Savage and Savage - [2017] FamCA 93

FAMILY COURT OF AUSTRALIA

SAVAGE & SAVAGE

[2017] FamCA 93

FAMILY LAW – ORDERS – Contravention – Where allegation that children not made available for time ordered – Where respondent mother asserts reasonable excuse – Where reasonable excuse not established – Where contraventions found proved – Where written submissions to be made as to penalty and costs

Family Law Act 1975 (Cth) ss 4, 70NAE(1), 70NAE(2), 70NAE(5), 70NEA, 70NEB

Childers v Leslie 39 FamLR 379
In the marriage of Gaunt (1978) 4 Fam LR 305 at 308
Mitty v Mitty [2012] FamCA 329
Ongal & Materns [2015] FamCAFC 68
Savage & Savage [2016] FamCA 20
Taikato v R [1996] HCA 28

APPLICANT:

Mr Savage

RESPONDENT:

Ms Savage

FILE NUMBER:

PAC

4122

2015

DATE DELIVERED:

24 February 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 September 2016 and 25 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

York Law Family Law Specialists

Orders

That in contravention of orders made 9 October 2015 and on 16 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention of orders made 9 October 2015 and on 19 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention of orders made 9 October 2015 and on 21 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention of orders made 9 October 2015 and on 26 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention of orders made 9 October 2015 and on 14 November 2015 the father did not have contact with the children in accordance with the orders or at all and that the mother without reasonable excuse refused to allow the father to spend time with the children.
That in contravention of orders made on 22 January 2016 and on 2 July 2016 the father did not have contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to spend time with the children.
That in contravention of orders made on 22 January 2016 and on 4 July 2016 the father did not have telephone contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention of orders made on 22 January 2016 and on 6 July 2016 the father did not have telephone contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That within 21 days from this date, the applicant father file and serve written submissions as to penalty and costs.
That within a further 14 days thereafter the respondent mother file and serve written submissions in reply as to penalty and costs.
That both parties file and serve Financial Statements within 14 days.
That upon receipt of submissions and in the absence of a request for the matter to be listed for any supplementary oral submissions, judgment as to penalty and costs reserved to Chambers.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4122 of 2015

Mr Savage

Applicant

And

Ms Savage

Respondent

REASONS FOR JUDGMENT

These are proceedings under the provisions of s 70NEA of the Family Law Act 1975 (Cth) (“the Act”). In summary, this section applies if the Court is satisfied that a person has contravened a primary order and the person does not prove that he or she had a reasonable excuse for the contravention.
Section 70NEB sets out the powers of the Court in circumstances where a contravention is found proved under the provisions of s 70NEA (Less Serious Contravention).
A “primary order” is defined in s 4 of the Act to mean “an order under this Act affecting children and includes such order as varied”.
It is common ground between the parties that the contraventions or any of them if proved are to be regarded as “less serious contraventions” in that s 70NEB, if relevant, will apply.

The Contravention Application

On 3 August 2016 the father filed an Application seeking that the mother be dealt with for alleged contravention of certain parenting orders made by Judge Harman in the Federal Circuit Court of Australia on 9 October 2015 and certain parenting orders made by Hannam J in this Court on 22 January 2016.
The orders made by Judge Harman were to be in effect until 4.00 pm, 17 November 2015.
The subject children are B born in 2012 and C born in 2013.

The Orders of Judge Harman

Relevantly, orders were made by Judge Harman as follows:
a)The children shall have telephone communication with their father every Monday, Wednesday and Friday between 6.30am to 7.00am. For the purpose of this order the mother shall encourage the children to participate and shall initiate the call using the father’s mobile number.
b)That the children spend time with their father,
i)Each Saturday afternoon for 3 hours,
ii)For the purpose of this order and without admission and without prejudice to the fathers pending application the time shall be supervised by Phoenix Rising,
iii)The father shall meet the costs of supervision and all incidental costs including the cost of a report after each occasion of time with the father,
iv)The parties shall instruct Phoenix Rising to provide the above mentioned report to both parties.

The Alleged Contraventions of Orders of Judge Harman:

The father asserts:
a)that on 16 October 2015 he did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children,
b)that on 19 October 2015 he did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children,
c)that on 21 October 2015 he did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children,
d)that on 26 October 2015 he did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children,
e)that on 14 November 2015 the father did not have contact with the children in accordance with the orders or at all and that the mother without reasonable excuse refused to allow the father to spend time with the children.

The father’s evidence

The father relied on his affidavit filed 30 August 2016.
The father asserts that on the first three dates (being 16, 19 and 21 October 2015) the mother called and on each occasion said: “Do you consent to the telephone call being recorded?” The father replied that he did not, whereupon the mother terminated the call with the children not having spoken to the father.
The father further asserts that on 26 October 2015 a similar conversation took place with the mother with that conversation concluding with the mother saying “because you have not agreed for the call to be recorded I cannot let you speak to the children without it being recorded for their safety and protection as well as my own. So I am sorry, I am going to terminate the call.”
The father was to spend time with the children supervised by Phoenix Rising on Saturday, 14 November 2015. He received confirmation of that arrangement from the supervising agency the previous day. The children were not made available for supervised time with the father on 14 November 2015.

The Orders of Hannam J

On 22 January 2016 Hannam J relevantly made orders as follows:
a)the children shall spend time with the father each week for a period of 4 hours as agreed between the parties and failing agreement each Saturday such time to be supervised by Phoenix rising or such other agency or person as agreed between the parties,
b)the children’s time with the father is to commence as soon as practicable and each of the parents is to do all things required of them to facilitate the supervision by Phoenix Rising or any other service agreed by the parties,
c)the party shall equally meet the cost of supervision and all incidental costs including the costs of a report after each occasion of time with the father,
d)the children shall have telephone communication with their father every Monday, Wednesday and Friday between 6.30 a.m. and 7 a.m. For the purpose of this order the mother shall encourage the children to participate and shall initiate the call using the father’s mobile phone number. The mother is restrained from requiring the father to comply with any other condition, including that such telephone calls be recorded.

The alleged contraventions of the orders of Hannam J

The father relevantly asserts:
a)that on 2 July 2016 the father did not have contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to spend time with the children,
b)that on 4 July 2016 the father did not have telephone contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children,
c)that on 6 July 2016 the father did not have telephone contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.

The father’s evidence

The father relied on his affidavit filed 30 August 2016.
The father asserts that on 2 July 2016 the children were to spend time with him supervised by Phoenix Rising. He paid his half of the costs of the proposed supervision. By email at 4.03 pm on 1 July 2016 the father was informed by the case manager Phoenix Rising that the mother had cancelled the father’s contact scheduled for the next day.
The father further asserts that on 4 July 2016 he did not receive a call from the mother so as to facilitate his telephone communication with the children.
The father further asserts that on 6 July 2016 he did not receive a call from the mother so as to facilitate his telephone communication with the children.
The father was not cross-examined.

The mother’s response and evidence

At hearing and through her counsel the mother conceded each of the contraventions alleged by the father but contends that she had a reasonable excuse in respect to each of the contraventions.
The mother relied upon the following affidavits:
a)her affidavit filed 16 September 2016,
b)the affidavit of Ms I filed 16 September 2016,
c)the affidavit of Ms J filed 16 September 2016,
d)the affidavit of Ms K filed 16 September 2016,
e)the affidavit of Ms L filed 16 September 2016,
f)the affidavit of Ms M filed 16 September 2016.
It is not asserted by the mother that she did not understand the obligations imposed upon her by the order: s 70NAE(2).
For the mother to establish reasonable excuse in terms of the relevant statutory provision (s 70NAE(5)) relevantly for this application she is required to satisfy the Court on the balance of probabilities that:
a)she believed on reasonable grounds that her contravention was necessary to protect the health or safety of the children; and
b)the period of the contravention was not longer than was necessary to protect the health or safety of the children; or
c)otherwise she had a reasonable excuse for contravening the orders affecting the children not limited to the circumstances set out above: s 70NAE(1).
Notwithstanding the mother’s detailed history of the relationship between herself and the father, the enquiry is focused upon the circumstances proximate to the alleged contraventions and, in particular, circumstances as they relate to the children that may provide to the mother a “reasonable excuse” as contemplated by the provisions of the Act. This is particularly so as the contraventions relate to orders made by consent notwithstanding previous history between the parties.
The mother and father separated on or about 7 July 2015.
During the parties’ cohabitation the mother asserts that throughout the father’s behaviour was controlling and coercive and alleges that his behaviour has adversely affected her emotionally, psychologically and physically. She further asserts in the period from late 2013 through to 2015 the father threatened to kill himself and ended up in hospital.
Yet the mother asserts that “despite the way that I was treated, following separation, I wanted the children to have a positive relationship with (the father) and I promoted the children spending time with him.”
Between July 2015 and October 2015 the father did not spend time with the children.
Subsequently, on 24 August 2015 the father filed an application seeking final orders as to parenting and property and interim orders as to parenting.
It appears that at this time there were AVO proceedings on foot. The nature of those proceedings, the asserted facts and the orders sought were not put before the Court.
The father’s application was before the Federal Circuit Court of Australia on 9 October 2015 and interim orders were made by consent. The father’s telephone time with the children was consented to by the mother and was subject to no conditions notwithstanding the mother professed concerns she held at the time of the consent orders and the mother’s assertion that there were ongoing AVO proceedings.
Otherwise, the mother consented to orders for supervised time, acknowledging in her oral evidence that such orders were protective of the children.
She asserts that she observed B was withdrawn for a short period after time with the father and on occasions was reluctant to go. The child otherwise, according to the Phoenix Rising notes, enjoyed her time with the father and others. The father spent time with the children on four occasions in accordance with the orders. Reports of the supervising agency Phoenix Rising (Exh “C”) are positive and record nothing untoward in relation to the father’s behaviour or interaction with the children and reveal a warm and engaging time with the father.
The mother proffers no other explanation for the children’s non-attendance for supervised time on 14 November 2015 other than producing an email (Exh “E”) from Police asserting that the mother had reported an incident to the Police on 13 November 2015 that Police identified as a “possible domestic violence related offence and threat to the safety of the children and (the mother)”. Regrettably the mother adduces no evidence at all of any such incident that may have warranted the retention of the children contrary to agreed orders.
Indeed, only a short time later Hannam J made orders in the context of an interim hearing that she be “restrained from requiring the father to comply with any other condition, including that such telephone calls be recorded.” (Savage & Savage [2016] FamCA 20)
The mother asserts that in October 2015 the father commenced spending time with the children as per orders made by Judge Harman. She further asserts that in the period January 2016 to May 2016 the father spent time in accordance with the orders made by Hannam J.
To the mother’s observation in the period leading up to May 2016, there were “areas that were improving” and in order to further encourage a positive relationship with their father she wanted to trial the children spending unsupervised time with him. This notwithstanding the mother’s asserted observations of the children exhibiting behaviour that seems to reflect their separation anxiety following the commencement of time with the father in the absence of the mother in October 2015. At this time the children were aged just four and two.
The children spent weekly time with the father from 6 February 2016 to 25 June 2016. The children spent weekly unsupervised time with the father in May 2016.
The mother asserts that to her observation the occasions of unsupervised time in May 2016 caused significant distress with the children and supervised visits were resumed but she continued to observe concerning behaviour from the children in June 2016 over the course of four resumed supervised visits. The recommencement of supervised visits was recommended to the mother by Relationships Australia where the mother alone was attending a program (Exh “B”). Yet at the time of hearing the father had not seen the children for nearly six months.
The mother’s observations of the children’s behaviour included expressions of anxiety of being separated from the mother (B), mood swings (B), adverse behaviour (B), oppositional behaviour, and inappropriate physical behaviour and toileting issues due to “tummy upsets. She further asserts bruising on the children after time with the father. In her oral evidence the mother acknowledged that the children may have been “picking up on her own anxieties and that she was seeing someone to help deal with that as well.”
The mother’s observations are to some extent supported by the observations of the maternal grandmother Ms I, the children’s mother’s babysitter Ms J, her old school friend Ms K, and the children’s child care centre manager Ms L who had never spoken to the father.
The mother relied upon the affidavit of her psychologist Ms M who saw the mother on 17 and 28 June 2016. She did not see the children or make any objective enquiries. Ms M relied solely on the mother’s representations as to “severe risk of harm concern”. Ms M in her oral evidence saw her initial engagement with the mother as not being a “forensic assessment”. Ms M was not provided with any objective material by the mother and had not seen the reasons for judgment of Hannam J that outlined the father’s history and current presentation and circumstances.
Yet Ms M formed the conclusion that the children “are at grave risk if they spend time with the father” yet such was done in “the absence of an assessment of risk which assessment would involve the children, (the mother) and the father.” Ms M notified the Department of Family and Community Services and recommended to the mother that the children’s time with the father “be ceased immediately”.
In her report to the mother’s solicitor dated 29 June 2016 Ms M expresses the view that the child B “is unsafe and her basic needs for safety are not met whilst she has contact with her father and his family.” She expresses the view that the father “is a well-resourced domestic violence perpetrator and may require an assessment for narcissistic personality disorder”. This conclusion is unsupported by any objective evidence.

The mother, it appears, did not provide to Ms M any of the more recent supervised contact reports that, in fact, evidence a warm and engaged father with no expressed concerns as to the father by the reporting supervisor.
The mother unilaterally resolved to stop the children’s supervised time with the father. The mother made no prompt application to vary or suspend the orders of the Court.

The contact centre notes

The contact visit notes for June 2016 were before the Court: Exh “C”. They reveal that despite a little clinginess on 4 June 2016 the children separated easily to commence their time with the father. On each occasion the notes reveal a warm and engaging time with the father and paternal grandparents and the father’s female friend Ms N (on 25 June) and an easy transition back to the mother.
Notes for the visit on 25 June 2016 note the mother telling the supervisor that the children were “unsettled after the last visit”. The supervisor reported to the mother after the return of the children to her that “the children seemed needier than usual and often sought reassurance and B commented she was feeling scared a few times.” A review of the notes reveal that the child B (aged only four) was referring to the game of hide and seek that was played during which she asked the father to hide with her as she was scared. Nothing otherwise revealed why the children were considered “needier than usual”.

Reasonable Excuse

In Ongal & Materns [2015] FamCAFC 68 the Full Court said:
43. Rees J relied upon the comments of Brennan CJ, Toohey, McHugh and Gummow JJ in the High Court decision of Taikato v R [1996] HCA 28; (1996) 186 CLR 454 in her recent decision of Mitty v Mitty [2012] FamCA 329 concerning the meaning of reasonable excuse in the context of applications for contravention orders. At paragraph 15 of the Mitty decision, her Honour states:
“In Taikato v R [1996] HCA 28; (1996) 186 CLR 454, the High Court (per Brennan CJ, Toohey, McHugh and Gummow JJ), in a different context, considered the meaning of reasonable excuse in relation to which their Honours said:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because 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 defence of “reasonable excuse” is an exception... (page 464, footnotes omitted)
...
However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the Courts the power to determine the content of such defences. 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. That being so, the Courts must give effect to the will of parliament and give effect to their own ideas of what is a “reasonable excuse”... (p 466)”
…
47. The fact that the father thought he was acting in the best interests of the children in contravening the order is irrelevant to the determination of whether he had a reasonable excuse for his contraventions. As noted by the Full Court of the Family Court (Evatt CJ, Emery SJ and Hogan J) in the case of In the marriage of Gaunt (1978) 4 Fam LR 305 at 308: “A party’s subjective view of the rights and wrongs of a decision cannot be relied on as ‘just cause or excuse’ or ‘reasonable cause’.”
It is readily apparent that the Court must determine “reasonable excuse” objectively and disregard the alleged contravener’s own motives or rationale. There must be a determination of reasonable excuse based on belief on reasonable grounds.
Whilst not specifically addressed in submissions on behalf of the mother the inference is that the mother relies upon the exculpatory provisions of s 70NAE(5). If not, the mother has not adduced evidence that her asserted excuse relied upon some other circumstance taking her conduct outside the scope of s 70NAE(5) but otherwise providing her with “reasonable excuse”: Childers v Leslie (2008) 39 FamLR 379.

Discussion: The Alleged Contraventions

That on 16, 19, 21 and 26 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children:
The mother, notwithstanding her assertions as to history of the parties’ relationship and her assertions as to the father’s conduct, consented to orders on 9 October 2015. It appears that on reflection and without more she determined that such telephone contact was not in the best interests of the children and unilaterally demanded that such telephone conversations be recorded only days after the orders were made. There appears to be no intervening circumstance that would give rise to such a demand. Nor was there any need for such a condition to protect the health and safety of the children in the context of a telephone call to the father. The mother has not established reasonable excuse.
These four contraventions are found proved.
That on 14 November 2015 the father did not have contact with the children in accordance with the orders or at all and that the mother without reasonable excuse refused to allow the father to spend time with the children:
The mother, notwithstanding her assertions as to history of the parties’ relationship and her assertions as to the father’s conduct, consented to orders on 9 October 2015.
She cancelled the scheduled supervised time unilaterally.
She asserts that the child B was upset, unsettled and anxious, saying she did not want to go and was “scared of being hit”. The child’s reticence was at a time when she had not had time with the father for some months. The mother’s asserted observations of the child reveal the child having difficulty separating from the mother’s primary care. Such an asserted basis for reasonable excuse demonstrates some fundamental misconception by the mother as to the very purposes of professional supervision including the provision of a safe and carefully monitored environment with the contact parent and to also address the fears and anxieties of the primary carer as to a child’s time with the contact parent.
She procured a letter from the Police to Phoenix Rising as referred to above. It was not a matter for the Police to suggest that contact should not occur in breach of court orders. If such was their position, they did not provide the children with the protection of a provisional AVO order that would be underpinned by the asserted facts upon which the Police relied on to give them a sound basis for their view. The letter can be of little significance in the absence of the mother adducing evidence as to the basis for the Police assertion: that is her assertions as to the conduct of the father that was of such significance as to warrant even supervised time with the children being unilaterally cancelled in breach of court orders. She has not done so. The mother has not established reasonable excuse.
The contravention is found proved.
That on 2 July 2016 the father did not have contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to spend time with the children:
The circumstances of May and June 2016 are referred to above. The children it appears exhibited some concerning behaviours. The mother after an attempt at unsupervised time in May returned to the very orders she had consented to for supervised time. The notes from Phoenix Rising reveal no concerns at all as to the children or the father but reveal a warm and engaging time for the children with the father. Such time was facilitated by the mother complying with orders in what appears to be a most positive way.
The mother made no complaint to the supervising agency about her alleged concerns about the children’s behaviour. She sought no appropriate intervention for the children as to her assertions as to their concerning behaviour. She procured as recommendation for the cessation of time on the basis of her untested assertions and without the children and more particularly the father being engaged in appropriate family therapy. In that circumstance where the very notes she was receiving from Phoenix revealed the nature of the father’s interaction with the children during June and should have alerted her to more wide ranging enquiry she simply ascribed fault to the father and failed to comply with what were protective court orders. She has not established reasonable excuse.
The contravention is found proved.
That on 4 and 6 July 2016 the father did not have telephone contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children:
Similar considerations apply as to the previous allegation of contravention regarding telephone contact. Otherwise the mother offers no evidence as to these occasions with any particularity.
The mother has not established reasonable excuse.
These two contraventions are found proved.

Conclusion

By reason of the determinations above it is appropriate that submissions be received as to penalty and costs.
Orders will be made accordingly.

I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 24 February 2017.

Associate:

Date: 23 February 2017