RATCLIFFE & RATCLIFFE

[2013] FCCA 1844

FEDERAL CIRCUIT COURT OF AUSTRALIA

RATCLIFFE & RATCLIFFE [2013] FCCA 1844

Catchwords:
FAMILY LAW – Contravention application – contraventions proven – whether husband had a “reasonable excuse” – whether reasonable grounds to believe that not allowing time with applicant wife was “necessary to protect the health of the child” – application dismissed.

Legislation:

Family Law Act 1975, s.70NAE(5)

Applicant: MS RATCLIFFE

Respondent: MR RATCLIFFE

File Number: MLC 5843 of 2012

Judgment of: Judge F. Turner

Hearing date: 21 October 2013

Date of Last Submission: 21 October 2013

Delivered at: Melbourne

Delivered on: 15 November 2013

REPRESENTATION

Counsel for the Applicant: Ms Williams

Solicitors for the Applicant: Pearsons Lawyers Pty Ltd

Counsel for the Respondent: Mr Mellas

Solicitors for the Respondent: Alpass & Associates

Counsel for the Independent Children's Lawyer: Ms Brennan

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

1. The Contravention Application filed 20 September 2013 is dismissed.

2. All extant applications are adjourned for interim hearing at 10am on

   
   

   12 December 2013.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5843 of 2012

MS RATCLIFFE

Applicant

And

MR RATCLIFFE

Respondent

REASONS FOR JUDGMENT

1. The parties married on (omitted) 1992 and separated in June 2012. There are three children of the relationship relevant to the proceedings before the Court; X born (omitted) 1997 (16 years old), Y born (omitted) 2001 (13 years old), and Z born (omitted) 2004 (9 years old).

2. Orders were made by consent on 4 July 2012 including; that:

   ·The parties retain equal shared parental responsibility for the children;

   ·The children live with the husband;

   ·The children spend time and communicate with the wife, as set out in the orders (and subsequent orders).

3. The wife filed a Contravention Application on 20 September 2013 alleging breaches of the current orders dated 4 April 2013, as follows:

   a)On Tuesday 27 August 2013 at 2.30pm at (omitted) Primary School “the Father without reasonable excuse sought to frustrate the Order by directing his partner to collect the child, Z from school at 2.30pm” (in breach of order 2(b)(i) of the Interim Orders of 4 April 2013)

   b)On Sunday 1 September 2013 at 10am at the father’s home “the Respondent Father without reasonable excuse failed to make the child, Z, available to spend time with the mother between 10.00am and 6.00pm” (in breach of order 2(a) of the Interim Orders of 4 April 2013).

   c)On Tuesday 3 September 2013 at 2.30pm at (omitted) Primary School “the Father without reasonable excuse sought to frustrate the Orders by directing his partner to attend the school (sic “at”) 2.30pm and collect the child, Z” (in breach of order 2(b)(i) of the Interim Orders of 4 April 2013)

   d)On Tuesday 10 September 2013 at 2pm at (omitted) Primary School, “the Father without reasonable excuse sought to frustrate the Orders by directing his partner to attend the school (sic “at”) 2pm and collect the child, Z” (in breach of order 2(b)(i) of interim orders of 4 April 2013)

4. At the hearing on 21 October 2013, the husband, through his counsel, did not admit each contravention and submitted that he had a reasonable excuse for each contravention.

5. The wife filed an Affidavit in support of her application on

   
   

   20 September 2013, and gave evidence at the hearing on 21 October 2013.

6. The husband gave evidence on 21 October 2013 that Z becomes extremely anxious about spending time with her mother, and refuses to spend time with her.

7. The husband annexed two medical certificates concerning Z, to his Affidavit filed 27 September 2013. The first one is Annexure “Ratcliffe-3”. In that certificate dated 8 August 2013, Dr N stated:

   “Z has been feeling stressed and anxious every time she goes to visit her biological mother. It has affected her appetite, sleep and general well being.”

8. The second certificate is Annexure “Ratcliffe-4” (Ibid). In that certificate dated 2 September 2013, Dr N stated:

   “Z was very stressed and uncomfortable yesterday when her biological mother come (sic “came”) to pick her up. She developed anxiety symptoms as she explained and she hid the (sic “in the”) bathroom. She develops anxiety whenever she see (sic “sees”) her mother”

9. The Court finds that all contraventions occurred.

10. Section 70NAE(5) of the Family Law Act 1975 (the “Act”) provides:

    (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).”

11. As Z’s anxiety has affected her “appetite, sleep and general well being” [Annexure “Ratcliffe-3” (supra)], the Court finds that it is affecting her health.

12. The Court finds that the husband believed on reasonable grounds (being the medical certificates and his own observations), that not allowing Z and the wife to spend time together was necessary to protect the health of Z; and that the period during which each contravention occurred was not longer than was necessary to protect the health of Z. The husband is not to take this as an indication that he can adopt a similar course of action in the future. Strict compliance with the orders made on 21 October 2013 is required.

13. At the hearing on 21 October 2013 the husband gave evidence that Z did not see her mother on the four occasions “because Z refuses absolutely to see her mother” (Transcript “T” p.16, l.45). In the husband’s Affidavit filed on 27 September 2013, the husband swore at [14] that “Z would complain about having to see her mother and would complain of stomach aches and be tearful on the Mondays”, and that “the child locks herself in the bathroom and absolutely refuses to go” (T p.17, l.14), and that “it was not uncommon for Z to tell me, on Tuesday mornings, that she was too sick to go to school” (T p.17, l.20).

14. The husband deposed that on Tuesday 27^th August his partner Ms A picked Z up from school because “she had an appointment with the doctor” (T p.18, l.41), “an hour and a half away at (omitted)” (T p.23, l.44).

15. The husband stated that on 1 September 2013 “Z, at the time, was locked in the bathroom in terror” (T p.25, l.38).

16. The husband stated that “Z had been there (to see the doctor at (omitted)) before, actually” (T p.29, l.41).

17. The husband stated that “I do have a responsibility as a parent to look after the mental health and the welfare of my child and I will not see this child damaged like all of the other children have been damaged” (T p.33, l.27), and "”my child has come back crying from her mother’s visits on many occasions” (T p.33, l.44).

18. The husband stated “at the moment, the child is completely terrified of her mother and of her grandmother and the psychologist reports have said this, the doctors have said this” (T p.35, l.10).

19. Ms A gave evidence that Z was taken to see the doctor in (omitted) because “he’s my daughter’s GP…” (T p.45, l.31).

20. The Court notes that the Family Report by Ms B is dated 24 September 2012, and that apparently Z’s views about her mother have changed since that Report, at which time she wished to see her mother.

21. The Court finds that the husband had a reasonable excuse for each contravention being his belief that not allowing (causing) Z to spend time with the wife was necessary to protect the health of Z. The Contravention Application filed on 20 September 2013 is dismissed.

22. By Application in a Case filed by the husband on 27 September 2013 he seeks in clause 1:

    (1)That all previous orders requiring the child Z (“Z”) born (omitted) 2004 to spend time with the Mother be discharged.

23. On 21 October 2013 the Court made the following orders as proposed by the Independent Children’s Lawyer:

    (1)The parties do all things necessary and sign all such documents required to enrol themselves and the children Y born (omitted) 2001 and Z born (omitted) 2004 in the Parenting Enhancement Program (PEP) with child and family counsellor Ms L.

    (2)The Independent Children’s Lawyer forward to Ms L a copy of the orders made in these proceedings, the Family Report of Ms B dated 24 September 2012, the Report of Ms S dated 27 March 2013 and details of the parties’ legal practitioners.

    (3)The parties each attend upon a Psychiatrist nominated by the Independent Children’s Lawyer for the purpose of a Psychiatric Assessment and Report, the cost of same to be paid from the funds held in trust.

    (4)The parties do all things necessary to arrange for Ms M or such other professional supervisor as may be nominated by the Independent Children’s Lawyer, to supervise the changeover for Tuesday and Sunday time spent.

    (5)Until further order, the changeover for the time spent on Tuesdays and Sundays occur at (omitted) McDonalds under the supervision of Ms M or such other nominated supervisor; the cost of the supervised changeover be paid from the funds held in trust.

    (6)For the purposes of changeover the parties and the nominated supervisor only, be present at the changeover point.

    (7)The Sunday time spent recommence on 27 October 2013, and thereafter occur on the last Sunday of each month.

    (8)The commencement times for Tuesday time spent be varied to allow sufficient time for travel and commence at 4pm and conclude at 7.30pm.

    (9)In the event that supervised changeover cannot be facilitated by a private professional supervisor; such changeovers occur as follows:

    (a)Tuesday time spent can occur at school at the commencement and the (omitted) McDonalds at the conclusion; and

    (b)Sunday time at the Berry Street Contact Centre, (omitted).

    (10)That all costs resulting from the orders herein be paid for out of monies held in trust for the parties by Alpass & Associates.

    (11)The decision in relation to the Contravention Application is reserved.

    (12)The matter is otherwise adjourned for interim hearing at 10am on 12 December 2013.

24. The issue in clause 1of the Application in a Case (above) is therefore listed for hearing on 12 December 2013.

25. The Court notes that order 7 of the orders made by consent on

    
    

    5 October 2012 requires “the father do all things necessary to ensure the children attend as and when required for counselling with Ms S or Ms. E or such other counsellor as nominated by the Independent Children’s Lawyer and/or Ms B”. Strict compliance is required.

26. Similarly the orders made on 21 October 2013 require that the parties do all things necessary to enrol themselves, and Y and Z, in the Parenting Enhancement Program, and to do all other things required by those orders. Strict compliance is required.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Date: 15 November 2013