Raki and Perez Varela

[2018] FamCA 473

FAMILY COURT OF AUSTRALIA

RAKI & PEREZ VARELA [2018] FamCA 473

FAMILY LAW – CONTRAVENTION – Where the father alleges the mother has withheld the child from him and engaged the child with mental health professionals without his prior agreement in contravention of final parenting orders – Where the mother alleges reasonable excuse – Where the mother did not make the child available to spend time with the father at the times alleged and has contravened the primary orders – Where the mother received advice from hospital staff that the child should be referred to a mental health professional – Where it is suggested that the child not being referred to a mental health professional in the circumstances could be considered withholding of medical treatment by the father – Where the mother had a reasonable excuse to contravene the primary orders as to taking the child to mental health professionals – Primary orders varied under s70NBA of the Family Law Act 1975 (Cth).

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

Raki & Perez Varela [2013] FamCA 122
Raki & Perez Varela (No 2) [2013] FamCA 1050

APPLICANT: Mr Raki

RESPONDENT: Ms Perez Varela

INDEPENDENT CHILDREN’S LAWYER: Mr Layson

FILE NUMBER: PAC 6845 of 2007

DATE DELIVERED: 25 June 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 5 April 2018

REPRESENTATION

THE SELF-REPRESENTED APPLICANT: Mr Raki in person

SOLICITOR FOR THE RESPONDENT: Hills Legal Group Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

Orders

1. Pursuant to s70NBA (1) order 14 of the primary orders dated 14 March 2016 is varied as follows:

   The mother and father are both restrained from taking the child R born … 2007 to any counsellor, psychologist, psychiatrist, therapist or any other mental health professional other than Dr O in accordance with that doctor’s direction.

2. In the event that the mother is of the opinion that the child needs to be seen by a general practitioner she is to contact the father and he is to make arrangements for that appointment. 

3. If the father is absent from Sydney, the mother is permitted to take the child to Dr L at Suburb P Medical Centre but is restrained from obtaining any referral to any other heath professional by Dr L.

THE COURT NOTES

A.The mother does not press for any orders sought by her in her initiating application filed 22 June 2017 and the father does not press for any orders sought by him in his response filed 23 February 2018.

B.It appears from evidence in the contravention proceedings that the child may be in need of some therapeutic support in particular to manage the effects of the ongoing conflict between his parents.  Each of the parents also agrees that they could benefit from the assistance from an appropriate therapist to help them understand the nature of the child’s experience in the ongoing dispute. 

C.Both of the parties agree to Dr Q being approached through the Independent Children’s Lawyer to determine if she is available to offer such therapy to the child and parents.

D.In the event Dr Q is able to accept the referral the Independent Children’s Lawyer has liberty to provide to chambers any consent orders in relation to the appointment of Dr Q.

E.In the event Dr Q is engaged, the consent orders should reflect that the parties have the benefit of some months of therapy before their respective parenting applications are relisted by the court so that the court may be informed and assisted by information concerning the progress of such therapy. 

F.In the event Dr Q is not available, each party consents to the Independent Children’s Lawyer selecting another suitably qualified therapist to work with the family and such orders with respect to that appointment can be forwarded to chambers.

THE COURT ORDERS

1. Pursuant s70 NBA (1) order 4 (b) of the primary order made on 14 March 2016 are varied by adding the words “9am on” after the word “ from” on the third line.

2. The Interim hearing of today is vacated and will be rescheduled after family therapy has commenced.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6845  of 2007

Mr Raki

Applicant

And

Ms Perez Varela 

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The parents of 10 year old R (“the child”) have been engaged in parenting proceedings since 2010.

2. On 1 March 2013 Johnston J made final parenting orders following a defended  hearing which provided for the parents to equally share parental responsibility for the child, for the child to live with the mother and spend gradually increasing time with the father leading to alternate weekends and half the school holidays (“the March 2013 Orders”).

3. Within six months of the March 2013 Orders the father had commenced proceedings claiming that the mother was obstructing his time with the child.

4. On 14 March 2016 further final parenting orders were made in almost identical terms by consent without a final hearing (“the March 2016 Orders”).   

5. Approximately six months after the March 2016 Orders were made the father filed a Contravention Application alleging the mother was failing to facilitate his time and obstructing his relationship with the child.

6. The mother was ordered to bring the child to Child Dispute Services at the court to facilitate the child spending time with the father on more than one occasion and it was noted in December 2016 that the mother had been informed she must comply with the then parenting orders for the child to spend time with the father even if the child was ill.

7. The father subsequently withdrew his contravention application.

8. The mother commenced the third set of proceedings in this matter in June 2017 seeking orders that she be allowed to travel overseas with the child.

9. The father subsequently filed a Contravention Application in August 2017 alleging that the mother was not facilitating him spending time with the child under the March 2016 Orders.

10. The father’s Amended Contravention Application filed 19 February 2018 was listed for hearing on 5 April 2018. On that date I made orders pursuant to s70NBA of the Family Law Act 1975 (Cth) (“the Act”) restraining the mother from presenting the child to any mental health practitioner other than his current treating practitioner and noted that the parties intended to engage in family therapy with an appropriately qualified therapist. I reserved judgement in relation to the father’s Amended Contravention Application.

11. The issues for me to determine are whether the mother has contravened the March 2016 Orders and if so, whether she has proved that she had a reasonable excuse for contravening the orders.

Background

1. The mother and father commenced a relationship in 2004 or 2005.  The parties’ only child was born in 2007 and was almost 11 at the time of these proceedings. 

2. The parties separated on a final basis in 2008.

3. The first parenting proceedings commenced in 2010 and the dispute between the parents has been ongoing since that date.

4. The substantive background to the first proceedings is contained in the judgment delivered by Johnston J in March 2013 (“the March 2013 Judgment”)[1] which is to be read with this judgement.  In particular the trial judge considered the mother’s allegations made at the time that the father had sexually abused the child. His Honour also came to the following conclusions at [152] to [158]:

   As indicated above, the child and his father have a close, loving relationship.  As also indicated, the records of the B Contact Centre indicate that when the father has arrived to spend time with the child, the child has been excited.  He has run to his father and jumped up into his arms with excitement on greeting.  The child has said he would like to spend more time with his father although caution must be taken in considering this matter.  The father is a capable parent who is very committed to doing the best he can possibly do to promote his son’s opportunities in life.

   In relation to the mother’s allegations [of sexual abuse], as indicated above, I have considered these in some detail and have come to the same view as Dr E that if the child was to spend significant unsupervised time with his father this would not constitute an unacceptable risk to him. 

   The requirements of the legislation are clear in terms of the objects as set out above and particularly the benefit to the child of having a meaningful relationship with both parents.  While it would be possible for the child to be able to continue to have a relationship with his father notwithstanding the constraints of spending time only at the supervised contact centre, it is doubtful that this would serve the requirement for a meaningful relationship. 

   The Court must also consider the second of the primary considerations in s 60CC(2).  This is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  Dr E said that in the event that the only time between the child and his father was supervised at the centre, as I have indicated above, he thought there was a high risk that the child would lose his relationship with his father.  Dr E went on to say not only would that be a great loss for the child but in fact it could have serious adverse effects for his mental health in the long term and could predispose him to emotional and relationship difficulties as a teenager and young adult.  Clearly the Court should endeavour to protect the child from such an outcome. 

   What pitfalls could there be if the Court was to order regular unsupervised time between the child and his father?  Having decided that unsupervised time between the child and his father would not expose the child to an unacceptable risk, the major pitfall in ordering this would be that, as Dr E said, the mother’s anxiety would be likely to increase.  Dr E said that this would make it likely that the mother would make further allegations of abuse against the father.  In this respect Dr E said that he believed that the mother’s over-valued ideas are the significant problem in the allegations of abuse.  He said that therefore, further spurious allegations would be likely to occur with a possibility that the child’s relationship with his father could again break down. 

   In these challenging circumstances Dr E recommended that at this stage the child should remain primarily resident with his mother.  Dr E also recommended that there be a gradually increasing regime of time spent between the child and his father.  Dr E said that this could commence with a supervised period of time and gradually move to unsupervised time.  He thought the appropriate period over which it would increase would be the next six months.  He thought that with a gradual increase the mother would become more able to cope with her anxiety when the child was absent from her care.  Dr E thought that after six or seven months overnight time between the child and his father would be in the child’s interests. 

   With respect to Dr E, in my view, what he recommends represents a sensible balance between the need for the child to have adequate opportunity to develop his relationship with his father and the desirability of not moving so quickly to overnight time that the mother would be unable to settle her concerns and become confident that the child was not being exposed to risk of improper or damaging behaviour. 

   [1]Raki & Perez Varela [2013] FamCA 122.

5. In September 2013 the father filed an Initiating Application seeking that the child live with him and spend substantial and significant time with the mother following the mother not complying with the March 2013 Orders.

6. Following an interim hearing before Foster J orders were made that the child spend each alternate weekend with the father.  It was also noted that the child was also to spend holiday and special occasion time with the father under the March 2013 Orders.

7. In his judgment delivered in December 2013 (“the December 2013 Judgment”)[2] Foster J commented that the mother had “been obstructive” in facilitating the child’s relationship with his father but had “not complained as to any adverse circumstance arising from the father’s time with the child”.

   [2]Raki & Perez Varela (No 2) [2013] FamCA 1050.

8. The child has been treated by a psychologist as arranged by the mother since November 2014.  This has been a matter of some concern to the father for some time.

9. Following extended litigation the parents came to an agreement again as to the appropriate parenting arrangements for the child and the March 2016 Orders were made by consent. Those orders are substantially the same as the March 2013 Orders and relevantly provide:

   1.   That all previous Orders in relation to the child … shall be discharged.

   2.   That the child … shall live with the mother.

   3.   That the mother and father shall have equal shared parental responsibility for the child.

   4.   That the child shall spend time with the father as follows:-

   a.   During school Terms on each alternate weekend from after school Friday until before school Monday with such weekends to commence on the second Friday after school recommences each term.

   b.   During the end of Term 1 and Term 3 school holiday periods (being the end of Term 1 April school holidays and the end of Term 3 September holidays) from the second Saturday of the holidays until before school on the first day of the new school term.

   c.   Commencing the second week of the end of Term 2 July school holidays from 9:00 a.m. on the second Saturday of the school holidays for 9 days until 5pm on the Third Sunday of the school holidays.

   d.   On the Father’s Day each year from 9.00am until 5.00pm.

   e.   During Christmas each year from 3pm Christmas Day to 3pm on 28 December.

   f.   During the January school holiday period each year from 12 noon on 13 January until before school on the first day of the school year.

   g.   On the child’s birthday in each year from 10:00 a.m. until 5:00 p.m. if it falls on a non-school day or if it falls on a school day then the father will spend time with the child from after school until 8:00 p.m.

   h.   Communication via Skype and in the event that the Skype connection is not available then via telephone each Tuesday, Thursday and Saturday between 6:00 p.m. and 6:30 p.m. and for the purposes of this Order the mother is to make the child available to speak with the father and shall ensure that the child has privacy during Skype and/or telephone calls with the father.

   i.    As otherwise agreed between the parties via text or email from time to time.

   5.   That all changeovers shall be facilitated by the mother and father meeting at the McDonald’s Restaurant closest to the mother’s home for all changeovers that do not occur via the child’s school.

   …

   14. That the mother and father are both restrained from taking the child to any individual counselling without the prior agreement of both parties.

   …

10. Following the making of the March 2016 Orders the father discontinued the child’s appointments with the psychologist from April 2016 as he did not agree to this counselling.

11. On 19 October 2016 the mother contacted the child’s psychologist seeking that she become re-engaged with the child. The mother did not gain the consent of the father and was aware that he opposed this re-engagement.

12. On 31 October 2016 the father filed a Contravention Application again alleging that the mother was failing to facilitate his time with the child under the March 2016 Orders.

13. On 10 November 2016 the mother presented the child to the Emergency Department of the S Hospital. Following the recommendations of medical practitioners at the hospital and the child’s general practitioner the child was referred to a psychiatrist on 29 November 2016.

14. On 16 December 2016 the date on which the next court event was to occur the mother was ordered to present the child to Child Dispute Services at the registry at 9.00am.

15. The mother failed to bring the child to the registry as ordered and claimed the child was sick. Upon the father making an oral application for a recovery order the mother was ordered to bring the child to registry that afternoon .  As it turned out the child was not unwell, the mother did present the child to the registry in the afternoon and changeover to the father’s care was able to be facilitated. The orders with respect to the father’s time with the child was varied in order for him to spend the weekend with the child beginning on that day.

16. On 16 December 2016 the mother was also informed by the Court that she is required to comply with the March 2016 Orders even in the event the child is sick.  On the same day the parties were ordered to contact R Group to participate in a post-orders support program for separated parents.

17. The father withdrew his Contravention Application in March 2017.

18. The parents did not participate in the R Group Post-Orders Support Program.  

19. The mother filed an Initiating Application on 22 June 2017 in another registry of the Federal Circuit Court seeking orders that she have sole parental responsibility for the child in relation to the issues of medical care and international travel, that the child live with her, that the child attend upon a named psychologist and that the mother be permitted to travel outside of Australia with the child for the purposes of visiting the elderly maternal grandmother.

20. At a court event in the Federal Circuit Court on 31 July 2017 it was noted that the March 2016 Orders were not being complied with and that Court advised the mother that she must do so. It was also noted that despite the proceedings previously being dealt with in the Family Court at Parramatta the mother opposed the proceedings being transferred to this Court.

21. The father filed a Contravention Application on 8 August 2017.

22. The proceedings were transferred to this Court on 21 August 2017 and orders were made appointing an Independent Children’s Lawyer (“ICL”).  

23. On 23 January 2018 the father was ordered to file an Amended Contravention Application and that application and the competing interim parenting applications were listed for hearing on 5 April 2018. The mother was also ordered to ensure the child regularly attends school.  

24. The contravention proceedings only were heard by me on 5 April 2018.  Other orders were made as set out earlier in these Reasons.

The contravention allegation

1. The father raises six allegations of contravention of the primary orders being the March 2016 Orders.

2. The father alleges that on three occasions between October 2016 and July 2017 the mother failed to facilitate his time with the child under the March 2016 Orders and on three occasions between December 2016 and March 2017 the mother contravened the March 2016 orders by facilitating the child engaging in individual counselling without the father’s prior agreement.

The Law and discussion

1. Contraventions are dealt with under Part VII, Division 13A of the Act.

2. Section 70NAC defines the meaning of “contravene[ing]” an order affecting children as follows:

   (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.

1. Section 70NAF deals with the standard of proof for contravention of parenting orders under this division. Subsection (1) provides that subject to subsection (3) of this section the requisite standard of proof to be applied is the balance of probabilities.  Section 70NAF(3) deals with matters that require the court to be satisfied beyond reasonable doubt in certain circumstances none of which apply in this case. 

2. The father alleges that the mother contravened order 4 of the March 2016 Orders as without reasonable excuse she did not permit the child to spend time with him as set out in that order for three nights on and from 21 October 2016 and 4 November 2016 and for 10 (sic) nights on and from 8 July 2017.

3. The father also alleges that without reasonable excuse the mother contravened order 14 of the March 2016 Orders on three occasions as she took the child to counselling without obtaining his prior agreement.

4. In respect of each of the six counts of alleged contravention the mother admits that she contravened the order in question as alleged but contends that she had a reasonable excuse in respect of each contravention.

5. Section 70NAE sets out the circumstances in which a person may be taken to have had a reasonable excuse for contravening an order affecting children as including but not limited to the following:

   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.

6. Subsection (5) provides that the respondent is taken to have had a reasonable excuse for contravening a parenting order which deals with whom a child is to spend time with which has 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).

7. Section 70NAF (2) provides that the balance of probabilities is the standard to be applied to determining whether or not a respondent has a reasonable excuse for the contravention.

8. I will now turn to an examination of each of the occasions on which the mother admits that she contravened the order with respect to the child and consider whether the mother has established that she had a reasonable excuse for the contravention.

21 October 2016

1. The father deposes that on this day he attended the child’s school at 2.45pm to collect him in accordance with the court orders but the child was not at school.  He deposes to attempting to contact the mother by telephone to both her mobile and landline numbers but that this was unsuccessful.  He also deposes that pursuant to an agreement between the parties the alternative changeover location was a McDonald’s outlet near the mother’s home and that he attended there also but the mother and child were not present.

2. According to the father’s affidavit he was concerned about the child’s well-being and attended a local police station, spoke with police and showed them the court orders.  The police contacted the mother by telephone and informed the father that the mother said she had sent a message to the father.  The police officer also spoke to the child and confirmed that he was safe.  The father says that he did not receive any message from the mother.

3. Under cross-examination the father said that the mother had not provided him with a medical certificate in relation to the child on that date prior to the time at which he was to collect the child.  The father denied being made aware that the child had anxiety in relation to his time with the father prior to this date.

4. Under cross-examination the father maintained that the mother had not responded to his phone calls on this day but agreed that there had also been messages exchanged between the two of them.

5. According to the mother’s oral evidence on this day the child didn’t feel well, had pain in his arms and legs and was scared to see the father.  Although the mother did not explain the circumstances she said that she and the child “were at the hospital” and that “DOCS” (presumably the Department of Family and Community Services (“the Department”)) told her that she should not force the child [to spend time with the father] and that as a mother she had a duty to protect her child.

6. The mother gave evidence that she informed the father on this day by both telephone and text message before he was due to pick up the child that the child was sick.  She said that she did not remember whether he responded but supposed that he did.

7. There is no corroborative evidence such as documents from the hospital to which the mother says she took the child to support her assertion that she did so on or just before 21 October 2016.  There is also no supporting evidence from the Department or any other child welfare agency in relation to her assertion that someone from that Department advised her not to “force the child” to spend time with his father in accordance with the orders.  I am not satisfied on the balance of probabilities that the mother did attend with the child at hospital on or before 21 October 2016.  I am also not satisfied that the mother received advice from any welfare agency that she should not present the child to school or to the father for the purposes of him spending time with the child.

8. There is no evidence to support what appears to be the mother’s assertion that the child was so unwell that it was necessary to keep him from school on 21 October 2016.  I am not satisfied that the child was unwell and I infer that the mother kept him from school for some other reason.

9. However, I am satisfied that the mother presented the child to the psychologist who had previously provided therapy to the child on 19 October 2016.  According to the psychologist’s letter addressed “to whom it may concern” (Exhibit 1) the psychologist advised the mother that in her opinion the child was experiencing ongoing difficulties in relation to spending time with the father and recommended that if the child “is highly anxious about visiting [the father] that he is not coerced or forced” into doing so until he receives proper psychological treatment.

10. I am not satisfied that the mother believed on reasonable grounds that not allowing the child and his father to spend time together was necessary to protect the health or safety of any person.  While I accept that the mother may have held the belief that it was necessary to protect the child’s health and safety to withhold him from spending time with his father I am not of the view that the mother’s belief was based on reasonable grounds.

11. The mother was well aware that the father had longstanding concerns about the child receiving counselling without the father’s prior agreement and the mother consented to an order restraining her from doing this in March 2016.  She was also aware that in April 2016 the father cancelled the child’s further treatment with the psychologist as he did not agree to this occurring. At all times both parents have also equally shared parental responsibility for the child. The mother did not seek legal advice after taking the child to the psychologist about her obligations under the orders even though there have been extensive legal proceedings over many years in which she had been represented.  The mother instead chose to rely upon the advice of a psychologist not to comply with court orders which in my view was not reasonable in the circumstances.

12. Accordingly, I find this contravention allegation established.

4 November 2016

1. According to the father’s affidavit the child was due to spend time with him in accordance with the orders from after-school on Friday, 4 November 2016.  The father deposes to attending the school at 2.45pm to collect the child but that the child was not at school.  The father says that he tried to call the mother to both her mobile phone and her landline several times but that she did not answer his calls.  He deposes to again attending the agreed McDonald’s fast food outlet but that the child and mother were also not there. 

2. The father says that on this occasion as he was concerned for his son’s welfare he again attended a police station and made a report.  He deposes that once again police made a welfare check on the child as he requested and says that police made contact with the mother who confirmed that the child was safe.

3. In relation to this occasion the mother gave evidence that she did not make the child available for this period of weekend time with his father and that her reason for doing so was [the] “same as before”.  When asked for clarification of that reason the mother said that the child was in pain in his upper and lower limbs and had not received any treatment for his anxiety.  The mother added “my son didn’t want to see the father” and said that she had reports from a psychologist and police and the Department which she suggested related to her not making the child available to his father on this day.

4. When asked whether she had informed the father about this advice she said she had and that it “must have been” by text or email.  She also maintained that she had a medical certificate for this date which she had provided to the father either before or after the pickup time. 

5. The mother then explained in her oral evidence that the child developed pain in his arms and legs and couldn’t walk and the father told the child that he did not believe the child’s complaints and said that the child was lying.  She claimed that the child became depressed and anxious because the father was shouting at him and in these circumstances she contacted police and the Department who told her that she had an obligation not to force the child to spend time with the father as this would make his condition worse.

6. Once again the mother adduces no evidence to support her claim that around or just before early November 2016 the child had made complaints to any medical practitioner about his arms and legs hurting and his inability to walk or that she received advice from police or the Department that she should not make the child available to the father.  I am not satisfied that she had received this advice from either of these sources.

7. It was not put to the father under cross examination that he did not believe the child’s complaints about pain in his arms and legs or that he couldn’t walk or that the father had told the child he was lying or had shouted at him. However, in the letter dated 19 October 2016 from the psychologist it is recorded that the child reported to her that he had “headaches and body aches when preparing for visitations”. There is no suggestion the child reported his father shouting at him or accusing him of lying.

8. Although I accept that the mother held the belief that it was necessary to protect the child’s health to withhold him from spending time with his father based on the letter from the psychologist, for the reasons given previously I am not of the view that this belief was based on reasonable grounds in the circumstances of this case.

9. For these reasons I find that this contravention is established. 

8 July 2017

1. According to the father’s affidavit, when he was due to spend 10 days with the child in the July school holidays in 2017 in accordance with the March 2016 orders the mother once again contravened the order by withholding the child from him and did not have a reasonable excuse for doing so. I note that the orders in fact refer to nine days in this school holiday period and that there was an agreed position between the parties that the orders were ambiguous as to this issue which required clarification. In any event, it is clear from the March 2016 Orders that the child was to commence spending school holiday time with the father at 9am on 8 July 2017.

2. The father deposes to the events on Saturday, 8 July 2017 when he was due to collect the child from McDonald’s at 9am.  He says that on that day he received a text message from the mother at 8.30am indicating that the child would not be made available to him but he responded that he would attend the changeover point at 9am and was expecting that the child would be made available.  He says that he drove to the changeover place but the child was not there and that he tried to contact the mother by both mobile phone and land line several times but she did not answer.  He again attended a police station and made a report and asked for an officer to contact the mother and check on the child’s well-being.

3. Under cross-examination the father said that on this occasion he had booked a holiday for himself and the child which was unable to go ahead.  He denied that the mother told him that the child was sick and gave evidence that the mother’s reason for not presenting the child was that the child did not want to see him.

4. According to the mother’s oral evidence she did not make the child available on this occasion because the child was denied psychological treatment by the father and the child had started having pains in his arms and legs and on some days could not go to the toilet.  She maintained that she had given notice of this in writing to the father.  When asked why the father could not look after the child as a parent if the child was in pain the mother said the father was shouting at the child and had stated that he didn’t believe the child which made the child scared and anxious.  She again reiterated that the Department and police said she should not force the child to attend contact with the father. 

5. In my view there is insufficient evidence from which I could find that the mother believed on reasonable grounds that not allowing the child and the father to spend time together in this school holiday period was necessary to protect the health or safety of herself or the child.  On earlier occasions when she contravened the order it does appear that the mother held a belief that as the father did not consent to the child receiving psychological treatment the child may be harmed by spending time with him.  After contravening the orders in October and November 2016 the child spent time again with the father for the weekend from 16 December 2016.  The mother was also reminded at this court event of her obligations under the orders.  So far as I understand the father’s case the orders were then complied with until the July 2017 holiday period.  The mother does not adduce any further evidence upon which she formed a belief on or just before this date that not allowing the chid to spend time with his father was necessary to protect his health.

6. For the foregoing reasons I find this contravention is established.

7 December 2016, 15 February 2017 and 28 March 2017

1. According to the father’s affidavit he received an email on 28 October 2016 in which he became aware that the mother had taken the child to the psychologist who had previously been engaged to provide therapy for the child. 

2. The father subsequently contacted the psychologist directly to obtain information about when the child attended counselling.  He was informed by the psychologist that the child had attended counselling on 7 December 2016 and three other dates.  It is not in dispute between the parties that the mother presented the child to this psychologist without seeking the agreement of the father. 

3. The father also deposes that he was contacted by another psychologist on 28 March 2017 who told him that the mother had taken the child to her counselling practice for an initial counselling session on that day.  The father says that he had not agreed with the mother about this counselling session and the mother admits to having taken the child to the counsellor without prior agreement from the father.  The father deposes that a third health professional, a psychiatrist, Dr O also saw the child on 15 February, 26 April and 31 May 2017.  The father deposes that all of these counselling sessions occurred without the mother having reached a prior agreement with him.

4. As indicated the mother concedes that she took the child to a number of counselling sessions with a psychologist or psychiatrist on each of the occasions as alleged without reaching prior agreement with the father.

5. According to the mother’s oral evidence she took the child to counselling without the father’s prior agreement on 7 December 2016 as she had been told to do so by the Department to whom a complaint had been made after she presented the child at S Hospital.  However when asked why her conduct amounted to a reasonable excuse the mother said that the orders provide that if the father is overseas she “can take him [presumably to a counsellor] myself”.

6. It appears that the mother may rely upon order 10 in the March 2016 orders which provides that in the event that a medical emergency should arise in relation to the child and the other parent is overseas, the remaining parent caring for the child is permitted to make emergency medical decisions in relation to the child if required and shall keep the other parent informed and advised as soon as possible.  There is no evidence to suggest that the father was overseas when the mother presented the child to the emergency department hospital on 10 November 2016 in relation to reported episodes of anxiety.

7. A discharge letter in respect of the child’s hospital presentation directed to a doctor who appears to be a general practitioner indicates that the child was examined and his presentation discussed with a psychiatry registrar.  Following the entry in relation to this discussion the following is written:

   -suggests nil acute intervention required

   -needs FACS notification for father’s withholding of necessary medical treatment

   -recommends patient return to usual psychologist

   -can be referred to Paediatrician for assessment and referral to Headspace or CAMHS [child and adolescent mental health service] as appropriate

8. The discharge letter also states under the heading of “Follow-up” “full review with paediatrician within 2wks for referral to appropriate Mental Health service.”

9. Following this hospital admission the  mother did arrange for the child to re-engage with his previous psychologist on 7 December 2016, took the child to a psychiatrist to whom he was referred by a G.P on 15 February 2017 and took the child to another counselling practice on 28 March.  All of these actions were in accordance with the advice of treating medical practitioners.

10. In relation to each of these presentations which amounted to a contravention of Order 14, I am satisfied that the mother believed that the referral of the child was necessary to protect the health of the child and that this belief was reasonable in these circumstances.  On each occasion it was in accordance with medical advice and medical staff at the hospital made a notification to the Department on the basis that the father did not consent to the child receiving psychological support.

11. In these circumstances the mother’s contraventions of the March 2016 Orders are reasonably excused on the basis of the advice given to her by medical professionals at the Children’s Hospital.

Conclusion

1. I have found three of the six contraventions alleged by the father proven.

2. On 5 April 2018 I amended the March 2016 Orders under s70NBA of the Act to clarify the ambiguity concerning the father’s school holiday time with the child. I also made orders to clarify which medical professionals the mother is permitted to allow to treat the child. I also restrained the mother from taking the child to any mental health professional other than Dr O the psychiatrist who appears to be appropriately dealing with any mental health concerns in relation to the child with the agreement of the father. It was also noted on date that the parties would be approaching Dr Q for family therapy.

1. In these circumstances it is appropriate that the parties be given the opportunity to be further heard as to any appropriate penalty for the proven contraventions.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 June 2018.

Legal Associate:

Date:  21 June 2018