6 March 2017 and 16 February 2018; and
ii)Affidavit of Mr Oxbourne dated 15 February 2018.
b) For the Respondents:
i)Initiating Application filed 6 February 2018. This application seeks to very final parenting Orders made by Judge Sexton on June 2015 to effectively discharge all Orders for X to spend time with the Applicant, his biological father;
ii)Affidavit of Ms Ewans, filed 17 October 2018;
iii)Affidavit of Ms Rose filed 17 October 2018;
iv)Affidavit of Ms B, clinical psychiatrist, 15 October 2018; and
v)Affidavit of Ms C, 16 October 2018.
c) Case outlines were filed by each party’s Counsel.
d) In addition, I have read the transcript of proceedings of 19 October 2018.
RELEVANT CHRONOLOGY
The Applicant, Mr Oxbourne, was born … 1961, aged 58.
The First Respondent, Ms Ewans, was born … 1963, aged 56.
The Second Respondent, Ms Rose, was born … 1962, aged 57.
The child, X, was conceived by artificial insemination of Ms Ewans from Mr Oxbourne and X was born on … 2006, now aged 13.
On 27 March 2014, Mr Oxbourne made an application seeking Orders for X to spend time with him on the first weekend of each month, for block periods in school holidays, time on special days, for telephone communication each three days when not in Mr Oxbourne’s care and for the parties to share X’s transport.
In June 2014, Mr Oxbourne filed an Amended Initiating Application seeking a declaration that he and the Respondents be declared X’s parents, and an Order for him and the Respondents to have equal shared parental responsibility for X.
Final Hearing was before her Honour Judge Sexton on 1, 2 and 3 July 2015 and Judgment was delivered on 7 August 2015. Relevantly, her Honour found that Ms Rose and Ms Ewans, and not Mr Oxbourne were X’s parents under the Act and parental responsibility was conceded by Mr Oxbourne as residing with X’s mothers.
On 6 March 2017, Mr Oxbourne filed a Contravention Application, alleging the Respondents breached one count of Order 5(b), three counts of Order 5(c), and four counts of Order 6 of the Final Orders. In essence, the subject matter of the Contravention Applications was the mothers’ failure to facilitate time between Mr Oxbourne and X, and failing to ensure that X spoke to Mr Oxbourne in the regime of time pursuant to her Honour’s Orders.
On 16 February 2018, Mr Oxbourne filed a second Contravention Application, alleging the Respondents breached three counts of Order 5(c) and one count of Order 6 of the Final Orders.
On 19 October 2018, the matter was heard in the Federal Circuit Court where I was at that time a Judge of that Court. The respondents pleaded guilty at a prima facie level to some counts and I determined that there was a prima facie case in respect of others.
The prima facie case hearing took place over two days, being 19 October 2018 and 23 May 2019. Mr Oxbourne and Ms Ewans were cross-examined.
Mr Oxbourne’s two Contravention Applications contained multiple counts of breaches of Judge Sexton’s Orders and were heard together.
I was appointed a Judge of the Family Court in February 2019.
On 4 March 2019, the matter was transferred by consent to the Family Court.
The matter was listed for hearing on 23 May 2019 in relation to the mother’s application that they had a reasonable excuse for contravening the Orders.
On 13 August 2019, written submissions were filed by Mr Oxbourne.
A Response was received on 30 August 2019. The reasons for the delay in my delivering this judgment is regrettable and I apologise to the parties.
I will deal with the reasonable excuse defence and penalty in this judgment.
CONTRAVENTIONS
The relevant Orders of her Honour’s Judgment that were breached were Orders 5(c) and 6.
Order 5(c) provided that X was to spend time with Mr Oxbourne every two calendar months for a period of seven hours, from 10am until 5pm on a Sunday, commencing Father’s Day 2016. Time would be spent between D Town and Sydney. Changeover was to occur at D Town Railway Station, and provisions were made for the parties to deliver and collect the child to and from various train stations. Mr Oxbourne was to provide to the mothers $50 towards petrol expenses at commencement of he and X’s time.
Order 6 concerned telephone communication. X was to speak to Mr Oxbourne by telephone or Skype on Father’s Day, on X’s birthday, a day at Easter on Mr Oxbourne’s birthday and on Christmas Day, unless that was an occasion of time X was spending with Mr Oxbourne.
Going to the specific counts in which the Respondents have been found guilty of at a prima facie level.
The Respondents entered written pleas marked exhibit 2, in respect of breaches on the following dates:
a) 6 March 2016;
b) 27 March 2016;
c) 8 July 2016;
d) 4 September 2016;
e) 6 November 2016;
f) 11 November 2016;
g) 25 December 2016;
h) 8 January 2017;
i) 5 March 2017;
j) 16 April 2017;
k) 5 November 2017; and
l) 7 January 2018.
There was a concession made as to a prima facie case in relation to counts 1, 2, 3, 4, 5, 6, 8 and 9 of the 6 March 2017 of the Contravention Application filed 6 March 2017. I found a prima facie case in respect of counts 7 and 10 of that application. Mr Oxbourne did not pursue the remainder of the counts.
Insofar as the Contravention Application filed 16 February 2018 is concerned, the respondents conceded a prima facie case in respect of counts 2 and 5. I found a prima facie case in respect of counts 1 and 8 and the Applicant did not pursue the remaining counts.
The contraventions that have been found at a prima facie are dealt with under section 79NAC of the Family Law Act 1975 (Cth) (“the Act”) which reads as follows:
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.
The defence of a reasonable excuse is found at section 79NAE of the Act and the relevant parts for these proceedings are subsections 5(a)-(b), and (6).
The Respondents do not assert reasonable excuse under subsections (2) and (3) of 79NAE which focuses on circumstances where the Court finds a Respondent has contravened an Order because they did not understand what the Order was about. That excuse is not relevant here.
Subsections (5) and (6) are the relevant provisions in these proceedings, in that that the Respondents allege they had a reasonable excuse for not carrying out the Orders as to time with or communication with the Applicant and the child as:
a)They believed on reasonable grounds that not allowing the child and the person to spend time together or communicate was necessary to protect the health or safety of a person (including the child or the Respondent); 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.[1]
[1]Family Law Act 1975 (Cth), s 70NAE(4)(b).
Importantly the standard of proof generally speaking in relation to contravention matters is on the balance of probabilities as set out in section 70NAF of the Act. If, however, the Judge is not satisfied as to the reasonable excuse ground and is contemplating that as a result of the finding an order may be made under paragraphs 70NEB(1)(da), 70NECA(3)(a), 70NFB(2)(a), (d) or (e) or 70NFF, (3) (a), the Court must be satisfied beyond reasonable doubt that that grounds for making of any one of the orders in those paragraphs. These paragraphs deal with the more draconian Orders upon a finding of a contravention such as fines with penalty, bonds, imprisonment, community service, and the like.
Having regard to the evidence before me of the conduct and behaviour of the Respondents, the multiple breaches occurring shortly after her Honour’s Orders were made, are continuing and it now appears there is a total breakdown in the child relationship with the Applicant I have formed the view that these contraventions are of a serious nature. The Applicant does not assert these breaches fall into the more serious category and thus the standard of proof is on the balance of probabilities and I accept that submission. The Applicant seeks a bond in respect of the breaches.
Part of the seriousness of these contraventions is that on the facts I see no possibility of makeup time or additional time or changing of the Orders to ensure no further breaches occur. It is a significant sadness but a reality that the relationship between the Applicant and the child has, even on the Applicant’s evidence, broken down.
In these circumstances, the Court is left with little option other than to look at appropriate punishment of the responsible parties. X is now 14 and if I made some additional, varied or changed Orders in an endeavour to affect the child spending time with Mr Oxbourne, I may not be acting in the child’s best interest given his strong wishes and that must be the focus of my discretion when a child’s welfare is at stake.
There is authority for the proposition, being Northern Territory v GPAO[2], that the circumstances under which a person might prove a reasonable excuse are not limited to subsections (a) and (b) and, in fact, there is a wide evidentiary discretion in the Court in relation to what constitutes a reasonable excuse. I accept this is the law.
[2]Northern Territory v GPAO [1999] 196 CLR 553.
It is also clear that the Respondents including Ms Rose, who gave no evidence but filed an Affidavit, and Ms Ewans, who was cross-examined, have the onus to establish that there was a reasonable excuse.
Their grounds of a reasonable excuse is both X’s distress and the inability of the Applicant to make matters easy for him and take a different approach with the child.
Ms Christie SC submitted that there were three aspects to the definition of contravention. The first is the Respondents were persons bound by the Order and both the Respondent mothers are bound by the Order. That is clear from her Honour’s decision of 7 August 2015.
Secondly, the Order was not complied with, and the Court has found that the Orders of 7 August 2015 were not complied with on multiple occasions.
Thirdly, that there was no reasonable effort to comply, and this is the gravamen of the hearing before me.
I accept the submission of the Applicant that the failure of Ms Rose to be cross-examined on her Affidavit is a relevant factor my consideration of whether these ladies had a reasonable excuse for not complying with her Honour’s Orders and ensuring X spent both face-to-face time with, and had telephone communication with his biological father.
X will be 14 years of age in … 2020. At the time of her Honour’s Orders, he was nine years of age. Contraventions range from 6 March 2016 when he was 10, to 7 January 2018 when he was 12. The reality is, X has not spent time in any meaningful sense, nor communicated in any meaningful sense, with the Applicant since, effectively, her Honour’s Orders.
There have been multiple attempts, therapeutic interventions with Dr H, with Dr K who also conferred with Dr H to have X and the Applicant spend time together and communicate and these interventions have failed. It is the case of the Respondents that they have carried out therapeutic interventions prescribed by Her Honour and recommended by experts and despite their best efforts they have been unable to have X spend time with or communicate the Applicant and that for him to do so is a risk to his emotional and psychological health. Further that the Applicant’s behaviour has further inflamed these difficulties.
The question is, do the Respondents have a reasonable excuse for the significant and multiple contraventions of her Honour’s Orders?
The case law is clear. Reasonableness is an objective test, and support for that is in the decision of Vaughton v Randle (No. 2).[3] Additionally his Honour Justice Austin in Saldo & Tindall[4] said at paragraph 47 that as the section of the Act talks about a belief being based on reasonable grounds, this element imports an objective standard which must overlay the subjectivity of in his case, the mother’s belief.
[3]Vaughton & Randle (No. 2) [2013] FamCA 286.
[4]Saldo & Tindall [2012] FamCA 194.
Thus I must analyse the facts and circumstances which constitute the contraventions as pleaded, and the response to those facts and circumstances. What I am assessing is the reasonable basis of the reasonable belief of the person who has contravened, that it was necessary to contravene the Order.
The only aspect of this matter upon which the Respondents could base a defence of a reasonable belief, was that they believed on reasonable grounds that it was necessary to contravene the orders to protect X’s health and/or safety.
The health and safety of X in these proceedings can only relate to his psychological and emotional health as there is absolutely no evidence of any physical harm or safety concerns of X and the Applicant spending time together as is often alleged such as in the decision of Thorpe v Steyn.[5] There is no allegation that the child was in any physical danger from spending time with or communicating with the Applicant. It is only his reaction to spending this time, or communicating with the Applicant, that the Respondents can rely upon to establish the ground of reasonable excuse.
[5] Above note 4.
The first difficulty for the Respondents is that this issue, X’s reluctance to and negative attitude to spending time with the Applicant, was thoroughly canvassed by her Honour in her decision of 2015, with the assistance of a Report by Dr P after which the limited time Orders were made together with Orders for therapeutic intervention by Her Honour.
JUDGMENT OF 7 AUGUST 2015
Going to parts of her Honour’s Judgment. Her Honour made a finding that X had spent time with the Applicant in this matter, his biological father, up until 2013, where the time broke down. Time was recommenced along the lines recommended by Dr P, the Part 15 Expert, on a very limited basis, in an endeavour to re-establish the relationship the child clearly had had with the Applicant prior to 2013. Her Honour went through the clear reluctance of X at that time, what the mothers did to assist X, what they did not do to assist, and what they had done which had made him spending time with the Applicant harder than it should have been.
Her Honour found at paragraph 42 that the relationship between Mr Oxbourne and the mothers broke down. They felt threatened by him. They did not trust him. They believed their nuclear family was under attack because of what they regarded as the Applicant’s intrusion into their lives and decision-making processes, in relation to decisions to be made for X.
Her Honour found that the Applicant had embellished the amount of time that he had had spent with the child, that she preferred the mothers’ evidence in relation to when X started spending overnight time, and the estimates of time, and on Skype and telephone.
Her Honour found that X had spent occasional overnights, as well as day visits, with the Applicant, at the weekender at D Town, from when he was about three-and-a-half; spent overnight time with him at Suburb E at the end of 2010 when he was four, and spent time with him at least every two months at D Town each year until 2012, and one or two nights at Suburb E.
Her Honour found the mothers had a view and had adopted a position that X was a part of a loving and intact family, and they did not want that to change, and Her Honour found that the Applicant had magnified his role in X’s life.
Thus, from the commencement of these Orders, there was no relationship between the Applicant and the mothers. They were distrustful of each other. We had a biological father wishing to magnify his time with his child, and desirous of being involved in the child’s life and spending time with him, and his mothers’ clear resistance to this continuing and that these are the facts as is clear from the decision of her Honour.
Dr P found X and the Applicant’s relationship at the time he interviewed him was positive and significant for the child, and beneficial for his development, but not foundational, such that its disruption would cause significant long-term emotional or developmental damage. This is important as it tells me although it may be sad X does not spend time with his biological father, it will not disrupt his development if he does not and it is clear X is developing very well in his mothers’ care.
Dr P also found that his mothers were the most important and emotionally important people in his life, and this continues. Dr P opined that the child had enjoyed many positive experiences with Mr Oxbourne.
Her Honour made this positive finding at paragraph 99 of her Judgment:
… The Applicant and the mothers’ fear of the Applicant’s claim for [X] to spend regular time with him poses a fundamental threat to the family. I have made findings that their fear is genuine, and that they vehemently resist [X] being compelled to live like a child from a “broken family”, and being forced to leave his home on a regular basis, to spend time with his “donor”. I agree with [Dr P], that unless the Applicant can demonstrate that he recognises and respects their role as [X’s] parents, and accepts his role as a “donor” by stepping back, [X’s] relationship with him is unlikely to be successfully reinstated. I have made findings on the negative impact of the Applicant’s attitude and the negative impact of this litigation on the mothers’ health and wellbeing, and the likely risks to [X’s] wellbeing of the present impasse continuing. I agree with [Dr P] that [X] has foundational relationships with each of his mothers, and a separation from the mothers or dysfunction in this relationship would create “significant emotional, relational and developmental disruption”.
It was a failure noted by her Honour that the Applicant had not discussed X’s resistance to spending overnight time with him to the mothers, as it was clear this had been an issue for X, and his failure to consider seriously the mothers’ concerns about the child’s apprehension of spending time with him led him to fail to appreciate the extent to which his view of himself as a dad was divergent from that of the mothers’. Further her Honour found and that the Applicant had failed to address X’s discomfort whilst in his presence.
Dr P and her Honour agreed that the mothers were very insensitive in bringing it to X’s attention how he was created, and it could have been upsetting for him, and particularly when they insisted he be referred to as “[Mr Oxbourne]” and not “Dad”, something that was particularly upsetting for Mr Oxbourne.
Her Honour found at paragraph 132:
There is a viable relationship between [Mr Oxbourne] and the child if the right conditions prevail.
The Independent Children’s Lawyer supported Orders for X to spend regular monthly time with him and special days, blocked time, telephone communication, and the like. Her Honour found at paragraph 134:
The stumbling block to simply reinstating regular time is the mothers’ profound loss of trust in the Applicant, borne of the attitude he displayed when [X] was struggling emotionally over time spent overnight with him.
The mothers could not contemplate any time, and only agreed to letters. Her Honour found at 138:
The mothers must allow [X] to experience some contact with [Mr Oxbourne] in a manner calibrated to his capacity to receive it. [Dr P] believed [X] would be anxious, would adapt to time. Progression may occur, but it must start slowly.
Therefore, her Honour made the Orders she did. Presciently, her Honour’s words, “There is a viable relationship between [Mr Oxbourne] and the child if the right conditions prevail,” correctly sum up the current situation. The right conditions did not prevail.
The law is clear the mother’s had an obligation to do all they could to positively encourage X to have a relationship with the Applicant and to comply with the spirit and intent of her Honour’s Orders. As Justice Nygh said in Stevenson v Hughes,[6] parents are under a duty to take an active role in encouraging children leaving with the father or spending time with the father. Only if this has been established would I then determine if in some way the Applicant was the author of or in part responsible for this sad state of affairs a position the mother’s urged upon me to adopt.
[6]Stevenson v Hughes [1993] FamCA 14, 1993 FLC 92-363, 16 Fam LR 443.
Unfortunately, time has not progressed and the short periods of time that X has spent with the Applicant did not go well. There is now a clear and entrenched resistance from X to spend any time with or even speak to the Applicant.
It is clear from the written material and oral evidence given by Ms Ewans and Ms Rose from her Affidavit that the mothers have given to X a degree of parental responsibility to make decisions about whether he wants to spend time with the Applicant and what he wants to do when he spends that time.
Ms Ewans agreed that although the Independent Children’s Lawyer offered to explain her Honour’s Orders to X, the mothers thought it was better they did, and they refused that offer.
Ms Ewans said asked X:
Would you like me to read out the Orders?
He said he would like us to. I note X was only nine years of age at this time. Ms Ewans was asked:
Why would you allow him to make that choice?
The answer was:
Because he is a mature man.
Ms Ewans said “X did not want the Independent Children’s Lawyer to explain the Orders”.
How would X know this was even an option unless this issue was discussed with him by his mothers or others with whom his mothers are happy for him to spend time with?
Secondly, it is apparent that the mothers believed an important issue such as this can be made by a child who was at that stage was 10 when any responsible adult would know that would be inappropriate and that adults make these decisions for children.
The Applicant sent X an Easter card in 2016 and X ripped it up. When she was pressed on whether this was appropriate conduct for a young boy, she was asked:
Did you reprimand [X]?
No.
The Respondents did not turn up to a consultation or a visit with Dr K, as Ordered by the Court on 6 November 2016, to see how X was progressing with his time with the Applicant. When it was put to Ms Ewans that it would have been useful to get an account of how the visit on 7 May 2016 went, she said, “probably”.
When asked whether the child could email the Applicant, she said:
Our emails just bounce back.
On 2 July 2017, it is clear that Ms Ewans or Ms Rose did not remonstrate with X when X said:
No, you are not my father, and I hate you.
In fact, nothing was said.
There was clearly not one word of encouragement in March 2016 for time to move outside the home and the environment created by the mothers at that time was to make this a very difficult situation for X as he was surrounded by friends of the mothers who also have a negative attitude to the Applicant.
In November 2016, the Applicant attempted to give the child a gift, and X said, “Gifts were not allowed under the Court Order”. This is not what the Court Orders say and he can only have heard that from adults in his life.
Ms Ewans’ Affidavit begins:
On 6 March 2017, the Applicant filed his application for contravention, and the parties agreed to attend at the [G Centre] and to attend a mediation.
The mothers commenced therapeutic counselling at the G Centre with Ms F, and the parties saw Dr H at her office in December 2017. Dr H explained the Orders to X, and mediation was attended by the parties in Suburb J. Dr H noted X was currently attending Dr K, and he has been seeing her since 3 February 2016, with little involvement from Mr Oxbourne.
Dr K asked the mothers for permission to speak to Mr Oxbourne about her sessions with X, and this was refused. It was put to Ms Ewans that she and Ms Rose knew after reading Judge Sexton’s Judgment and reading Dr P’s Report that they could make this work for X, and Ms Ewans agreed with this proposition.
CURRENT EVIDENCE AND BASIS OF THE MOTHERS’ REASONABLE BELIEF
The mothers assert that X was at risk of harm in spending time with the Applicant due to the Applicant’s conduct, X’s reactions when he spent that time, his reactions after spending that time, his wishes to not speak with or spend time with the Applicant and that to effect this time or communication would have a detrimental impact on his emotional and or psychological heath.
Ms Ewans confirmed she saw no benefit for X in spending time with the Applicant, seeing him every couple of months, although he had had fun with him previously. X has apparently said to his mothers:
We will conquer him.
There is no evidence from the mother how they dealt with X’s alleged defiance.
There was no concession that the Applicant had conceded parental responsibility or any concession or action taken by the respondents to reassure X that Mr Oxbourne did not want to take him away from his mothers and it is clear that was never his intention.
At a visit on 19 December 2015 when the Applicant and the child had a meeting, Ms Ewans’ evidence was:
When [Mr Oxbourne] left, I think the three of us breathed a collective sigh of relief.
That X was very upset at the visit, and that these matters were discussed in front of the child. When pressed on whether it was inappropriate to discuss the visit in front of the child, Ms Ewans would not agree it was inappropriate.
After her Honour’s Judgment and Orders, the mothers were left in no doubt it was up to them to give the restitution of X’s relationship with his biological father the best possible chance to work. I accept the Applicant also has role in this and at times displayed a combative and rights based position in front of X which did not assist. For example, continuing to refer to himself as “Dad” with X and in communications knowing the impact this might have on X, permitting his partner Mr M yelling out to X on 12 July 2017, “Stop talking to your father like that”. Cavilling with the child about a bike the Applicant had bought him as a gift which the child apparently rejected. However, the reality is that the mothers are in the driving seat and not the Applicant, and this is their defence to make out him.
In cross-examination, Ms Ewans said she understood her responsibility to comply with the Orders despite the breakdown in the parties’ relationship and understood the importance of Dr P’s Report. My difficulty with this evidence is that Ms Ewans conduct does not support her words to the Court.
On their own Affidavit material and that of their supporting witnesses let alone from cross-examination, I have come to the conclusion that from the commencement of her Honour’s Orders, these mothers put little real or genuine effort into encouraging X or allowing him to feel confident and comfortable in spending time with the Applicant, and their actions only heightened X’s anxieties.
There is not one shred of evidence provided by them as to their efforts to encourage, cajole, require or create an environment to enable X to telephone the Applicant without his anxiety being heightened. There was no evidence of the mothers ringing the Applicant, having a polite and courteous conversation with him, and then passing the phone to X with words of encouragement such as, “[Mr Oxbourne] wants to speak to you. It is important to me that you have a quick word with him,” or words to that effect.
The evidence is to the contrary there was no encouragement and only acceptance when he said he did not want to.
Similarly with the Orders to spend time not one shred of evidence provided by them as to their efforts to encourage, cajole, require or create an environment to enable X to enjoy his time with the applicant, only acceptance when he said he did not want to.
The mothers created an environment where X’s refusal to spend time with or communicate with the Applicant was the position that gave X the most comfort and freed him from anxieties as it accorded with their position. As they can only support a relationship for X with the Applicant that accords with their position, that being no relationship, it is not surprising that X was anxious, resisting and upset on these occasions.
In these circumstances, X’s reactions alone cannot support a reasonable excuse for the mother’s belief as it is their actions or lack of action that has created the environment which fostered X’s reactions.
I do not see on the evidence that the Applicant’s behaviours which could have been tempered at times support a reasonable excuse either. X arrived tense and anxious and this had little to do with the Applicant.
On 20 April 2016, the mothers sent an email to Dr K as follows:
We do not give you consent for you to have direct communication with [Mr Oxbourne].
The position adopted by the mothers in positively saying to Dr K they did not give her consent to have direct communication with X’s biological father is the most extreme example and best evidence of them saying they wanted to carry out her Honours Orders, however in reality, doing the opposite.
This was at a time when X was seeing Dr K to assist him with his difficulties in spending time with the Applicant when Ms Ewans said she knew they were under an obligation to comply with Orders. This did not help X.
Dr K tells me in her Report that X’s sleep was disrupted by the visits, he was upset and concerned about being taken away by the Applicant, when nothing could be further from the truth. Dr K collaborated with Dr H, and they communicated at three points in time, being 7 July 2016, 11 August 2016 and 10 October 2016. They acknowledged there were Orders in place, that there was an agreement between the parties to engage in a child-focussed and gradual visitation plan, an acknowledgement of the complexity of the situation, need to balance the legal context with the psychological relationship and the importance of moving towards a sustainable and trusting relationship.
The goal was to develop a plan that was informed by professionals and also responsive to X’s wellbeing. Dr K made it clear that she was X’s psychologist and her role was to support X. Dr H noted her role would be to assist Mr Oxbourne. Therefore, the position of Ms Ewans and Ms Rose, that they would not allow Dr K to have direct communication with Mr Oxbourne, is all the more concerning if, in fact, there was an agreement between parties to engage in a child-focussed and graduated visitation plan. If that had been the true intent of the Respondents, they would have given their consent.
The therapy Dr K could give X was severely curtailed and she effectively had one hand tied behind her back and this was an unreasonable and unwarranted position for these mothers to take if at the forefront of their mind was the best interest of their son and not punishing the Applicant. Dr K only knew half the story and thus her therapeutic intervention was severely curtailed.
What the Respondents told Dr K they had said to X to encourage a relationship with the Applicant and what they actually said are poles apart. Despite Dr K’s finding, that the mothers had, “developed a narrative that provided [X] with permission to engage in the process, and support him to working towards a relationship with [Mr Oxbourne],” the facts as I find them are to the contrary.
The mothers, if not putting difficulties in the pathway for this child to have a relationship with the Applicant, did not support him doing so and rather increased X’s anxieties and concerns. They made the child aware of their views. They discussed with the difficulties X was having in spending time with the Applicant in front of the child, asked Ms L to assist in the changeover a woman who acted to only increase X’s anxieties, forbade the child’s psychologist from speaking with the Applicant, the very person, it is alleged, that they said they wanted the child to build a relationship with and simply accepted X’s protestations he did not want to spend time with or speak to the Applicant.
SPECIFIC BREACHES
Going to the specific counts and the evidence proffered to ground a reasonable excuse to which the mothers have pleaded guilty or in which I have found a prima facie case.
On 6 March 2016, the child was taken to a café called N Café to spend time with the applicant and effect change over.
The mothers left the child in the care of Ms L, a friend. It was clear from Ms L’s Affidavit that an argument occurred between her and the Applicant and there was no agreement for the Applicant to take the child anywhere due to what is described as inappropriate activities such as a sausage sizzle or horse riding being suggested. That is not what her Honour’s Orders stipulated and more importantly this argument was heard by the child.
Ms Ewans’ evidence is she left the café and told X she would be back at 3 pm. It is extraordinary that Ms L believed the Applicant could not take the child from the café when X and his mother had arrived at around 10 am. Was it expected that the Applicant and child sit in a café until 3pm?
Ms Ewans agreed that the visit had been awkward for X.
From a reading of Ms L’s Affidavit, Ms L would not let the father sit with the child, not let him take the child outside the café, and was unreasonably controlling as to where the Applicant and child could sit in the café. Ms L made this situation awkward and uncomfortable for X and demonstrated little capacity to make a child feel comfortable. Rather, her actions heightened any difficulties that X would have been having at that time.
Ms Ewans says she received a phone call from X at 11.40 am. He was upset. He said:
I want to come home now. Can you come and get me? I’m out front of the café. [Ms L’s] with me.
This is hardly surprising given the behaviour of Ms L and her insistence the Applicant not leave the café with the child and the argument that ensued between them. It is also a poor reflection on Mr Oxbourne that he could not see that an argument with this lady was not in X’s best interest given the difficulties he was having in communicating with let alone spending time with the child.
X was taken by Ms L to another friend’s home and thus it is clear X is well able to spend time with other adults in other environments. It is only with the Applicant that there appears to be a significant difficulty.
Ms Ewans said she met X and Ms L at about 12 pm at a mutual friend’s home, alleging that X cried uncontrollably for five minutes, and an appointment was subsequently made for X to see Dr K.
Ms Ewans said, and Ms Rose confirmed in her Affidavit, that X was so upset after this visit they could not encourage the child to telephone the Applicant in accordance with the Orders. The mothers left a message on the Applicant’s phone, “I’m unable to facilitate the phone call today. [X] is refusing to come to the phone”.
I find there was no reasonable excuse for the breach of Orders on 6 March 2016 in cutting the visit short.
Moving to the breach on 27 March 2016, being the Easter telephone call. In cross-examination, Ms Ewans was unconvincing as to the reasons why she was unable to have X make a short telephone call to the Applicant, in compliance with the Orders. I could see no reason for the child to be crying, other than his mothers were upset. This was a simple telephone call, and these otherwise competent mothers tell me they could not have their 10 year old son make a short telephone call. I do not accept their evidence and there is no reasonable excuse established for this breach.
With respect to the failure to facilitate telephone communication on 8 July 2016. There was no evidence about that day given at all and I find that breach was without reasonable excuse.
On 8 July 2016, Ms Ewans says she left the following message on the Applicant’s phone:
Apologies, [Mr Oxbourne]. I’m unable to facilitate the phone call today. X is refusing to come to the phone.
On 4 September 2016, the reasonable excuse was that X said he would not speak to Mr Oxbourne on the phone:
I sent an SMS message advising of this.
I find these breaches were without reasonable excuse as none was given and nor was there any evidence of the attempts made to comply with the Orders.
Ms Ewans says the child would not telephone the Applicant on 25 September 2016. It is alleged X said to his mothers in September, “There’s no way I’m talking to him today”.
I find that breach was without reasonable excuse given there is no evidence of what was said to encourage X merely an acceptance of his reluctance.
On 6 November 2016, X was to spend time with Mr Oxbourne between 10 am and 5 pm on that day. There was no evidence tendered as to why the child did not attend or any evidence as to the efforts made by the Respondents to have the child attend and I find that there was no reasonable excuse for the breach.
On 11 November 2016, the child was to telephone the Applicant and this did not occur. The mothers’ explanation was that they had said, “Come on, [X]. Let’s phone [Mr Oxbourne]. He’s on the phone for you. I’ll read out the number”.
The child apparently said, “I know I have to phone him because of the Court Orders, but I don’t like him and don’t want to speak to him”.
Ms Ewans said, “[X] would not speak to [Mr Oxbourne] on the phone, and I sent him a message advising him”. There were no words of what she said to encourage X to speak on the phone, acknowledgment of the importance of this man in the child’s life, or any real encouragement to X and I find that there is no reasonable excuse for this breach.
On 25 December 2016, there is no evidence of what it was that the mothers did to encourage X to ring Mr Oxbourne on that day other than them sending an SMS text message that X would not be speaking to Mr Oxbourne and thanking him for a Christmas card. I find there is no reasonable excuse for that breach.
On 8 January 2017, there is no explanation for why a face-to-face meeting did not occur from 10 am to 6 pm on that day, and I find there is no reasonable excuse for that breach.
Similarly, the failure of the child in spending time with Mr Oxbourne on 5 March 2017 was not supported by any reasons for this failure, any conduct engaged in to endeavour to have time with the Applicant eventuate, words of encouragement, et cetera. I find there has been no reasonable excuse established for the breach on that day.
On 16 April 2017, again, there was no evidence given by the Respondents as to why the telephone contact between Mr Oxbourne and the child did not occur, and I find there is no reasonable excuse established for that breach.
On 5 November 2017, the Respondents had asked to postpone their visits, and the Applicant did not agree. In those circumstances, I find a reasonable excuse has been established and I do not find Respondents guilty of that count.
On 7 January 2018, X should have spent time with the Applicant between 10 am and 5 pm. This is on the occasion where X said to a friend of the parents, Ms C, “We will conquer him”.
Again no evidence is given of how the respondent endeavoured to comply with the orders and I do accept an excuse of a reasonable belief.
CONCLUSION
There is no evidence proffered that is based on reasonable grounds at an objective level or evidence of a cogent or compelling nature, as to why the child has not spend time with the Applicant based upon a detriment to his health or safety. The absence of any words of encouragement to him to do so, preparing him for visits, cajoling him or speaking positively of Mr Oxbourne to X is the compelling and clear evidence that is necessary. Had the mothers engaged in such a process and X continued to resist this would have been sound grounds for a reasonable belief however the evidence is to the contrary.
I find that the Respondents knew the right circumstances to create to ensure X did not recommence a relationship with the Applicant and they set about on a course of conduct, hiding behind therapists such as Dr K to show that they were trying to assist the child, when the evidence is that this was the opposite of their intent.
Their intention was clear. It was made clear to Judge Sexton and Dr P. The Respondents do not want this child to spend time with a person they regard as only a sperm donor, and they have ensured he does not.
After hearing all the evidence I find that if the mothers wanted X to spend time with the Applicant, he would have. X is progressing well at school, is a well-behaved and compliant child, has achieved all his milestones, and has a strong established relationship with his mothers.
X’s mothers are able to have him do things that they want him to do, carry out tasks, meet people they want him to meet, and have a relationship with them, and do so politely and courteously. He is a socially well-adjusted child. It is the Applicant and his family where the difficulty lies for X. As was clear from her Honour’s Judgment, and as is apparent today, the difficulty with X having any relationship with the Applicant is not with X, but with his mothers. They are now, and have been for some time, implacably opposed to this child spending any time with the person they refer to as a mere sperm donor.
There is no encouragement in either mothers’ Affidavit or in their oral evidence which would satisfy me that they are willing to allow the child, or now contemplate the child, having a relationship with the Applicant. The attempts made for X to have this relationship has come at a significant emotional cost to him, as is evident.
In those circumstances, I do not find the grounds of reasonable excuse made out on the balance of probabilities and find them guilty of the contraventions, as alleged. The question then, is penalty.
PENALTY
The breaches are serious. The breaches occurred shortly after a Final Hearing, with the reality being that this child has spent no time with the Applicant since at least mid-2017 and no meaningful time since the Orders were made. I find these breaches, have resulted in the child’s relationship with the Applicant being effectively severed.
It is appropriate to impose a bond under section 70 NEB(1)(d) of the Act to be of good behaviour for a period of 12 months and I will so Order in respect of both mothers.
There is an application on foot now for time to be varied and her Honour’s Orders to be suspended. I will list that application on 31 March 2020 to determine whether this matter is to be pursued and for the mothers to enter the bond I have imposed upon them. I will also deal with the Applicant’s costs application at that time.
This matter has been a significant hardship and taken an emotional toll on the Applicant who has fought tooth and nail at every turn to spend time with his son. The reality is, a Judge can only make an Order in a child’s best interest, and it may be that in so doing a consequence can be to reward what might be seen in the community as poor behaviour.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 4 March 2020.
Associate:
Date: 4 March 2020
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