Sankar & Rai
[2021] FedCFamC2F 398
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sankar & Rai [2021] FedCFamC2F 398
File number(s): PAC 3262 of 2013 Judgment of: JUDGE OBRADOVIC Date of judgment: 3 December 2021 Catchwords: FAMILY LAW – Contravention – alleged contraventions established – no reasonable excused established. Legislation: Family Law Act 1975 (Cth) ss 11F, 70NAA, 70NAC, 70NAE, 70, NAF Cases cited: Childers & Leslie [2008] FamCAFC 5
O’Brien & O’Brien [1992] FamCA 52
Rai & Sankar & Anor (No.2) [2020] FCCA 2913
Sankar & Rai [2020] FCCA 392
Taikato v R [1996] HCA 28Division: Division 2 Family Law Number of paragraphs: 74 Date of last submission/s: 3 August 2021 Date of hearing: 8 March and 27 April 2021 Place: Parramatta Appearing for the Applicant: Mr Navarrete Solicitor for the Applicant: MN Lawyers & Associates Counsel for the Respondent: Mr Battley Solicitor for the Respondent: Katsoolis & Co ORDERS
PAC 3262 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SANKAR AND: MS RAI
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
3 DECEMBER 2021
THE COURT ORDERS THAT:
(1)A finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court of Australia made on 29 October 2020 in that:
(a)By 6 November 2020, the Respondent failed to do all acts and things to register with G Families to allow the father to spend time with the children, X, born in 2005 and Y, born in 2007 supervised by G Families, in contravention of Order 2(a) of the Orders made on 29 October 2020.
(b)By 8 December 2020, the Respondent failed to comply with all reasonable requests or directions of the staff of G Families to arrange the father to spend time with the children, X, born in 2005 and Y, born in 2007 on 5 December 2020, in contravention of Order 3(e) of the Orders made on 29 October 2020
(2)The matter is listed for directions at 2:15pm on 9 December 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sankar & Rai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
The parents of X, born in 2005 now 16 years old and Y, born in 2007 now 14 years old, continue the parenting dispute between them, which commenced originally in 2013 following the parents’ separation and has continued sporadically for over 8 years.
The background of the dispute is set out in the Court’s judgment in respect of an Application-Contravention published on 2 March 2020 (Sankar & Rai [2020] FCCA 392) and the Court’s judgment in respect of an Application for interim orders published on 29 October 2020 (Rai & Sankar & Anor (No.2) [2020] FCCA 2913). In summary and relevant for the purposes of this judgement:
(a)Final parenting orders were made on 8 March 2016;
(b)The children have not spent time with the father (either in accordance with orders of 8 March 2016 or otherwise) since September 2018;
(c)Following the determination of the father’s Application-Contravention in March 2020, the orders made in March 2016 for the children to spend time with the father were stayed; and
(d)Following the determination of the father’s application for interim parenting orders in October 2020, the children were to spend supervised time with the father but they have not done so.
These reasons for judgment relate to the most recent Application-Contravention filed by the father on 15 December 2020. In essence, the father alleges that the mother:
a.did not do all acts and things to register with G Families to allow the father to spend time with the children; and
b.did not comply with all reasonable requests or directions of the staff of G Families to arrange for the father to spend time with the children
all being said to be in breach of the interim orders made on 29 October 2020.
Relevantly, the orders of 29 October 2020, provided as follows:
(2)Within seven (7) days from the date of these Orders the parties shall do all acts and things necessary to register with the following Supervision Services with a view to obtaining an offer which provides for a service where the father shall spend supervised time with the children:
(a)G Families; or
(b)At such other centre or agency agreed between the parties in writing.
(3)Each party shall do all acts and things necessary to:
(a)Attend any appointments for assessment for suitability for supervision of the time the children spend time with the father;
(b)Participate fully in the assessment;
(c)Comply with any appointments made by the Supervision Service for supervised time;
(d)Comply with all reasonable policies and rules of the Supervision Service; and
(e)Comply with all reasonable requests or directions of the staff of the Supervision Service.
(“October Orders”)
The alleged contraventions are said to be in respect of order 2(a) and 3(e) respectively.
Procedural History
These contravention proceedings were heard on 8 March 2021 and 27 April 2021, and reserved on 3 August 2021 following written submissions being received by the Court. Both parties filed affidavits and both parties were cross-examined.
At the first return date of the Application-Contravention on 28 January 2021 (and later amended pursuant to the slip rule on 8 March 2021), the mother entered pleas of not guilty to the following charges:
Charge 1:
In contravention of Order 2(a) of the Orders made on 29 October 2020, it is alleged that
onby 6 November 2020, the Respondent failed without reasonable excuse to do all acts and things to register with G Families to allow the father to spend time with the children, X, born in 2005 and Y, born in 2007 supervised by G Families.Plea: Not Guilty
Charge 2:
In contravention of Order 3(e) of the Orders made on 29 October 2020, it is alleged that
onby 8 December 2020, the Respondent failed without reasonable excuse to comply with all reasonable requests or directions of the staff of G Families to arrange the father to spend time with the children, X, born in 2005 and Y, born in 2007 on 5 December 2020.Plea: Not Guilty
On that occasion, the matter was also set down for hearing on 8 March 2021.
On 8 March 2021, after hearing the father’s evidence, the Court found that a prima facie case has been established in relation to both charges 1 and 2.
The Court also made procedural orders for the filing of evidence in support and reply of the reasonable excuse argument and the matter was adjourned part-heard to 27 April 2021.
Either shortly before or shortly after the hearing on 8 March 2021 (the Court record is confusing), the mother filed an Application in a Case seeking leave to file and rely upon an affidavit sworn by a person under the age of sixteen, namely by Y, the parties’ older child. Following discussions between the Bench and the parties on 27 April 2021, that application was withdrawn and orders were made directing the parties and the children to attend a Child Inclusive Child Dispute Conference pursuant to s.11F of the Family Law Act 1975 (Cth) (“the Act”) and for a memorandum to be prepared for the Court (“CIC Memorandum”).
On 27 April 2021, the Court made further orders (in contemplation of the CIC Memorandum being released) as follows:
…
5. The mother’s legal representatives are to notify the father’s legal representatives and the Court by 4pm on 24 June 2021 whether there are to be any further witnesses in the mother’s case in respect of the reasonable excuse argument in relation to the part-heard Application – Contravention.
6. If there are no further witnesses in the mother’s case, the mother is to file and serve her written submissions within twenty-eight days. Fourteen days thereafter, the father is to file and serve his written submissions.
7. If the hearing is to continue by way of oral evidence, the Court will allocate a further part-heard interim hearing date following notification by the mother’s legal representatives after 24 June 2021.
The CIC Memorandum to the Court prepared by Mr K was released to the parties on 16 June 2021.
Subsequently, the Court did not receive any notification from the mother’s legal representatives regarding any further witnesses in the mother’s case. The mother did not file any submissions in compliance with the Court’s orders. The father filed his written submissions on 30 July 2021 (in compliance with orders of 27 April 2021). The mother then filed, without leave of the Court, what appear to be submissions in reply on 3 August 2021. The Court has had regard to both submissions, notwithstanding the mother’s apparently clear disregard for Court orders (in particular, orders 5 and 6 made on 27 April 2021).
Contravention 1 – Factual Findings
In contravention of Order 2(a) of the Orders made on 29 October 2020, it is alleged that
onby 6 November 2020, the Respondent failed without reasonable excuse to do all acts and things to register with G Families to allow the father to spend time with the children, X, born in 2005 and Y, born in 2007 supervised by G Families.On 30 October 2020, the father’s solicitor, after making a telephone call to G Families, received an email from G Families attaching all of the documentation required to be completed by the parents in order for the father to commence spending supervised time with the children. On that same day, the father’s solicitor forwarded that email (attaching all the required documentation) to the mother’s solicitor, noting that the mother was “required to forward to G families (sic) the completed Contact visit request form and sign the terms and conditions”.
The father returned the completed forms to G Families on 4 November 2020.
The October Orders required the mother to take certain action within 7 days of the date of the orders, namely by 6 November 2020.
The mother did not complete the requested contact visit request form and sign the terms of conditions required to be completed to enable registration with G Families by 6 November 2020. There was no suggestion in the evidence that the mother sought for a different supervisions service to G Families to supervise the children’s time with the father.
On 11 November 2020, the father received correspondence from G Families advising that they would start the process once they had received the mother’s completed forms. Again, the father’s solicitor emailed the mother’s solicitor this time following up as to whether the mother had complied with her intake obligation and completed the required documentation.
There was further correspondence from the father’s solicitor to the mother’s solicitor, urging the mother to complete the intake process noting that supervised time could not be arranged unless the mother “complies with her intake obligations”.
On 16 November 2020, the mother’s solicitors emailed, on behalf of the mother, the requisite forms to G Families such that the intake process or, in other words, the registration with G Families, could be completed.
Contravention 2 – Factual Findings
In contravention of Order 3(e) of the Orders made on 29 October 2020, it is alleged that
onby 8 December 2020, the Respondent failed without reasonable excuse to comply with all reasonable requests or directions of the staff of G Families to arrange the father to spend time with the children, X, born in 2005 and Y, born in 2007 on 5 December 2020.On 26 November 2020, the father received an email from G Families advising that they were expecting to start the supervised visits on Saturday, 5 December 2020 from 2pm to 4pm.
The father responded on 27 November 2020, suggesting two locations where he could spend supervised time with the children. The mother was copied into this email.
G Families emailed the mother on 27 November 2020 and again on 3 December 2020, requesting that the mother choose one of the two locations suggested by the father.
The mother replied on 2 December 2021 advising G Families that they had not responded to a letter from her solicitor dated 16 November 2020. She further advised that all future correspondence be directed to her barrister.
While the evidence is that G Families did not receive any letter from the mother’s solicitor dated 16 November 2020, the supervising service did respond to the mother’s email of 2 December 2020.
On 3 December 2020, G Families emailed the mother as follows:
Dear Ms Rai,
Thank you for your email.
I hope this email finds you well.
I would like to have confirmation on the approved contact location for this Saturday 05/12/2020 from the choises below:
(1.0)“L” restaurant at Suburb M (NSW); or
(2.0)“HUNGRY JACKS” restaurant at Corner of N Street and O Street, Suburb P (NSW).
The contact time will be from 2pm to 4pm
If you can email me with the agreed and approved location it will be great as we can ensure we have ample time to find a supervisor.
On 4 December 2020, the father’s solicitor emailed the mother’s solicitor:
Dear Colleagues,
I refer to the above-mentioned matter and all my previous correspondence which have not been responded to by your office.
Please find attached herewith correspondence from G families (Family services) dated today, 4 December 2020 highlighting their attempts to contact your client and your clients (sic) non-compliance.
We ask that you remind your client of Order (2) of the Court orders dated 29 October 2020. We have attached the same for your attention.
Should your client not contact G Families by EOD today, 4 December 2020, we have instructions to commence a contravention application against your client without further notice to you…
There was no response from the mother to G Families’ email of 3 December 2020 with respect to the mother’s choice of the two venues nominated by the father for supervised time to occur on 5 December 2020, nor as requested in the father’s solicitor’s email of 4 December 2020.
The father did not spend supervised time with the children on 5 December 2020 or at any time subsequent (including before 8 December 2020).
On 8 December 2020, the mother sent the following email to G Families:
Dear Madam,
I acknowledge receipt of G Families email dated 27.11.2020. This is the second time I have done so. On 2.12.2020, I wrote to your Ms Q, who is apparently employed as an administrative staffer.
In my emailed 2.12.2020 I noted, to date, your organization had not responded to a letter from Ms R date 16.11.2020.
To facilitate your organization's supervision of time with the father. I urge you, again, to inform me how the person you have chosen to be the supervisor will address:- The Serious safety concerns raised in the enrolment forms; and the special requirements, refer to in the same form.
It is disappointing, also that you have failed to disclose educational qualifications and experience that your proposed supervisor has.
Please be advised that Mr E, Clinical Therapist, confirmed in a report dated, as recently as 28.11.2020 that:- Both children are physically afraid of their father; both children should initially see their father in therapeutic settings only; and the father always been welcome to attend counselling.
Paragraph 15 of Orders made by her Honor Judge Hughes 8.3.2016 provides: -That both parents shall attend upon Mr E as he directs for the purpose of discussing appropriate strategies in both households to address the level of conflict between the parents and both parents shall comply with reasonable request by Mr E in relation to themselves and as to X.
Be advised, further, that Her Honor Judge Obradovic held that I had reasonable excuse for contravening previous orders that the father spend time with the children. That "reasonable excuse" was that the children were afraid of the father.
Mr E is an expert. He says that the children are still afraid of the father. He seeks that the father join me and him in counselling.
The father had never taken X for therapy with Mr E and the father had told X not to attend therapy with Mr E, against Paragraph 14 of Orders made by her Honor Judge Hughes 8.3.2016 provides: - That the child X, shall continue to attend upon Mr E for therapeutic counselling as Mr E directs and both parents shall facilitate X's attendance upon Mr E as he directs.
I am anxious that the children be afforded every opportunity to spent time safely with their father. As a prerequisite to this is that Mr Sankar attends upon Mr E and that initially the father resumes contact with children in a “Therapeutic Settings”.
Finally, note please I have provided a copy of this email to Mr Navarete the solicitor of the father.
Yours Sincerely,
Ms Rai
(emphasis in original)
The mother’s letter to G Families above, oversimplifies and misrepresents the bases of the Court’s findings in Sankar & Rai [2020] FCCA 392. Furthermore, it had been made abundantly clear to the mother through the history of the parenting dispute between herself and the father that the father did not want to engage in any form of counselling with Mr E, as he had no trust in him.
While the Court suggested in Rai & Sankar & Anor (No.2) [2020] FCCA 2913 that a therapeutic pathway may be appropriate, it recognised that such a pathway required willingness of both parents. There was no order made for family therapy, counselling or similar.
Child Inclusive Conference Memorandum
Before the Court is the Child Inclusive Conference Memorandum prepared by Mr K dated 16 June 2021.
After having interviewed the parents separately, Mr K recorded that there “appears to be no functional relationship or communication” between the parents. He further noted that given their presentations and concerns raised by each parent, there also “appears to be no realistic prospect that this situation will improve even with therapeutic assistance”.
Mr K recorded that X presented as confident and well spoken. He spoke very loving about his relationship with his mother, and to some extent the father also. He spoke of some positive memories of the father and that they shared a similar taste in music and movies. However, X expressed that the father previously would “get mad quickly and take out [his] frustration on us” and that he had been “physically slapped and sworn at” by the father. Mr K also noted that X said that “I respect him as human being but don’t wish to see [him]”.
Mr K recorded that Y presented as reserved and softly spoken. Y spoke positively about his mother, and that he feels safe with her. He further expressed that he felt “good” about not seeing his father for some time and that he would “feel scared and feel sad” if he was required to spend time with his father.
Lastly, Mr K opined as follows:
32. At this time, because of the poor relationship between the parents (which may be a result of the behaviour of either parent as alleged by the other or both parents), it does not appear possible for the children to be able to enjoy a relationship with both of their parents at this time. It is unlikely that therapeutic intervention would assist he situation at this time.
33. The views of the children appear to be clear and likely to be reflective of their lived experiences of Mr Sankar, however, the possibility that their views have been unduly influence by Ms Rai cannot be excluded on the basis of the information available to this assessment.
Mr K was not cross-examined, and the many matters upon which his opinion appears to have been founded have not been established on the evidence. The Court accepts however, that the children have expressed a clear reluctance to spend time with the father.
Other Relevant Findings
In its reasons for judgement delivered on 2 March 2020, the Court held as follows:
52. Taking into consideration all of the evidence before it, the Court finds that the mother has established, on the balance of probabilities, a reasonable excuse for the contraventions.
53. The Court has the power to vary the parenting orders pursuant to s70NBA. The Court finds that it is in the children’s best interest for there to be an immediate stay of the order requiring them to live with the father. The children have not been spending time with the father since September 2018 in complex circumstances. This contravention application only highlights the complexities of the children’s circumstances and the difficulties they and the parents are facing.
Furthermore, in its reasons for judgement delivered on 29 October 2020, the Court held as follows:
36. The mother, relies upon a report prepared by X’s Counsellor, Mr E. The following opinions appear in this report:
a) That X feels that he is still not ready to see his father and remains to have “past reoccurrence trauma of verbal abuse and physical abuse that had been inflicted by the father”;
b) That X has self-image issues;
c) That X still fears his father because he believes he is not safe with his father;
d) That there be continuity of professional psychological therapy for X;
e) That the mother has agreed to continue counselling for X for the next twelve months;
f) That it will benefit Y to also attend the counselling sessions with X as both children need ongoing support; and
g) That the father is welcome to attend the counselling sessions.
37. The risks which have been identified in the evidence are risks relating to physical abuse of the children (a matter which the father denies, and in respect of which a particular alleged incident was the subject of a two day local court hearing where the father was found not guilty) and psychological harm resulting from verbal abuse and/or exposure to the alleged perpetrator of family violence.
38. While the father still maintains that he does not pose any risk to the children, lest of all an unacceptable risk of harm, he submits that any unacceptable risk that the children may be exposed to would be ameliorated by an order for supervised time. The Court accepts this submission, notwithstanding the opinion expressed by Mr E.
39. The father is asking for an order for a gradual reintroduction of his time with the children, in a supervised setting, which would be safe for the children. The children are 15 and 13. It has now been 2 years since they last saw their father. . They are no doubt mature young men who have grown and changed in that period of time. They will not only have the supervisor whilst spending limited time with the father, but also a safe setting and each other.
40. There is still the opportunity for the children to have a meaningful relationship with the father. He is, and was, an important person in their lives. With the safety guards in place, the risk to the children does not outweigh the benefit of a meaningful relationship.
41. The children have expressed their view through Mr E, whose impartiality the father attacks. There may be some weight to that argument given that the father has not participated in any of the counselling sessions. However, the children’s wishes are not determinative, although they may ultimately be the decisive factor given their ages and the length of time this matter is likely to take until it gets to final hearing.
42. A therapeutic pathway may be an appropriate way forward for the children and the father. This will require willingness from both parents and the children to be properly facilitated. The parents would be wise to consider going down this pathway.
The Court was and continues to be well aware of the children’s stated fears and the history of allegations of family violence against the father. The October Orders were not the subject of any appeal and they remain on foot. The parties have an obligation to comply with the orders of this Court.
On or about 17 March 2021, and after the Court on 8 March 2021, found that a prima facie case had been established in respect of the alleged contraventions, the mother took the children to see Ms T, a counsellor and mental health practitioner. She said that the reason why she took the children to see Ms T was because “the children wanted their voices to be heard by the court, and at this moment the children were aware as to what’s happening in court and – and Mr E wasn’t allowed to give evidence in court at that time.”
By that stage in the long running parenting dispute, the Court had already had the benefit of a Child Inclusive Conference Memorandum dated 29 January 2019 and it was aware of and had considered Mr E’s report prepared at the request of the mother. To imply as the mother did that the children’s voices had not been heard is a misrepresentation of what had occurred during the course of the long running and entrenched parenting dispute.
In addition, the mother’s evidence was that at the time that she had arranged for the children to see Ms T, she had formed the intention of asking her to prepare a report for the purposes of these proceedings. The Court finds that the only reason the mother took the children to see Ms T was as an evidence gathering exercise as she had not been satisfied with the outcome of the Court’s judgment and orders made in October 2020.
On 8 March 2021, the mother brought X with her to Court. She did so because he asked her to be there as he wanted to see what was happening in Court. She did so in circumstances where she believed that the child was so traumatised by the father’s past behaviours that he was easily triggered by things such as seeing a yellow/golden motor vehicle such as the one which the father used to drive. The mother said that the father had exposed the child to emotional abuse by the child observing the father in Court on 8 March 2021.
X accompanied the mother to Court again on 27 April 2021. She said that this was because he had said to her “Can I come with you, and hopefully the judge can hear what I feel about the father.”
The mother was asked some questions about encouraging the children to spend time with the father. She said that the words she usually speaks to encourage the children to do so were
You have to do this. There is a court order in place…
This is clearly not encouragement.
The mother has also had “quite a few” conversations with the children about the proceedings.
There is no evidence that the mother had ever explained to the children that their views have been heard by the Court by way of not only her evidence, but Mr E’s report and the first CIC Memorandum. Indeed, there is no evidence that the mother had tried to assist X with his apparent misconception (and perhaps distrust) about the Court process, notwithstanding a number of conversations the mother has had with the child about this. It is not only concerning that the mother is speaking to the children about the Court proceedings, but that in doing so she appears to be undermining any chance that these children have of having a relationship with the father.
While these matters are not strictly speaking relevant to the reasonable excuse findings the Court herein makes, they are relevant as to the mother’s overall attitude not only towards the Court but more importantly towards the children having a relationship with the father.
The mother was at times an evasive and difficult witness.
The Law dealing with Contraventions
The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A of the Act.
Division 13A is organised in a progression from lesser to greater seriousness, as explained in s.70NAA. In summary it deals in turn with:
a.Preliminary matters, including definitions and a provision relating to the standard of proof (s.70NAF): subdivision A;
b.Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
c.Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
d.Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
e.Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E; and
f.More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F.
The meaning of “contravened an order” is set out in s.70NAC of the Act.
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;
…
(Emphasis in original)
Reasonable Excuse
The meaning of “reasonable excuse” is, relevantly, found in s.70NAE of the Act, which reads:
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 ou in submsections (2), (4), (5), (6) and (7).
4. A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(emphases in original)
In Taikato v R [1996] HCA 28; (1996) 186 CLR 454 (at p464-466 per Brennan CJ, Toohey, McHugh & Gummow JJ), the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:
… what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defences of ‘reasonable excuse’ is an exception…
… Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.
Section 70NAE was considered by Warnick J in Childers & Leslie [2008] FamCAFC 5 where his Honour said:
22… s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
23.The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
24.While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “...necessary to protect the health...” and “...not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
…
29.… The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:
... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.
30. Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.
It is appropriate, with respect, to adopt a similar interpretation of s.70NAE(4) as that adopted by Warwick J in respect of s.70NAE(5).
The Court is however not limited to the matters set out in s.70NAE(4). The clear meaning of s.70NAE(1) is that the various sub-sections mentioned therein are not the only circumstances in which a reasonable excuse may be found.
Has the mother established a reasonable excuse?
The onus of proof rests with the mother to establish that she had a reasonable excuse for the contravention.
A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child (O’Brien & O’Brien [1992] FamCA 52).
The mother has not clearly articulated whether her reasonable excuse is said to fall within s.70NAE(4) or otherwise. Given the nature of the allegations of contravention, the orders the mother is alleged to have breached relate to the children spending time with the father, and as such s.70NAE(4) is relevant, as is s.70NAE(1). There is no suggestion in the mother’s case that she did not understand that obligations imposed by the orders on her.
The mother says to the Court:
My “reasonable excuse” for not complying with the orders are encapsulated as follows:-
i.I accept that I had not enrolled with G Families within seven days of the orders made on 29 October 2020… I refer the Court however, to my email to Ms R… dated 4 November 2020.
ii.The only date arranged for time to be spent with the children was on 5 December 2020. The father, in his own affidavit, says that irrespective of the fact that he had arranged this day with G Families, he himself… was not available on that date…
iii.I urge the Court to accept that I have long been persuaded by the opinion of Mr E that it is not in the best interest of either child to be in the company of the father…
As noted earlier, the Court has had regard to the submissions provided the Court on behalf of the mother on 3 August 2021. Those submissions largely rely on Mr K’s opinion and that the mother has consistently said that the children are afraid of the applicant and do not want to spend time with him.
In respect of the first contravention, even if the mother had not received the forms by 4 November 2020, she provides no explanation as to when she actually received them, completed them, and returned the. It was only through the annexures to her affidavit that there is any evidence as to when the forms were returned, namely in an email from the mother’s solicitor dated 16 November 2020. The mother has not offered any reasonable excuse in respect of her non-compliance with order 2(a) of the October Orders, and as such a finding will be recorded that she contravened order 2(a) without reasonable excuse.
In respect of the second contravention, orders for supervised time were made in October 2020 because the Court recognised that a number of concerns had been identified on the evidence and put in place appropriate safety guards.
The father conceded in cross-examination that he did not attend at either place nominated by him on 5 December 2020 for time to occur, as there had been no response from the mother about which venue she chose. The fact is that the mother did not reply to the email nor ensure that arrangements had been confirmed for the children to spend time with the father on 5 December 2020. It is entirely acceptable for the father not to have attended either one of both of his nominated venues in circumstances where there was no response from the mother. In any event, in the circumstances of this case and on the facts as found, whether the father was there or not is not a matter relevant for the purposes of the reasonable excuse argument put forward by the mother.
The mother did not bring the children to either of the two nominated venues at the time and date which was arranged by the supervisor. Her suggestion that the reason she did not do so, is because she had not been satisfied as to the appropriate qualifications of the proposed supervisor is not accepted as being a reasonable excuse for her contravention of the order.
The mother has had the benefit of the two most recent judgements referred to earlier and she has been an engaged litigant. She is well aware of what her obligations are pursuant to the October Orders. Her disagreement with the Court’s decision is not a reasonable excuse. It is clear from the mother’s evidence, that she places more weight on the opinion of Mr E than she does on Court orders. Her serious disrespect for Court orders is obvious.
In circumstances where supervised time had been ordered, the mother’s intentional failure to comply with the October Orders was in no way necessary to protect the health or safety of the children.
The mother has not established a reasonable excuse in respect of the second contravention, and as such a finding will be recorded that she contravened order 3(e) of the October Orders without reasonable excuse.
For all of the reasons explained above, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Dated: 3 December 2021
3
0