SAVILLE & SAVILLE (NO.2)

[2013] FCCA 968

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAVILLE & SAVILLE (NO.2) [2013] FCCA 968

Catchwords:
FAMILY LAW – Parenting – contravention application.

Legislation:

Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65N,

70NAC, 70NAE, 70NAF(1), 70NBA(1)

Cases cited:
MRR v GR [2010] HCA 4

Applicant: MR SAVILLE

Respondent: MS SAVILLE

File Number: SYC 2963 of 2008

Judgment of: Judge Altobelli

Hearing date: 24 May 2013

Date of Last Submission: 24 May 2013

Delivered at: Sydney

Delivered on: 1 July 2013

REPRESENTATION

Solicitors for the Applicant: E H Tebbutt & Sons

Solicitors for the Respondent: Marks Griffiths & Bova Solicitors

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Sydney Central Family Law

IT IS NOTED that publication of this judgment under the pseudonym Saville & Saville (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 2963 of 2008

MR SAVILLE

Applicant

And

MS SAVILLE

Respondent

REASONS FOR JUDGMENT

Introduction

1. The reasons for judgment set out below relate to part only of proceedings between the parents relating to their son.  The substantive application relates to how much time the father should spend with his son, and under what circumstances and conditions.  The present matter, however, relates to three contravention applications that had not been dealt with when the parenting matter came before the Court, and which the father insisted be dealt with before the parenting application.  During the course of the hearing the Court heard evidence relating to the contravention applications on the basis of, and each party accepting that, the evidence given would also be relevant to the parenting applications.  After hearing the evidence of the parties, the Court indicated the order that it proposed to make but, with no opposition from the parties, indicated it would deliver reasons at a later date so as to not impede the progress of the evidence insofar as it relates to the parenting applications.

Background

1. The applicant in the contravention applications and parenting application is the father.  He is 50 years old and describes himself as a (occupation omitted) living in Sydney's (omitted) suburbs.  The respondent is the mother.  She is 41 years old, describes herself as a (occupation omitted) and also lives in Sydney's (omitted) suburbs.  Their son, X, was born (omitted) 2005 and is currently seven years old.  X has been diagnosed with autism spectrum disorder and the special needs arising out of his care is a major issue in this litigation.  X lives with his mother, and spends time with his father.

2. X’s parents commenced cohabitation in 2003 and married in 2004.  In 2008 the parents separated and litigation commenced between his parents, in relation to him.  The harsh but sad reality in this case is that most of X’s life has involved litigation about him.

3. Before the commencement of evidence in this case on 10 April 2013, the order then in place about X provided for him to live with his mother and to spend time with his father every alternate weekend from 6 pm on Friday until 7.30 am on Monday, and half of the school holidays.  In the substantive parenting proceedings before the Court the father seeks equal time whereas the mother, in general terms, seeks to preserve the current arrangement, but to have sole parental responsibility.

The Contravention Applications

1. At the commencement of these proceedings there were three contravention applications that were pressed.  The application filed 28 March 2013 related to an alleged breach on 15 March 2013 but was, in any event, withdrawn and dismissed on day 2 of the proceedings, 11 April 2013.  Nothing further will be said about this application.

2. The second contravention application was filed on 14 February 2012.  There are three counts - 10 January 2011, 7 February 2012, and a continuous breach alleged to have occurred between 1 June 2010 and 10 November 2011.  After hearing the evidence this application was dismissed, and the reasons for this will be set out below.

3. The third contravention application was filed 21 February 2012 and focuses on events which are alleged to have occurred on 17 February 2012.  The Court found the contravention was established on the evidence, but reasonable excuse was also established.  The reasons for this conclusion will be set out below.

Applicable Law

1. The father’s contravention application is commenced pursuant to Division 13A of Part 7 of the Family Law Act1975 (“the Act”). Section 70NAC of the Act sets out what it means to contravene an order:

   Meaning of contravened an order

   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.

2. This is an important definition in the present case as the mother’s case is that even though X did not spend time with his father in accordance with the orders she (the mother) did not contravene the order. Insofar as the mother’s case, even in the alternative, is that there was a reasonable excuse for contravening the order, s.70NAE of the Act discusses the meaning of reasonable excuse:

   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).

   (2)  A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)  the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)  the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (3)  If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (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).

   (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).

   (6)  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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a)  the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (7)  A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

   (a)  the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

3. The standard of proof in contravention proceedings is on the balance of probabilities (s.70NAF(1) of the Act). There is no question that the Court may vary a parenting order in the course of, or as a result of, contravention proceedings. In this regard s.70NBA(1), states:

   Variation of parenting order

   (1)  A court having jurisdiction under this Act may make an order varying a primary order if:

   (a)  proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and

   (b)  it is alleged in those proceedings that a person committed a contravention of the primary order and either:

   (i)  the court does not find that the person committed a contravention of the primary order; or

   (ii)  the court finds that the person committed a contravention of the primary order.

4. In contravention proceedings, the general obligations created by parenting orders need to be considered. Thus, in the present case, s.65N of the Act may be relevant. It states:

   General obligations created by parenting order that deals with whom a child spends time with

   (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

   (2)  A person must not:

   (a) hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b)  interfere with a person and the child benefiting from spending time with each other under the order.

5. Division 13A of Part 7 empowers the Court to do certain things depending on whether the contravention is alleged but not established (subdivision C), whether the contravention is established but a reasonable excuse for the contravention is found (subdivision D) and whether the contravention is found without reasonable excuse – or be a less serious contravention (subdivision E) and finally where contravention is found without reasonable excuse but more serious contravention (subdivision F). There is no suggestion on the facts of this case that if the contravention is established, it is a more serious contravention as contemplated by subsection F. It is also clear beyond doubt that the Court has power to vary the primary parenting order irrespective of which subdivision applies.

6. In relation to the application to vary the parenting orders, Part VII of the Act applies.

7. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

8. The objects and principles of Part VII are set out at s.60B of the Act:

   Objects of Part and principles underlying it

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)to develop a positive appreciation of that culture.

9. At the very core of the new Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA of the Act provides:

   Presumption of equal shared parental responsibility when making parenting orders

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

10. If the presumption applies, I am required to consider certain things:

    65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

    Equal time

    (1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

    (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

    (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

    Substantial and significant time

    (2)If:

    (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

    (b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

    the court must:

    (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

    (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

    (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

    (3) will be taken to spend substantial and significant time with a parent only if:

    (a)the time the child spends with the parent includes both:

    (i)days that fall on weekends and holidays; and

    (ii)days that do not fall on weekends or holidays; and

    (b)the time the child spends with the parent allows the parent to be involved in:

    (i)the child’s daily routine; and

    (ii)occasions and events that are of particular significance to the child; and

    (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

    (4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

    Reasonable practicality

    (5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

    (a)how far apart the parents live from each other; and

    (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

    (d)the impact that an arrangement of that kind would have on the child; and

    (e)such other matters as the court considers relevant.

11. Because s.65DAA of the Act refers to the best interests of the child, I must then go back to consider s.60CC of the Act which specifies how I must determine what is in a child’s best interests.

    60CC  How a court determines what is in a child’s best interests

    Determining child’s best interests

    (1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

    Primary considerations

    (2)The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    Additional considerations

    (3)Additional considerations are:

    (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

    (b)the nature of the relationship of the child with:

    (i)each of the child’s parents; and

    (ii)other persons (including any grandparent or other relative of the child);

    (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

    (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

    (f)the capacity of:

    (i)each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

    (h)if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)the likely impact any proposed parenting order under this Part will have on that right;

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    (j)any family violence involving the child or a member of the child’s family;

    (k)any family violence order that applies to the child or a member of the child’s family, if:

    (i)the order is a final order; or

    (ii)the making of the order was contested by a person;

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    (m)any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4 the High Court said

   [8]    Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   [9]    Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   [13]  Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The Evidence

1. In the father's case he read affidavits filed 20 December 2011, 28 February 2012, 28 March 2013 and 4 April 2013.  He also relied on an affidavit of Ms U filed 4 April 2013.  It may well be that this is the evidence that the father relied on in both the parenting application and the contravention applications.

2. In the mother's case she relied on her affidavits sworn 15 March 2013, 9 April 2013 and 15 December 2011.  She also relied on two affidavits of Ms T sworn 15 March 2013 and 9 April 2013.

3. Both the mother and father gave evidence and were cross-examined.

4. There is a family report prepared by family consultant Ms S, dated 26 March 2013.  This had been read before the proceedings commenced but was not directly relevant to the contravention proceedings.

Contravention Application Filed 14 February 2012

1. The first count in this application alleges that on 10 January 2011 the mother, without reasonable excuse, refused to allow the father to spend time with X, in breach of order 2(b).  Order 2(b) made on 24 May 2010 states that X is to live with the father:

   … for 50 per cent of the time of each school holiday, the dates of which shall be agreed by the parties at the commencement of each school year.     

   The mother denied this alleged breach.  There was extensive evidence of the communication between the parents in the lead-up to 10 January 2011.  At no point did the evidence in the father's case establish the agreement which is clearly contemplated by order 2(b).  The father's case at its highest is that the conduct of the parents, as evidenced by the communications between them, and their prior actions, somehow established an agreement that the father would have the second half of the school holidays, and thus that his time would commence on 10 January.  The evidence led in the father's case did not establish the breach alleged.

2. The second count that the father relied on was that on 7 February 2012, without reasonable excuse but in breach of order 4, the mother failed to personally supervise the child X, even though the father said he was personally available to supervise him.  In this regard, order 4 states:

   That the father be personally available to supervise X whilst in his care and if for any reason the father should become unavailable for a short period of time whilst X is in his care the father will notify the mother and give her first option to care for X in his absence.  Similarly and the mother will notify the father and give him first option to care for X in the event she is unable to personally supervise X.

   The mother's plea to this allegation is that she did, in fact, fail to personally supervise X, but that she had a reasonable excuse for doing so.

3. The evidence indicates that what can only be described as an unfortunate and ugly incident occurred on 7 February 2012 when the father went to the mother's home, discovered X was being cared for by another person, and video-recorded part of what took place.  The police were eventually called.  On the evening in question the mother attended a meeting at X’s school. 

4. There was extensive evidence from the parties about communication between them on the issue as to who should attend this meeting.  Like most of the communication between the parties there was a toxic element to it and the communication failed to resolve the issue of who should be attending the meeting, and who should be caring for X. 

5. The evidence indicates that the mother made arrangements with a babysitter, after offering the father the opportunity to care for X.  Without traversing the minutiae of the evidence, which would be unproductive in the circumstances, the mother seems to have formed the view that the father was prohibiting her from going to the meeting, though the evidence seems to indicate that in fact he was offering to care for X whilst she attended the meeting, provided the mother drove X to the father's home.  She felt this was unreasonable because the school (where the meeting was to be held) was only 15 minutes away, whereas the father's home would have involved driving for over an hour and a half.  Her evidence was that she was away from the house for 60 minutes and on return she discovered X and his carer distressed and upset.  The mother says that X told her that he thought the police were going to take the mother away.  Her evidence is that she had to reassure him. 

6. When the father was cross-examined about this incident, his perspective on the event was that he offered to take care of X so that the mother could attend the interview but the problem was that this could only be achieved if she took him to his home.

7. By way of background the correspondence and the evidence of the parents indicates that order 4 was a longstanding issue of dispute between the parents.  Indeed, it was put to the father in cross-examination that this whole incident was, in effect, “payback” to the mother for her insistence on compliance with these orders.  Whilst he denied that his actions that evening were “payback”, they certainly demonstrate an arbitrariness and inflexibility.  In any event the father chose to attend the mother's home and agrees he did not tell her that this would happen.  When it was put to him that he went there to demonstrate that she was breaching the orders he did not deny the same.  Indeed, he agreed sending a text to her earlier that afternoon threatening her with contravention proceeding if she did get an alternative carer for X.  He agreed that he eventually called the police, even if was merely to check if they were coming as a result of someone else calling the police.  Clearly what is evident is that there was a scene outside the mother's home that resulted in someone calling the police, a matter that the father was not opposed to.  He agreed that this would not have been a good experience for X, and that X was distressed.  He agreed that he said to X, “Mummy has been naughty,” and, “Mummy should not have left you with another lady.”  In cross-examination he agreed that, with hindsight, he probably would not have lodged the contravention in relation to this event.  Indeed, whilst he did not use these words, the father clearly felt that he was the victim, saying words to the effect, “It is so difficult to do the right thing from a male perspective.”  He agreed that it was not a contact evening, and thus he should not have been at the property.  He agreed he could have given notice to the mother that he was attending.  Indeed, he agreed that he came straight from work to the mother's home which hardly explains his insistence that the mother take X to his home.  Indeed, he agrees he got to the mother's home by about 7pm.

8. There is no question about the necessity for either the mother or the father (and indeed in an ideal world, for both of them) to attend the meeting at the school.  When arrangements could not be made on reasonable terms the mother made alternate arrangements for the care of X which were, strictly speaking, contrary to order 4.  In all the circumstances of the case, however, her actions were entirely understandable and reasonable.  The father was plainly uncooperative and may well have had an ulterior purpose in being as obstructive as he was.  It is curious that he was able to get to the mother's home by 7 pm.  The evidence is that the meeting at school was at 6.30 pm.  He gives no explanation for why he could not have attended the meeting himself, given that he got to the mother's home at 7 pm.  Indeed, given that he got to the mother's home at 7 pm having come from his work, the Court cannot even be reassured that if the mother had complied with his condition, and delivered X to his home, that he would have been there to care for X.  In these circumstances, and putting aside his less than optimal conduct when he got to the mother's home, he left the mother with no reasonable alternative and really was the author of the situation in which the mother found herself - to attend an important school meeting, or to leave X in the care of a carer whom she trusted for a limited period of time.  The choice she made in all the circumstances was reasonable.  Accordingly, the Court finds that the mother did not contravene order 4 without reasonable excuse.

9. The third breach alleged by the father occurred on 17 February 2012 when he says the mother without reasonable excuse allowed him to spend time with X contrary to order 2(a) which says that X should live with his father “on each alternate weekend from 6 pm Friday to 8 am Monday”.  The mother does not dispute that contact did not take place in accordance with this order, but she asserts there was a reasonable excuse.

10. These events follow shortly after the unfortunate events described above on 7 February 2012 when the mother attended the school meeting, and the father attended the home to discover that X was being cared for by a carer other than the mother.

11. The mother's case is, in short, that X was so distressed by the events on 7 February that he could not spend time with his father 10 days later on 17 February.  She agreed in her evidence that he went to school in this period, apart from one day.  She nonetheless felt that he was still upset enough not to spend time with his father on that weekend.  She specifically refuted the assertion that she denied contact on 17 February as “payback” for the father's conduct on 7 February.

12. The Court is left in no doubt that, even by reference to the brief glimpse of the evidence as to what transpired on 7 February 2012 set out above, the incident was deeply distressing for X.  The issue was whether it was reasonable for the mother to deny contact 10 days later.  That the father minimised the distress to his son is evident from exhibit R4, an email that he sent to her on 17 February.  Exhibit R5 is further correspondence between the parents between the two events.  In it she attempts to communicate to the father the extent of X’s trauma arising out of the events that occurred on 7 February and in particular the distress caused to him by the father asserting that the mother was a bad person.  She describes the fear of the police that X had developed, and in particular the fear that the police would take either of his parents away.  The mother's main concern appears to be about what she considered were the disparaging comments that the father made about her, in front of X, as well as the circumstances of the events on 7 February.  Indeed, exhibit R7 is what purports to be a note made by the school counsellor in relation to X’s comments, which appear broadly corroborative of the mother's assertions.

13. The context of the breach on 17 February needs to be appreciated.  It is an allegation of a single breach, as the evidence indicates that the father resumed spending time with X after this weekend.  The evidence before the Court of what transpired at the mother's home on 7 February leaves no doubt in the Court's mind that this must have been a deeply traumatic episode for him.  There is evidence to suggest it continued to be deeply traumatic for some time afterwards.  Indeed, perhaps the most surprising thing is that he was able to recover quick enough so that he only missed spending time with his father on 17 February.  In all the circumstances the mother's actions in denying contact were reasonable.  The father minimised his role in the events of 7 February, but eventually conceded in cross-examination that it must have been distressing for X.  The mother was left to deal with the distress.  The Court cannot rule out the possibility that in the toxic relationship that exists between these parents, and where lack of insight seems to have no limits, it is possible that this was, in reality, “payback” for the events of 7 February.  On this occasion, however, the Court gives the mother the benefit of the doubt.  The Court therefore finds that the mother did not breach 2(a) on 17 February 2012 without reasonable excuse.

14. In all the circumstances, therefore, the three contravention applications are dismissed.  What is apparent from the hearing of the evidence in the contravention applications is that the existing orders are simply unworkable, and so the focus now turns to the parenting proceedings.  Indeed, the parents should receive some credit for themselves acknowledging the dysfunctionality of the existing orders because, with the assistance of their legal representatives and the Independent Children's Lawyer, they did enter a fresh set of interim orders that deals with some of the problems in the existing ones, and hopefully provides a framework for a more peaceful coexistence between them, and for the father's uninterrupted time with X.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  1 July 2013