Rhodes & Bass
[2025] FedCFamC2F 27
•21 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rhodes & Bass [2025] FedCFamC2F 27
File number(s): WOC 1574 of 2020 Judgment of: JUDGE CARTY Date of judgment: 21 January 2025 Catchwords: FAMILY LAW – CONTRAVENTION – Where the applicant father alleges that the respondent mother has contravened final parenting orders on five occasions between 2 February 2024 and 28 March 2024 by failing to provide the two children to spend time with him for the weekend as required – Where the respondent admits contravening the orders but contends that she has a reasonable excuse for the contraventions – Where the respondent has regularly personally supervised time for the children with the applicant throughout the period of the contravention – Whether the respondent believed on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect the health or safety of the children – Where the court is satisfied that the respondent did believe on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect their health and safety – Where the court is satisfied that the period during which the children and the applicant did not spend time together because of the contravention was not longer than necessary to protect the health and safety of the children – Where all Counts in the application for contravention are dismissed – VARIATION OF FINAL ORDERS – Whether the primary orders should be varied pursuant to s70NBA of the Act – Where both parents seek variation – Where it is found to be in the best interests of the children to suspend final orders which require the children to spend time with the applicant unsupervised – Where it is in the best interests of the children to make an order until further order that the time that the children spend with the applicant is supervised by a children’s contact service – Where the parents agree that it is in the children’s best interests to communicate with the applicant using a Messaging app – Where the respondent’s agreement is subject to the proviso that use of the Messaging app will not reveal the children’s location to the applicant – Where there is no evidence before the court about how the Messaging app operates – Order made for the children to communicate with the applicant using the Messaging app subject to the proviso sought by the respondent – Where the respondent is directed to file and serve an Initiating Application and her supporting documents by no later than 4.00 pm on 18 February 2025. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CF, 70NAC, 70NAE, 70NAF, 70NBA, 70 NEB, Part VII, Div 13A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 11.69.
Cases cited: Hatfield & Rivas [2024] FedCFamC1A 202 Division: Division 2 Family Law Number of paragraphs: 78 Date of last submission/s: 19 September 2024 Date of hearing: 19 September 2024 Place: Newcastle Counsel for the Applicant: Mr Duc Solicitor for the Applicant: Culleton Lawyers Pty Ltd Solicitor for the Respondent: AZ Legal ORDERS
WOC 1574 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RHODES
Applicant
AND: MS BASS
Respondent
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
21 JANUARY 2025
THE COURT ORDERS THAT:
1.Counts 1 and 2 contained in the Application-Contravention filed on 16 April 2024 are withdrawn and dismissed.
2.Counts 3, 4, 5, 6 and 7 contained in the Application-Contravention filed on 16 April 2024 are dismissed.
3.The respondent shall file and serve an Initiating Application, Notice of Risk and Affidavit setting out the evidence in support of the final and interim orders she seeks by 4.00 pm on 18 February 2025.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
4.Orders 4, 6, 7, 9, of the Orders made on 21 September 2022 are suspended.
5.The respondent must within 14 days of these Orders nominate in writing to the solicitors for the applicant a Children’s Contact Centre operated by B Contact Centre or by C Contact Centre or similar (“the Children’s Contact Centre”) which can provide supervised time for the children with the applicant on a fortnightly basis.
6.Each parent must:
(a)contact the Children’s Contact Centre within 7 days of the respondent’s written nomination and arrange an appointment for assessment for suitability for supervision of the time the children spend with the applicant father;
(b)attend the assessment;
(c)comply with any appointments made by the Children’s Contact Centre for supervised time for the children with the applicant father;
(d)comply with all reasonable rules of the Children’s Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Children’s Contact Centre.
7.If after the assessment referred to in Order 6 (b) hereto the parents are accepted by the Children’s Contact Centre as suitable for supervised time, the children X born in 2016 and Y born in 2019 will spend time with the applicant father each fortnight for a period of up to two hours, at times nominated by the Children’s Contact Centre and such time is to occur at the Children’s Contact Centre and must be supervised by a staff member of the Children’s Contact Centre.
8.The respondent mother must deliver the children to and collect the children from the Children’s Contact Centre at the times specified by the Children’s Contact Centre and on each occasion promptly leave the building and the vicinity.
9.If the Children’s Contact Centre offers supervised time only at times which are less regular than specified in order 7 hereto then contact will occur at the times that are offered by the Contact Centre.
10.Each parent must pay the reasonable fees charged to him or her by the Children’s Contact Centre for each occasion of supervision.
11.The applicant father must not attend the Children’s Contact Centre or its’ vicinity before the supervised time with the children is to start and he must promptly leave the Children’s Contact Centre and its’ vicinity when the time with the children is to end.
12.If after the assessment intake procedure, the Children’s Contact Centre is unable or unwilling to provide supervised time as set out in order 7 hereto then each parent has leave to apply to restore the matter to the list on 7 days written notice to the other parent.
13.The Children’s Contact Centre may recommend the parents or either of them to participate in a program or programs, and in that event either parent may apply to re-list the matter for mention before the court on 7 days’ notice.
14.If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parents a variation of these orders, then either parent may on 7 days written notice to the other parent apply to restore the matter to the list.
15.If during the currency of these orders the parents agree in writing to vary these orders the parents have leave to jointly approach the chambers of Judge Carty for consent orders to be made.
16.The period of contact provided in these orders may vary by reason of the closure of the Children’s Contact Centre services during school and public holiday periods, and in such event, contact will occur at times when the services can be provided by the Children’s Contact Centre.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION
In his Application-Contravention (“the Application”) filed on 16 April 2024 the applicant father (“the applicant”) alleges that the respondent mother (“the respondent”) contravened final parenting orders on seven occasions between 6 January 2024 and 28 March 2024.
At the hearing on 19 September 2024 the applicant did not press Count 1 and Count 2 of his application, and those two counts are withdrawn and will be dismissed.
In respect of the remaining five counts, the respondent admits that she contravened the final parenting orders and contends that she has a reasonable excuse in respect of each count. [1]
[1] Refer notation to Order made on 12 August 2024
BACKGROUND
The applicant was born in Country D in 1980 and is 45 years old. He lives in the City E area and works as a tradesperson. He is a New Zealand citizen, and he arrived in Australia in 2014 and lives here pursuant to a Special Visa category.[2]
[2] The Special category visa is a temporary visa which allows a person to visit, study, stay and work in Australia as long as they remain a New Zealand citizen. The visa allows such a person to remain indefinitely in Australia.
The respondent was born in Country F in 1988 and is 36 years old. She was visiting Australia as a backpacker in early 2015 when the parents met and commenced their relationship.
The parents were married in 2015. The marriage produced two children, X born in 2016 and Y born in 2019 (“the children”).
On 28 November 2020 the parents finally separated, after almost 6 years together. The respondent fled the marriage and took the children with her, after the applicant subjected the respondent to family violence and abuse.
On 2 December 2020 the applicant filed an Initiating Application seeking interim and final parenting orders.
In early 2021 the applicant was charged with numerous criminal offences due to his conduct towards the respondent.[3] An Apprehended Domestic Violence Order (“ADVO”) was made in the Local Court of New South Wales at City E against the applicant for the protection of the respondent.
[3] Exhibit B, material produced by NSW Police
In early 2021 an ADVO was made against the applicant for the protection of the children [4] which included non-contact orders. The applicant’s evidence is:
In around 2021, as a result of the allegations, a Provisional Apprehended Domestic Violence Order was made against me for the protection of the children. This ADVO has now expired, in around [early] 2024, the Police made an application for a further ADVO against me for the protection of the children. My understanding is that the Police made a further application after [Ms Bass]’s Final ADVO was in place. Annexed hereto and marked with the letter “A” is a copy of this ADVO. This ADVO matter is listed before the Local Court [in mid]-2024, which I intend to seek to have the ADVO dismissed.[5]
[4] Applicant’s affidavit [13]
[5] Id
In late 2021 the applicant was committed for trial in respect of multiple counts relating to assault and sexual abuse. Two further assault charges were referred to the District Court. [6]
[6] Exhibit B
On 21 September 2022 final parenting orders were made by consent in the Federal Circuit and Family Court of Australia (Division 2) in Sydney.[7] The final orders provided, relevantly for present purposes, that the parents have equal shared parental responsibility for the children, and that the children live with the respondent mother and spend time with the applicant father as agreed in writing, and failing agreement during school terms each alternate weekend from 4.30pm Friday (or 4.30pm Thursday if Friday is a non-school day) until 7.30pm Sunday ( or 7.30pm Monday if Monday is a non-school day). The final orders also provided for the children to spend time with the applicant during school holiday periods. The final orders rendered the non-contact conditions in the ADVO which was made in early 2021 for the protection of the children non-enforceable.[8] Neither parent provided any evidence to this court about the circumstances surrounding the making of the final parenting orders in September 2022. The parents implemented the final parenting orders until late December 2023.
[7] Applicant’s affidavit Annexure C
[8] Exhibit B
In mid-2023 a report was received by New South Wales Department of Communities and Justice (“DCJ”) and screened under Significant Risk of Sexual Abuse, following the eldest child disclosing to the respondent that the applicant was continuing to have showers with her and that this made her feel uncomfortable.[9] The DCJ Assessment notes that the respondent stated that she was open to receiving any advice or support offered to her. DCJ noted that:
Legal consultation required DCJs intervention around sole parent PR and requesting Family Court review the parenting and contact orders based on the convictions and pending sentencing of [Mr Rhodes] in [late] 2023…
It would be beneficial to have this allocated and a risk assessment and safety plan put in place.
[9] Ibid
In late 2023 in the District Court of New South Wales the applicant was dealt with in respect of his criminal offences against the respondent. The applicant provided scant evidence relating to his criminal charges and convictions. He did not articulate precisely what criminal charges he faced, and his evidence about the outcome of charges was incomplete and inaccurate. At the contravention hearing, the applicant tendered a National Police Certificate provided by Western Australia Police Force Office of Information Management valid in mid-2024.[10] That evidence reveals that the applicant was dealt with in late 2023 in respect of offences:
·assault sentenced to Community Correction Order with supervision, commencing late 2023 concluding mid-2025. A further offence of assault in 2020 was taken into account on Form 1.
·Sexual touching (offence date late 2019) sentenced to Intensive Correction Order commencing in late 2023 concluding in late 2026. Further offences of sexual touching on three occasions in 2019 and 2020 were taken into account on Form 1.
·The applicant was ordered to complete the program run by B Contact Centre or such other program run by community corrections. An order for supervision was made, and the applicant was ordered to perform Community Service Work.
[10] Exhibit F6
Material produced by NSW Police pursuant to s. 67ZBE Family Law Act 1975 (Cth) (“the Act”) includes a criminal history bail report for the applicant, which reveals that he was convicted of multiple counts of sexual touching, and a further three similar charges were taken into account on Form 1.
In late 2023 a Final ADVO was made against the applicant for the protection of the respondent, which remains current and in force until late 2025. The applicant annexed to his affidavit an incomplete and illegible copy of that document.[11]
[11] Applicant’s affidavit Annexure B
In December 2023 the applicant sent a message to the respondent from the applicant’s mobile number, in contravention of the enforceable ADVO made for the protection of the respondent. The respondent did not reply.
In December 2023 ongoing case management of the child protection file for the children was transferred from JCPRP[12] to CSC[13]. The DCJ transfer notes record the following:
On the balance of probabilities, JCPRP HAVE substantiated significant risk of sexual abuse of [X] by her father, [Mr Rhodes].
[X]’s mother [Ms Bass] has acted proactively and is seeking legal advice to try and alter the Family Law Court orders in a way that will not result in her Visa Status being negatively impacted.
Support [Ms Bass] to return to family law court to have the current contact orders varied.[14]
[12] The JCPRP is a tri-agency program delivered by the NSW Department of Communities and Justice (DCJ), the NSW Police Force (NSWPF) and NSW Health.
[13] The CSC is a DCJ Community Services Centre which operates at locations throughout the State of New South Wales
[14] Exhibit B pg. 169
In January 2024 the eldest child was participating in a counselling program through New South Wales Department of Communities and Justice (“DCJ”). On 5 January 2024 the applicant received a text message from the respondent in which the respondent wrote:
“…due to increasing concerns on the childrens safety I am going to withhold visitation at this time. Until I have reassurance that the children are safe.”[15]
[15] Applicant’s affidavit Annexure D
In early 2024 charges against the applicant in relation to the children were dismissed. The applicant provided no evidence about the charges except the following statement in his affidavit:
“Various allegations were…made by [Ms Bass] regarding assaulting the children, which I vehemently denied.”[16]
[16] Applicant’s affidavit [14]
In February 2024, the applicant sent messages to the respondent from the applicant’s social media account, allegedly in contravention of the enforceable Final ADVO in place for the protection of the respondent, and in March 2024 the applicant sent a text message to the respondent also allegedly in contravention of the ADVO.
In early 2024 the applicant allegedly attended to collect the children from a place where the respondent had placed them, in contravention of an ADVO.[17]
[17] Exhibit B
In early 2024 the respondent reported alleged breaches of ADVO to the police, who recorded, inter alia, the following:
The VIC stated that she is currently going through therapy and feels the contact the POI is making is triggering her and setting back her recovery.[18]
[18] Exhibit B
In early 2024 the applicant was dealt with in the Local Court at City E in respect of a charge of contravene an ADVO made for the protection of the children, relating to his behaviour. The respondent’s evidence is that the applicant attended at the eldest child’s after school hours care in contravention of the ADVO in place for the protection of the children.[19] The applicant was dealt with pursuant to s.10A[20] by way of a conviction with no other penalty.
[19] Respondent’s affidavit [12]
[20] Crimes (Sentencing Procedure) Act NSW 1999
In early 2024 an Interim ADVO was made against the applicant for the protection of the children.[21] The application for Final ADVO was listed for hearing in mid-2024.
[21] Applicant’s affidavit Annexure A
In early 2024 the applicant was arrested and charged with contravene ADVO made for the protection of the respondent. The charge related to his conduct in late 2023.[22] The applicant was granted court bail to comply with the ADVO naming the respondent as the protected person, and was due to appear in the Local Court at City G in late 2024 for sentence.[23] The applicant says that he was charged for messaging the respondent on messenger and by text message.[24] He says that he has entered a plea of not guilty to the charge. The applicant did not furnish the Court with any document relating to the charge, such as the police facts sheet, notwithstanding that he is the only party with direct access to the relevant documents. The current state of the evidence does not permit this court to make a finding about the apparently contested factual issue of whether the applicant acted in breach of the relevant ADVO, but I take into account that a charge of contravene ADVO was pending against him at the date of the contravention hearing.
[22] Exhibit B
[23] Ibid
[24] Applicant’s affidavit [71]
In mid-2024, upon the application of Detective Mr H, a Final ADVO was made in the City E Local Court of New South Wales against the applicant for the protection of the two children for a period of two years.[25] I have previously noted that in his affidavit filed on 10 July 2024 the applicant deposed that:
“I intend to seek to have the ADVO dismissed.”[26]
[25] Exhibit A
[26] Ibid [13]
Pursuant to s. 60CF (1) of the Family Law Act 1975 (“the Act”), if a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order. Until the commencement of the contravention hearing on 19 September 2024 when the court enquired, neither party had provided a copy of the Final ADVO which was made in mid-2024 against the applicant for the protection of the children for a period of two years. The applicant did not provide a copy of the relevant Application for ADVO, nor did he provide any information about the circumstances which lead to the making of the application.
The conditions of the Final ADVO which is currently in place against the applicant for the protection of the children are:[27]
[27] Exhibit A
(1)You must not do any of the following to X or Y or anyone they have a domestic relationship with:
(A)assault or threaten them,
(B)stalk, harass or intimidate them, and
(C)intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of X or Y.
(3)You must not approach:
(A)the school or any other place X or Y might go to for study,
(B)any place they might go to for childcare, or
(C)any other place listed here.
(6)You must not approach X or Y or contact them in any way, unless the contact is:
(A)through a lawyer,
(B)to attend accredited or court-approved counselling, mediation and/or conciliation,
(C)as ordered by this or another court about contact with the child/ren,
(D)as agreed in writing between you and the parent(s) about contact with child/ren.
In April 2024 the applicant received a message from an officer of DCJ asking him to attend a meeting the following day. At the meeting the applicant was informed that DCJ want to put a Family Action Plan into place. The applicant deposes that he was initially told that the plan was expected around mid-April 2024, and later told that the plan would be in place by mid-May 2024. The applicant deposed that at the date of the hearing he had received no further correspondence from DCJ.[28]
[28] Ibid [73]
It is common ground that the respondent has a caseworker with DCJ. The respondent deposes that she is required to contact her caseworker regularly.[29] The respondent’s involvement with DCJ is discussed further in these reasons.
[29] Respondent’s affidavit [14]
On 16 May 2024 orders were made by Senior Judicial Registrar McDiarmid pursuant to section 67ZBE of the Act directing the New South Wales Police Force and New South Wales Department of Communities and Justice to provide documents and information to the Court relating to matters in s.67ZBE (2) relating to the children and the parents. The material provided in compliance with those orders is before the Court. Notably, the Family Court Liaison Officer with DCJ reported in a letter to the court dated 17 July 2024 that DCJ are currently working with the parties.[30] The content of the material produced by DCJ and NSW Police is discussed further in these reasons.
[30] Exhibit B
The two children, who are currently 8 years old and 5 years old respectively, live with the respondent at an undisclosed location in Sydney. The respondent wishes to keep her address private from the applicant due to her concerns for her safety.
It was common ground at the contravention hearing that the children last spent time with the applicant on 11 May 2024, which time was personally supervised by the respondent.
PROCEDURE AND EVIDENCE
The hearing proceeded in Newcastle on 19 September 2024 and was conducted electronically on the Microsoft Teams platform, and in accordance the procedure set out in Rule 11.69 Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Mr Duc of Counsel appeared for and with the applicant. In support of his case the applicant relied upon:
(1)His Case Outline filed 8 August 2024.
(2)Contravention Application filed 16 April 2024
(3)His Affidavit filed 10 July 2024
(4)Exhibit B and Exhibits F1 through to F8 inclusive.
The applicant presses the following five counts of contravention without reasonable excuse:
·Count 3: On 2 February 2024 the respondent contravened Order 4 (a) (i) of the final Orders made on 21 September 2022 by refusing to allow the applicant to spend time with the children.
·Count 4: On 16 February 2024 the respondent contravened Order 4 (a) (i) of the final Orders made on 21 September 2022 by refusing to allow the applicant to spend time with the children.
·Count 5: 1 March 2024 the respondent contravened Order 4 (a) (i) of the final Orders made on 21 September 2022 by refusing to allow the applicant to spend time with the children.
·Count 6: 15 March 2024 the respondent contravened Order 4 (a) (i) of the final Orders made on 21 September 2022 by refusing to allow the applicant to spend time with the children.
·Count 7: 28 March 2024 the respondent contravened Order 4 (a) (i) of the final Orders made on 21 September 2022 by refusing to allow the applicant to spend time with the children.
Ms Furner, Solicitor, appeared for and with the respondent. The respondent admits each of Counts 3, 4, 5, 6 and 7 and contends that she has a reasonable excuse in respect of each Count. The allegations are therefore proven, and the onus shifts to the respondent to prove that she had a reasonable excuse.
The respondent provided an affidavit setting out her evidence of reasonable excuse, and she was cross examined at the hearing.
In support of her case the respondent relied upon:
(1)Her Affidavit filed 23 August 2024.
(2)Exhibits A & B and M1.
LEGAL PRINCIPLES
On 6 May 2024 substantial amendments to the provisions of Part VII, Division 13A of the Family Law Act 1975 (“the Act”) came into effect by virtue of the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”). I have had the benefit of reading the decision of His Honour Justice Austin sitting in Division 1 Appellate Jurisdiction in the matter of Hatfield and Rivas [2024] FedCFamC1A 202. Austin J considered whether the provisions of the Amendment Act apply in circumstances like the present case, where the alleged contraventions are confined to a period prior to 6 May 2024 and where the contravention application is heard after the date that the provisions of the Amendment Act came into effect. His Honour observed that:[31]
[31] Hatfield & Rivas (supra) at 68-72
The Amendment Act did not contain any transitional provision to regulate the timing of the operation of the old Pt VII, Div 13A or the new Pt VII, Div 13A of the Act, but did provide this at item 36(1) to Schedule 2:
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Part.
So far as can be discerned, the Minister has not exercised such power to make any such rules by legislative instrument.
The being so, the situation is governed by s7(2) of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”), which relevantly provides:
Effect of repeal or amendment of Act
(1) …
(2) If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:
(a) revive anything not in force or existing at the time at which the repeal or amendment takes effect; or
(b) affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.
The operation of that provision is subject to clearly expressed contrary intention (s 2(2) of the Acts Interpretation Act), of which there is none.
It logically follows then that, absent express legislative intention for the new provisions of Pt VII, Div 13A to apply to contraventions alleged to have occurred whilst the old Pt VII, Div 13A was operable, the old provisions must still apply to such historic contraventions.
I am bound to apply the provisions of the old Part VII, Division 13A of the Act when determining the outcome of the present contraventions, which are alleged to have occurred prior to 6 May 2024.
The meaning of “contravened” an order appears at s.70NAC of the Act reproduced below:
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.
Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
The standard of proof to be applied in determining matters under Division 13A is proof on the balance of probabilities.[32]
[32] Section 70NAF of the Act
The meaning of reasonable excuse for contravening an order is set out in s.70NAE of the Act. The relevant provisions of s.70NAE of the Act, in force prior to the May 2024 amendments, noting that in this case the respondent relies upon s.70NAF(5), are reproduced below:
70NAE Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7)…
(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).
(emphasis added)
As noted previously, the respondent bears the onus of proving, on the balance of probabilities, that she has a reasonable excuse for contravening the orders: s.70NAF (1) & (2).
THE EVIDENCE
The respondent deposes, and I accept, that she left the marriage and took the children with her due to “extreme” family violence perpetrated by the applicant.[33] She lived in a refuge and is not permitted to reveal the address. Notation A to the final orders made on 21 September 2022 records:
“It is noted that the mother is currently residing temporarily in a refuge, with a view to obtaining more permanent accommodation in late 2022 or early 2023. Should the mother’s ongoing accommodation cause any issues with these Orders, then the parties agree that they will attend FDR to discuss what further arrangements will be in the children’s best interests.”
[33] Mother’s affidavit [7]
The respondent deposes that she stopped the children’s unsupervised visits with the father:
…after numerous worrying things [X] had brought up to me. And also, after DCJ advised me they deemed the children being in my care safe and in Applicants care unsafe. When I asked them about what happens to the children if I were to send them willingly to an unsafe situation, they responded that the Department can take the children away from me as I have willingly sent them there…[34]
…I did not want to risk with the children having to live in the system. I wanted the children to be safe and not expose them to unsafe situations created by their father or them ending up in a foster care somewhere. I knew there would be possible repercussions to my going against the Family Court Orders but the children's safety is more important to me than any punishment to me for keeping the children safe. I was afraid of the Applicants reaction towards me for doing so as I have seen him acting out before when things don't go his way. During our past relationship, the Applicant has punched holes in the walls, punched dents into the car doors, punched the hospital walls, been rude to the hospital staff in addition to everything that happened behind the closed doors at home and which the children were also witnessing, [X] to this day shows her being upset rarely to the Applicant...[35]
[34] Ibid [24]
[35] Ibid [25]
As noted previously, the applicant was convicted and sentenced in late 2023 in respect of several criminal offences committed by him against the respondent. It is evident from material produced by DCJ that officers from the New South Wales child protection authority held concerns about the parenting arrangements for the children prior to the applicant’s sentencing hearing, demonstrated in the following note provided by DCJ:
…advised that the sentencing for fathers sexual assault on the mother was expected [in late] 2023. She understood that there were FLC orders with father access. There have been discussions with Lawyers and police about the impact of charges on the access arrangements and she understands that the mother will seek to have the FLC amended following the sentence. She will speak to the mother about the risks identified for the children and have a further discussion with DCJ.
In their respective affidavits, neither party furnished details about the applicant’s criminal offences. I accept the respondent’s submission that the applicant has direct access to relevant information which might assist the court, and that it is incumbent on him to provide particulars of his criminal offending. It appears from the information provided to the court by DCJ that the children were present when the applicant perpetrated the criminal offences against the respondent and that the children were exposed to family violence during their parents’ relationship.
The criminal penalties imposed upon the applicant by the District Court of New South Wales in late 2023 are substantial, and the applicant is still serving the sentences. During final submissions, Learned Counsel for the applicant appropriately conceded that an Intensive Corrections Order is imposed only in circumstances where the sentencing court is satisfied that imprisonment is the appropriate penalty for the relevant offence.
Notwithstanding that the applicant has been found guilty of perpetrating serious criminal offences against the respondent, in his affidavit and in his oral evidence the applicant did not accept responsibility for his choice to use violence against the respondent. Although he pled guilty to charges relating to assault and sexual touching of the respondent, in his written evidence the applicant deposed that:
Following separation, I was charged with a number of criminal offences due to various allegations made by [Ms Bass]. A number of the charges were withdrawn. I plead guilty to [charges relating to assault and sexual touching]. I plead guilty to those charges as I had no other option, I wanted to go to trial, though could not financially afford to.[36]
[36] Father’s affidavit [12]
Under cross-examination the applicant confirmed that he pled guilty for financial reasons.
There is no evidence which demonstrates that the applicant has completed the Behaviour Change Program which was to be the focus of B Contact Centre’s involvement with him. DCJ records the concern that the applicant has not demonstrated the capacity to alter his behaviour through engaging with the Behaviour Change Program, and the concern that the applicant takes no responsibility for his conduct. The concerns expressed by the child protection authority in New South Wales are consistent with the evidence before this court in the current application.
DCJ has assessed that the applicant has demonstrated a pattern of coercive behaviour[37] and that the respondent is in a vulnerable position. There is the uncontroversial history of assault and sexual violence perpetrated by the applicant against the respondent. DCJ records that the respondent is not eligible for Centrelink payments, and she believes the applicant is claiming 100% of parenting payment and family tax benefits.[38] DCJ are of the view that the applicant is attempting to control the respondent by ensuring that her residency status limits her access to support services for herself and the children.
[37] Exhibit B
[38] Exhibit B pp 59-63
The applicant annexes to his affidavit a Case Conference Report prepared by Mr K Caseworker DCJ Suburb J which is dated Wednesday 15 May. The text is reproduced in full below:
Good afternoon [Ms L],
The Assessment by the JCPRP substantiated the risk of suspected sexual abuse.
The details of the substantiation include the conviction of [Mr Rhodes] for physically
and sexually abusing [Ms Bass] while the children were present. It was reported in a
report of 10 October 2023 that [X] has stated to her mother that she doesn't tell
anyone about "the secrets between her and Daddy."
The level of risk was considered significant given "[X] has specifically said she is
too fearful to fully disclose what is happening to her when she is with her father while
ever she has to continue seeing him."
The reports that DCJ has investigated need to be a consideration in the Orders that
the Court provides. If they are to be produced under subpoena, that option should
be explored.Within the large volume of material provided by DCJ, it is noted that the eldest child has been the subject of three completed field assessments by New South Wales child protection authorities, in 2019, 2021 and in 2023.[39] On 12 October 2023 she was interviewed in relation to an allegation of sexual touching, with the person of interest recorded as the applicant [40] after DCJ made a referral to the Joint Response Unit (“JRU”) for both children for assessment of sexual harm.[41] It was reported that the child disclosed that she is unhappy about the father sticking out his tongue when she kisses him, even though she has asked him to stop. The child reported that she is responsible for looking after the younger child for the day when the father plays sport. It was also reported that the child has told the mother that she doesn’t tell anyone about “the secrets between her and Daddy.” The DCJ assessment records:[42]
Sexual abuse – not substantiated. There is both historical information consistent with what [X] has disclosed in 2023, as well as agreed facts relating to the sexual abuse of [Ms Bass], [X]’s disclosures have remained consistent with this information over 2 years, and [X] has no reason to lie. [X] has identified that she has felt unsafe and uncomfortable in response to some of her fathers actions. [Mr Rhodes] is listed as POI in relation to grooming behaviours towards [X] previously. However [X] felt she needed to shut down any conversation around her time with her father because she has to continue seeing him. This has been interpreted by caseworkers as [X] acting to keep herself as safe as possible from her fathers actions. While DCJ MCW are still in consultation in relation to the next steps and speaking with [Mr Rhodes], these will be recorded on the engagement. This has meant the [Mr Rhodes] has not been spoken to at this point.
[39] Exhibit B p. 87
[40] Exhibit B
[41] Exhibit B pp 59-74
[42] Ibid pp 87-88
The respondent deposed that the applicant has a boarder in his home, who she has no information about, and that the eldest child has told her that she and the younger child are left alone with the boarder, and sometimes without the boarder, while the applicant goes out to buy groceries, and that the applicant has told the eldest child to take care of the younger child while he is gone.[43] The applicant conceded under cross examination that while he sets out his current circumstances in his affidavit, including at paragraph 102 where he describes his home, he does have a flatmate. The applicant said: “I didn’t feel it prudent to mention at the time…this is a contravention application.” He denied that he had left the children in the care of his boarder “[Mr M]” and he denied that he had left the children alone in the backyard with his pet or that he had left the children unattended in his car. Those factual disputes are not able to be determined, but I take into account that the respondent has asked the applicant to supply her with information about who had been present in his home with the children in a text message exchange with him[44] and under cross-examination the respondent volunteered that the applicant had provided her with the name and number for the boarder in March 2022. She maintained that the applicant had told her that Mr M would never spend nights in the home when the children were there, which the respondent says is untrue. There are references in the material produced by DCJ to the children disclosing that the boarder is present in the home when they are spending time with the father there.
[43] Mother’s affidavit [23]
[44] Exhibit F8
The respondent said in cross-examination that she has never expressed that the children don’t love their father, and she confirmed that she wants the court to order supervised time. The respondent said that she does not mind supervising the time that the children spend with the father, but believes professional supervision is more appropriate. She said that the parents have no common family friends, and it appears from the scant evidence that neither parent has any extended family living in New South Wales. As I have already noted, between January 2024 and 11 May 2024 time between the children and the applicant did not proceed in accordance with the final orders, however there were regular spend time occasions supervised by the respondent: on 27 January 2024[45], 11 February 2024[46], 24 February 2024[47], 9 March 2024[48], 16 March 2024[49], 27 March 2024[50], 7 April 2024[51], 27 April 2024[52], and on 11 May 2024[53].
[45] Father’s Affidavit [76]
[46] Ibid [77]
[47] Ibid [78]
[48] Ibid [79]
[49] Ibid [80]
[50] Ibid [81]
[51] Ibid [82]
[52] Ibid [83]
[53] Ibid [84]
The evidence which was tendered by consent at the hearing in Exhibit B demonstrates that officers of DCJ hold current concerns about risks of harm to the children posed by the applicant, and that DCJ has expressed to the respondent that work is required to ensure the safety of the children in her care in an environment which removes the ongoing risk presented through the ongoing opportunity of unsupervised contact between the applicant and the children. DCJ has taken action to limit the contact between the applicant and the children to ameliorate the risk of harm to the children. A recent DCJ assessment notes the need for legal assistance, including support from DCJ for the respondent to make an application to Family Law Courts to vary the parenting orders to supervised contact for the father.
CONCLUSION ON THE CONTRAVENTION APPLICATION
Learned Counsel for the applicant submitted that the respondent’s evidence lacks detail, and that the respondent makes “vague” allegations about safety issues in the applicant’s household, relating to the presence of the boarder and the pet, which could be easily dealt with by way of restraints. The applicant submits that the respondent says nothing in her affidavit about the risk of sexual harm in his care.
I accept that the respondent’s evidence is lacking in detail, but I reject the submission that there is no evidence to suggest that the applicant poses a risk to the children. The court cannot ignore the volume of information provided by DCJ and Police. I find that there is evidence of potential risks of harm to the children in the applicant’s household, including the following:
(a)The applicant’s convictions for offences of family violence and sexual touching perpetrated against the respondent, coupled with the applicant’s failure to accept full responsibility for his offending, and the absence of evidence of any commitment to change, or any demonstrated behavioural change;
(b)The children’s presence in the household when the offences were perpetrated, and their exposure to family violence;
(c)The existence of a current Final ADVO made in mid-2024 against the applicant for the protection of the children, and the lack of detail surrounding the need for such an order;
(d)The existence of a pending charge against the applicant relating to contravene ADVO for the protection of the respondent, and the lack of detail provided by the applicant about the charge;
(e)The disclosures made by the eldest child, and the applicant’s evidence that “our little secret” is a reference to him giving the eldest child an extra lolly;[54]
(f)The presence of the boarder in the applicant’s household, who the applicant felt it was “prudent” not to mention in his affidavit; and
(g)The current assessment of DCJ that there are risks or harm to the children poses by the applicant, and the express intention of DCJ to create a safety plan for the children which removes the risk presented through the opportunity of unsupervised contact between the applicant and the children, and the express plan by DCJ to support the respondent to re-agitate the parenting orders.
[54] Father’s affidavit [90]; Annexure O
I am satisfied and find that the respondent has been told by officers of DCJ, including her current caseworker, that the children are potentially at risk of harm if they spend unsupervised time with the applicant and that a safety plan is required to remove the risks posed by the children having unsupervised time with the applicant. I accept that the respondent believes that the children are at risk of harm in the unsupervised care of the applicant, including due to her direct experiences of his conduct, and the disclosures made by the older child. I accept that the respondent holds a belief that DCJ will take action to ensure the safety of the children, which may include action to remove the children from the respondent’s care if she fails to keep the children safe.
Counsel for the applicant reiterated on several occasions that it is an uncontested fact that the children love the applicant father. I have no doubt that this is true. The fact that the children love their father is not inconsistent with, or mutually exclusive of, the proposition that the children may be at risk of significant harm in his household.
Having regard to the evidence overall, I find that the respondent believed on reasonable grounds that it was necessary for her to protect the health and safety of the children by ensuring that any contact between the children and the applicant is supervised. I find that the period during which, because of the contravention, the children and the applicant did not spend time together was not longer than was necessary to protect the health or safety of the children.
I am satisfied that the respondent has proven, on the balance of probabilities, in respect of each of Counts 3, 4, 5, 6 & 7 of the application that she had a reasonable excuse for contravening the final parenting orders made on 21 September 2022.
Counts 3, 4, 5, 6 & 7 in the Application will be dismissed.
VARIATION OF EXISITING FINAL ORDERS PURUSANT TO S. 70NEB OF THE ACT
Both parents seek a variation of the final parenting orders made on 21 September 2022.
The Court has jurisdiction to make an order varying a primary order, pursuant to s.70NAB of the Act. Section 70NBA(2) of the Act requires the court, when considering a variation, to have regard to s 60CA of the Act, that is the best interests of the child as the paramount consideration, but also to take into consideration the matters set out in that subsection. None of the subsections in s 70NBA(2) are relevant to the facts of this case.
The applicant seeks variation to Order 6 of the final orders, and the following order instead:
That for any changeover that does not occur at the children’s school, changeover shall occur at [Suburb N] McDonalds, or at such other changeover location as agreed between the parties in writing.
The applicant also seeks further orders that:
(a)The Father shall communicate with the children via the communication app known as Messaging; and
(b)Both parents are permitted to attend all preschool and/or school functions or events which allow for parental attendance including but not limited to assemblies, concerts, parent/teacher interviews, sporting carnivals and other social events.[55]
[55] Exhibit F1
The respondent seeks the following variations to the final orders:[56]
(a)That provided the communication app known as Messaging does not reveal the location of the children, then the children will communicate with the father via the Messaging communication app; and
(b)That the existing orders for the children to spend time with the father are varied to allow the father to have only supervised time with the children.
[56] Exhibit M1
In view of the risks identified in the evidence discussed above, pursuant to s70NBA (1) of the Act I am satisfied that it is in the best interests of the children to suspend those parts of the existing final parenting orders made on 21 September 2022 which require the children to spend unsupervised time with the applicant. I consider that, until further order, it is in the children’s best interest that their relationships with the applicant are preserved by varying the final parenting orders so that the children spend time with the applicant supervised at a children’s contact service nominated by the respondent, with such supervised time occurring preferably once each fortnight for up to two hours. The parents will be required to contribute equally to the fees for supervision of the children’s time with the applicant, unless the service waives the requirement for one or both of them to contribute.
I am not satisfied that it is in the best interests of the children to vary the order for changeover as sought by the father, because the children will not spend unsupervised time with him pending further order. I am not satisfied that it is appropriate to make an order which will permit the father to attend at the children’s school. Those are matters which require further consideration in the fullness of time when all of the necessary evidence is properly before the court, and when the court is able to make findings on contested factual issues and properly assess the alleged risks of harm.
There is no evidence before this court about whether or not the Messaging app will reveal the location of the children to the father. In such circumstance, I simply note that the mother has no objection to the children communicating with the father using that app provided it will not disclose the whereabouts of the children to the father.
Learned Counsel for the applicant submitted, quite fairly in my view, that the respondent’s application to vary the existing final orders came at a very late stage of the contravention proceeding, and that the variation she seeks is significant, and there is a lot of material which the court is required to read and to consider. I accept Counsel’s submission that if the Court finds that the variation which the respondent seeks is appropriate, then the court should order such variation on an interim basis only and direct the respondent to file and serve an Initiating Application which precisely sets out her case.
Having regard to my finding that the respondent had a reasonable excuse for contravening Order 4 (1) (a) of the final parenting orders, and my finding that it is in the best interests of the children to suspend the existing final orders in so far as the orders provide for the children to spend time with the applicant on an unsupervised basis, it is appropriate to make a direction that the respondent file and serve an Initiating Application along with her evidence in support, if she has not already done so, which sets out precisely the final and the interim parenting orders she seeks.
The Orders at the forefront of these Reasons are appropriate and in the best interest of the children.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate:
Dated: 21 January 2025
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