Short & Trevilian (No. 7)

FAMILY COURT OF AUSTRALIA

SHORT & TREVILIAN (NO. 7)

[2008] FamCA 548

FAMILY LAW – CONTEMPT – Contravention of Court order – husband removed child from boarding school contrary to orders of Court – whether flagrant challenge to authority of Court – whether husband had reasonable excuse for contravention – contravention not necessary to protect child – husband committed contempt of court.

FAMILY LAW – ORDERS – Contravention – three counts of contravention alleging husband spent time with child unsupervised contrary to orders of Court – whether husband in contravention – whether reasonable excuse for contraventions – consideration of necessary standard of proof – application of provisions in Division 12A to proceedings under Division 13A considered – satisfied husband contravened orders of Court as alleged without reasonable excuse.

FAMILY LAW – PRACTICE AND PROCEDURE – adjourned for preparation of submissions on penalties and consequences

Family Law Act 1975 (Cth) ss 35, 69ZM, 69ZT, 70NAC, 70NAE, 70NAF, 70NFA & 112AP
Evidence Act 1995 (Cth) s 141

Mead and Mead (2006) FLC 93-267
DAI and DAA (2005) FLC 93-215
Tate and Tate (2002) FLC 93-107
Tate and Tate (No 3) (2003) FLC 93-138
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577
Ibbotson and Wincen (1994) FLC 92-496
Johnson and Page (2007) FLC 93-344

APPLICANT:

Ms Short

RESPONDENT:

Mr Trevilian

INDEPENDENT CHILDREN’S LAWYER:

Judith Cocks

FILE NUMBER:

ADF

1855

2003

DATE DELIVERED:

17 July 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

3,4,5 & 19 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berman

SOLICITOR FOR THE APPLICANT:

Angela Ferdinandy

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

Self-Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Judith Cocks

Orders

I propose to adjourn the proceedings to allow the parties to consider my reasons and to prepare submissions in relation to penalties and consequences and adjourn the matter to Tuesday 30 September 2008 at 11.30 am before me.

IT IS NOTED that publication of this judgment under the pseudonym Short & Trevillian is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1855 of 2003

MS SHORT

Applicant

And

MR TREVILIAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By applications filed on the 2 April 2008 the wife Ms Short sought that the husband Mr Trevilian be punished for contempt of Court and alleged that the husband had contravened orders of the Court.
Specifically by the application for contempt filed on the 2 April 2008 the wife alleged that
“on the 25 March 2008 between the hours of approximately 6.00 pm and 10.00 pm the husband did personally remove [the child S] born […] July 1992 from the [R College] Boarding House in contempt of paragraph 6 of the order made by the Honourable Justice Dawe on the 25 March 2008 (continuing in paragraphs 6, 8 and 13 of the order made by Justice Burr on the 12 February 2008).”
In the contravention application the wife alleged that the husband had contravened orders of the Family Court in the following manner:
(a)On the 28 January 2008 at approximately 2.30 pm the husband contravened the order of Justice Burr made on the 18 January 2008 at the IGA Supermarket, B, where it was alleged that he “did spend time with [S] by attending with her at an IGA Supermarket located at [B] in the absence of [the paternal grandfather]”.
(b)That on or about 1 February 2008 at about 6.22 pm the husband did spend time with S whilst driving along the … Road away from B in the absence of either the paternal grandfather or Dr A in contravention of paragraphs 8 and 12 of the order of the Honourable Justice Burr of the 30 January 2008.
(c)That on various week days between approximately 6.00 pm and 7.30 pm between the 18 February 2007 and the date hereof (1 April 2008) at R College “…the husband did spend time with [S] unsupervised, playing tennis…” in contravention of paragraph 13 (a) of the Order made on 12 February 2008.

By consent I gave leave to amend the allegations of contraventions in document 201 so that the allegation was that they were driving away from B not towards B and that the particulars of the third contravention should be on various week days between 6.00 pm and 7.30 am between the “18 February 2008, not 2007 and the date hereof”.

Hearing

Both the contempt application and the contravention application were listed for final hearing before me on the 3, 4, and 5 June 2008 and 19 June 2008. Except where the husband gave his consent, the hearing separated the evidence and submissions in relation to each of the two applications. The contempt matter was heard first followed by the contravention proceedings.
The wife was represented by Mr Berman of counsel. Ms Cocks was the Independent Children’s Lawyer. The husband appeared unrepresented. The husband is a medical professional. He also has another professional degree.
At the hearing before me the wife and her witness, Professor JS gave evidence. The husband gave evidence. He relied upon the evidence of the School Principal of R College, Ms V.
In support of the contempt and contravention applications I received the affidavit of the wife filed on the 2 April 2008 (being documents 202 and 204) together with her affidavit filed on the 7 February 2008 (document 190) and the affidavit of Professor J filed on the 30 January 2008 (document 187).
The affidavit of the husband sworn on the 8 February 2008 (document 191) was also before me.
I also received various exhibits.

Background and Chronology

The husband was born in August 1949 and is now aged 58. The wife was born in March 1959 and is now aged 49. The parties commenced living together in 1985 and were married in December 1991.
There are three children of the marriage, S born in July 1992 (who is now aged 16), V who was born in June 1995 (now aged 13) and E born in June 1998 (now aged 10).
The parties finally separated on the 16 June 2003. Proceedings concerning the children commenced in this Court in 2003. Final orders were made in relation to the children’s issues by his Honour Justice Strickland on the 21 March 2006.
The orders of Justice Strickland provided that S live with the husband and V and E live with the wife.
In December 2007 the wife received advice from the South Australian Police Department that S had been removed from the husband’s home and placed in the care of her paternal grandfather. Allegations had been made by a woman who had previously been the husband’s housekeeper suggesting that S had been sexually abused by the husband.
In December 2007 the wife filed a Notice of Abuse and an application seeking suspension of previous orders in relation to V.
The husband contested the application of the wife and denied any wrongdoing.
On the 18 January 2008 the matter was heard by way of interim orders before his Honour Justice Burr who made the following orders:
“IT IS ORDERED THAT:-
1.Further consideration of the proceedings be adjourned to 3.45 pm on Wednesday 30 January 2008 before the Honourable Justice Burr.
2.By 2.00 pm today, the mother’s solicitors do effect service of a sealed copy of the mother’s Amended Application in a Case filed on 17 January 2008 upon the father’s solicitors and the Independent Children’s Lawyer.
3.On or before 4.00 pm on Thursday 24 January 2008 the father do file and serve an answering Affidavit.
4.Pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for the Department for Families and Communities – Families SA be invited to intervene in these proceedings UPON NOTING that in the event that he deems it inappropriate to do so, the attendance of a representative of the Minister is required on the adjourned date (30 January 2008).
5.The parties are restrained and an injunction is hereby granted restraining each of them from discussing the allegations which have been raised in these proceedings or the proceedings themselves with any of the children or within the children’s hearing and from permitting any other person to do so.
AND IT IS FURTHER ORDERED, IN CHAMBERS THAT:-
6.Each of the parties do forthwith provide to the representative for the Minister for the Department for Families and Communities – Families SA (Ms Jennifer Olsson at the Crown Solicitors Office, […], Adelaide) copies of the documents filed by them in relation to the current issues before the Court alleging abuse of the children [S] (“[S]”) born […] July 1992, [V] (“[V]”) born […] June 1995 and E (“[E]”) born […] June 1998, together with copies of any other documents to be filed forthwith upon the filing of same.
AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-
7.Paragraph 6 of the Orders made on 21 March 2006 be suspended.
8.[S] live with the paternal grandfather […] at […].
9.The father be restrained and an injunction is hereby granted restraining him from:-
(a)having any contact with [S] SAVE AND EXCEPT under the supervision of [the paternal grandfather];
(b)by consent, spending overnight occasions in any premises where [S] is sleeping or residing.
10.The parties and the Independent Children’s Lawyer confer with a view to determining:-
(a)whether any medical examination of [S];
(b)whether an assessment of the father by somebody in the nature of Dr [WE];
(c)any future involvement of Dr [GN];
(d)the appropriateness of a family assessment and, if deemed appropriate whether it be pursuant to Section 62G(2) as it relates to a Family Consultant within the Court or an outside consultant
may further assist the Court in the determination of the proceedings.”
It is alleged the husband contravened this order when it is alleged that he spent time with S on 28 January 2008 by attending with her at the IGA Supermarket located at B in the absence of the paternal grandfather
In late January 2008 the affidavit of the husband’s former housekeeper, Ms Q, was filed in the Family Court. The husband responded to that affidavit.
On the 29 January 2008 the affidavit of Professor JS was filed alleging that Professor JS had observed the father and S together in the supermarket on the 28 January 2008.
Further interim orders were made by his Honour Justice Burr on the 30 January 2008 as follows:
“IT IS ORDERED THAT:-
1.Further consideration of:-
(a)the alleged abuse of the child [S] (“[S]”) born […] July 1992 by the father;
(b)the giving and the taking of oral evidence;
(c)any physical medical examination of [S];
(d)any assessment of the father by somebody in the nature of Dr [WE] (upon noting that it is not possible to engage Dr [WE] given his personal and professional relationship with the father); and
(e)any future involvement of Dr [GN]
be adjourned to 10.00 am on Tuesday 12 February 2008 (1 day allowed).
2.The question of whether or not the child [S] is to give evidence at the hearing before the Court on 12 February 2008 be adjourned to 9.45 am on Thursday 7 February 2008.
3.The witnesses to be called to give oral evidence at the hearing on 12 February 2008 (subject to any orders made on 7 February 2008 in relation to [S]) be Ms [Q] and the father in these proceedings.
4.A representative of the Minister for the Department of Families and Communities – Families SA be in attendance at the hearings on 7 February 2008 and 12 February 2008 and be prepared to participate in the examination of evidence at the hearing on 12 February 2008.
5.The father be entitled to participate in his formal role with the [youth organisation] for the organised function on Saturday 2 February 2008 UPON CONDITION that [S] is transported to and from the event by Dr [A] or by another adult engaged by Dr [A] (including a taxi driver).
6.Leave is granted to the solicitors and Counsel for the parties, the Independent Children’s Lawyer and the Minister’s representative to inspect and copy the documents produced pursuant to subpoena directed to the South Australian Police, subject to any privilege claimed.
7.On or before 4.00 pm on Friday 8 February 2008 the father do file and serve an affidavit in response to the affidavit of [Professor JS] handed up in Court this day.
AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT AND UNTIL THE FURTHER DETERMINATION OF THIS COURT ON 12 FEBRUARY 2008 THAT:-
8.[S] live with:-
(a)Dr [A] until the morning of Monday 4 February 2008; and
(b)as a boarder at [R] College from the morning of Monday 4 February 2008 until the Court’s further determination on 12 February 2008.
9.The parties each pay one-half of the fees associated with [S’s] boarding arrangements at [R] College.
10.The father take all such reasonable action as is necessary to ensure [S’s] attendance at both Dr [A’s] residence and [R] College for the periods identified pursuant to paragraph 8 hereof.
11.Paragraph 6 of the Orders made herein on 26 March 2006 be suspended.
12.The father be restrained and an injunction is hereby granted restraining him from:-
(a)having any contact with [S] SAVE AND EXCEPT under the supervision of Dr [A] or [the paternal grandfather];
(b)spending overnight occasions in any premises where [S] is sleeping or residing.”
It is alleged that the husband breached paragraphs 8 and 12 of the order of the 30 January 2008 on the 1 February 2008 when it is alleged that he was seen by the wife driving with S unaccompanied by any other person along the … Road away from B.
On the 6 February 2008 the wife filed an affidavit alleging that on the 1 February 2008 she had observed S as a passenger in a car driven by the husband when there was no supervisor present.
On the 7 February 2008 his Honour Justice Burr suspended paragraph 8 of the order of the 30 January 2008 and ordered instead that S reside with Dr A. The order was:
“IT IS ORDERED THAT:-
1.Paragraph 8 of the Orders made on 30 January 2008 be discharged.
AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT TO 12 FEBRUARY 2008, THAT:-
2.The child [S] born […] July 1992 live with Dr [A] until further order of this Court to be made on 12 February 2008.”
On the 8 February 2008 the husband filed an affidavit (document 191) in which he admitted being with S and seeing Professor JS in the supermarket on the 28 January 2008.
On the 12 February 2008 there was a hearing on oral evidence before his Honour Justice Burr. He heard evidence from Ms Q, the husband’s former housekeeper and the husband. Parts of his decision should be considered to understand the context of the proceedings before me, for example:
Paragraphs 5 and 6 state:
“5.I thought it important to afford to each of the parties and, of course hence indirectly but very importantly to the children, an opportunity to try and establish whether or not the veracity or otherwise of the allegations could be determined in the short-term. That would have required the evidence of one or other of the parties to be reduced to a point of unbelievability. That has not been the outcome of the proceedings today. That is not to say that there are not concerns that I have about the evidence given by the two principal witnesses as to the nature of these allegations: namely, Ms [Q] and the father in these proceedings.
6.Counsel agree with me and in fact urge upon me the importance of not making any absolute findings of credit and most certainly not making any absolute findings, even on an interim basis, as to whether or not abuse has occurred or whether or not, based on appropriate burdens of proof, there is an unacceptable risk to [S] and to the other two children emerging from the evidence before the Court. ”

Paragraphs 17 to 23 state:
“17.This primary consideration clearly emerges for very serious consideration by the Court. Ultimately, on a final basis but certainly also on this interim basis, the allegation is serious and it is to the effect that the father is engaged in inappropriate sexual activity with his eldest daughter and, if that proves to be the case, that clearly constitutes a most serious form of abuse.
18.The additional considerations are, firstly:
(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.
19.[S] has made her views very plain. There is no dispute between any of the parties or from the Independent Children's Lawyer that [S] views this suggestion and these allegations as being horrific, offensive and untrue. She has consistently denied any impropriety in the relationship between herself and her father, to police, to Families SA and through other evidence conveyed to the Court in these proceedings.
20.I am therefore left in no doubt that there is only one view that [S] holds; that is, she ought to be living with her father and that there ought to be no inhibition, no matter whether temporary or permanent, to prevent her from maintaining that relationship with her father and living with him.
21.Questions must arise as to the weight that I should attach to [S’s] expressed views in that regard. There is negativity, acknowledged by the father, within his household towards the mother. He proffered to the Court an explanation to the effect that he allowed [S] to make negative remarks about the mother so that he could then seek to manage it in an efficient and sensitive way. However, his acknowledged response to some quite blatant negative words used in relation to the mother remains a matter of concern and requires further exploration within these proceedings.
22.Given that clear negativity, given the fact of there being no meaningful relationship between the mother and [S], given the quite clear role the father has had to play in that lack of meaningful relationship between [S] and the mother, and given there is general evidence that the Court needs to be concerned about as to whether the father and indeed [S], at her age, are able to establish appropriate boundaries in their relationship, all mean to me, at this interim stage, that I ought to be very cautious about giving any real weight to [S’s] views at this time.
23.That does present problems to the Court in that [S] has indicated a significant will and sense of independence in abiding the arrangements that the Court has endeavoured to make for her care. That though should not be a reason why the Court should resile from its responsibility under section 60CA of the Act.”
Paragraphs 41-44 of Justice Burr’s reasons of 12 February 2008 are:
“41. One of the biggest concerns here is the father’s inability to date to abide fully the Orders made by this Court. He acknowledges in an affidavit filed in this Court on 8 February 2008 that he was in breach of the Orders I made on 8 January 2008, in that, at paragraph 9(a), I injuncted him from having any contact with [S] save and except under the supervision of his father.
42.Not recognising boundaries set so clearly by the Court could lead to an interpretation of the father's general demeanour and disposition as being one who is not able to abide boundaries full stop. That is a conclusion that is inappropriate for me to draw at the moment but nonetheless is a matter that needs to agitate some caution in the Court until at least the further assessment, undertaken by Families SA, has been concluded.
43.It is therefore appropriate, under this sub-section also, for me to consider what indeed is the next step. A critical piece of information has yet to be provided to the Court. That is, the outcome of the assessment and psychological report presently being undertaken by Families SA. Counsel for the Department, and indeed the Minister, has indicated that it is in the order of weeks away; maybe something in the order of four weeks away.
44.I have concerns about the father's inability to maintain appropriate boundaries in a number of senses until I receive further enlightenment and hopefully comfort, from that assessment.”

Justice Burr made the following orders on the 12 February 2008:
“IT IS ORDERED THAT:-
1.Further consideration of the proceedings generally, and the other issues which have previously been raised by the parties and considered by the Court, be adjourned to Tuesday 25 March 2008 at 2.15 pm before the Honourable Justice Dawe (Reserve Magellan Judge) (1/2 day allowed).
2.The Independent Children’s Lawyer and the representative of the Minister for the Department of Families and Communities – Families SA do everything within their power to ensure that the assessment and evaluation being conducted by the Department be made available to the parties and to the Court at the earliest possible opportunity.
3.A copy of the transcript of today’s proceedings be obtained by the Court and provided to each of the parties represented at the bar table and to the person(s) undertaking the assessment and evaluation by or on behalf of Families SA.
4.Leave is granted to the Independent Children’s Lawyer to provide the person(s) undertaking the assessment and evaluation by or on behalf of Families SA with copies of the relevant applications, affidavits and other materials (in the nature of evidentiary materials) filed on and since 20 December 2007.
5.Each of the parties represented at the bar table today are restrained and an injunction is hereby granted restraining each of them from:-
(a)providing copies of any of the materials filed in these proceedings to [R] College SAVE AND EXCEPT for a copy of this Order; and
(b)reporting to or affording to the [husband’s professional association’s] Disciplinary Board or like body any of the matters that have been aired in Court this day or are contained in the documents filed in these proceedings on and since 20 December 2007.
AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-
6.The child [S] (“[S]”) born […] July 1992 be enrolled as a boarder at, reside at and be accommodated by [R] College.
7.The parties each pay one-half of the fees associated with [S’s] boarding arrangements at [R] College.
8.The father take all such reasonable action as is necessary to ensure [S’s] attendance at [R] College.
9.Paragraph 6 of the Orders made herein on 26 March 2006 be suspended.
10.The father be entitled to participate in any formal role he has with the [youth organisation] for any organised functions UPON CONDITION that [S] is transported to and from such events by either of Dr [A] or [the paternal grandfather].
11.For any music lessons to be undertaken by [S] she be transported to and from those occasions by taxi.
12.In the event that arrangements cannot be made for [S’s] transportation to and from any [youth organisation] functions (in accordance with paragraph 10 hereof) or [S’s] transportation to and from any music lessons (in accordance with paragraph 11 hereof), then [S] is not to attend those functions or lessons.
**13.The father is restrained and an injunction is hereby granted restraining him from:-
(a)having any contact with [S] SAVE AND EXCEPT under the supervision of [R] College staff;
(b)spending overnight occasions in any premises where [S] is sleeping or residing.**
**Pursuant to Rule 17.02 of the Family Law Rules, Order amended on 18 February 2008.**”
This is the order to which the third alleged contravention relates namely, that on approximately each week day between 18 February 2008 and the 1 April 2008 the husband spent time with S unsupervised playing tennis with her at R College.
On the 25 March 2008 the matter was heard by me on an interim basis. At that hearing the husband was present and represented by Ms Lewis. After hearing submissions the following orders were made:
“IT IS ORDERED THAT:
1.IT IS DIRECTED that the father file and serve a response to the final orders application within fourteen [14] days from today.
2.The mother and father immediately confer with the Independent Children’s Lawyer about the placement of [S] during the school holidays and if no agreement is reached by the 8 April 2008 [S] is to reside with Mrs [W] during the school holidays provided that the Independent Children’s Lawyer communicates with Mrs [W] or any agreed person that they are required not to discuss these proceedings with [S] or with any of the children attending [R] College.
3.AND IT IS FURTHER DIRECTED that the parties confer with the Independent Children’s Lawyer about any arrangements to be made for the children [V] and [E] to spend supervised time with the father if necessary at a Children’s Contact Centre. If the parties are unable to agree on arrangements for [V] and [E] then the father has liberty to apply in relation to the time he is to spend with the children [V] and [E].
4.The father is restrained and an injunction is granted restraining him from:
(a)spending any time with or in the company of the child [S] save and except under the supervision of the staff of [R] College or during the school holidays under the supervision of a suitable person agreed to by the mother, father and the Independent Children’s Lawyer;
(b)spending overnight occasions where [S] is sleeping or residing.
5.The Court makes no order which restricts the telephone communication between the father and [S] on the basis that [S’s] emotional wellbeing requires that she have the ability to communicate with one of her parents in this case her father.
6.AND FURTHER DIRECTED that the final orders application be referred to a 1^st day hearing before the trial Judge with such priority as is available for a Magellan matter and during the period of the adjournment of the final orders application I continue paragraphs 6, 7, 8, 9, 10, 11 and 12 of the orders of The Honourable Justice Burr of the 12 February 2008.
7.The Court makes no order in relation to the father spending time with the children [V] and [E].
8.The Independent Children’s Lawyer has liberty to apply if that is required.”

The contempt application refers to this order. In particular it is alleged the husband removed S from R College Boarding House in contempt of paragraph 6 of my order which continued paragraphs 6 and 8 of the order of Justice Burr of the 12 February 2008.
The husband admits that after the Court hearing on the 25 March 2008 he telephoned S and later that evening attended at R College. The husband admits that on the 25 March 2008 he left R College with S, taking her to his home where she resided with him and no other person.
On the 28 March 2008 I heard an urgent application brought by the wife seeking that the husband be summarily dealt with for contravention and contempt. The matter was stood down while arrangements were made for the husband to attend. On that day the husband was represented by Mr Childs of Counsel.
On that date I made the following orders:
“IT IS ORDERED THAT:
1.The mother is to file and serve any Application in a Case for the father to be dealt with for any contravention and/or contempt of Court Orders by 9.00 am on the 2 April 2008.
2.The hearing of the Application in a Case filed by the wife on the 28 March 2008 is adjourned to 9.00 am on 2 April 2008 before The Honourable Justice Dawe.
3.By 9.00 am on the 2 April 2008 the father is to file and serve an affidavit confirming his compliance with his undertaking and setting out the steps he has taken to comply with the undertaking and to ensure the child [S’s] continued residence as a boarder at [R] College.
NOTING the father is warned that if there is found to be a breach of Court orders of the 25 March 2008 without reasonable excuse or a flagrant breach of those orders which amounts to a contempt of Court he faces serious consequences.”

The husband admits that on the 28 March 2008 he made arrangements for S to return to R College as a boarder.
Following the orders I made on the 28 March 2008 the wife filed the formal applications to have the husband dealt with for contempt and the application alleging contraventions.

Law on Contempt

Section 112AP (1)(b) provides:
(1)Subject to subsection (1A), this section applies to a contempt of a court that:
…
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
Section 35 of the Family Law Act provides:
“Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.”
It has been established that contempt under section 112AP must be proved beyond reasonable doubt. In the Full Court judgment of Mead and Mead (2006) FLC 93-267, the Full Court held that it was necessary to establish beyond reasonable doubt both that the person concerned had knowledge of the terms of the order and of its meaning.
In the decision of the Full Court of the Family Court of Australia in DAI and DAA (2005) FLC 93-215 the Full Court considered the principles applicable to contempt proceedings. At paragraphs 45 and following the decision refers to the significant principles of section 112AP of the Family Law Act, section 141 of the Evidence Act and the decisions of the Full Court in Tate and Tate (2002) FLC 93-107 and Tate and Tate (No 3) (2003) FLC 93-138.
The Full Court also referred to the High Court decision of Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577 at 584:
“Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.”
In Ibbotson and Wincen (1994) FLC 92-496 the Full Court of the Family Court of Australia (Fogarty, Baker and McGovern JJ) heard an appeal from his Honour Justice Barry in relation to section 112AP (1)(b). At page 81,162 the Full Court said:
“It is clear that paragraph (b) of that sub-section contemplates that in some circumstances the contravention of an order will constitute a contempt of Court. It defines that circumstance as being where the contravention involves a ''flagrant challenge to the authority of the Court''. Repeated breaches are not a prerequisite, although that may more readily attract this provision. The use of the term ''flagrant challenge'' to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s. 112AD.”
It was argued that the behaviour of the husband on the 25 March 2008 removing S from R College was a ‘flagrant challenge to the authority of the Court’. It was put to the Court that his behaviour needs to be seen in the context of his behaviour prior to the 25 March 2008 as well as considering the “exceptional or striking nature” of the contravention in question, being a contravention which would differentiate it from what might be described as “the general run of breaches”.

Evidence and Findings on Contempt

It is alleged that the contempt took place on the 25 March 2008. The husband admits that he personally removed S from R College Boarding House on that date later in the evening following the Court orders made by me in his presence that afternoon. S resided with him at his home until, following a further Court hearing on the 28 March 2008, the husband returned S’s belongings to R College. S remained as a boarder at the College after the 28 March 2008 until arrangements were made by consent for her to reside with one of the teachers.
The husband readily conceded that he was aware of the orders of the 25 March 2008 and understood their true meaning.
Paragraph 6 of my orders of the 25 March 2008 provided that paragraphs 6 to 12 inclusive of the orders of the Honourable Justice Burr of the 12 February2008 continued during the period of the adjournment.
Paragraph 6 of his Honour Justice Burr’s order of the 12 February 2008 provided:
“6.The child [S] (“[S]”) born […] July 1992 be enrolled as a boarder at, reside at and be accommodated by [R] College.”
Paragraph 8 provided:
“8.The father take all such reasonable action as is necessary to ensure [S’s] attendance at [R] College.”
Paragraph 13 of the order of Justice Burr was not continued by my orders on the 25 March 2008. My specific order in paragraph 4 was in similar terms namely:
“The father is restrained and an injunction is granted restraining him from:
a.spending any time with or in the company of the child [S] save and except under the supervision of the staff of [R] College or during the school holidays under the supervision of a suitable person agreed to by the mother, father and the Independent Children’s Lawyer;
b.spending overnight occasions where [S] is sleeping or residing.”
(The contempt application does not make specific reference to paragraph 4 of my orders of the 25 March 2008).
It is necessary therefore to consider whether the father was in contempt of the orders of Justice Burr of the 12 February 2008 (paragraphs 6 and 8) as continued by me on the 25 March 2008.
The husband was present during the hearing of the 25 March 2008 when I gave reasons and made the orders. In my reasons for judgment on the 25 March 2008 I referred to the report of Ms J, the psychologist.
Part of my reasons included reference to page 29 of Ms J’s report. Paragraphs 23 and 24 of my reasons of the 25 March 2008 are:
“23.The recommendations in the report start at the middle of page 29. However, immediately before that section the report states:
‘In sum, the relationship that [the husband] has encouraged between himself and [S] is highly concerning in its restriction of relationships with others, including the development of individuation away from the parent, its connection based upon superiority and denigration of others, and the modelling of contempt towards authorities such as the court.’
24.I interpose here to say that those matters of course are conclusions which would need to be tested when the author of the report provides further explanation for those conclusions when giving oral evidence.”
The husband admitted that on the day in question he removed S from the boarding house and that he knew at the time it was an action which was not permitted by the order. He says that he had an excuse for so doing.
I am satisfied beyond reasonable doubt that the husband knew the terms of the orders made by me on the 25 March 2008 and that he knew and understood the terms of the orders in paragraphs 6 and 8 of his Honour Justice Burr’s order of the 12 February 2008 which were continued by me. I am also satisfied, beyond reasonable doubt, that when he removed S from R College on the 25 March 2008 he did so fully aware that his actions were in breach of paragraphs 6 and 8 of his Honour Justice Burr’s order of the 12 February 2008 as continued by me on the 25 March 2008.
The father’s defence to the action for contempt is that he removed S from the boarding house on that occasion after discussions with S and staff at the boarding house. He says that S was not happy to be residing in the boarding house and had previously indicated that she was counting down the days to the 25 March 2008 (using vitamin C tablets) when she hoped she would be able to leave the boarding house.
The husband gave evidence that S started to talk about going to Tasmania. In answer to specific questions about his conversations with S, he referred in a rambling answer, to S saying words to the effect:
“well if you don’t take me home I know the bus to the station and my residence is 100 metres from the train station I will be knocking on your door, what are you going to do then?”
(See page 33 of the transcript of the 3 June 2008).
Also in his evidence in chief, the husband referred to his assertion that other orders of Justice Burr on the 12 February2008 were not being obeyed (being the orders which related to transport of S). He explained that he thus viewed that “it appeared that these orders were being interpreted pragmatically by everybody involved”.
I reject any submission that because there was discussion and at times non-compliance with some paragraphs of the order of Justice Burr of the 12 February 2008, that this circumstance permitted the husband to take a “pragmatic approach” to paragraph 6 of the order of the 12 February 2008 as continued by me on the 25 March 2008 namely, that S reside at R College.
During cross-examination the husband said that on the 25 March 2008, after Court concluded, he telephoned S briefly. Initially, he said in his evidence:
“I phoned her briefly, to say that, as I explained to her would happen, that the Court would not make an order for her to return home and just to settle down, and I will go home and get changed and I will come round and see you later”.

In that part of his evidence he said that by the time he arrived at R College that evening, S had already packed her belongings. He also said she (S) said:

“if you drive away then I will be knocking on your door in an hour’s time having got the train up to [a nearby station].” and “as I say it is a 100 metre walk that’s all. I thought there had to be a better way of dealing with this crisis. And so I took her home and said ‘All right. You’re not thinking very clearly about things at the moment. You’re not your usual self. I will take you home’.”
(Page 37 of the transcript of 3 June 2008).

Later during cross-examination the husband gave another version of the telephone conversation with S, immediately after the Court proceedings on the 25 March 2008 when the following exchange occurred:
“Yes, the phone call that you made to your daughter at the conclusion of these proceedings was not to inform her of the outcome but rather just simply because it was part of a pattern and routine put in place by you and [S] because of her separation anxiety? ---No, and you’ll see, if you want to look at the records, that that’s not the case. It’s a longer phone call and the reason for the phone call was (a) to say the court’s finished, (b) I’m going home to get changed, and (c) I’ll see you at 7.30, and I said the news is not good.”
(Page 62 of the transcript of 3 June 2008).
Later during questions from me the following exchange took place:
“HER HONOUR: When you telephoned [S] from – well, in any of those telephone calls on the evening/afternoon of 25 March 2008, did you tell [S] the outcome of the proceedings before me?---I just said to her – she asked me, ‘Is it good news or bad news?’ and I said, ‘Bad news’.
Was there any other conversation in any of those telephone calls about where she was to reside?---No, not during those telephone conversations. There was a bit of chitchat about me – I was walking over to the market carpark, and I’d ring her when I got home.”
(Page 78 of the transcript of 3 June 2008).
The husband asserted he had reasonable excuse because of his “moral situation” and what he described as a “harm minimisation measure”.
During cross-examination the following took place:
“Thank you. Then you then she that she then said to you – and I’m assuming this is on the 25^th but it may not have been, it may have been another day – “I’ll be knocking on your door. If you don’t take me home I’m going to be knocking on your door,” so you then took her home because you thought she was going to leave of her own choice?---I was damn sure she was. She was all ready to go and she knows the bus routes. There’s a bus route she uses to get to music and she knows where the train station is, and she knows that station to get off, and we had a bit of a conversation about it – “I’d have to take you back to the boarding house.” “Well, I’ll just get on the next train.” That went around and around in circles. So it was obvious that something else had to happen.
After this conversation took place, I think you then said, words to the effect that your daughter wasn't thinking very clearly and you spoke to Ms [RR]?---Yes. She wasn't thinking very clearly but then I had made the decision by that time that the way to defuse this situation was to place morality above legality and, as I said, during the 20th century with the ultimate example being Auschwitz and - - -
Auschwitz?---Auschwitz, yes.
What has Auschwitz got to do, [Mr Trevilian], with what was happening to your daughter?---I was about to explain that to you actually.
Yes?---The contrast between legality and morality, that Nazi Germany made laws - legal laws to exterminate Jews but that was obviously an immoral thing to do. I'm just using it as an illustration. I'm not saying that [S] was going to Auschwitz or - I'm using it as an illustration of the principle involved just like the asthmatic case and breaking the speed limit. This child, I thought, was going to come to severe harm. I couldn't predict what sort. She's not the sort of - I didn't think she was going to wander off and become a street kid or a prostitute - I really didn't see that happening, but I certainly pictured her wandering around the town, coming up to [the train station] at 2 o'clock in the morning and me not knowing what to do. So I put the morality of the situation against the legality and that was - so I'm to be punished for that but my child is still well.
[Mr Trevilian], the issue was one of protection for your daughter. That's what the orders, made by this court, but in particular the order of 25 March 2008, was meant - was directed towards. It was directed towards the protection of your daughter?---It was the court's best effort to protect my daughter.
Yes, and protect your daughter - - -?---From me.- - -
from you?---Yes, indeed.
And did you find a fundamental inconsistency? Was there an irony in you taking your daughter out of the college in contravention of the orders in circumstances where your daughter would then be with you in your home?---I was aware of that irony.
Yes?---And it contributed to the moral tragedy, the moral paradox of the difficulty about what to do.
[Mr Trevilian], of all the people that your daughter could have remained with on the night of 25 March, the 26th, the 27th and until she returned to the boarding house on the 28th - of all the people that she could have remained with you were the last person it should have been?---She wasn't going to remain with anybody else.”
(Page 75 and 76 of the transcript of the 3 June 2008).

Later during the questions that I asked the husband he gave the following evidence
“And where did you see [S] on the first instance when you went to the college on 25 March?---The usual practice was for me to pull up on an area of grass near the boarding house and, to the best of my recollection, she adopted her usual practice of coming out to the car to greet me there; so at that point she appeared quite - the usual routine was being followed.
When did you find out that she had packed up her belongings?---We went – did we play tennis or not? I can't remember. When we went inside the boarding house, we sat down and we discussed what was going to happen. I didn't know for quite some little time that she'd packed up her belongings.
Where were her belongings? In her room?---In her room, yes, which is upstairs and along the corridor.
Any questions arising out of my questions, Mr Berman?
MR BERMAN: Yes, only one, your Honour.
When was it that you arrived at the college, and when did you leave with your daughter? I think you said something about 7 o'clock or soon thereafter?---I think it was about 7 o'clock.
How long were you at the college before you left with her?---It would have been much longer than usual. It was well after dark. It was 8.30, 9 o'clock, I imagine, because I had a long discussion with [S], trying to calm her down, to let her vent her frustration and anger and all the rest of it, and reframe things, and I'd also had a lengthy conversation with Ms [RR] and [S].”
(Page 78 and 79 of the transcript of 3 June 2008).
In evidence in chief of the Principal of R College the following took place:
“Ms [V], did [S] have any conversations with you about wishing to leave the boarding house?---[S] and I met reasonably frequently, and she indicated on a number of occasions that she didn't - that she appreciated the care that was being provided in the boarding house, but it was not where she was choosing to be, and that sometimes she'd thought about just leaving.
Did she tell you what she might do if she just left?---No.
That was left up in the air?---Mm.
Did you ask her?---I said to her, "What would you do if you left? Where would you go?"
And what did she say?---She didn't have a plan as such.
…
…
Did I express my - did I express my concern at developments of what had happened, or what I - did I come across as somebody who couldn't care less? You know, "The Family Court has made these orders. Big deal. Who cares? Let's just see what happens, you know. I might get arrested, [S] might get arrested. You know, we might have a posse of Federal Police running around [R] College." Was that my demeanour, or did I appear to be somebody who was trying to sort the matter out?---I was aware from communication with you that you were concerned that if [S] was to reside in the boarding house indefinitely, that she would run away. You were concerned about that, and I'm also aware that - I became aware – I was aware, and I became increasingly aware, that there was scope for us to explore the possibility of alternative accommodation. (My underlining).
Yes?---And I know that you were supportive of that and that [the mother] was supportive of that, and I know Judith Cocks was happy to explore, with the court's approval, alternative approved accommodation.”
(Page 103 and 109 of the transcript of 4 June 2008).
During cross-examination the husband tendered Exhibit 6 by consent. This is a memorandum from Ms RR (staff at the boarding house) to Ms V dated 25 March 2008 which states:
“Dear […],
[The father] came and removed [S] from the BH this evening. We actually had a very good chat and he was the nicest he has ever been – not arrogant at all. I couldn’t physically stop him from taking her and he mentioned that he did try and contact you today but that you weren’t able to be contacted and so he will try again tomorrow.
I actually felt a little sorry for him because he sounded quite despondent and there has obviously been another hearing and nothing seems to have been resolved. He mentioned that it should be over by this stage but that it appears as if it will go on for at least another 6 months and possibly 12 months and he has [S’s] academic interests at heart.
He thanked me very sincerely for having [S] and mentioned that she had been very happy here and [S] agreed. They have taken all her gear – but I did mention that [S] was welcome at any time if we could be of assistance in the future. Y” (My underlining).
Ms V, the Principal gave evidence on the 4 June 2008. The Court was provided with copies of correspondence between the School Principal, the school solicitors and the wife’s solicitors. Ms V confirmed that she had had conversations with S about S not wanting to be in the boarding house and that she had a concern from time to time that S might leave unpredictably.
Ms V had counselled S against taking action, such as leaving the house, and encouraged S to be patient. Ms V agreed that from time to time, S could have been described as “emotionally fragile”.
During cross-examination, Ms V admitted that S was one who obeyed school requirements, was very responsible, but was also capable of voicing her own opinion. Ms V gave evidence of her ongoing willingness to counsel and assist S. She was not present, nor was she consulted, on the evening of the 25 March 2008.
I conclude that the evidence clearly indicates that, following the orders made by me on the 25 March 2008, the husband telephoned his daughter S. Later that evening the husband travelled to R College and spent time with S, who indicated that she was unhappy with the outcome of the proceedings and wanted to resume living with the husband at his home. As a result the husband told the staff at the boarding house that he was taking S home. He then took S and her belongings to his home where she remained until the 28 March 2008.
The contravention of the order is established beyond reasonable doubt.
When considering whether the behaviour of the husband on this occasion was a “flagrant challenge to the authority of the Court” it is necessary to see his behaviour in the context of the proceedings.
The orders made by the Court in early 2008 were made in the context of serious allegations being made by the husband’s former housekeeper of sexually inappropriate behaviour by the husband towards S and serious issues of emotional or psychological abuse being raised (and as yet untested) in the report of Ms J.
Whilst I am satisfied that S was unhappy residing in the boarding house and would have been frustrated and disappointed with the order of the 25 March 2008, I have not received any evidence which suggests that it was necessary or appropriate in order to protect her emotionally or physically for her to be removed by the husband from the boarding house that night.
The husband referred to his own assessment of S’s emotional and psychiatric state in evidence. In final submissions he said that his reasonable excuse “obviously revolves around psychiatric issues which is something which I have 35 years experience with …”.
Although the husband has qualifications in the medical field (as well as his professional qualifications) his personal involvement in these proceedings seriously calls into question his capacity to provide any expert evidence about S’s mental health. Such evidence is likely to be interpreted as self-serving and tainted by his close personal interest and personal relationship.
The husband referred to his “harm minimisation” and his conclusion that his breach of the order was justified because of his “moral situation”. I interpret this to mean his wish to protect S. However considering the evidence of the husband and Ms V, I am not satisfied that the husband has provided evidence which would establish, on the balance of probabilities, that such reasonable excuse existed on the night of the 25 March 2008.
The evidence does not establish, even on the balance of probabilities, that it was necessary or appropriate for the husband to remove S to his home to protect her physically, psychologically or emotionally.
I am satisfied that the husband contravened the order and did so in a manner and circumstances which showed a disregard for the Court order that was a “flagrant challenge to the authority of the Court”.

Conclusion on Contempt

For the above reasons I find that on the 25 March 2008 the husband personally removed S from R College Boarding House in contravention of paragraph 6 of my order of the 25 March 2008 (which continued paragraph 6 of the order of his Honour Justice Burr of the 12 February 2008) such breach being a contravention of the order which involved a flagrant challenge to the authority of the Court.
I will hear submissions in relation to the punishment to be imposed.

Law on Contraventions

Division 13A “Consequences of failure to comply with orders, and other obligations, that affect children” forms part of Part VII of the Family Law Act. That Division contains certain sub-divisions, being subdivision C – “Contravention alleged but not established”, subdivision D - “Contravention established but reasonable excuse for contravention” and subdivision E – “Contravention without reasonable excuse” for less serious contraventions and in subdivision F for more serious contraventions.
Section 70NAC provides:
“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;”
Section 70NAE provides:
“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.
...
(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).”
Section 70NFA (2)(b) provides:
“(2)For the purposes of paragraph (1)(d), this subsection applies if:
…
(b)the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order. ”
It should be noted that the provisions of section 70NAE (1) specifically say that the circumstances “are not limited to” the circumstances set out in the other subsections.
In a section headed “Standard of Proof” section 70 NAF provides:
“(1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3)The court may only make an order under:
(a)paragraph 70NFB(2)(a), (d) or (e); or
(b)paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.”
On the face of it therefore the Court is to use the standard of proof as “the balance of probabilities” when determining whether a contravention has occurred. However, paradoxically, the Court cannot make certain orders unless it is satisfied beyond reasonable doubt that the grounds for making the order exist.
Section 69ZM is the first section in the Act in Division 12A. It applies Division 12A to proceedings that are “wholly under this Part”. Section 69ZM(4) provides: “Proceedings to which this Division applies are child-related proceedings”.
The proceedings for contravention are proceedings which are wholly under Part VII of the Family Law Act being Division 13A of that Part. It is therefore to be assumed that Parliament intended that the principles set out in Division 12A should apply to proceedings for contravention under Division 13A, (including paradoxically the need to make findings beyond reasonable doubt when applying some parts of Division 13A).
Section 69ZT provides:
“Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)     the importance of the evidence in the proceedings; and
(ii)     the nature of the subject matter of the proceedings; and
(iii)   the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a)a rule of common law; or
(b)a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.”
The Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 stated at page 71:
“6.The high threshold for applying the rules of evidence is appropriate as the waiving of the specified provisions of the Evidence Act is an integral element of the active judicial management necessary to achieve less adversarial court processes in child related proceedings. It also implements recommendation 37 of the LACA report. However, the court is left with the discretion to apply the rules of evidence in the appropriate case where the threshold is reached. For example the test of ‘exceptional’ may be met in a serious contravention case where the court is considering a criminal penalty such as imprisonment. It may be appropriate to apply the rules of evidence to such a proceeding due to the gravity of the potential outcome. Even where rules of evidence are applied, other factors related to child-related proceedings can continue to operate, in particular the case management approach.”
Again this appears to assume that the question of penalty will arise before the Court has determined that the “offence” occurred. This inconsistency is an inconsistency which is repeated in section 70NAF (which requires a different standard of proof depending upon the consequences to be applied once the offence has been established).
Johnson and Page (2007) FLC 93-344 (a decision of the Full Court of the Family Court of Australia) dealt with the question of allegations of unacceptable risk of sexual abuse indicating that it was appropriate to apply the exception suggested in section 69ZT(3) where a party was seeking a positive finding of sexual abuse.
The Court has a discretion to exercise under section 69ZT when dealing with contraventions.
In any event, the Court is required to give such weight to the evidence received (whether within the provisions of section 69ZT or the exception of section 69ZT(3)) bearing in mind the serious consequences which might flow from a finding that a party has contravened an order of this Court.

Evidence and Findings on Contraventions

(1)First contravention alleged to have occurred on the 28 January 2008 at the IGA Supermarket at B.

This is alleged to be a contravention of paragraph 9 of the order made by Justice Burr on the 18 January 2008 which specifically provided

“9.The father be restrained and an injunction is hereby granted restraining him from:-

a.having any contact with [S] SAVE AND EXCEPT under the supervision of [the paternal grandfather];

…”

The paternal grandfather is the father of the husband.
The husband did not admit the contravention.
The wife relied upon the evidence of Professor JS filed on the 30 January 2008 (document 187). Professor JS refers in that affidavit to having met S on a number of occasions and recognised her well. His affidavit confirms that on the 28 January 2008 at about 2.30 pm he was at the IGA Supermarket at B. He was standing in a long queue. He saw the husband in the supermarket with S. S saw and greeted him. He was aware at the time of the order for supervision. Paragraph 18 of his affidavit says:
“They were not accompanied by anyone else”.
Paragraph 20 was:
“I did not see [the paternal grandfather] in the supermarket”.
I rely on all of the affidavit of Professor JS. He was not challenged in any way in cross-examination by the husband. He conceded in cross-examination that he could see down one aisle and across the front of the supermarket from where he was standing. He also conceded in his cross-examination that he did not know and would not recognise Dr A.
Paragraph 10 of the affidavit of the husband filed on the 8 February 2008 states:
“In relation to paragraph 18 and 20 of Professor [JS’s] affidavit I said that [Professor JS] did not know that [S] was no longer living with my father [the paternal grandfather] as ordered on the 18 January 2008 by this Honourable Court and that she was actually living with Dr [A].”
Having heard the evidence of Professor JS I indicated that I had found a case to answer in relation to count 1.
In cross-examination the husband admitted that when he was in the supermarket with S he was not accompanied by either his father, the paternal grandfather, nor his friend, Dr A.
The husband’s evidence was that following the orders made on the 18 January 2008, S did not reside with her grandfather.
The husband asserted in evidence that instead he made arrangements for S to live with his friend, Dr A.
In relation to count 1 the husband’s evidence in chief was as follows:
“In relation to count 1, while Your Honour has found that there is a case to answer – there is a prima facie case – I propose to offer no further evidence in relation to that count Your Honour.”
During cross-examination by Mr Berman he informed the Court that Dr A lives at ET and he, the husband, lives at G. The IGA Supermarket in B was closer to his home at G than Dr A’s home at ET. He said he was there because “[S] was looking for smoked salmon”. He asserted that the IGA Supermarket was the closest one open on the Public Holiday, the 28 January 2008.
During cross-examination, and after particular detailed questioning, the husband admitted that on the 28 January 2008, Dr A was not present with him at the supermarket when he was there with S. He had already admitted that his father was not present with him at that time.
A significant part of the evidence of the husband during cross-examination is as follows:
“MR BERMAN: Well, [Mr Trevilian], why in paragraph 10 of your affidavit do you raise the suggestion that Mr [JS] may have been wrong in his observations because, "[S] was no longer with my father but she was actually living with Dr [A]." Didn't you say that in your affidavit to raise the suggestion that he might have known who your father was but he wouldn't have known who Dr [A] was, and therefore that she could have been there. Isn't that what you were trying to suggest in paragraph 10 of your affidavit?---I gave my instructions and that was the affidavit that was produced.
Please, [Mr Trevilian]. Do you say that in some way your solicitors have got this wrong?---I have my earlier drafts here.
Well, don't worry about the earlier drafts, let's go back to 28 January. There was no misunderstanding. You knew you should not have been anywhere with [S] without a supervisor. Forget whether it could have been [Dr A] or whether it could have been your father or anybody else, you were not –[S’s] time with you was not the subject of supervision, was it?---Right throughout all the time of all these orders there's always been a requirement on me that I do whatever is needed with [S] to ensure the big picture, ie that she attends school, she attends the boarding house or whatever it might be.
Please, [Mr Trevilian]. You knew that what you did on that day you should not have been doing in respect of the orders of this court. You knew that, didn't you? There is no misunderstanding about it, is there?---As I said, the orders of this court - without going through all 10 of them - granted this is very early in the piece - - -
Yes. We're not worrying about all 10 because we're now talking about an order of his Honour Burr J made on 18 January 2008. No misunderstanding about the order. Very early in the piece, very early in the proceedings the allegations fresh in everybody's mind but, more importantly in terms of this court, fresh in the court's mind?---My difficulty with this is that Dr [A] gave me – was an unwilling partner in all of this. She didn't sign anything. She gave me authority to take [S] to places.
Please, [Mr Trevilian]?---But I'm not trying to shrink away from my responsibility.
No. Do you say - - -
HER HONOUR: Ask the question again, Mr Berman, because I don't think I've got an answer.
MR BERMAN: No, your Honour.
There can be no misunderstanding, [Mr Trevilian]. You knew, did you not, that you were breaching an order of this court by taking [S] from Dr [A’s] home that day, by being with her at the IGA supermarket?---Subject to the authority that Dr [A] had given me which is not sufficient to countermand the order, yes.
What authority did Dr [A] have to give you?---Well, she had taken over looking after [S]. She wouldn't sign anything to do with supervision. It was a very difficult situation. The order had been made for [S] to go to my father. By the time I got her to my father he wouldn't take her. The next couple of weeks were very, very difficult. I was trying to keep the situation under control as best I could. Unfortunately - - -
[Mr Trevilian], I want to ask you this and I want an honest answer from you?---Yes.
Do you swear that [S] remained living and spending each and every night at the home of Dr [A] between 18 January and 30 January? Do you swear that she spent every single night there?---Yes.
Were there other occasions other than 18 - other than 28 January where you took [S] from Dr [A’s] home - - -?---Yes.
- - - unsupervised?---We would ask Dr [A] if this was okay and she'd say "Yes".
And how many times did you do this? 10?---A few trips to supermarkets basically. To public places where - this was supervision again - where there was lots and lots of people around.”
(Pages 226 and 227 of the transcript of the 5 June 2008).
The husband also gave evidence that during this period he often took S to a tennis court near Dr A’s home to play tennis. On these occasions no-one else accompanied him and S.
Later during the cross-examination the following exchange took place:
“Did you go back to lunch at Dr [A’s] home, after the IGA supermarket? Remember, your evidence was that you think you were there for lunch. 2.30 you find yourself in the IGA supermarket buying smoked salmon for your daughter who - - -?---No, she wanted smoked salmon.
She wanted smoked salmon. You were buying it for her. That's why you took her there?---Yes. I can't remember who paid for it. Yes.
I'm asking you, did you go back to Dr [A’s], to finish your lunch?---Yes.
Do you say that? Is that the truth of the matter?---The smoked salmon, as I recall, [S] particularly wanted to make my sandwiches in the morning.
To make your sandwiches in the mornings?---Yes.
How was that working? You were living at your home in the hills, your daughter was living with Mrs [A]?---Yes.
It's unlikely that your daughter would be making anything for your breakfast or your lunch?---She would make my sandwiches for breakfast the previous evening and wrap them up and give them to me and I would take them home.
You are concocting your evidence, aren't you?---No, not at all. For a moment I couldn't remember exactly how the smoked salmon got into my sandwiches. It's not because I was at Dr [A’s] in the morning or that [S] was at my place. She made them and gave them to me when we'd finished tea and/or playing any games or watching television, and I took them home.”
(Page 231 of the transcript of the 5 June 2008).
The husband denied that S was living with him at his home at this time.
I am satisfied beyond reasonable doubt that the husband contravened the order of the 18 January 2008 when on the 28 January 2008 he was with S, unaccompanied, in the supermarket at B. On his own evidence he travelled there unaccompanied with S from Dr A’s home at ET and back again. The order clearly provided that his time with S was to be supervised by his father.
I am satisfied beyond reasonable doubt that the husband knew about the order, understood the order and was aware that he was required to have his time spent with S supervised by his father.
Whilst the husband may have established a reasonable excuse for S not residing with his father at that time, the husband did not establish (and did not even attempt to establish) that he had a reasonable excuse for spending time with S unsupervised by his father (or unsupervised by anybody else).
The husband has failed to establish on the balance of probabilities that he had any reasonable excuse for failing to comply with the order of the 18 January 2008.
I am also satisfied beyond reasonable doubt that the husband’s behaviour on this occasion indicates that he has behaved in a way that has shown a serious disregard of his obligations under the order (section 70NFA(2)(b)).
(2) Second contravention
The second contravention concerns paragraphs 8 and 12 of the order made by Justice Burr on the 30 January 2008 which provide:
“8. [S] live with:-

(a)Dr [A] until the morning of Monday 4 February 2008; and
(b)as a boarder at [R] College from the morning of Monday 4 February 2008 until the Court’s further determination on 12 February 2008.

…

12.The father be restrained and an injunction is hereby granted restraining him from:-

(a)having any contact with [S] SAVE AND EXCEPT under the supervision of Dr [A] or [the paternal grandfather];
(b)spending overnight occasions in any premises where [S] is sleeping or residing.”

It is alleged by the mother that on the 1 February 2008 at approximately 6.22 pm she saw the husband driving along the … Road away from B with S in the car in the absence of either the paternal grandfather or Dr A.
The husband did not admit the contravention.
The only part of the order of Justice Burr to which this directly relates is the order in paragraph 12 (a) of the order of the 30 January 2008.
In the affidavit sworn by the wife on the 6 February 2008 and filed on the 7 February 2008 (document 190) the wife said at paragraphs 4 and 5:
“4.On Friday 1^st February 2008 at approximately 6.22pm I was a front seat passenger in a car being driven along […] Road at […] towards [B].
5.I saw [S] and the husband in his car travelling in the opposite direction. The husband was driving the car. [S] was in the front seat. There was no-one else in the car.”

At the hearing before me the wife was cross-examined by the husband at length about her view of his car, her identification of his car and her capacity to see inside the car as it passed her.
Although the wife was extensively cross-examined about her capacity to identify the husband and S and if anyone else was in the car at the time, she was not significantly challenged. I accept her evidence and found it to be consistent and reliable.
The husband gave evidence. He provided Exhibit B which was an invoice for window-tinting to a car of the same make and model as the car driven by the husband.
The husband did not provide any other evidence in chief.
Under cross-examination the husband admitted that he had not had the front windscreen of the car tinted. He also asserted that on the 1 February 2008, S was living with Dr A.
His evidence under cross-examination continued:
“Do I understand your evidence to be this: that you were not in a car at this time with [S]?---Yes, I have no recollection of that incident. I had no recollection at the time when I received the documents. It just came as a bolt out of the blue. I had no idea.
Well, [Mr Trevilian], given the evidence that you've just given about driving to the IGA supermarket at [B], it wouldn't have been a bolt out of the blue, would it, that someone would allege that you and [S] were seen in a motor vehicle driving along the […] Road?---When those documents were received, I sat down with [S] and Dr [A] and we tried to think what it could possibly refer to, and we just had no collective recollection. It didn't make any sense at all.
It didn't make any sense at all?---No. The time of day, that 4 pm, whatever it is sorry, 6 pm.
6.22 pm?---6.22. Our collective recollection at the time was we were all sitting down eating tea.
Where?---At Dr [A’s] house.
And if we had the advantage of Dr [A] giving evidence, she would be able to presumably tell us that?---Indeed. Indeed.
But we don't, do we, [Mr Trevilian]?---No, we don't.
No, because, you see, whilst you challenge my client's observation on 1 February 2008, you concede that, in respect of count 1, if she'd been making the same observation only a couple of days earlier, she would have been absolutely correct, wouldn't she?---Yes, there were - - -
Yes?---I haven't tried to hide that fact. There were occasions when [S] was driven to a supermarket, for example, yes.
And if we use 1 February 2008 as the pivotal point, there were occasions after 1 February when you drove up the hill with [S] and there were occasions before 1 February, weren't there?---There were occasions between 18 January and - yes. In answer to your questions, yes.
In answer to my questions, yes. So what I'm putting to you is that the orders of - there was nothing special, as far as you were concerned, about the orders of January 2008. That is, your practice continued. The child was living at [Dr A’s] home and you would attend regularly and on occasion you would take [S] away from the home unsupervised and unaccompanied?---Well, it was also the new order 10, which says, "The father is to take all such reasonable action as is necessary to ensure [S’s] attendance at [R] College." You ask what's the relevance of that?
Would you answer my question. Am I right when I put that question to you; namely, that your behaviour in respect of taking [S] away from the home of [Dr A], unaccompanied and unsupervised, continued on; it didn't change after the order of 30 January?---It happened from time to time in all sorts of circumstances.
And, you see, it happened on 1 February 2008?---Well, I don't think it did.”
(Page 239 and 240 of the transcript of the 5 June 2008).
Later in cross-examination the husband repeated that his recollection was that ‘we hadn’t been out on that particular day anywhere”.
There was no convincing evidence which would allow me to conclude that the wife was unable to see adequately into the husband’s motor vehicle because some of the windows of the car had previously been tinted.
Having heard the evidence of the wife, and particularly the cross-examination by the husband, I was satisfied by the evidence of the wife that she had the capacity to, and indeed did, observe the husband and S alone in a car on the 1 February 2008. I prefer the evidence of the wife to that of the husband.
I am satisfied on the balance of probabilities that on the 1 February 2008 the husband contravened the order of the 30 January 2008, paragraph 12, when he failed to obey the injunction restraining him from having any contact with S, save and except, under the supervision of Dr A or the paternal grandfather.
I am further satisfied that the husband did not have a reasonable excuse for the contravention on that date.
(3) Third contravention
The third contravention involves an alleged breach of paragraph 13(a) of the order made on the 12 February 2008. The sealed order provides:
“13.The father is restrained and an injunction is hereby granted restraining him from:-
a.having any contact with [S] SAVE AND EXCEPT under the supervision of [R] College staff;”
This order was inserted into the sealed order of the 12 February 2008 pursuant to Rule 17.02 of the Family Law Rules by amendment on the 18 February 2008. That order was made during the period of the adjournment. The matter was adjourned by Justice Burr to a hearing before me on Tuesday 25 March 2008 at 2.15 pm.
That order therefore ceased to have effect when on the 25 March 2008 I continued paragraphs 6 to 12 inclusive of Justice Burr made on the 12 February 2008, but made a specific order restraining the husband from:
“(a)spending any time with or in the company of the child [S] save and except under the supervision of the staff of [R] College or during the school holidays under the supervision of a suitable person agreed to by the mother, father and the Independent Children’s Lawyer;”
The specific alleged contravention relates to “ various week days between approximately 6.00 pm and 7.30 pm between 18 February 2008 and the date hereof”. It is necessary to give the matter a strict interpretation bearing in mind the serious consequences which flow from a contravention. It is therefore only possible for the husband to have contravened paragraph 13(a) of the order of the 12 February 2008 at a time between the 12 February 2008 and my orders of the 25 March 2008 when paragraph 13(a) of the 12 February 2008 ceased to have effect.
The husband did not admit the contravention.
The husband did not admit that he was in Court on the 12 February 2008 when the orders were made by Justice Burr. He conceded that he received the order (which was amended on the 18 February 2008) on the 28 February 2008.
His evidence in chief on the 5 June 2008 was as follows:
“So you're conceding that you knew about the order restraining you from having any contact with [S], save and except under the supervision of [R] College staff?---Yes.
You certainly knew about that order after 18 February 2008?---Well, no, I didn't, your Honour. I didn't know about that until 28 February, by which time a pattern of interactions with [S] had been established.
Sorry?---There was a considerable delay in my receiving that amended order, and - - -
Well, after 28 February 2008 you were certainly aware that there was an order of this court that restrained you from having any contact with [S] save and except under the supervision of [R] College staff. Is that correct?---No, it's not correct, your Honour. I didn't, I didn't - my initial reaction was that I did not believe that order existed.
Sorry?---I did not - - -
Well, you give me your evidence. I don't want to cross-examine you?---No.
I'll leave that up to Mr Berman. But what is your evidence in relation to the alleged contravention of the order of 12 February 2008?---Well, it's a double-barrelled issue. First of all, there's also order 8 in the order of 12 February 2008 and, as your Honour heard at length yesterday, there was difficulties with [S]. Ms [V] referred to imprisonment on a regular basis, discussions, and [S] was extremely unhappy in that whole situation. I thought I was - I thought there were only 12 orders, which were relevant. I had to bear in mind that I had to ensure that [S] complied - well, I'm to comply with order 8. There's a great deal of correspondence here with my solicitors and so on. For example, I conveyed to my solicitors what [S’s] attitude to all this was and if I can perhaps quote from one of those letters from my lawyer - - -
Well, once again, if you do that you should be on notice that you may be waiving any claim for legal professional privilege, not only in relation to that correspondence, but matters relating to the topic concerning that correspondence?---Yes, I understand that, your Honour. The letter from my legal representatives says that, "We take this opportunity to confirm your instructions that [S] has expressed great concern to you," and that she will live with me whatever the court orders are after 30 January. It goes on to say that I must endeavour to comply with orders made by the Family Court. There's earlier correspondence about how - a suggestion that was raised about [S] going to Queensland and how I explained that that couldn't happen. But it was a day-by-day evolving process of trying to keep [S] - I mean, it was a terrible wrench for her, after living with me for two and a half years, to suddenly be living in an institution and to be not able to carry on her normal life, contact me at will and so forth. So day by day I had to work out - I had to try and relate to my daughter, because unfortunately there was no relationship with the mother. I had to do the best I could to ensure that order 8, above all else, was complied with. When I eventually received order 13 - well, I not only received order 13, I received a copy of the correspondence from Ms Ferdinandy suggesting that order 13(a) meant that telephone contact was not permitted. Now, by the time that order was received at the end of the month, that telephone contact had been going on a regular basis, as the 5 telephone records show. Ms [V] had inquired of Ms Ferdinandy what the situation was in relation to telephone contact, and to the best of my knowledge had not received anything in response. So there was a pattern well and truly established by the time I, I'm afraid somewhat tardily, received the order of 18 February, the amendment of 12 February under the slip rule, that already [S] had been there two or three weeks, we'd probably played 20 games of tennis, we'd probably had 100 phone calls and I - there was other - I received a lengthy letter from my solicitors dated 27 February. When I received that letter, I think it's not overstating it to say that chaos broke loose. I'd known nothing about order 13. My first reaction was that I didn't believe it. My second reaction, with all due respect to Ms Ferdinandy and I apologise now, was that she had made it up and that I wrote in that sense - there was just – for once, I'm afraid I have to agree with Mr Berman's submission, which he puts from time to time, that I just didn't get it. I just didn't get what was going on, given the basis and the contents of this letter dated 27 February from my legal representatives, to do with telephone contact, to do with - - -
Well, I don't have that letter before me. Are you suggesting that there is - are you putting to me in your evidence that there is something in a letter from your solicitors, which explains your alleged breach of the order, paragraph 13, of 12 February? I warn you that if you are putting that, then you're putting at risk the need to produce the letter and running the risks of waiving your legal professional privilege?---Yes, indeed, but this letter is what caused all the confusion. I thought that I was complying with all the orders, and that I was complying with all the orders that I knew about. Then there was this further order and this was compounded by the fact that my solicitor at the time was about to leave for four weeks. So I wrote in haste and, I have to unfortunately confess, in anger, saying, "What on earth is all this about?" and basically I received no reply. I've got all the notes of the telephone attendances between myself and my legal representatives, but there was no further written communication from my lawyers to explain what was going on, to explain all my numerous misunderstandings, including a letter sent I think to your Honour's associate about an alleged difficulty with you hearing evidence, because I've given evidence in front of you before. This was the letter from Ms Ferdinandy and my lawyer said that that should have come to them, not to your Honour's associate. The whole letter from start to finish just created chaos. I no longer understood it.
You need to give me some evidence about what you say has occurred in the context of the contravention which we're currently dealing with, which asserts that between 18 February and 22 April 2008, on approximately each weekday, you spent time with [S] unsupervised, playing tennis at [R] College unsupervised. You have asserted to me that you didn’t know about the order in paragraph 13 until you received the letter of 27 February. Is that right?---Yes, on the 28th I received it, yes; after hours on the 28th.
Sorry, and that is 28 February so you need to explain to me what happened after 28 February so far as the allegation of a breach of the order is concerned? ---Yes. I guess it's in two parts. First of all, until I received that letter, a pattern of interaction between myself and [S] had been well-established. I was playing tennis every night. There was phone calls without limit. I then received this letter of 27 February saying, above all else, that for present purposes that the telephone calls were not allowed. So I immediately contacted my legal representatives and I think I recall mentioning that Ms Ferdinandy had already received an inquiry from Ms [V] on that very topic and I didn't know whether any response had been received but - - -
No. Can you address the issue, not of the telephone calls - - -?---Yes.
- - - but of what happened after 28 February when you became aware of paragraph 13 which is when you say you became aware of the terms of paragraph 13 of the order?---Yes. Nothing changed at all. I continued to play tennis, I say supervised, as I've explained at some length yesterday - but that continued - the arrival of the modified order with the slip rule addition had no effect on what happened either in the boarding house or in relation to the school or in relation to playing tennis.” (My underlining).
(Page 247, 248, 249 and 250 of the transcript of the 5 June 2008)

When cross-examined by Mr Berman the husband again alleged that he had been absent from the Courtroom after his Honour Justice Burr started making orders. However, he conceded in cross-examination that when Ms Lewis (Counsel appearing for him on that occasion) was making submissions to his Honour, the transcript indicated that she was taking instructions directly from him in Court. He then asserted that it was possible that he was in Court, but that he was in a “a lot of agony and pain”. The husband maintains that, notwithstanding the whole purpose of the proceedings before his Honour Justice Burr on the 12 February 2008, he did not ask counsel at the end of the proceedings what had happened and what orders were made.
The husband’s evidence was that, after he received a sealed copy of the order of the 12 February 2008 as corrected by the Slip Rule on the 18 February 2008, “everything remained the same”. When asked what he meant he said “that after he received the order on the 29 February 2008 he continued to play tennis with [S] in the manner in which he had undertaken prior to receiving the orders”.
The husband’s evidence was that he considered he was being supervised when playing tennis with S. (He also relied upon, what he says was confusion caused by Ms Ferdinandy sending a letter which suggested that the original order prevented him having telephone communication with S unless it was supervised).
As part of his defence to the allegation of the contraventions concerning playing tennis with S, the husband asserted that the school knew he was playing tennis with S and his solicitors knew that he was playing tennis with S.
The husband admitted in his evidence and cross-examination by Mr Berman, that he played tennis with S six or seven nights a week. In cross-examination by Mr Berman the husband gave the following evidence:
“Was there anybody at the tennis courts?---Frequently.
Officers of the school?---On and off, depending, yes.
By arrangement with you?---No, not by arrangement.
It happened by chance. There may have been people there on occasion, there may have not been people there on occasion?---It's quite a complicated situation. Do you want me to actually describe the set-up of the tennis court?
No. Did you make any arrangement with the school that when you played tennis you wanted a representative of the school to be in attendance?---They always knew we were there.
No. Did you make an arrangement? Did you specifically request that when you spent time with your daughter, playing tennis, you wanted a representative or an officer of the school present?---Of course not.
When you spent time in the study room with your daughter, did you make a request that there be a member of staff with you?---Not directly, no. There was always people around.
Did you go up to her room? Did you go up to [S’s] room?---A few times, yes.
Were you accompanied by a member of staff?---No.”
(Page 54 of the transcript of the 3 June 2008).
Later in his evidence on that day the husband said that ‘I understood there to be no statutory definition in the Family Law Act for supervision”.
Under cross-examination the following exchange took place:
“The position about the orders made on 12 February 2008 – your position about that was this: you gave them no regard at all, you just did what you wanted to do?---Which date are the orders?
12 February?---No. Absolute nonsense. Absolute nonsense.
There’s no misunderstanding, is there’re, that you were restrained from spending time with your daughter unless it was supervised?---I didn’t get that order till 29 February. By then a course of my interaction with [S] had been well and truly established, including nightly tennis, nightly homework, nightly discussions in the room opposite where they were. So by the 29^th, which is 17 days after the order – I got that order late, in my opinion and still more did I get the order 13 late.”
(Page 58 of the transcript of the 3 June 2008).
A further part of the evidence which the husband gave that he believed his time spent with S on the tennis courts was being supervised was as follows:
“The nature of the tennis courts is that they are 360 degrees open, visible from all sides. There's a driveway where people - and this is the best sort of supervision for an adult with a 16-year-old - there are people randomly driving past, walking past, including schoolteachers, including vehicles going up and down […] Road, including the very strange behaviour of a taxi one night, where I could see quite clearly I was being videoed, or the mother had been called to identify me. There were people going in and out of the gymnasium, or there were people playing on most of the other tennis courts, on and off. I was always in full view of the windows of the boarding house where, at my unchosen moment and their chosen moment, they could look out and see what I was up to. That is the very best sort of supervision for a parent looking after a 16-year-old where a 16-year-old needs looking after like a 16-year-old, not a 16-month-old.”
(Page 59 of the transcript of the 3 June 2008).
The husband was asked whether Ms V, the School Principal or any other officer of R College approached him and said that they would supervise his time with S. The husband answered, “the word supervision or what I was doing with [S] – again the straight answer is no, but the school and its staff members would often come past … ” (Page 60 of the evidence of the transcript of 3 June 2008).
The husband also asserted that there was “enormous inherit ambiguity; what is supervision?”
The husband’s evidence was that he had received a copy of a document headed “Should I supervise the time spent by a parent with a child?” and that he had read it. He conceded that he would have seen the document (a copy of which became part of Exhibit C) within two or three days of the document being sent to his father on the 22 January 2008.
The evidence of Ms V confirmed that Ms V and other staff members at the school were aware that the husband was in the habit of playing tennis with S on the school tennis courts regularly on evenings after school. Ms V could not be sure whether she had actually received a copy of the pamphlet about “supervising time spent by a parent with a child”. During her evidence, Exhibit 3, (which is a letter from the solicitor for R College to the wife’s solicitors dated 7 March 2008) was received. That letter confirmed that R College was “not in a position to provide the one on one supervision that you (the wife’s solicitors) appear to be seeking”. Ms V’s evidence confirmed that the tennis courts were part of the open space of the R College with a wire-fence around the courts which could be seen through. Cars drive past on both sides of the tennis courts and people walk up and down the internal road. She confirmed that the tennis courts are in the middle of the campus.
During cross-examination Ms V confirmed that there was no teacher or boarding house member of staff who was free to supervise S and the husband playing tennis and no arrangements had been made for anyone to do so. Nor were there any arrangements made for anyone to keep an eye on the husband or S by looking out of the staff room window.
During the cross-examination of Ms V by Mr Berman, the Court received Exhibit 7, which is an email from Ms RR (staff of the boarding house) to Ms V of the 31 March 2008 and Ms V’s response to Ms RR of the 1 April 2008. The first email dealt with Ms RR’s observations of the Saturday night, the 29 March 2008 and concerns Ms RR had about the husband assisting S with her homework in S’s room at the boarding house. The emails confirmed the husband’s attendance at S’s room on Saturday 29 March 2008, after the husband and S had earlier played tennis that evening.
The contravention application specifically refers to week days. The attendance of the husband on the 29 March 2008 was on a Saturday and was indeed after my orders of the 25 March 2008, so cannot be evidence of a contravention within the strict terms of the allegations of the wife’s contravention application. (Namely, on week days and in contravention of the orders of Justice Burr).
The order of 28 March 2008 provided inter alia:
“…
NOTING the father is warned that if there is found to be a breach of Court orders of the 25 March 2008 without reasonable excuse or a flagrant breach of those orders which amounts to a contempt of Court he faces serious consequences.”
The husband maintained that he believed that the possible presence of other people around the area surrounding the tennis court meant that his time spent with S whilst he was playing tennis, was supervised.
There was a clear inconsistency between the husband’s apparent reliance upon the brochure about supervision (part of Exhibit C) which referred to “For most of the time you should be in the room. If you are not in the room, you should be nearby within earshot” and his allegation that he believed he was under supervision when he was on the tennis court with S.
The husband also asserts that he was obliged to interpret the numerous orders of the Court and place them in some order of priority. I understand his evidence in this regard to relate to his need to do “all that was necessary to encourage [S] to remain at [R] College” and that this therefore may have given him a reasonable excuse to spend time with her that was not supervised by a staff member of R College.
On the husband’s own evidence I am satisfied that as from the 29 February 2008 the husband was aware of the full terms of the order, including paragraphs 13(a) of his Honour Justice Burr’s order made on the 12 February 2008 as corrected by the Slip Rule on the 18 February 2008.
The husband maintains that he has not contravened the order because he did not understand that the order required anyone to be physically present during the time that he played tennis with S at R College most week day evenings.
It is necessary for the Court to be satisfied that the husband knew that the order required that a member of the staff of R College be physically present and at least within earshot of himself and S at all times. The husband asserts that he did not understand this was a requirement but asserted because of S’s age, she could be supervised in a much less stringent or active manner than would be necessary if she were a much younger child.
The husband also relied upon Exhibit H, a section of a book by an Erik Erikson which refers to development of identity in puberty and adolescence. This reference does not assist the Court in determining whether the husband was supervised or believed he was being supervised.
However it was not S who was to be supervised; it was the husband who was to be supervised when spending time with S.
The order did not specify that the husband’s time with S could be supervised by anybody. It specifically required that the husband was to be restrained and an injunction was granted restraining the husband from having any contact with S, save and except, under the supervision of R College staff. (My emphasis).
The obligation was upon the husband by way of injunction.
The injunction needs to be seen in the context of the unresolved allegations that the husband had behaved in a sexually inappropriate manner towards S as alleged by the husband’s former housekeeper.
The husband asserts that he was being supervised by R College staff because he was playing tennis in a manner which was capable of being viewed by the staff. He is also asserting that he did not understand the requirement that any contact he had with S was to be under the supervision of R College staff to the extent that that expression meant that someone from the staff should be physically present when he was playing tennis, specifically observing S and the husband and within earshot. I do not accept his evidence that he believed he was being supervised.
I find that the husband was aware, by the time he received a copy of the brochure in late January 2008 (part of Exhibit C) that “supervision” required a supervisor to be physically present at a short distance and in any event within earshot to hear conversations.
I reject the suggestion made by the husband that because some of the other orders were not being enforced (such as travel arrangements for S) this meant therefore that he could interpret the Court orders “pragmatically”.
Notwithstanding the confusion which may have existed because of the wording of other parts of the order of the 12 February 2008 (which referred to the husband having any contact with S and the issue that is raised in relation to telephone communication) I am not satisfied that this alleged confusion allowed the husband to interpret the specific injunction to permit him to play tennis with S without a specific member of R College staff being present.
I take into account the circumstances surrounding the orders of the 12 February 2008. The husband has a professional degree (although he is not experienced in the Family Court jurisdiction) and had by the end of January 2008 received a copy of the brochure concerning the duties of persons who are to supervise time spent between a parent and the child.
Taking into account all of the evidence (including the evidence of Ms V and the apparent acquiescence of the school in the activities of the husband at the school) I am satisfied, on the balance of probabilities, that from the end of February 2008 until the 25 March 2008, the husband was aware of the order of his Honour Justice Burr paragraph 13(a) of the 12 February 2008 and understood that the order required that someone be present with S and himself and within earshot at all times he was to spend time with or be in the presence of S.
I am satisfied that he knew that this was a requirement of the orders but nonetheless, participated in games of tennis with her on a regular basis during that period.
I am satisfied that he was not on those occasions being supervised by anybody, and in particular, he was not being supervised by R College staff. The husband knew that he was not being supervised by R College Staff.
The husband has not established on the balance of probabilities that he had reasonable excuse for the numerous contraventions of this order. I am not satisfied that it was necessary for him to play tennis with S unsupervised in order to comply with the other orders of the Court (such as the orders requiring him to take all reasonable steps to ensure that S remained at R College as a boarder). Nor am I satisfied that the evidence of the husband about the alleged failure to comply with other orders of the Court (such as transport for S) allowed him to interpret the injunction order of paragraph 13(a) in a way which permitted him to spend time with S unsupervised by R College staff.
I therefore find that the husband contravened paragraph 13(a) of the orders of Justice Burr of the 12 February 2008 when he played tennis with S regularly in the afternoons and early evenings in the period from the end of February 2008 until the 25 March 2008 and that he did so without reasonable excuse.
Summary and Conclusions
The husband committed contempt of Court when he removed S from R College on the 25 March 2008.
I am satisfied beyond reasonable doubt that on the 28 January 2008 the husband contravened the order of the 18 January 2008 when he took S to the IGA Supermarket and was not supervised by his father, the paternal grandfather, and he did so without reasonable excuse and behaved in a manner which showed serious disregard for his obligations under the order.
I am satisfied on the balance of probabilities that on the 1 February 2008 the husband contravened the order of 30 January 2008 when he had contact with S in his car unsupervised. He did not have reasonable excuse.
I am satisfied on the balance of probabilities that on numerous days, between the 29 February 2008 and 24 March 2008 the husband contravened the orders of the 12 February 2008 when he had contact with S when playing tennis with her which was not under the supervision of R College Staff. He did not have reasonable excuse.

I certify that the preceding one hundred and eighty six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date: 17 July 2008

[2008] FamCA 548

17 July 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Statutory Interpretation

Legal Concepts

Remedies

Jurisdiction

Procedural Fairness

Statutory Construction