Raider & Raider

[2011] FamCA 488

FAMILY COURT OF AUSTRALIA

RAIDER & RAIDER [2011] FamCA 488

FAMILY LAW – CONTEMPT – Contravention of Court Orders – Whether the mother had a reasonable excuse for contravening the particular orders that she clearly contravened – Whether it is in the best interests of the children to spend time with the father – Where the child has expressed suicidal thoughts if time were to be spent with the father – Court accepts that the mother believed on reasonable grounds that not forcing the children to go and spend time with the father was necessary to protect the health and safety of the children – Court finds that the mother had a reasonable excuse for contravening the particular orders requiring the children spend time with the father – Court does not find that the mother had a reasonable excuse for contravening orders which did not pertain to spending time with the father.

Family Law Act 1975 (Cth) s 70NAC, s 70NAF, s 70 NAE, s 65P and s 70NDA(c)

Jets & Maker [2010] Fam CAFC 55
Childers & Leslie (2008) FLC 93-356
In the Marriage of Lutzke (1979) 5 FamLR 553
Stevenson v Hughes (1993) FLC 92-363

APPLICANT: Ms Raider

RESPONDENT: Mr Raider

FILE NUMBER: BRC 4124 of 2008

DATE DELIVERED: 23 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 17 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ashcroft

SOLICITOR FOR THE APPLICANT: JPM Legal

COUNSEL FOR THE RESPONDENT: -

SOLICITOR FOR THE RESPONDENT: -

Orders

IT IS NOTED that publication of this judgment under the pseudonym Raider and Raider is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4124  of 2008

Ms Raider

Applicant

And

Mr Raider

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On the 1^st of July 2010, his Honour Justice Bell made final orders in parenting proceedings between Mr Raider and Ms Raider and Mr Patrick Dooley, solicitor, being the Independent Children’s Lawyer appointed in the matter.  Those orders were made with the consent of all the parties on what was the first day of trial of the matter before his Honour.  Those orders finalised proceedings first commenced in the Federal Magistrates Court on the Gold Coast in early 2009. 

2. Those final parenting orders were made to regulate the co-parenting relationship of Mr and Ms Raider in respect of the two children, J born in June 1998, and M born in March 2000.  J is now 13 years of age and M 11 years of age. Mr Raider is not J’s biological father but is M’s and was J’s step-father for several years before the parents separated.

3. Those final parenting orders were as follows:

   1.That the children [J] born […] June 1998 and [M] born […] March 2000 live with the Mother.

   2.That the children spend time with the father as agreed between the Father and Mother, but at least as follows:-

   (a).For half of the Easter, June/July and September/October school holidays being the first half in even numbered years and the second half in odd numbered years.

   (b).For the first two weeks of the Christmas school holidays in even numbered years, and the last two weeks in odd numbered years.

   3.That the Mother meet the cost of flights to and from the Gold Coast for the Father to spend time with the children.

   4.That the Mother provide a copy of the itinerary for the children’s travel 28 days prior to the trip.

   5.That the Wife transfer her interest in the [Holden motor vehicle] (Registration Number […] ) to the Husband.

   6.No Order as to costs.

   7.That the Father complete an anger management course as directed by the Independent Children’s Lawyer.

   8.That both parties complete a Parenting Orders Program approved by the Independent Children’s Lawyer.

   9.The Father telephone the children on J’s phone between 7pm and 8pm each Monday and Friday.

   10.All application are otherwise dismissed.

   11.The ICL is discharged.

   12.That the children do not relocate to Sydney until the cessation of the 2010 football season in [N].

4. The two children spent a week of holiday time with Mr Raider shortly after those orders were made in the June/July New South Wales school holidays.  They then spent another week with Mr Raider in the September/October New South Wales school holidays.  Some time before those holidays had commenced, as the July orders entitled the mother to do, she had relocated herself and the two children from N to Sydney to live.

5. Apparently, on the evidence, shortly after the children returned to Sydney following the September/October school holiday stay with their father, difficulties began to emerge in the communication between the children and the father.  Telephone communication ceased and, ultimately, the holiday time that the children were to spend with the father, pursuant to the orders, over the 2010/2011 Christmas holidays and in the 2011 Easter holidays did not take place.

6. On 30 November 2010, the mother filed an application and supporting affidavit in the local court.  She sought interim orders suspending orders 2, 3, 4 and 9 of the final orders made on 1 July 2010 and final orders that orders 2, 3 and 4 be discharged.  That application was transferred to the Federal Magistrates Court in Sydney and, on 14 March 2011, Federal Magistrate Scarlett in the Federal Magistrates Court at Sydney, transferred it to this Court’s registry here in Brisbane. 

7. The father, Mr Raider, opposes the orders sought by the mother but has also filed four contravention applications in which he alleges the mother has contravened those final orders.  The details of those contravention applications are, essentially, as follows:

   a)On the 2^nd of February 2011 the father filed in the Sydney registry of the Federal Magistrates Court a contravention application signed by him on the 26^th of November 2010 alleging:

   i)That on the 23^rd of November 2010 the mother contravened that part of the order that obligated her to provide a copy of the itinerary for the children’s travel 28 days prior to the school holidays, which were the Christmas school holidays; and

   ii)Since the 1^st of November 2010 the mother has contravened that part of the order that provided for the father to be able to have telephone communication with the two children.

   b)On the 2^nd of February 2011 the father filed in the Sydney registry of the Federal Magistrates Court a contravention application signed by him on the 26^th of November 2010 alleging that the mother had failed to comply with that part of the order that obligated her to provide the children to spend time with the father in the first half of the September/October school holidays;

   c)On the 24^th of February 2011 the father filed in the Sydney registry of the Federal Magistrates Court a contravention application signed by him on the 21^st of January 2011 in which he alleged that on the 18^th of December 2010 the mother contravened that part of the order that obligated her to provide the children to spend time with the father during the 2010/2011 Christmas school holidays;

   d)On the 3^rd of May 2011 the father filed in the Brisbane registry of this Court a contravention application signed by him on the 16^th of April 2011 in which he alleged the mother had contravened that part of the order that obligated her to provide the children to spend time with the father during the 2011 Easter school holidays.

8. The matter came before me in the Judicial Duty List on Friday, 17 June 2011.  The father was unrepresented whilst the mother was represented by Mr Ashcroft of Counsel and an instructing solicitor.

9. The hearing commenced with Mr Ashcroft taking some objections to the form of the contravention applications.  I determined that those objections were essentially technical in nature and that although the contravention applications might have been drawn more efficiently by a legally qualified person, the father had made the particulars of his alleged contraventions clear enough for the mother to understand and know the nature of the contraventions alleged against her.  I determined to proceed on effectively five counts of alleged contravention arising from the four contravention applications that were before me. 

10. After hearing cross-examination of the father and considering all of the affidavit evidence that he read in support of the four contravention applications filed, I determined that the mother had a case to answer in respect of all five counts and called upon her, through her counsel, to answer the alleged contraventions.  In respect of the second count arising out of the first of the applications listed above, namely that the mother had allegedly contravened that part of the order that required her to make telephone communication between the children and the father from 1 November 2010, the mother answered that she had not contravened the order.  In respect of the four remaining counts of alleged contravention the mother answered that she had contravened the order as alleged but that she had reasonable excuse for so contravening. 

Relevant Law and Principles

1. Section 70NAC of the Act provides as follows:

   Meaning of “contravened” an order

   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.

2. The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children.  The standard of proof is on the balance of probabilities having regard to the gravity of the allegation and the contravention must be shown to be intentional though not requiring proof of  contumacious  behaviour.  See s 70NAF of the Act and also Jets & Maker [2010] Fam CAFC 55 per O’Ryan J at paragraph 83.

3. Section 70NAE of the Act provides, in certain circumstances, reasonable excuse for contravening an order. Specifically, it provides as follows:-

   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.

   (3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (4)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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (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 Specific Allegations

Allegation 1:    That the mother had contravened paragraph 4 of the final orders made on 1 July 2010 by failing to provide a copy of the itinerary for the children’s travel to Queensland for the 2010/2011 Christmas school holidays 28 days prior to the trip.

1. Clearly, pursuant to paragraph 2(b) of the final consent orders made 1 July 2010, the children were to spend the first two weeks of the Christmas school holidays in 2010 with the father.  The undisputed evidence of the father was that the New South Wales school holidays started on the 17^th of December 2010 and that by 23 November 2010 he had not received a copy of the itinerary for the children’s travel and that was only 24 days before the 17^th of December 2010.

2. As noted already, the mother answered that she did contravene that provision of the final order but asserted that she had done so with reasonable excuse.

3. It is to be noted that s 70NAE sets out a number of particular sets of circumstances in which a respondent “is taken” to have had a reasonable excuse for a contravention.  See such sections (2), (4), (5), (6) and (7).  But it is important to  note that s 70NAE(1) says that 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 (my highlighting), those circumstances set out in those sub-sections just referred to.  See Childers & Leslie (2008) FLC 93-356 per Warnick J at paragraph 9.

4. As the particular order alleged to be contravened in respect of this count is an order obligating the mother to provide an itinerary in respect of a pending holiday visit as distinct from actually causing the children to go on that holiday visit, I do not consider that any of the particular sets of circumstances specifically provided for in s 70NAE(2), (4), (5), (6) and (7) applies.

5. That leaves at large the determination of whether or not the mother had a reasonable excuse for contravening the particular order and does not make the determination subject to any of the same factual constraints as are applied in the other sets of circumstances set out in s 70NAE. 

6. I am mindful, however, that I am not to apply too loose a test of “reasonableness”.  That would be falling into error.  As Warnick J said in Childers & Leslie at paragraph 28:

   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 regards 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 Lindenmayer J said of the term “any just cause” In the Marriage of Lutzke (1979) 5 FamLR 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.

7. In this particular case the mother signed her application initiating proceedings that was filed in the Local Court, on 26 November 2010.  She swore the supporting affidavit on the same date.  By that time, she had already contravened the provision of the order requiring the itinerary for the forthcoming holidays to be forwarded to the father 28 days prior to the trip.

8. The mother advanced as the reasons for non-compliance with the specific obligation imposed by the order to be that she was preparing her application for the immediate suspension of the ordered obligation for the children to go and spend time with the father in the holidays and, as a consequence, also the ordered obligation to provide the travel itinerary.

9. The mother’s evidence was that she did not send the itinerary as obligated as she had hoped that her application would be heard in the local court and the orders suspended.  Her evidence, in her affidavit filed 14 June 2011, was that when it was not listed in time, she immediately booked the children’s flights for the Christmas holidays and notified the father of the details both by email, by phone and by ordinary mail.

10. The reasons why the mother made the application that she did to the Local Court in late November are to be discerned from the evidence she gave in her affidavit filed in support of that application on the 30^th of November 2010 that was read in this matter.

11. Essentially, the mother’s case for an interim suspension of the orders and a final discharge of those same orders is argued on the basis that it is not in the children’s best interests to force them to go to spend time with their father when neither of them wants to and both are feeling under immense pressure. The mother contends that their psychological well-being has been put at risk. 

1. In fact, the mother’s case is that her son, J, began to express suicidal thoughts in November, soon after returning from the September/October holiday visit with his father.

2. The mother’s evidence, in that affidavit, is that the children began expressing reluctance to go to spend time with their father again and to speak with him on the telephone after their June/July holiday time with him.  She says that neither of the children wanted to go to spend the September/October holiday time with their father either.  Her evidence is that it was rather difficult to get them to go on that holiday and that when they returned they said on a number of occasions that they did not want to go again.  In fact, the mother said that J had said to her “I’m not going again mum so don’t try and make me.  He just goes on with crap all the time and says things like he’s going to put you in jail”. 

3. The mother’s evidence is that during a telephone call that the children received from the father on the 18^th of October 2010, M became very stressed and began to cry and that she told her mother afterwards that the father had said that he was going to put her in jail by the end of the week.  The mother said that after J had spoken with his father he angrily hung up and said “I just want to smash the phone so he can’t ring again”.  M was crying, becoming hysterical and yelling “I’m going to Queensland ever again, don’t make me go ever again”.  J said “I hate him, I don’t ever want to see him again and you can’t make me”. 

4. The mother’s evidence is that then the children began ignoring telephone calls from the father.

5. The mother’s evidence is that on Wednesday the 3^rd of November she received a phone call from the Deputy Principal of the children’s school at about 9.30 am.  The Deputy Principal informed the mother, the mother says, that she had J with her and that he was very upset.  He had become very angry and upset that morning and had told his teacher that he had wanted to commit suicide the night before.  He was reported to have said that he went looking for a rope and that if he had found one he would have committed suicide.  He is reported to have told his school teacher that he was sick of the father abusing and upsetting him and his sister.

6. The mother’s evidence is that J was referred to the school counsellor and that when she went to speak with the school counsellor the school counsellor informed her that she considered J to have very low self-esteem and to be quite depressed.  The school counsellor is said to have recommended that they contact the Community Health Centre for advice on getting J some urgent counselling to deal with his suicidal thoughts.  The counsellor gave the mother a reference to the Infant, Child and Adolescent Mental Health Service at Sydney Suburb 1.  The mother made contact with that service and an appointment was made for J to see a psychologist on Monday the 22^nd of November.  That appointment had to be cancelled because the psychologist was away sick and a new appointment was made for J on the 2^nd of December. 

7. The mother’s evidence is that when the father rang to speak with the children on Friday 5 November, M spoke with him and simply said “I don’t want to talk to you anymore” and then hung up the phone.  The phone rang again and M answered again saying “I don’t want to talk to you anymore, stop ringing us” and she hung up again.  On Monday 8 November 2010, J answered a phone call from the father and immediately said “I don’t want to talk to you” and hung up the phone.  The mother says that on the 23^rd of November 2010, J told her, when discussing the Christmas visit with his father, “I will do whatever I can, even if I have to push you out of the way, so I don’t get on that plane” and further, “If I land on the Gold Coast and I see him there, I’m going to punch him and take off”.

8. The question for the Court’s determination in respect of this alleged contravention is then whether, in the light of those factual circumstances, failure by the mother to provide a copy of the itinerary for the children’s travel to the Gold Coast for the holiday visit with their father 28 days prior to the trip was reasonable.  In other words, was the mother’s decision not to comply with the obligations imposed upon her by the order in circumstances where she was about to file an application in which she was seeking to suspend the obligation imposed upon her by the order, a reasonable one in the circumstances. 

9. Orders made by the Court are to be complied with.  That they are made by consent by all the parties does not in any way diminish the obligation imposed upon any party by the order.  That the mother filed an application when she did seeking the suspension of the obligations imposed by the orders including that imposed by order 4, clearly demonstrates her understanding of the obligation to comply with the orders without having an order suspending or discharging such obligation.

10. Clearly, the mother did not file the application and insist on it being heard before the last day by which she could actually comply with the obligation.  The mother, who bears the onus of proof when seeking to establish reasonable excuse (see s 70NDA(c)) as a defence to a contravention application did not put any evidence before the Court explaining why the application was not filed before the relevant date or what efforts, if any, were made on her behalf to have it heard before the relevant date and, if none were made, why they were not. 

11. In all these circumstances, I am not satisfied that the mother has discharged the onus of proof on her in establishing that she had reasonable excuse for contravening paragraph 4 of the Order made 1 July 2010 in late November 2010 and, accordingly, I find that she did contravene the order without reasonable excuse when she did not provide the itinerary for the Christmas holiday travel 28 days out from the date for that travel. 

Allegation 2:   That the mother contravened paragraph 9 of the Order of 1 July 2010 from 1 November 2010 by not facilitating communication between the children and their father by telephone between 7.00 pm and 8.00 pm each Monday and Friday.

1. The father’s evidence in respect of this allegation is that the mother answered the children’s phone at 7.55 pm on the 1^st of November 2010 and told him that the children would not be talking to him any more and then hung up.  He says that she then called back on that telephone on Friday the 5^th of November 2010 at 7.00 pm and discovered that the phone had been disconnected and that it was still disconnected as at the 22^nd of November 2010.  That was the extent of his evidence on the point.

2. In her affidavit filed 14 June 2011, the mother says as follows at paragraphs 19, 20, 21 and 22:

   19.I have a mobile phone that is used especially for the purpose of allowing the children to communicate with the father.  This phone is a prepaid phone and needs to be recharged even if no calls are made from it.  I found this out when I received a text message on 22 November 2010 from Telstra advising that they have had to disconnect the phone as I had not used it.

   20.After I found out the phone was disconnected, I changed the plan, and the phone number was changed to … .  This is still the phone number the father can use to telephone the children.

   21.On 23 November 2010 I tried to call him on his mobile telephone but got no answer.  I also sent him a letter advising him of this number.

   22.In April 2011, I again notified him by email when I emailed him the flight itinerary for the children’s impending flights to the Gold Coast for the Easter school holidays.

3. As earlier noted, the mother’s evidence in her affidavit filed in the local court at Sydney Suburb 1on the 30^th of November 2010 specifically said that M answered the phone on Friday the 5^th of November on two occasions and told the father that she did not want to talk to him anymore and that J answered the phone on Monday the 8^th of November telling his father he did not want to talk to him.  M again then answered the phone, according to the mother’s evidence, on the 12^th of November telling him to stop ringing.

4. At the hearing of this matter, the father did not cross-examine the mother about that evidence.  He did challenge her with respect to the evidence that she had sent him the details of a new phone number by post on the 23^rd of November 2010 but he did not challenge her on the evidence that the children had taken calls from the father on 5, 8 and 12 November.

5. The father’s evidence that the phone was disconnected when he called on Friday 5 November was also not challenged by counsel for the mother in cross-examination of the father and the mother’s evidence clearly accepted that by 23 November she was aware that the phone had been disconnected.  In the circumstances, it is almost impossible to decide which of the two different versions of fact given by the father and by the mother is correct.  That said, I consider that I can determine that the mother has contravened the obligation imposed upon her by paragraph 9 of the order of 1 July 2010 in any event, whichever version is correct.

6. In my view, paragraph 9 of the order of 1 July 2010, that simply states:

   The father telephone the children on J’s phone between 7.00 pm and 8.00 pm each Monday and Friday.

   imposes an obligation on the mother, where she is the parent with whom the children are living at the relevant time, to do all that is reasonable in the circumstances to ensure that the telephone communication provided for in the order takes place pursuant to the order. 

7. His Honour Justice Fogarty said in his judgment in the Full Court’s decision of Stevenson v Hughes (1993) FLC 92-363 at page 79,816:

   It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.   

8. In that case, the Full Court consisting of Nygh, Fogarty and Gun JJ clearly confirmed that access orders impose positive obligations to encourage access and that a reasonable attempt to ensure compliance is required.  They said that it is not a sufficient discharge of a custodian’s obligations to point to words and actions and to say, in effect: “you see, I tried.  But the child does not want to go” and thereafter to figuratively fold their arms as if that were the end of the matter.  They held that the custodial parent’s role is an active role with an obligation to positively encourage access.

9. I find, on the evidence before me, particularly the mother’s own evidence about what she says she heard the children saying when their father was calling on the relevant occasions, that she did not do enough to positively encourage the children to actually have a conversation with the father.  Further, I find that she did not meet the obligation imposed upon her by the order by her inaction in ensuring that telephone communication occurred each Monday and Friday night in November up until 23 November, the date when she clearly realised that the phone had been disconnected.

10. Accordingly, I find that the mother contravened paragraph 9 of the order of 1 July 2010 between 1 November and 23 November 2010.  The mother did not raise the defence of reasonable excuse in respect of this contravention and, therefore, I do not need to consider it.

Allegation 3:    That the mother contravened paragraph 2(a) of the order of 1 July 2010 by failing to ensure that the children spent the first half of the September/October school holidays with the father in 2010.

1. In his affidavit evidence, the father asserted, effectively, that the mother had contravened the order because she had unilaterally arranged for the children to fly to the Gold Coast at 6.30 pm on the Tuesday night in the first week of the holidays and to return to Sydney at 6.05 am on the Wednesday of the second week of the holidays, meaning that his half of the holidays was effectively had during the middle half of the holidays as opposed to during the first week.  His contention is, effectively, that the mother’s obligation to send the children to spend time with him during the first half of the holidays required her to send them at least on the Saturday of the first weekend of the holidays and to be returned to her on the Friday at the end of the first week or even the Saturday morning of that middle weekend. 

2. The father informed the Court during the course of the hearing that the mother had made those arrangements unilaterally very soon after the orders were made on 1 July but had not informed him of the travel arrangements until around the period of 28 days prior to the travel as required by paragraph 7 of the orders.  The father told the Court that he had made his work plans, given that he is a self-employed earthmover, around an expectation that he would be having the children with him for the first week of the holidays and, consequently, he lost work on the first few days of that first week when he would have been available and on the first few days of the second week when he could not take the work because he had the children with him.

3. Again, the mother accepted that she had contravened the obligation imposed upon her by the order but asserted that she had reasonable excuse.  She did not rely upon any of the particular sets of circumstances in s 70NAE(2), (4), (5), (6) or (7) but just generally on the “reasonable excuse” exception provided for in s 70NAE(1).

4. I was not taken to any evidence in the mother’s affidavits that she relied upon in support of the argument that she had reasonable excuse.  From the way the matter was conducted, I understand that the mother’s asserted “reasonable excuse” was that she bought the most economically advantageous fares that she could buy. 

5. It is not an unreasonable thing for a parent who is paying for air travel for children to spend time with the other parent to want to seek to purchase the best value fares possible.  However, that must still be done within the parameters of compliance with the obligations imposed by the order and unilateral variation of the terms of the order simply to enable cheaper airfares to be purchased, without the consent of the other parent, is simply not permissible.

6. Ultimately, in this case, counsel for the mother effectively, and commendably so, conceded that the “reasonable excuse” defence was not actually available for the mother in this instance.  Accordingly, I find that the mother contravened the obligation imposed upon her pursuant to paragraph 2(a) of the order of 1 July 2010 without reasonable excuse.

Allegation 4:    That the mother contravened order 2(a) of the order of 1 July 2010 by not causing the children to spend two weeks of the 2010/2011 Christmas holidays with the father.

1. As already indicated, the mother accepts that she contravened the order in this respect but asserts that she had reasonable excuse.  This time she asserts that the circumstances bring the matter within the set of circumstances provided for in s 70NAE(5).  That “reasonable excuse” is satisfied if:

   a)The mother believed on reasonable grounds that not allowing the children and the father to spend time together was necessary to protect the health and safety of the children; and

   b)The period during which, because of the contravention, the children and the father did not spend time together was not longer than was necessary to protect the health or safety of the children.

2. The mother tendered into evidence (exhibit 1) copies of notes from a file that had been produced under subpoena by the New South Wales Health Department’s Macarthur Aged and Mental Health Care Service in Sydney Suburb 1. Those notes confirm and corroborate the mother’s evidence that she communicated with that service on referral from the school counsellor at the S Public School on 9 November 2010 in respect of J having expressed suicidal thoughts to his teacher.  Those documents include case notes taken by Ms T who is a psychologist who saw J on the 2^nd of December 2010.  Ms T’s case notes confirm that J reported that he had suicidal thoughts in the context of having to speak to the father.  The notes record that J reported that the father swears, screams and threatens J and that when the children see the father and his girlfriend that they hit J and M.  The notes record that J reported that he did not want to talk to the father or to see him.  The notes record that when discussing J’s suicidal ideation with him J said “I just want to get rid of everything… I don’t want to go to [the father]”.  The notes record that J recorded the father abusing him verbally on the phone.  The notes for 2 December 2010 conclude with the observations that J was having serious family issues particularly because of his mother’s new partner being authoritarian and also because J has serious worries about having to go to Sydney to see the father or ever having to live with him.

3. Of course, as already noted, the mother filed her application to suspend the orders providing for the children to spend time with their father during the Christmas school holidays in the Local Court at Sydney Suburb 1 on 30 November 2010.  No order suspending the previous order was made before the obligation to send the children for the holidays crystallised.  The mother’s evidence is that she booked flights in those circumstances and notified the father of the details that the children would be flying to the Gold Coast on Saturday 18 December 2010.  She says that on that day she and her partner took the children to Sydney airport to put them on their flight.  She says that after their flight was called to board the two children refused to get on the plane and that after a number of attempts made by her to convince the two children to board, she was unable to get them to board and so the family left the airport.  Accordingly, the children did not go to spend time with the father as ordered.

4. The mother’s case is that even though she had applied to the Local Court at Sydney Suburb 1 suspending the existing order she nevertheless attempted to comply with the order when that suspension was not forthcoming before the Christmas holidays, but that ultimately she could not force the two children to board the plane, particularly in circumstances where J was already receiving counselling for suicidal ideation said to be related to his determination not to see the father. 

5. I am satisfied, in these circumstances, particularly given the evidence that is before me of the case notes taken by the psychologist who had attended upon J for counselling, that the mother did believe on reasonable grounds that not forcing the children to spend time with the father was indeed necessary to protect their health and safety.  Further, I am also satisfied that the children not going at all for the two weeks of the 2010/2011 Christmas holidays that they were to spend with their father pursuant to the order was indeed necessary to protect their health and safety in these circumstances.  Accordingly, I find that the mother had reasonable excuse for contravening paragraph 2(a) of the order of 1 July 2010 on this occasion. 

Allegation 5:    That the mother contravened order 2(a) of the order of 1 July 2010 by not causing the children to spend two weeks of the 2011 Easter school holidays with the father.

1. Again, the mother concedes she contravened the obligation to send the children for the Easter 2011 school holiday time with their father pursuant to the order but asserts the defence of “reasonable excuse”, once again relying on the particular set of circumstances provided for in s 70NAE(5).  The case notes of the psychologist, Ms T, that were put into evidence as part of Exhibit 1 at the hearing reveal that J was still receiving counselling from her as at 17 March 2011.  Ms T’s notes record that J reported to be very angry about having to go and see his father in the pending school holidays.  He reported to have “hated” the father and is reported to have said that he would get on the plane to Queensland only because he was worried that if he did not go his mother would go to jail.  He is recorded to have said then that once he arrived in Queensland he would not get off the plane no matter what and that if he was forced off the plane he would run away.  Ms T recorded that J was adamant that he would not see the father, saying “I hate him… I wish he was dead”.  Ms T’s case notes of the 18^th of March 2011 record that she made a phone call to the New South Wales Child Well-Being Unit and spoke with an officer of that unit informing her of her concerns about the two children and the requirement that they see their father for a week in the pending Easter holidays.  Her case notes record that she raised J’s previous suicidal ideation when in contact with his father and Ms T’s apparent opinion of the psychological harm caused to J by contact with his father.  Ms T was informed by the officer of the Child Well-Being Unit that the matter was a legal issue and referred the mother in this case to contact Women’s Legal Advice Line. 

1. The mother’s affidavit evidence was that she booked flights for the children to travel to the Gold Coast to spend time with their father in the Easter School holidays and notified him 28 days prior to their arrival.  That is not in dispute.  The mother said that in the week leading up to their departure the children became very unsettled. Both of them were not eating properly and J became very belligerent, arguing with the mother and most people he came into contact with.  The mother said that he became very withdrawn and would spend most of his time in his room.  She said that she became very concerned that he would lapse back into the negative mood that had caused him to have the suicidal thoughts in November 2010. 

2. The mother went on to say that M was unusually moody and would cry at little things.  She was also having nightmares and coming into the mother’s room at night crying and wanting to sleep in bed with her.

3. The mother’s evidence is that on the 14^th of April 2011 she received a phone call from a caseworker from the Department of Community Services who spoke to her about the children having received many reports from mandatory reporters.  The mother’s evidence is that this caseworker told her that if she was to send the children on a visit to the father she could be at risk of being charged with failure to protect them.  The caseworker told the mother that she should get legal advice.

4. The mother’s evidence is that again on Saturday 16 April 2011 she called the DOCS helpline to speak with a caseworker.  She deposes to the fact that she was given the same advice as she was the day before and that it was a matter for her to make the decision about whether or not the children went.

5. The mother goes on to say that on the day before the children were to fly out to the Gold Coast, J said to her “I’m not going mum, if you make me, either he’ll be dead or I will be”.  The mother says that J was crying when he said that, rolling his eyes and punching one hand with the other.  She says that when she went to talk to M about going, she too was crying in her room and she said “If you make me go, I’ll run away and I don’t care where I go, anywhere is better than being with him, even the gutter is better”.  The mother said that M went on to say “I hate him, why can’t he just leave us alone, everything is better without him”.  Apparently, M sent her father a text message on 16 April 2011 which said “We are not coming.  From J and M”.  The father replied with a message saying “ring me” and the children refused.  The mother said that because she could not convince the children to get on the plane to go to spend the time with their father, she cancelled the flights.  She says that her children’s behaviour worried her and she genuinely believed that they would act on what they said they would do if she forced them to fly to spend time with the father. 

6. Again, having regard to all this evidence, I accept that the mother believed on reasonable grounds that not forcing the children to go and spend time with the father was necessary to protect the health and safety of the children and that not sending them for the entire week that they were due to go and spend time with their father in those holidays was necessary to protect their health and safety.

7. Accordingly, I accept that the mother had reasonable excuse within the terms of s 70NAE(5) for the contravention of the obligation imposed upon her by paragraph 2(a) of the order of 1 July 2010 for the Easter 2011 school holiday period.

Conclusion

1. I find that the mother contravened the order as alleged in respect of the first three counts without reasonable excuse but that she had reasonable excuse for contravention of the order in respect of the last two counts. 

2. I will hear submissions from both parties as to which sub-division of division 13 of Part VII should apply in the circumstances of the contraventions found and as to the penalty that I should impose upon the mother.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 23 June 2011.

Associate: 

Date:  23 June 2011