Shill and Covel

[2018] FamCA 1127

FAMILY COURT OF AUSTRALIA

SHILL & COVEL [2018] FamCA 1127

FAMILY LAW – CONTRAVENTION – Where the father alleges that the mother has contravened court orders on six occasions – Where service of the documents is conceded – Where knowledge of the orders is conceded – Where the conduct in each allegation is conceded – Where the mother withheld the child on two occasions without reasonable excuse – Where the proceedings are adjourned to a date to be settled to make consequential orders.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NFB
APPLICANT:	Mr Shill

RESPONDENT: Ms Covel

FILE NUMBER: SYC 7141 of 2014

DATE DELIVERED: 27 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 27 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: G & D Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Pearson Emerson Meyer Family Lawyers

Orders

1. The Court noted that as to the allegation as to conduct on 6 June 2018 the Contravention Application of the father filed 1 August 2018 was withdrawn.

2. In relation to the allegations as to conduct on 11 July 2018, 18 July 2018, 1 August 2018 and 15 August 2018 the Court did Not Find that the mother committed a contravention of the orders of 20 November 2017 or 5 June 2018.

3. In relation to the allegations as to conduct on 3 October 2018 and 10 October 2018 the Court Found that the mother contravened the orders of 20 November 2017, without reasonable excuse.

4. The proceedings are adjourned in relation to the consequential orders arising from those findings and for mention in relation to interim parenting proceedings to a date to be settled between the associate to Justice Loughnan and the parties. [10.00 am on Wednesday 19 December 2018.]

5. The Court noted that the orders proposed by the father in relation to the above findings do not include an order for imprisonment or for a fine.

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 Shill & Covel 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 SYDNEY

FILE NUMBER:  SYC7141 of 2014

Mr Shill

Applicant

And

Ms Covel

Respondent

REASONS FOR JUDGMENT

1. These are proceedings that were commenced by a number of contravention applications filed by the father. They were filed on 1 August, 2 August, 17 August and 20 November of this year. When the matter was called first this morning, the parties were both present and represented. I was informed on behalf of the father that there were six allegations that were to be pursued and that meant that the first of the allegations in the application of 1 August was not pressed, and that was an allegation about 6 June 2018. I found that the father’s application of 1 August 2018 is withdrawn insofar as it makes that allegation.

2. As is the practice in these things, the wording of the allegations were settled with the father’s solicitor and they were in the style of:

   Ms Covel, it is alleged that you contravened without reasonable excuse Order 1(6) made on 5 June 2018 in that on 11 July 2018 at 8.30 am at [K Club] you did not make the child [B], born … 2014, available to the father.

3. The allegations were put to the mother in person.

4. The 11 July 2018 allegation was put to her. The next allegation related to order 4(d) made on 20 November 2017 as to an event on 18 July this year. The next in relation to that same order, 4(d) made on 20 November 2017, in relation to 1 August 2018. Next there was an allegation in relation to that same order as to events of 15 August 2018 and then in relation to that same order together with order 4(f)(i) made on that same day in relation to 3 October 2018 and, finally, in relation to those same two orders made on 10 October 2018.

5. In relation to each allegation I recorded a plea of “not admitted”. The mother’s counsel was asked to concede the elements of the case that the father has to make. Service was conceded of the applications and the supporting affidavits. Knowledge of the orders made on 5 June and 20 November last year was conceded. In relation to each of the allegations, it was conceded that the orders required the thing described in the allegation to occur. Finally the conduct in the allegation was conceded.

6. As it transpires, it is the mother’s case that she does not concede that there was a contravention in relation to the first four allegations: 11 July, 18 July, 1 August and 15 August. She does concede that there was a contravention on 3 October and 10 October. A contravention, according to s 70NAC of the Family Law Act 1975 (Cth) (“the Act”), means that a person bound by the order intentionally failed to comply with the order or made no reasonable attempt to comply with the order.

7. If it is established that there is a contravention, and that is already established in relation to 3 and 10 October, it falls to the respondent to establish that she has a reasonable excuse. Section 70NAE of the Act deals with what would be a reasonable excuse. That term is not exclusively defined, but examples are given.

8. It would be a reasonable excuse if:

   ·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 bound by it, and, secondly, that the court is satisfied that the respondent ought to be excused in relation to the contravention; or

   ·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 a child, and 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.

9. Section 70NAF of the Act addresses the standard of proof required. In summary, it provides that the standard of proof in determining proceedings, subject to one provision, is the balance of probabilities. The exception comes in relation to orders made in the form of quasi criminal sanctions and if those orders are to be made, then the standard of proof is beyond reasonable doubt.

10. The standard of proof applies to the excuse as well as to the finding of a contravention. The orders requiring the criminal standard are found in s 70NFB(2) of the Act – relevantly, for fines or imprisonment.

11. Therefore if quasi criminal or criminal sanctions are to be applied, then the relevant standard of proof is the criminal standard.

12. As to the relevant facts, all of the alleged breaches involved a failure to attend at the K Club at 8.30 am on a Wednesday morning. It is the father’s evidence in relation to most of the occasions that he attended at the K Club on the relevant day, at the appointed time and the mother was not present. The only difference was that in relation to the allegation on 1 August, the father does not say that he was actually there. He says that he texted the mother at 8.46 am. He sent a text message at 9.27 am saying that he had been at the club for an hour. The available inference is that he was there at the appointed time.

13. That problem is not critical because there is a concession about the basic facts, that the orders required attendance at 8.30 am and that the mother did not deliver the child to the father at the club at that time. There is a problem in relation to the last two counts in that the orders say that the time was to be 9.30 am. I discussed that with the parties and quite fairly it was conceded that that was a typographical or other error and the parties had operated on the basis that the relevant time was 8.30 am. In effect, there was permission for an amendment of the allegation so that it reflected what the parties understood, rather than the letter of the orders. There is no harm done in those circumstances. It is not as though the mother contends that she was at the club at 9.30 am. Therefore there was a breach on those days.

14. The father having established a breach, we turn to the mother’s evidence. That evidence is contained in three affidavits. But, interestingly, the mother concedes much of the father’s evidence about text messages between them. However, the mother does not agree that she deliberately or intentionally failed to comply with the orders. That clearly applies only to the early breaches, the first four. She says that the subject child, B, had been expressing resistance to spending extended time with the father since the commencement of overnight time in January 2018.

15. She says that resistance escalated significantly following four consecutive weeks of overnight time ordered on 5 June 2018. Unfortunately, what was ordered on 5 June 2018 was six make-up periods as a result of earlier proceedings in which the mother was found to have contravened the orders.

16. The mother says that those occasions were difficult for the child. The mother gives evidence about problems arising immediately from the orders of 5 June. This was a classic example of the parents’ communication. The mother says that on the day the orders were made, she said to the father, “Do you consent to suspending time tomorrow [6 June] so I can see the child as I haven’t spent time with him since Saturday?” She says that the father agreed to change the pick-up time to 3.00 pm. The mother says that the father then contacted her and said in effect, “When are you going to make up the time?” I think on his case he was six and a half hours short, because of the accommodation he had made for the mother. There followed a course of unpleasant communications, leading to the mother refusing to make up the time. This dispute occurred on and immediately following the enforcement litigation between the parents to give effect to parenting orders that they themselves had asked the Court to make. They could not even agree about the terms of a negotiated change to the orders.

17. We come to the first occasion, 11 July. The mother says that the child is very bright. He understands the days of the week and that on Wednesdays he stays with his father. The mother says that on 11 July the child asked her first thing in the morning, “What day of the week is it?” She said Wednesday. He said, “Wednesday is my dad’s day, isn’t it?” And she responded to him, “Yes! You’ll have a great time, he’ll be here soon to get you, how cool!”

18. She said she watched the child then start crying and he said, “No, no, no. Why don’t you listen to me? I don’t want to go. I want to stay with you all of the days. All the Wednesdays with you. Listen mumma, listen, I don’t like it there, it’s too far from you.”

19. Just stopping there. The mother lives in the J Region and the father lives in Suburb L in Sydney.

20. The child continued: “I don’t like the freeway. I just don’t like it anymore.” The mother says she walked away to get him breakfast, hoping that that would provide a break in the conversation. She said she could hear him crying louder and louder and returned upstairs to find him wrapped around the staircase banging his head. She said she crouched to cuddle him and calm him. He scratched her face and pushed her away. She tried to pull him off the stairs but she could not because he was too strong.

21. The mother sent a text to the father at 7.57 am with pictures of the child crying, kicking and wrapping himself around the staircase. She said in the text message, “the child is refusing to go, again. He is crying, screaming, kicking and hitting me, saying no. On Sunday night, as soon as we got home [referring to the previous week] unprompted he said, “I don’t want to stay at my dad’s again anymore, why do I have to? I want to stay home with mumma”. He said the same to others the following day. I won’t be forcing him for over 2 hours like last week I’m sorry.”

22. That’s the end of the text message. The mother says she observed that the child was still clinging to the staircase, crying, laying on his back and kicking her so that she could not pick him up.

23. The mother and the father had a text conversation as the father deposed in his affidavit of 31 July. There is a page and a half of text interaction. The father says he texted the mother at 8.41 am, “Hello, you are late dropping the child off again, when is he being dropped off? Please ensure the child is dropped off at 8:30am.” The mother responded, “Hi [Mr Shill], you are [sic] contacted via text message at 7:57am.” At 8.49 am, the father writes back, “No I wasn’t. Where is [the child]?” and the mother replied “Yes, you were.” He writes back, “No, I unblocked your number at 8.30 am when I arrived” – just stopping there - how that would make it untrue that the mother sent him a message at 7.57 am is not explained.

24. The mother wrote back, “[The child] is refusing to go, again. He is crying, screaming, kicking and hitting me saying no.” And then she repeated what she had put in her affidavit. The father says there was a message from the mother: “But now I Can message you? [I think it should be, “But how can I message you?”] How about I do all comms through your dad, including now.” The father wrote back, “You are responsible for delivering [the child] as per the court orders. If you are unable to deliver the child as per the court roders [sic] then you need to find someone who can, e.g. you nanny Ms N is easile [sic] able to deliver the child as per the court orders and has done so in the past.”

25. At 8.52 am, the mother wrote back, “Anyway, I’m getting back to making the child feel better. We don’t have a nanny. Thanks.” At 8.57 am, the father wrote:

    No not anyway, you are not allowed to not deliver [the child] as per the court orders because you are unable to be an effective parent to him. That’s not acceptable and its [sic] not acceptable to say your [sic] not going to deliver [the child] because he is upset. That’s not ok, Justice Loughnan told you its [sic] not ok and wont [sic] be ok until [the child] makes his own decisions in the courts [sic] eyes which is around the age of 12.

26. I would be very surprised if I said anything like that.

27. At 8.57 am the father wrote, “I will drive to your house as per last week and pick him up.” The mother wrote back at 8.59 am:

    Last week when we stood in the street for an hour with him crying and screaming not to go? No. Im [sic] not doing that to him again. He does this every week for months. I’ve asked to talk about this and other important matters and you haven’t replied. As his mum, I cannot watch him do this anymore. You are joy to approach our house [probably not to approach our house], as I have asked for over 3 years. I don’t ever know how you know where we live [I suppose that should be even know how you know where we live] as it’s been supressed by courts. I welcome mediation or a meeting to discuss urgently. This has really affected my day work also but it’s about the child’ best interests.

28. At 9.10 am the father says, “I am out the front now, please bring [the child] out.” Eight minutes later, “Are you delivering the child today as per the court orders or not?” Another eight minutes later, “What are your intensions [sic] in delivering the child today?” And then three minutes later the mother texted, “I have heard nothing back from you, I will now be driving back to Sydney.” That is the father’s evidence that the mother refers to and accepts.

29. The mother says that she decided not to engage in any more text messages as it was highly conflictual and getting them nowhere. She attempted to get the child to leave the house for approximately one and a half hours. She stopped trying after that point as he was kicking and scratching her and was not calming down. He stopped crying and said to the mother, “Thank you mum. Thank you for listening to me.” He kissed her hand many times.

30. The father has the onus of establishing that the mother contravened the order. The problem for him is that her conduct was in private. The mother has described making an effort to cause the child to go. Whether she was sincere about that, whether she did all that we would expect a parent to do, we do not really know, but on the mother’s evidence she pressed and cajoled the child for more than an hour and a half. The child suffered distress as a result and hurt himself and hurt the mother. The father cannot gainsay that evidence and the mother did not resile from it. In those circumstances the father cannot establish that the mother deliberately failed to comply with the order or made no reasonable attempt to comply with the order.

31. There are two possibilities. If the mother is accurate in her evidence, then I cannot find that she deliberately tried to breach the order. She might have lied about everything but I cannot make that finding.

32. The events of 18 July were similar. The mother says that the child woke at 6.20 am, walked into her room and hit her in the face. The mother said something and the child said: “You know. I don’t want to go.” The mother says she said to him:

    Oh bubba, you’re going to have such a fun time. Your dad loves you too and wants to see you. I won’t be doing anything here, just work. Boring, Go and have fun and I’ll call you tonight!

33. She says that the child started hitting her and crying in distress, that he could not talk, he was crying so hard. She says she tried to pull him into bed and calm him down but he would not come. He lay on the floor kicking up at her aggressively and said, “No mumma, just the day time, just half day, you know that!” The mother says she sent the father a message at 7.13 am outlining what had happened and she accepts what the father says about their communication as exhibited to his affidavit.

34. She watched the boy crawl under the chair in her bedroom and he was curled up in a ball, crying. The mother observed that the child wet his pants and was crying heavily for approximately 50 minutes. She says he only calmed down once she put a movie on the TV. She changed his wet pants. He appeared to become very quiet and did not really watch the movie. When the mother got up to go to the bathroom he said “don’t go”.  

35. Again, she agrees with the text communication the father reports at paragraph 46 of his affidavit. Again, the mother has made an effort to talk the boy around. The father was not there. The mother gives evidence about objectively concerning behaviours in the boy. There is no reason to prefer the father’s evidence over the mother’s evidence about these things. This is one of the issues about family law. The events usually occur in private. Again the father has not discharged his onus to establish that the mother deliberately failed to comply with the order or made no reasonable attempt to comply with the order.

36. On 1 August the mother says that a couple of nights before, maybe three nights before, on the Sunday, the father had phoned at 6.00 pm for a FaceTime communication with the child. She was cooking dinner and passed the phone to the child. She says the child kicked the phone and said, “No, no, I don’t want to talk to him, no.” The mother says she sat him down, told him he was being rude, and that it would be great to speak to his dad. She says the child started crying and kept repeating, “no, I just don’t want to speak to him.” The mother says that she tried phoning back at 6.45 pm and again the following morning at 8.00 am, hoping that the child would change his mind. The father did not answer those calls. Monday, 30 July, she reported all of that to the father. The father did not respond. At 1.00 am on 1 August, the mother sent the father an email:

    Hey [Mr Shill],

    Further to my email sent to [sic] other day, [the child] has all night been asking what day it is tomorrow (now today) and continues to say he doesn’t want to go to his dads house on Wednesday’s. He cries and as much as I try to talk him through it, he’s adamant. I’m only now getting to bed because he’s been up frequently begging me to “let him stay with mumma”.

    I can’t do this all again in a few hours. He’s emotional, distressed (as you’ve seen when I tried to put him in your car) and exhausted.

    Again, I’d really like to talk to you about this as it’s not working for him. I think there are a range of things that could help, one being that he’s able to talk to me, but we need to work together.

    He’s also booked in to see his psychologist to help us work out what to do for him. I’ve got work and other things I’ll need to rearrange again, we just can’t keep doing this to him every week. It’s so heartbreaking to watch: the crying, clinging to stairs, kicking, wetting himself. I really hope we can work together here to find a way through, on [the child’s] terms.

    Also, as a minor part, I cannot continue to take your abusive and hurtful emails, texts and in person comments you make in front of [the child]. I really don’t deserve it.

    Thank you,

    [Ms Covel].

1. I do not know whether there is any detailed evidence about those communications. It might be there is something about that in the passages that are not relied on. Certainly, the father has said to the mother that she is incompetent. During the evening of 31 July the mother deposed she observed the child to cry, scream, kick, go to his room, lock the door and not let her in. He said to her: “Why do you keep making me go? I just want all the Wednesdays, the Fridays with my mum.” And he said to her, “On the freeway I get sick.”

2. The child didn’t fall asleep until close to 1.00 am on 1 August as he was so upset. The mother says she was mentally and physically exhausted, as was the child. She agrees with the father’s evidence about email communication. She did not respond. She has communicated with the father the night before. Again, we do not have all of the detail of all of the things she said, but we have evidence of the child being distressed for a long time. It seems to me that the father has not made his case.

3. On 15 August, the mother says she sent the father an email at 6.51 am, confirming that the child was very upset and could not spend the day with him that day.

4. She says that the child had woken up at 4.15 am and said to her: “What day is it?” That does not quite make sense. The mother says she said to him: “It is Wednesday, you are going to have so much fun.” The child said: “I don’t want to go. Can’t I just come for a half day and have my night times back?” The mother brought the child into her bed and tried to calm him back to sleep. He kept saying over and over: “I don’t want to go, please stop making me” and “Are you listening to me and what I am saying?” The mother said to him, “There is nothing to stress about, we can talk about it later.” the child finally fell asleep at 6.30 am and she sent the applicant father the aforementioned email.

5. The mother received no response. She sent a text message at 8.31 am to say that she had emailed the father a few hours before. The mother’s number had apparently been blocked. The mother assumes that it did not go through. She agreed with the father’s report of the later text communication between them.

6. The mother gives some evidence about what she has tried to do to resolve the problems. She had an email exchange with the father on 21 and 22 August. She engaged Mr O, a psychologist, to assist the child with the transitions. She had the first appointment on 20 August 2018 and she contacted the father about the results of that appointment on 21 August 2018.

7. There was another appointment on 23 August and she says she has been calling the psychologist to see if he has any other appointments. She says that the psychologist said to her, “the child stated that he feels sick just before time with his father and sick at the gym.”

8. The mother says that Mr O has been helping the child with a breathing strategy to help him calm down before the time with his father. She says that the psychologist said:

   It is obvious [the child] has anxiety about going to his Dad’s house and while there. I am trying to work out whether it is anxiety about his Dad and his Dad’s care, if it is anxiety about being separated from you, or a combination of both.

9. She says that the psychologist said to her:

   Don’t lie to [the child], don’t begin a never ending cycle of rewards and tell him before he goes that we both want him to go and think he’s really brave, and try to get the Father involved in the psychology.

10. We come to the more recent times. The mother gives evidence that she lost her licence as a result of being assessed with a proscribed quantity of alcohol in her blood. From about February to August of this year she did not have a driver’s licence. She says that she had a conversation with the child on 6 September. They had talk about breakfast and the child said to her: “That’s what I do at my dad’s house too in the mornings when I am there alone waiting for him to come back.” The mother says she said to him: “What do you mean? I am sure [Ms P’s] there too. That’s great that you can pour them [cereal] all by yourself.” (Ms P is the father’s partner). The following took place:

    [The child]:No, [Ms P] is not there anymore. I don’t know where she has gone.

    Mother:Do you mean, she goes when daddy gets back? I think you are getting confused. Maybe sometimes when your dad is there, she’s not. When Dad’s at work, she would be there with you, I’m sure. I think you’re getting mixed up bubba.

    [The child]:No silly, I just told you, she’s not there so I can get them all by myself. I see him when he gets back from work… I turn on the TV all by myself, but I want you there.”

    Mother: How do you know when he’s coming home? Do you get scared?

    [The child]:                He just walks in the door.

    Mother:         When you wake up, there is no one there?

    [The child]:                No, no one is there.

11. The mother says he said something similar to her on 10 September. The mother says she raised that issue with the father and did not get a satisfactory answer. Her evidence in cross-examination today was that she did not believe the child. However by 28 September the mother decided that she wanted to go down to see the father’s house when the child was there. I understood her evidence to be that she wanted to disprove what the child had said to her. That seems a bit odd.

12. It is the mother’s evidence that she arrived at the father’s home at about 4.45 am. Presumably she left home at some time before 4.00 am. The mother deposed that the father resides in an apartment which is on the third floor on a corner. It is the mother’s evidence that she did not know where the father lived. In oral evidence, she said that she had a clue from the child telling her that the street started with a D and that there was a number 7 on the apartment. The mother says that because she had previously lived in Suburb L, she was able to find the property.

13. The mother parked on the street outside the father’s house at 4.45 am. At some point the light came on in one of the apartments and she could see the father. The mother says that he turned on the TV and she later saw him drive away from the apartment block at 5.40 am. She followed the father in her car and saw that he was driving towards Suburb F. She then broke off her pursuit and returned to the property. The mother says that she rang the buzzer of the apartment at 6.05 am, 6.07 am and 6.18 am and there was no response. At 6.20 am the mother rang Suburb L Police and she reported that the child had told her that he was sometimes left home alone, that she had come down to check and had seen the father leave the apartment and head for the beachfront. She told the police that she has seen no sign of any other adult being with the child in the apartment. She said to the police, words to the effect:

    I cannot see [the child] as the height of the window doesn’t let me see him. Over the last 20 minutes I have pressed the buzzer three times and there has been no answer…I know the Father lives with his partner [Ms P], but [the child] has been saying lately that she isn’t there anymore... I was hoping you guys could do a welfare check on him…

14. She says the police said to her that it sounded concerning and that a dispatcher would put a call out to send a car around, but there was a bit on and so it might be a while before the car arrived. The mother says she stayed at the house, and did not see anyone come or go. She again rang the police at 7.09 am and they told her that they were busy. Just at the time of that call, she saw the father walk through the door of the apartment. He went into the living room and crouched down out of her sight. The mother said that he stayed there for 15 minutes. She said that she could not see anybody else in the apartment and did not see anyone leave. The mother said she saw the father stand up and pick up the child. The child was wearing blue pyjamas.

15. The police arrived at 7.30 am. The mother told them that she did not see anybody else in the apartment. Among other things the police told the mother:

    We spoke with the father who said that he and his partner have an arrangement where he goes to the gym around 5am and once he returns, she leaves for work which occurred at 6.40am this morning.

16. The mother says that was not quite the timing that she saw. She fleshed that out in a later affidavit. For example, she said that on the morning of 28 September, “I observed the father drive home and park in front of his garage.” That is not something she said in her earlier affidavit, where her first mention of the father was when he walked into the apartment. Here, she says she saw him enter into the main entrance. The mother has deposed in her later affidavit as to the lack of parking space in the lane behind the apartment block. She exhibits to her affidavit a number of photographs of the father’s car in front of the garage and the rear lane, intended to show that there is no parking space available. According to the mother’s evidence, the photos of the father’s car were taken at 7.17 am, and the mother says that the car did not move from 7.10 am when he arrived home. The father’s partner has deposed that on the day, her car was in the garage in front of which the mother says the father’s car was parked.

17. It is probable that the photograph attached to the mother’s affidavit, showing the father’s car in front of the garage was not taken at the time and date represented by the mother. The father gives evidence, without complaint, that the garage is on the western side of the building and he has demonstrated through a series of photographs taken at 6.00 am, 7.00 am, 8.00 am, 9.00 am and 10.00 am that the sun does not strike the back of the building until about 11 o’clock or so. His photographs were taken a couple of months later but that could only result in the sun being higher in the sky in the morning. The 6.00 am photograph taken by the father would allow for daylight saving.  

18. It is more probable than not that the photograph taken by the mother was not taken when she deposed and the mother conceded as much. It is possible, she said, that the photograph that is attached to the affidavit is not a photograph taken at 7.17 am on the day but a photograph taken on a later date for some other purpose associated with these proceedings.

19. It falls to the mother to demonstrate that she has a reasonable excuse. The excuse that she is seeking to demonstrate is that on reasonable grounds she believed that the child would have been at risk because he is being left alone in the father’s apartment. In that context, the evidence of the father and his partner, given after the event, is irrelevant.

20. Her case is that she was told something by the child. She could not get a satisfactory answer out of the father. She drove to Sydney and she saw something that confirmed her fears. She acted in a prompt way. She filed an application the day before the next occasion, 2 October. So this all happened on 28 September. A few days later, she filed an application and in that application, she sought, among other things, a suspension of the operative order for the father’s time and that the time be day only, one day a week. She sought short notice of the application and the application was made returnable on 30 October but the interim application was listed on 15 November. That does not quite make sense.

21. In any event the mother knew on 3 October that the order had not been suspended. She also knew that the father was not sanguine about amending the order in the way she wanted. In my view, the mother has not done enough. The mother did the right thing and asked for the order to be interfered with, but she needed to have that application granted. Asking for a suspension or variation is not the same thing as having it granted.

22. If the child was in danger, the proper thing was to have the matter put immediately before a judge and have the order suspended.

23. There are a number of problems with the mother’s case. There is no corroboration of the boy’s fears. We have a rather bizarre trip to Sydney in the middle of the night to try and prove, the mother says, the opposite of what she now believes. In my view, the mother has not made the case that she had reasonable grounds, knowing that the orders were not suspended, for taking the actions she did.

24. There were breaches of the orders and the mother has not established that she has reasonable excuse.

25. The mother filed an amended application on 5 November, proposing, instead of one day a week, to put this child on the freeway twice a day, three days a week, every week. As a solution to the current problems that does not seem to be a very good idea. I am not sure why she amended her application to seek those orders given that in these proceedings she has raised the boy’s fears about the freeway journey and that journey is objectively worrying.

26. The mother has conceded that she contravened the order. She has not been able to discharge the onus on the balance of probabilities that she had reasonable grounds for the breach. There were other things she could have done. She could have obtained an undertaking from the father that something else would be done. Whatever she did, we know she did not have either that undertaking or a suspension of the orders by 3 October or 10 October.

27. The outcome of parenting proceedings is a series of orders. The parents must comply with Court orders.

28. If the father did the things that the mother has done in these proceedings, I think she would be upset. If he had lost his licence for PCA and had not told her, I think she would be upset. If he retained the child because he had formed a view that the child was not minded to return to her for some period, I think she would be upset. If he could not deliver the child back to her, I think she would be upset.

29. I adjourn the proceedings to a date to be settled between my associate and the parties for making consequential orders arising out of the findings made today.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 27 November 2018.

Associate:  

Date:  18 January 2019