FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Peluso & Karle [2023] FedCFamC1F 87
File number: SYC 1386 of 2015 Judgment of: HENDERSON J Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – CONTRAVENTION – Reasonable excuse – Where final parenting orders were made in August 2020 – Where the father alleges the mother has contravened the final orders on 22 occasions between June 2021 and April 2022 – Where the breaches are in relation to the children spending time with the father, communication, medical notification and injunctions – Where the mother concedes all breaches but pleads reasonable excuse – Consideration of meaning of “reasonable excuse” – Where evidence tendered from police and child protection authorities supported the father’s position that the mother is coaching the children – Finding a genuine but erroneously held view by the mother that the father sexually abuses the children does not support a reasonable excuse – Finding the mother has continued to coax the children in relation to making sexual abuse allegations against the father – Finding the mother is guilty without reasonable excuse in respect of all counts save in respect of breaching Order 30(a) – Penalty – Where the father sought that the mother’s contraventions be dealt with as “more serious” contraventions – Consideration of “more serious contravention” – Consideration of “serious disregard” – Finding the contraventions are more appropriately dealt with under Subdivision E of Division 13A – Bond – Where the father sought the mother enter into a bond – Where the mother conceded that if no reasonable excuse was found a bond was appropriate – Consideration of appropriateness of a bond – Order made for the mother to enter into a bond without surety for 24 months on the condition of good behaviour is appropriate to ensure compliance with the orders – Variation – Matter adjourned for consideration of whether the final orders should be varied. Legislation: Family Law Act 1975 (Cth) ss 60B, 70NAE(1), 70NAE(2), 70NAE(5), 70NAE(6), 70NAE(7), 70NAF(1), 70NAF(2), 70NEB(4), 70NEB(5), 70NEC, 70NEC(2), 70NEC(4)(d), 70NFA(1), 70NFA(2)(b), 70NFA(4). Cases cited: Abud & Abud [2010] FamCA 1132.
Ackland & Ackland [2007] FMCAfam 693.
Carrington & Gunby [2020] FamCAFC 117.
Childers & Leslie (2008) FLC 93-356; [2008] FamCAFC 5.
Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214; [2007] FamCA 655.
Fulton & Packer [2015] FamCA 286.
Gaunt and Gaunt (1978) FLC 90-468.
Hugh & Sawer [2010] FamCA 290.
Karle & Peluso [2020] FamCA 633.
Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135.
Ongal & Materns (2015) FLC 93-645; [2015] FamCAFC 68.
Sellers & Appleby [2017] FamCA 1142.
Division: Division 1 First Instance Number of paragraphs: 121 Date of hearing: 22 November 2022 Place: Sydney Counsel for the Applicant: Mr Pickering Solicitor for the Applicant: MJ Woods and Co Counsel for the Respondent: Mr Chhabra Solicitor for the Respondent: Solve Legal ORDERS
SYC 1386 of 2015 FEDERAL CIRCUIT AND FAMILY…
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CaseChat Overview and Summary
In the Family Court of Australia, the case of Peluso & Karle involved a dispute regarding contraventions of court orders related to the care and custody of children. The mother was accused of contravening several court orders by preventing the children from spending time with their father and from having audio/visual communication with him. The legal issues before the court involved whether the mother's actions were justified by a reasonable excuse, specifically whether she had reasonable grounds to believe that the children were at risk of harm from the father due to alleged sexual abuse. The court had to consider the evidence presented by the mother and the implications of the alleged abuse on the children's safety and well-being.
The court examined the mother's evidence, which included the children's disclosures of sexual abuse and the mother's efforts to report these incidents to authorities. The court also noted the authorities' failure to substantiate the allegations of abuse. The mother argued that her actions were necessary to protect the children's health and safety, and the court had to weigh this against the statutory objectives of the Family Law Act 1975, which aim to provide for the best interests of the children. The court concluded that while the mother's intentions might have been to protect the children, her actions in preventing contact with the father were not justified as a reasonable excuse under the Act.
The court found that the mother's actions constituted a contravention of the court orders and ordered her to enter into a good behaviour bond for 24 months without surety. Additionally, the court ordered the matter to be adjourned to allow for further submissions regarding whether the final orders should be varied. The court's decision emphasized the importance of considering the children's best interests and the statutory objectives of the Family Law Act, while also acknowledging the complexities and sensitivities of child protection issues.
The court examined the mother's evidence, which included the children's disclosures of sexual abuse and the mother's efforts to report these incidents to authorities. The court also noted the authorities' failure to substantiate the allegations of abuse. The mother argued that her actions were necessary to protect the children's health and safety, and the court had to weigh this against the statutory objectives of the Family Law Act 1975, which aim to provide for the best interests of the children. The court concluded that while the mother's intentions might have been to protect the children, her actions in preventing contact with the father were not justified as a reasonable excuse under the Act.
The court found that the mother's actions constituted a contravention of the court orders and ordered her to enter into a good behaviour bond for 24 months without surety. Additionally, the court ordered the matter to be adjourned to allow for further submissions regarding whether the final orders should be varied. The court's decision emphasized the importance of considering the children's best interests and the statutory objectives of the Family Law Act, while also acknowledging the complexities and sensitivities of child protection issues.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Although previous discussion reveals that I am to consider the objects contained in s 60B of the Act, the Full Court of the Family Court of Australia in Maldera & Orbel[11] said that section 60B:… does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act.[12][11] (2014) FLC 93-602.[12] (2014) FLC 93-602 at [75] (Ainslie-Wallace, Ryan, and Aldridge JJ).THE EVIDENCE AND REASONABLE EXCUSE In submissions, counsel for the mother submitted that the mother relied upon the same reasonable excuse for all counts. The reasonable excuse was that the father sexually abused the children, and her contravening the orders was necessary to protect the health and safety of the children. The facts are that, since 13 June 2021, the children have not spent time with the father, and since 17 June 2021, the children have not had audio/visual communication with the father. The mother’s evidence to support her reasonable excuse was contained in her affidavit together with a tender bundle.[13]. The mother deposed that from 14 June 2021, X disclosed to her that she had not hurt her vagina on the slide (as the mother said X told her she had on 12 and 13 June 2021), but that the father had touched her on her vagina:[13] Exhibit M1.11. On 14 June 2021 … [X] and I had the following conversation:[X]:“Mummy I didn’t hurt my vagina on the slide, the truth is that dad touched me with his fingers in there.”Me: “Why didn’t you tell me this before?”[X]:“Because he told me not to say anything to anyone, and if I told you about this, he will make the police take you and you will go to jail.”(As per the original) This conversation took place following the return of the children to her care on 13 June 2021. The mother deposes in her affidavit, she told X’s primary school teacher what X had said. That X was still very upset on 15 June 2021 and the mother encouraged X to tell her teacher what she told her with X allegedly saying to her teacher, “My dad touches me.” The mother reported the incident to the Suburb N Police Station on the same day. In mid-June, police and the DCJ interviewed X at the school alone. The mother deposed that X made a disclosure at that time. Eight days later, the DCJ met with X again, when the mother says that the child told the authorities that the father touches her bottom and vagina. The mother deposed:15.I understand that DCJ and the NSW Police have not substantiated the sexual abuse. Unfortunately, I expected this to happen, no one has ever believed [X].(As per the original) The mother further deposed:18.I have tried to speak on behalf of [X] to DCJ and NSW Police but no one believes me, they think that I am lying. This is not true. As an example, in the previous proceedings, [Ms O] (‘[Ms O]’), [X’s] sexual assault counsellor swore in her affidavit dated 3 July 2019 at paragraph 15, that on 7 April 2017, she spoke to [Mr P] and he told her:a) I was a liar and they don’t believe liars.b)We believe the mother has psychological problems and is motivated by custody.c)I said I would do everything to prove the father is hurting [X] and they considered this as vindictive.d)[Ms O] told the police that she believes I was really concerned [X] was at risk of harm and I want to protect her and keep her safe.(As per the original)
Decision
Reasons for decision
I will make an order for the mother to enter into a good behaviour bond, without surety, for a period of 24 months. I will also make an order for the matter to be adjourned to hear submissions as to whether the final orders be varied.CONCLUSION AND ORDERS I make the findings and orders as set out in the forefront of these Reasons for Judgment.
Ratio Decidendi
Legal Principle Established
I will make a notation that when the mother attends upon the Registry to enter into the bond, that the Registrar also explain to the mother the purpose of the bond, the requirements of the bond, and the consequences of not entering into the bond or complying with its terms.Other considerations Since the contraventions are dealt with under Subdivision E, I am mandated to consider whether compensation for time should be ordered.[43] I am not satisfied that such an order would be in the best interests of the children, given the children have not spent time with the father since June 2021,[44] and I am adjourning the matter to determine if the final orders be varied.[43] Family Law Act 1975 (Cth) s 70NEB(4).[44] Family Law Act 1975 (Cth) s 70NEB(5).Conclusion I will make an order for the mother to enter into a good behaviour bond, without surety, for a period of 24 months. I will also make an order for the matter to be adjourned to hear submissions as to whether the final orders be varied.CONCLUSION AND ORDERS I make the findings and orders as set out in the forefront of these Reasons for Judgment.