Peluso & Karle
[2023] FedCFamC1F 87
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 COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KARLE
Applicant
AND: MS PELUSO
Respondent
order made by:
HENDERSON J
DATE OF ORDER:
24 FEBRUARY 2023
THE COURT FINDS THAT:
1.The respondent, MS PELUSO, born 1978, is found guilty, without reasonable excuse, of contravening:
(a)Order 6(d) of the orders made on 4 August 2020, on 27 June 2021;
(b)Order 5 of the orders made on 4 August 2020, on 17 July 2021;
(c)Order 5 of the orders made on 4 August 2020, on 31 July 2021;
(d)Order 5 of the orders made on 4 August 2020, on 14 August 2021;
(e)Order 5 of the orders made on 4 August 2020, on 28 August 2021;
(f)Order 25 of the orders made on 4 August 2020, on 4 September 2021;
(g)Order 6(d) of the orders made on 4 August 2020, on 18 September 2021;
(h)Order 5 of the orders made on 4 August 2020, on 9 October 2021;
(i)Order 5 of the orders made on 4 August 2020, on 23 October 2021;
(j)Order 5 of the orders made on 4 August 2020, on 6 November 2021;
(k)Order 5 of the orders made on 4 August 2020, on 20 November 2021;
(l)Order 5 of the orders made on 4 August 2020, on 4 December 2021;
(m)Order 11 of the orders made on 4 August 2020, on 24 December 2021;
(n)Order 6(e) of the orders made on 4 August 2020, on 9 January 2022;
(o)Order 5 of the orders made on 4 August 2020, on 5 February 2022;
(p)Order 5 of the orders made on 4 August 2020, on 19 February 2022;
(q)Order 5 of the orders made on 4 August 2020, on 5 March 2022;
(r)Order 5 of the orders made on 4 August 2020, on 19 March 2022;
(s)Order 5 of the orders made on 4 August 2020, on 2 April 2022;
(t)Orders 14(a) and 14(b) of the orders made on 4 August 2020, from 8 July 2021 to 28 April 2022;
(u)Order 17 of the orders made on 4 August 2020, from 4 August 2020 to 28 April 2022; and
(v)Order 30(c) of the orders made on 4 August 2020, on 28 June 2021.
AND THE COURT ORDERS THAT:
2.Pursuant to section 70NEC(4)(d) of the Family Law Act 1975 (Cth), the respondent, MS PELUSO, born 1978, is to enter into a bond, without surety, for a period of 24 months, on the condition to be of good behaviour.
3.Pursuant to Order 2, the respondent is to attend upon a Registrar of the Sydney Registry of the Federal Circuit and Family Court of Australia by 4.00pm on 24 March 2023 to enter into the bond.
4.The costs of the applicant and respondent, with respect to the Contravention Application filed on 28 April 2022, are reserved.
5.The matter is listed at 10.00am on 27 March 2023 to consider whether the orders of 4 August 2020 be varied following the contravention hearing, and for directions in respect of the mother’s Initiating Application filed on 12 December 2022.
6.The mother is to file and serve a Minute of Order and affidavit in support of the father’s application to vary the orders of 4 August 2020 by 4.00pm on 17 March 2023.
AND THE COURT NOTES THAT:
A.The mother is strongly encouraged to seek immediate therapeutic assistance with respect to her erroneously held views that the children have been sexually abused and are at risk of being sexually abused by the father.
B.The Registrar that the mother attends upon to enter into the bond pursuant to Orders 2 and 3 will 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.
C.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in ‘Annexure A’ and those particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peluso & Karle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J:
In the matter of Karle and Peluso, a Contravention Application was filed by the father, Mr Karle (“the father”) on 28 April 2022, alleging that the mother, Ms Peluso (“the mother”), has contravened orders made by Rees J on 4 August 2020 (“the final orders”),[1] on 22 occasions, inter alia, for him to spend time with X (“X”), born 2014, and Y (“Y”), born 2016 (collectively referred to as “the children”). The final orders were made in-part by consent and in-part by the Court.
[1] Karle & Peluso [2020] FamCA 633.
The counts of alleged contravention provided in the father’s Contravention Application can be placed into four categories:
(1)Failure to provide the children to spend time with the father (counts 1–18 and 21);
(2)Failure to facilitate the children to have audio visual communication with the father (count 19);
(3)Failure to keep the father informed of matters related to the children’s welfare (count 20); and
(4)Breaching an injunction regarding the conduct of the parents relating to sexual abuse allegations raised by the children (count 22).
The counts relating to the children not spending time with the father occurred between 27 June 2021 and 2 April 2022.
The counts of breaches of the final orders comprised the following:
(1)Counts 1–14: a breach of Order 5, that the children are to spend time with the father each alternate weekend during school terms;
(2)Counts 15–16: a breach of Order 6(d), that commencing in 2021, the children are to spend time with the father for half of the school holidays after Terms 1, 2 and 3;
(3)Count 17: a breach of Order 6(e), that commencing in 2021, the children are to spend time with the father for half of the long Christmas holiday;
(4)Count 18: a breach of Order 11, that the children are to “live with” the father on Christmas Day in odd numbered years;
(5)Count 19: a breach of Orders 14(a) and 14(b), that the children shall have audio visual communication with the father on Tuesday, Thursday and Saturday nights from 6.30 pm to 7.00 pm (if the children were with the mother);
(6)Count 20: a breach of Order 17, that the mother is to keep the father informed of matters listed regarding the children;
(7)Count 21: a breach of Order 25, that the children are to spend time (pursuant to Order 5) with the father on Father’s Day weekend; and
(8)Count 22: a breach of Orders 30(a) and 30(c), that the parents are restrained by injunction from taking the children to any counsellor regarding allegations of sexual abuse and from coaxing any disclosure of abuse from the children.
The father sought I make the following findings:
(1)That the mother, without reasonable excuse, refused to allow the children to spend time with the father during the following periods:
(a)From 9.30am on 27 June 2021 to 6.00pm on 4 July 2021;
(b)From 9.00am on 17 July 2021 to 6.00pm on 18 July 2021;
(c)From 9.00am on 31 July 2021 to 6.00pm on 1 August 2021;
(d)From 9.00am on 14 August 2021 to 6.00pm on 15 August 2021;
(e)From 9.00am on 28 August 2021 to 6.00pm on 29 August 2021;
(f)From 9.00am on 4 September 2021 to 6.00pm on 5 September 2021;
(g)From 9.30am on 18 September 2021 to 6.00pm on 24 September 2021;
(h)From 9.00am on 9 October 2021 to 6.00pm on 10 October 2021;
(i)From 9.00am on 23 October 2021 to 6.00pm on 24 October 2021;
(j)From 9.00am on 6 November 2021 to 6.00pm on 7 November 2021;
(k)From 9.00am on 20 November 2021 to 6.00pm on 21 November 2021;
(l)From 9.00am on 4 December 2021 to 6.00pm on 5 December 2021;
(m)From 5.00pm on 24 December 2021 to 5.00pm on 25 December 2021;
(n)From 9.30am on 9 January 2022 to 6.00pm on 27 January 2022;
(o)From 9.00am on 5 February 2022 to 6.00pm on 6 February 2022;
(p)From 9.00am on 19 February 2022 to 6.00pm on 20 February 2022;
(q)From 9.00am on 5 March 2022 to 6.00pm on 6 March 2022;
(r)From 9.00am on 19 March 2022 to 6.00pm on 20 March 2022; and
(s)From 9.00am on 2 April 2022 to 6.00pm on 3 April 2022;
(2)That the mother, without reasonable excuse, in not ensuring her telephone was switched on and charged, refused to allow the children to have audio/visual communication with the father from Tuesdays, Thursdays, and Saturdays, from 6.30pm to 7.00pm, from 6 July 2021 onwards, except where the children were spending time with the father;
(3)That the mother, without reasonable excuse, did not keep the father informed of matters relating to the welfare of the children, from 4 August 2020 onwards; and
(4)That the mother, without reasonable excuse, on 28 June 2021:
(a)Took X to a counsellor in relation to allegations of sexual abuse without the express written consent of the father; and
(b)Coaxed the children to make any disclosure of the father sexually abusing them.
Although the mother pled guilty to all counts, the evidence did not support a finding that she took X to a counsellor, only that she made an appointment for that purpose and thus there will be no finding of guilt in respect of a breach of Order 30(a).
THE HEARING
The matter was heard on 22 November 2022, with Mr Pickering of counsel appearing for the father and Mr Chhabra of counsel appearing for the mother.
The matter was listed for 8 November 2022, but as the result of issues pertaining to a grant of legal aid for the mother, she sought an adjournment. It was on this day her position was known in that she pled guilty to all counts but had a reasonable excuse for each count.
Only the mother gave evidence, as the father was not required to be cross-examined due to the plea of guilty with reasonable excuse.
DOCUMENTS AND EXHIBITS
The material read was as follows:
(1)For the father:
(a)Contravention Application filed on 28 April 2022; and
(b)Affidavit of Mr Karle filed on 28 April 2022.
(2)For the mother:
(a)Affidavit of Ms Peluso filed on 17 October 2022; and
(b)A Case Outline dated 21 November 2022.
Documents tendered and marked as exhibits were as follows:
(1)For the father:
(a)A NSW Police COPS entry dated 16 June 2021 (Exhibit F1); and
(b)Two Department of Communities and Justice (“DCJ”) Helpline Assessments (Exhibit F2).
(2)For the mother:
(a)A tender bundle of documents (Exhibit M1).
(3)By the Court:
(a)Single Expert Report prepared by Ms G dated 10 April 2019 (Exhibit C1) (“the Expert Report”).
CHRONOLOGY
In 1978, the mother, Ms Peluso, was born and is 45 years of age.
In 1981, the father, Mr Karle, was born and is 42 years of age.
In 2014, X was born and is 9 years of age.
In 2016, Y was born and is 6 years of age.
On 24 October 2017, the father commenced proceedings in the Federal Circuit Court of Australia (as it was then known).
On 14 February 2018, orders were made for the proceedings to be transferred to the Family Court of Australia (as it was then known).
On 4 August 2020, the final orders were made by Rees J.
In early 2021, a report is made (presumably by the mother) to the DCJ regarding Y having a cut at the top of his head upon returning from the father’s care. The mother subsequently took Y to hospital.
In May 2021, the mother sends the father a text message regarding the children after they return from the father’s care.
In mid-June, during audio/visual communication, the mother alleges X said she “hurt [her] vagina on the slide”.
The next day, the father returns the children to the care of the mother. This is the last occasion the children have spent time with the father. The mother alleges upon her return, X said she felt a lot of pain and pointed to her vagina.
The following day, the mother alleges that X makes a disclosure of sexual abuse by the father.
The next day, the mother alleges that when she dropped X off at school, she told her teacher, “My Dad touches me”. The mother then went to police and reported the alleged disclosures.
The next day, the police and the DCJ interviewed X alone at school where X made disclosures regarding alleged sexual abuse from the father.
The following day, the father has audio/visual communication with the children and observes X to be “acting very different” and “not her usual self”.
The next day, the mother blocked the father’s mobile number on the WhatsApp application.
The next day, after the father contacted the mother via text message, the mother unblocks the father’s mobile number on the WhatsApp application.
In late June, the father receives a call from Mr E regarding allegations that he sexually abused X and requests an interview. On the same day, the police and the DCJ have a meeting discussing the case and a COPS entry narrative is produced.
Two days later, the mother deposes that the DCJ had a further interview with X, and the mother alleges X told the DCJ that “her dad touches her bottom and vagina”.
The next day, the father receives a call from a member of the Joint Child Protection Response Program (“JCPRP”) requesting an interview with him.
Two days later, the children do not spend time with the father.
The next day, the mother takes X to a Dr K, where she obtains a mental health plan for X and a urine examination ordered for X. The urine examination tests for chlamydia and gonorrhoea, both return a result of ‘Not detected’.
In early July, the father sends a message to the mother requesting to speak to the children, which the mother refuses.
A few days later, the father has audio/visual communication with Y but not X. The mother states that X does not want to speak to the father. This is the last time the father had any audio/visual communication with either of the children.
The next day, the father had an interview with two members of the JCPRP regarding the allegations of sexual abuse against X.
In August 2021, the father had an interview with Mr E regarding the allegations of sexual abuse against X.
In early September, the father is informed by Mr E that the investigation is suspended and no longer being pursued.
In late September, the mother is informed that the investigation is suspended and no longer being pursued.
On 28 April 2022, the father files his Contravention Application, alleging 22 counts of contravention by the mother of the final orders.
In early August 2022, the mother deposes that Ms J, a caseworker from DCJ, came to her house to say that they were not substantiating the allegations of sexual abuse.
Two days later, the mother received a phone call from the assistant principal at X’s school, Ms L, regarding what Ms J said two days earlier. The mother deposes she made a report to DCJ after her request for the school to report the matter to the DCJ was ignored.
In mid-August, Ms M, a family caseworker that has assisted the mother and the children since 2016, emailed the principal of X’s school regarding the phone call in early August, noting the school advised the mother that it had no intention of making a report to DCJ. No reply was received by Ms M.
In late August, the mother deposes that Ms J contacted X’s school, where the school stated there was no need to make a mandatory report to the DCJ and what the mother told Ms M was not true.
In early September, Ms M contacted Ms J by email requesting details regarding the early August incident. Ms M sent follow-up emails on 7 September 2022 and 16 September 2022.
In mid-September, Ms J replied to Ms M’s email stating the case had been closed by the DCJ and therefore was no longer the caseworker for the family.
Three days later, the children’s school organised a fun day, which the father attended but did not approach the children. The mother was informed of the father’s attendance upon arrival.
On 8 November 2022, the Contravention Application was listed for hearing, but adjourned to 22 November 2022 upon an oral application made by the mother’s legal representatives due to issues pertaining to her grant of legal aid. At this court event, the mother’s legal representatives inform the Court that the mother pleads guilty to all counts but has a reasonable excuse for each count.
On 21 November 2022, the mother files an Application in a Proceeding, seeking that the final orders be suspended, inter alia.
On 22 November 2022, the hearing of the Contravention Application is conducted and judgment reserved. Orders were made dismissing the mother’s Application in a Proceeding as being incompetent.
THE LAW ON REASONABLE EXCUSE
The father’s Contravention Application is brought under Division 13A of Part VII of the Act. The meaning of reasonable excuse, as relevant to the mother’s case, is provided in section 70NAE of the Family Law Act 1975 (Cth) (“the Act”):
70NAE Meaning of reasonable excuse for contravening an order
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)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.
…
(5)A person (the respondent) 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)the respondent believed on reasonable grounds that not allowing the child and the 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 in paragraph (a).
(6)A person (the respondent) 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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies 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).
The burden of proof to be discharged by the mother in proving she had a reasonable excuse is provided for in section 70NAF of the Act:
70NAF Standard of proof
(1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
…
In Gaunt and Gaunt,[2] the Full Court of the Family Court of Australia (as it was then known), posed this question with respect to the meaning of ‘without reasonable cause’ meant (as it was then contained in the Act):[3]
The essential question is this - 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 purpose and intentions of the Act.
… 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”.[4]
[2] (1978) FLC 90-468 (“Gaunt”).
[3] The test now is ‘without reasonable excuse’; see generally Family Law Act 1975 (Cth) s 70NAE.
[4] (1978) FLC 90-468 at 77,398 (Evatt CJ, Emery SJ, and Hogan J).
In Ongal and Materns,[5] in discussing the breadth of reasonable excuse, the Full Court of the Family Court of Australia said that “it is not possible to chart its [the discretionary power] in metes and bounds”.[6]
[5] (2015) FLC 93-645.
[6] (2015) FLC 93-645 at [38] (Thackray, Strickland, and Aldridge JJ) citing Stanford v Stanford (2012) 247 CLR 108 at [36] (French CJ, Hayne, Kiefel, and Bell JJ).
In Childers & Leslie,[7] the following discussion occurred with respect to the definition of ‘reasonable excuse’:
Moreover, the learned Magistrate may well have fallen into error by applying too loose a test of “reasonableness”. The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 Fam LR 553 at 559:
… However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.
Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.[8]
[7] (2008) FLC 93-356 (“Childers & Leslie”).
[8] (2008) FLC 93-356 at [28]–[29] (Warnick J).
In Abud & Abud,[9] the above extract from Childers & Leslie was expanded upon and the following discussion ensued:
… [Warnick J] said that in terms of reasonableness, one has to look at other provisions of the Act.
For example, the objects and principles in Part VII of the Act are set out in s 60B. That provision says that a court should ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child, and ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
… when I consider the question of reasonableness, I have to look at the objects and principles of the Act.[10]
[9] [2010] FamCA 1132.
[10] [2010] FamCA 1132 at [51]–[53] (Cronin J).
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)
The sad reality in this matter is that X has, almost since her birth, been living with the spectre of the mother believing that the father has behaved inappropriately towards her by way of sexual abuse, touching her vagina and anus, and other areas of her body sexually.
The matter came on for final hearing before Rees J in on 22 July 2020, wherein the mother and father agreed as to the regime of time for the children, being they would spend alternate weekends with the father commencing 8 August 2020, from 9.00 am Saturday until 6.00 pm Sunday in school holiday time. Her Honour made some orders, and the parties agreed on various other orders, such as Order 30:
30. That each parent be restrained from:
(a)Taking or causing the children to attend upon any counsellor in relation to allegations of sexual abuse without the express written consent of the other.
(b)Filming and/or taking photographs of the children’s genitalia or showing any person any photograph, video or audio recording that is in the possession of the mother that relates to sexual abuse allegations raised in these proceedings.
(c) Coaxing any disclosure of abuse from the children.
The parties were to have equal shared parental responsibility and permitted to take the children overseas. The decision made by Rees J, which involved determination of the mother’s opposition to the father’s flatmate and the regime of time with the father, was informed by the parties’ evidence as well as the Expert Report of Ms G. Ms G was of the view that the allegations against the father, made by the mother in her material and to Ms G in-person, were unfounded and noted in the Expert Report that the mother told her:
Allegations of sexual abuse
66.[Ms Peluso] advised that she first developed concerns about [Mr Karle] sexually abusing [X] in [late] 2014, when [X] was 11 months old. …
67.[Ms Peluso] said she did not see any evidence of further sexual abuse. However, she was clear at interview that she has always believed that [Mr Karle] sexually abused [X]. She acknowledged that she resumed a relationship with [Mr Karle] regardless (at the time of falling pregnant with [Y]), suggesting that she thought that he had changed. …
During cross-examination, the mother agreed that the Department of Family and Community Services (“FACS”) (as it was then known) had become involved but did not substantiate her allegations of sexual abuse and she attributed this to her poor English. Further, during cross‑examination, the mother stated that she entered into some of the final orders by consent because she was told by her lawyer that if she did not agree to the orders, she would lose her grant of legal aid. The mother also said that a lawyer provided to her by legal aid and after the final orders were made said she would “most likely go to jail” if she did not start complying with the final orders.
The mother denied coaching X or taking her to different doctors for the purpose of gaining support for her allegations stating she did not coach either of the children in relation to these issues. The mother had suggested to the Ms G that FACS and the Joint Investigation Response Team (“JIRT”) (as it was then known) did not substantiate the abuse allegations because “they are not trained to know what is happening with kids”. At this hearing, the mother confirmed in oral evidence that she did not accept the decision of police who interviewed X in June 2021 to not pursue the matter, despite them being experts in this area.
The mother confirmed to Ms G that she had taken X to a number of different services, but she was justified in so doing because she was following the advice of others. This was the reason she gave the Court for taking X to her general practitioner to obtain a mental health plan for her in June 2021. The mother agreed she had obtained a mental health plan but had not acted upon it and I accept this is correct and there is no breach of Order 30(a). However, the notes of that visit are clear. The mother explained she needed a mental health plan, as the father had sexually abused X and had done so for some time.
The mother confirmed X was present when she had this conversation with the general practitioners, which is consistent with the ordering of sexually transmitted disease tests to be carried out in respect of a then seven year old child. It’s also consistent with the mother’s continued coaching of the child. Tragically, this is not the first time X has been subjected to such a procedure. The procedure showed no sexually transmitted disease, only that she had vaginitis – a soreness and redness of the vaginal area – and a common occurrence in young girls. The mother continues to subject her children to multiple interventions to support her beliefs.
Ms G details the multiple disclosures by X to her mother and professionals concerning the father “touching her”, dating from 2017; well before the final consent orders for time with the father and equal shared parental responsibility were made. Many of the disclosures are made with the mother present and her referring to the father as not a safe dad in front of the children.
This is consistent with the mother’s admitted conduct in June 2021 with the general practitioner, with X present during the entire time and this is coaching of the most extreme kind, bordering on abusive behaviour of a parent to a child. It is inconceivable that the mother does not understand that this behaviour is coaching.
Ms G referred to records produced by FACS, confirming that X has been the subject of reports since early 2014. X was interviewed by police in early 2017 at age three. It is reported that X “spoke positively about both parents and making no disclosures, even when shown a body chart”. That the mother could not comprehend that X had not been sexually assaulted.
The father tendered in his case a COPS entry from an incident on 16 June 2021.[14] This incident was confirmed by the mother and concerned Y being interviewed at his day care centre. Y did not make any disclosure of being inappropriately touched or of witnessing X being inappropriately touched by the father. At one point in the interview, he was asked:
And who does touch you on your private parts?
(As per the original)
To which Y replied:
No one and I say mummy, daddy doesn’t touch my private part, because mummy says yes, but he didn’t.
(As per the original)
[14] Exhibit F1.
When these records were put to the mother she did not believe this is what Y had said to police and maintained that Y was at risk of harm in the father’s care because of what she asserts has happened to X, and thus he cannot spend time with the father.
On 16 June 2021, X was interviewed at her primary school. X disclosed being touched on her vagina and anus by the father on her second-last visit with him. The police report that this disclosure lacked any real context and several inconsistencies were identified in relation to it. X was apparently firm on the fact that this was the only time the father had sexually touched her and that the mother had not told her to say it or told her that it had happened. The COPS entry goes on to say:
Of interest, this is the sixth occasion police have investigated an allegation of sexual assault against [X] by [Mr Karle] …
(As per the original)
And it is particularly noted in the COPS entry:
… In a previous police interview …, [X] was asked “Is Daddy touching you on the bottom something he did or something your Mum told you?” [X] answered, “My Mummy told me.”
(As per the original)
The police then went on to examine the father’s phone to see if he had child pornographic material. The father was co-operative and nothing was revealed. The medical records of X were obtained and were inconsistent with sexual abuse, but report vulva vaginitis. The father vehemently denied the allegations against him.
These events have been ongoing for seven years since X was 11 months of age.
Further in the COPS entry of 22 June 2021, police met with the DCJ. The COPS entry states that the police raised the following concerns:
(1)Inconsistencies with the version of the mother;
(2)Apparent coaching/coercion of X;
(3)Lack of context in the disclosure; and
(4)Insufficient evidence to apply for an ADVO, particularly given previous investigations.
The COPS entry provides the comments of the DCJ:
(1)Agreed with issues identified by police;
(2)Raised concern with causing additional trauma to X if she were examined at hospital again; and
(3)Raised concern “re[garding] playing into the beliefs of NM [natural mother] by entertaining her re[garding] safety plans, medical examinations etc”.
The father also tendered information from the DCJ regarding X, dated at least some time in 2018.[15] At that stage, X had been the subject of 15 reports from 2014 to early 2018, most of which related to sexual harm. The mother was told no investigation could proceed without a disclosure being made by X “in counselling room in order for the police to believe any disclosures”.[16] No sexual harm has ever been substantiated, instead psychological harm has been substantiated as a result of the mother’s apparent fixation with alleging sexual abuse perpetrated by the father and having X examined. A report by FACS on 11 August 2017 states:
[Ms Peluso] genuinely believes [X] is being sexually abused and continues to subject her to medical professionals to sight her vagina.
…
She [the mother] still believes that [X] has been sexually harmed by [Mr Karle] even though there is no evidence of this happening at this stage. Risk of psychological harm substantiated.
(As per the original)
[15] Exhibit F2.
[16] Exhibit C1 at [70].
A detailed report was produced by the DCJ in the second half of 2021, which stated there are ongoing concerns of risk of psychological harm to the children in living with the mother and refers to the following extract from the Expert Report:
The greatest risk to the children is that their mother will cause psychological harm by convincing [X] she has been sexually abused, or by subjecting her to further medical examination of her genitalia.[17]
[17] Exhibit C1 at [92(i)].
The mother confirmed orally and was firm in that she believes the father has sexually abused X, despite there being no police action, no action by the DCJ, and X’s school confirming that they have no concerns about her behaviour. Counsel for the mother submitted and consistent with his Case Outline, that the mother, within the meaning of the Act, believed on reasonable grounds, the contraventions were necessary to protect the health and safety of the children.[18]
[18] Family Law Act 1975 (Cth) sub-ss 70NAE(5)(a), (6)(a), (7)(a).
The submissions of the mother’s counsel were that the mother believes X has been sexually abused, that this belief is genuine, that she is firm in this belief and, in those circumstances, it was reasonable for her to contravene the final orders because to send either or both X and Y, for time with the father, could not be countenanced by her when she believes the children will be harmed. I reject that submission. The mother’s fixed belief is not based on reasonable grounds, but her erroneous, improperly held view that the father has sexually abused X, which has been held since X was 11 months of age. It is inconsistent with her decision to enter into the final orders for equal shared parental responsibility and unsupervised time with the father, including overnight time and school holiday time.
The mother has waged a campaign against the father to excise him from the children’s life, due to this erroneously and unreasonably fixed belief held by her. Police, the DCJ, medical practitioners and court experts such as Ms G have not believed the mother’s allegations nor is there any substance to her allegations other than X’s words, which the mother has coached from her. The mother consistently continues to expose X to multiple medical examinations, procedures, and counselling, up until the orders were made in 2020.
A submission was made by counsel for the mother that she had reasonable grounds for her belief because, on this occasion, X made the disclosure directly to the mother, and the mother was not challenged on this disclosure in cross-examination.
The disclosures made to support a reasonable excuse mirror those made previously to others by X that the father has sexually touched her and none of those disclosures have been accepted or acted upon nor were these “new” disclosures. This is not the first occasion a disclosure has been made by X. I reject that there is any difference in this disclosure to any prior disclosure. Further, it would be entirely unsafe to rely upon this alleged conversation between X and mother, given the disturbing and concerning history of psychological and emotional abuse of X by the mother in her endeavour to prove that the father has sexually abused X and Y when the facts are clear the father has not. The mother has continued to coax disclosure of sexual abuse from the children by, for example, discussing that very issue in the presence of the children with a general practitioner. For those reasons, I reject that submission.
In mid-2017, X was interviewed by a caseworker at FACS, where she said that she likes the father and he makes her happy. X was shown a body chart and said that only the father touches all parts of her body, and the father touching her toes, eyes and nose is bad because the mother and Y told her it was. X further said “Daddy touched her on the bottom and Mummy tell her”.[19]
[19] Exhibit C1 at [75(t)].
In the Expert Report, Ms G recorded X having told her the following:
[X] denied ever feeling scared or unsafe in either of her parents’ care. …
…
[X] said she would like to see her father more often, including having a sleepover with him. I asked [X] if there was anything else she wanted to tell me about her parents but she declined, asking if her father had arrived.[20]
[20] Exhibit C1 at [78], [80].
Ms G concluded and made the following recommendation regarding the mother:
Recommendations
93.On the basis of the information available to me in the preparation of this report … I recommend:
(a)Should the Court accept my opinion that the allegations against [Mr Karle] are unfounded:
…
ii.[Ms Peluso] should engage with a clinician with expertise in family court work to support her to accept that [Mr Karle] does not pose a risk of harm to the children. …
…
(b)Should the Court determine that [Ms Peluso] poses a risk of psychological harm to the children, or should [Ms Peluso] fail to make progress in counselling as recommended above:
…
ii.If [Ms Peluso] actively disrupts the relationship between the children and their father, a change of residence may need to be considered.
The mother has not had counselling as recommended and has made no progress. She still believes X has been sexually abused, and has now included Y in this when Y was clear to the police:
At one point during the interview, [Y] was asked, “And who does touch you on your private parts?” To which he replied, “Noone and I say mummy, daddy doesn’t touch my private part, because mummy says yes, but he didn’t”.[21]
(As per the original)
[21] Exhibit F1.
In Sellers & Appleby,[22] Johns J said the following:
The mother’s allegations of a recent disclosure of sexual abuse by C are extraordinary, particularly given that neither C nor D has spent any time with the father for a period of almost two years. They were aged approximately four and three years respectively when they last spent time with the father. The mother’s oral evidence that she has made recordings of those alleged disclosures is concerning, given the history of this matter as contained in Cronin J’s Judgment. The allegations of the mother as to alleged sexual abuse of the children by the father were matters dealt with by Cronin J in his Judgment dated 18 October 2017. It would appear that the mother simply does not accept the findings of the Trial Judge.[23]
And after referring to Gaunt:
The mother in this case refuses to enrol with the Family Contact Service due to her view that permitting the father to spend time with the children, even supervised time, would be contrary to the welfare of the children. Those matters were considered and determined by Cronin J. The appropriate manner in which to challenge the Orders is by appeal; the mother has not filed an appeal. The mother’s subjective view as to the rights and wrongs of Cronin J’s decision is not a basis upon which it could be said she has a reasonable excuse for contravening the final Orders. To permit the mother to maintain that position would undermine the provisions of the Act, the trial process so recently concluded and the final Orders made following the hearing.
Having regard to the findings of Cronin J with respect to the allegations of sexual abuse and to the evidence of the mother given this day, I do not accept the mother’s submission that she has a reasonable excuse for contravening the order.[24]
[22] [2017] FamCA 1142.
[23] [2017] FamCA 1142 at [28] (Johns J).
[24] [2017] FamCA 1142 at [30]–[31].
In Fulton & Packer,[25] Forrest J said the following:
I do not accept the asserted unwillingness of the mother “to lie” to her son about the particular subject matter as being a reasonable excuse for denigration of the father. I do not accept any purported belief that the father sexually abused the child as constituting reasonable excuse, particularly as the orders I am satisfied the mother has contravened were made after a trial where all of her beliefs about the sexual abuse were already considered with relevant findings being made. Even in circumstances where she did not accept those findings she was nevertheless obliged to comply with the orders. Accordingly, I am satisfied the mother has contravened para 16 (c) of the orders without reasonable excuse.[26]
[25] [2015] FamCA 286.
[26] [2015] FamCA 286 at [74] (Forrest J).
The authorities cited above highlight that merely contravening orders because of a child disclosing alleged sexual abuse by the other parent is not a reasonable excuse. Further, having a genuine belief of the disclosure of sexual abuse made by a child is not a reasonable excuse per se. The belief must be genuinely held and the belief is based on reasonable grounds.
One substratum of facts that plays a significant role in determining whether the belief is based on reasonable grounds is whether the alleging parent has accepted the outcome of an investigation[27] and/or the findings made by the Court.[28]
[27] For example, as in Ackland & Ackland [2007] FMCAfam 693.
[28] For example, as in Fulton & Packer [2015] FamCA 286.
A second factor that is important for the Court to consider is whether the contravening party has sought to change the orders they are contravening. For example, in Ackland & Ackland,[29] Kelly FM noted that the mother had filed an Initiating Application to vary the final orders two days prior to the father filing his Contravention Application.[30] The mother made no such application in this matter.
[29] [2007] FMCAfam 693.
[30] Ackland & Ackland [2007] FMCAfam 693 at [26]–[28] (Kelly FM).
In the present matter, the mother has not accepted the outcome of the investigation from the police and DCJ. While asking a question to the mother in cross-examination, counsel for the father said:
MR PICKERING: She [X] is saying things to the police, okay, the police, these expert investigators, hear what she has to say, and I see that you roll your eyes and scoff that they’re the expert investigators …
The mother agreed that when she was notified in September 2021 that police and DCJ were not continuing their investigation, this was not the first time she received such a notification and was asked if she had heard this “many times before”, the response was:
THE MOTHER: Yes. I have to protect my children and this time my daughter has the voice to talk. I have to believe her. If nobody has believed her, who else is going to believe her?
Near the end of cross-examination, counsel for the father asked the mother:
MR PICKERING: In terms of your belief as to the father committing sexual abuse of his children, is it the case that you’ll never comply with orders for him to spend time with the children, as long as you have that belief?
Initially, the mother did not understand the question, so I asked:
HER HONOUR: The question was, put it another way, would it be true to say that while you believe that this father has sexually abused your children, you are not going to comply with the court orders, would that be a fair statement to make?
THE MOTHER: Yes.
Although the mother holds these views, some of the final orders were entered into by consent, including some of the orders relating to the children spending time with the father and the restraints regarding the sexual abuse allegations. Although these restraints injunct both parents, it is clear that such a restraint was directed at the mother and her conduct. The mother’s attempted to blame her previous lawyers for entering into the final orders is rejected.
It is apparent the mother’s attitude was to not comply with the final orders rather than to seek new orders that would allow her to comply, given her held views about the father allegedly sexually abusing the children.
While the mother may genuinely hold the view that the father has sexually abused the children, particularly X, it is not reasonably held on the evidence for the following. The investigations of allegations made before the final orders were made were not substantiated, and the investigation undertaken as a result of the allegations in June 2021 have not been substantiated. The mother entered into the consent orders knowing the disclosures allegedly made by X. This conduct is inconsistent with the mother now holding a reasonable belief that the new disclosures which mirror, in many respects, the prior disclosures, are true.
Although I am not mandated to consider to objects of Part VII of the Act in this determination of a reasonable excuse, I have considered section 60B, particularly as the mother in 2020 agreed to the children having both parents in their lives.[31] It is also relevant that the DCJ have identified the children to be at a risk of psychological harm from the mother’s views and steadfast actions in having X attend upon medical practitioners for physical examinations. This harm is compounded by the mother discussing her beliefs with other professionals in the presence of the children.
[31] Abud & Abud [2010] FamCA 1132 at [51]–[53].
I find, on the balance of probabilities, the mother did not have a reasonable excuse for breaching the final orders made on 4 August 2020 and all counts are proven, save for a breach of order 30(a), which restrained the parents from taking the children to a counsellor in relation to allegations of sexual abuse.
The mother has breached Order 3 in that she has failed to advise the father she was intending to have a mental health plan prepared for the child, given the parents equally share parental responsibility for their children. The mother’s words to me, “I never carried it through”, cannot assist her case that she did not breach the order to share parental responsibility in obtaining a mental health plan.
PENALTY
The penalties sought by the father were as follows:
(1)That the mother enter into a bond; and
(2)That the final orders be varied.
I will make an order for the matter to be adjourned to hear submissions on whether the final orders should be varied.
In submissions, counsel for the father stated that in the event that I found the mother had no reasonable excuse for the counts alleged, that these contraventions are a ‘more serious contravention’ invoking Subdivision F of Division 13A of Part VII of the Act, but sought only a bond.
Section 70NFA of the Act sets out the circumstances where this subdivision is applicable:
70NFA Application of Subdivision
(1) Subject to subsection (2), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3) applies.
Note:For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2) For the purposes of paragraph (1)(d), this subsection 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 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person 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.
(3)For the purposes of paragraph (1)(d), this subsection applies if a court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4)This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5)This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
I have found the mother has committed a contravention of the final orders without reasonable excuse.[32] This is the first occasion the mother has been found guilty of a breach of orders made by the Court. The question is whether the contraventions committed by the mother demonstrated she “has behaved in a way that showed a serious disregard” of her obligations required under the final orders. Further, I must be satisfied it is not more appropriate for this Contravention Application to be dealt with under Subdivision E.[33]
[32] Family Law Act 1975 (Cth) s 70NFA(1)(a)–(c).
[33] Family Law Act 1975 (Cth) s 70NFA(4).
In Elspeth & Peter; Mark & Peter; and John & Peter,[34] the Full Court of the Family Court of Australia extensively discussed the meaning of “serious disregard” and referred to numerous decisions in different courts and explanatory memoranda.[35] In particular, the following observations were made:
The theme that emerges from an examination of several of decisions by Federal Magistrates is that “serious disregard” tends to be found in cases of deliberate, pre-meditated non-compliance with the orders; and continued and protracted breach.
…
What seems to be the common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under Subdiv F.[36]
[34] (2007) 212 FLR 214.
[35] (2007) 212 FLR 214 at [49]–[69] (Faulks DCJ, Kay, and Penny JJ).
[36] (2007) 212 FLR 214 at [61], [66] cited in Hugh & Sawer [2010] FamCA 290 at [16]–[17] (Bennett J).
In Hugh & Sawer,[37] Bennett J said the following:
What constitutes a “serious disregard” in the terms of s 70NEA(4) was discussed in the case of Elspeth and Peter, Mark and Peter, and John and Peter [2007] FamCA 655 (‘Elspeth and Peter’). The Full [C]ourt, comprising Faulks DCJ, Kaye and Penny JJ reviewed earlier decisions and certain explanatory memoranda from which I discern the following principles arise:
a)what amounts to a serious disregard will depend on the circumstances of the case and the terms of the order;
b)serious disregard is a description of a degree of intent that is something less than the intent required for a contumacious breach, but something more than the intent present in a finding of a contravention;
c)serious disregard has to be seen as a question of proportion and a question of degree, and which I take to require some examination of whether it was premeditated, impromptu or minor in its nature;
d)serious disregard may involve no intention on the part of the respondent to support the primary order and/or an intention to circumvent the provisions of the primary order.[38]
[37] [2010] FamCA 290.
[38] [2010] FamCA 290 at [15].
In Carrington & Gunby,[39] the Full Court of the Family Court of Australia emphasised that the circumstances to be considered in determining serious disregard are only circumstances that are directly related to the contraventions to have been alleged and found by the Court.[40]
[39] [2020] FamCAFC 117.
[40] [2020] FamCAFC 117 at [51] (Strickland, Aldridge, and Kent JJ).
Although I find the mother has breached the final orders for a lengthy period, I find it is more appropriate that these contravention be dealt with under Subdivision E. If the mother does not comply, any further breaches, if found, may be regarded as a “more serious breach” under Subdivision F.
The mother has prevented the father from seeing the children since June 2021. The mother has known since September 2021 that the investigation by police and the DCJ has ceased and that the allegations of sexual abuse against the father have not been substantiated, and at that point time, should have resumed.
I strongly urge the mother to undergo immediate therapeutic assistance in regard to her erroneous and damaging belief that the father has sexually abused the children, and I make a notation to that effect.
Bond
Counsel for the father put to me that the proper penalty would be a bond and this was conceded by counsel for the mother to be the appropriate penalty.
Given that I have found the mother guilty of contravening the final orders without reasonable excuse on 22 counts, I will make an order placing her on a good behaviour bond without surety.[41] I am satisfied on the balance of probabilities that the grounds for making such an order exist, and it was conceded as an appropriate penalty by counsel for the mother. The order for the bond will be for a period of 24 months so as to ensure a long-term compliance of orders by the mother.[42]
[41] Family Law Act 1975 (Cth) s 70NEC(4)(d).
[42] Family Law Act 1975 (Cth) s 70NEC(2).
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.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 24 February 2023
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