Sinagra & Filice
[2022] FedCFamC2F 732
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sinagra & Filice [2022] FedCFamC2F 732
File number(s): ADC 2378 of 2020 Judgment of: JUDGE COPE Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – Contravention – Ex tempore reasons for judgment – two children aged 10 & 4 years – final consent Orders made on 13 October 2021 – six alleged contraventions – Where breaches concern failures to make the children available for time – Where mother has filed Rice & Asplund application after the father files Contravention Application – finding that the mother contravened the Orders without a reasonable excuse – six breaches fall within the more serious category. Legislation: Family Law Act 1975 (Cth) ss 65DA(2), 70NAC, 70NAE, 70NAF, 70NBA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 11.69
Cases cited: Kelly & Kobelnek (1998) Fam CA296
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Stavros & Stavros (1984) FLC 91-562
Stevenson & Hughes (1993) FLC 92–363 [1993] FamCA 14
Division: Division 2 Family Law Number of paragraphs: 84 Date of hearing: 13 May 2022 Place: Cairns Counsel for the Applicant: Mr Anderson of Counsel Solicitor for the Applicant: O’Loughlins Lawyers Solicitor for the Respondent: Comley Legal ORDERS
ADC 2378 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SINAGRA
Applicant
AND: MS FILICE
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
13 MAY 2022
THE COURT FINDS THAT the Respondent Mother has breached the Orders made on 13 October 2021 on six separate occasions being as follows:
(a)Count 1 - That on 29 December 2021 the Mother without reasonable excuse withheld the children for a period of two nights in breach of Order 4 (c).
(b)Count 2 – That on 5 January 2022 the Mother without reasonable excuse withheld the children for a period of five nights in breach of Order 4 (a).
(c)Count 3 - That on 12 January 2022 the Mother without reasonable excuse withheld the children for a period of two nights in breach of Order 4 (c).
(d)Count 4 - That on 19 January 2022 the Mother without reasonable excuse withheld the children for a period of five nights in breach of Order 4 (a).
(e)Count 5 - That on 26 January 2022 the Mother without reasonable excuse withheld the children for a period of two nights in breach of Order 4 (c).
(f)Count 6 - That on 2 February 2022 the Mother without reasonable excuse withheld the children for a period of five nights in breach of Order 4 (a).
THE COURT FURTHER FINDS THAT the Respondent Mother had no reasonable excuse for breaching the Orders on each of those six occasions.
THE COURT FURTHER FINDS THAT the six breaches fall within the more serious category.
THE COURT ORDERS THAT:
1.The matter is otherwise adjourned to Friday 20 May 2022 at 2:15pm for Hearing of further submissions as to the appropriate penalties and compensatory time and the Rice v Asplund issue.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sinagra & Filice has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE COPE
These reasons for judgment were delivered orally and have been corrected from the transcript.
INTRODUCTION
I am asked to decide a Contravention Application filed by the father on 15 February 2022. I am also asked to decide the interlocutory Orders sought by the parties in the Initiating Application filed by the mother on 2 March 2022 and the father’s Response filed on 11 April 2022. As previously noted, this decision will deal solely with the contravention application.
By way of background, the parties commenced a relationship in 2008 and the oldest child, B, was conceived while the mother was still married to her former husband, who has since died. So far as the mother and her former husband’s family are concerned, B is the child of that relationship – the mother’s family, I should say.
The parties commenced an open relationship in 2014 and married in 2016. The second child of the relationship, X, was born in 2017. The parties then separated on 3 October 2019 and divorced in 2021.
Substantive proceedings were commenced by the mother on 5 June 2020 and were resolved by way of final consent parenting and property Orders which were made on 13 October 2021. In fact, two consent Orders were made on that date: the main Orders finalising child and property matters, whilst the second set of Orders provide an authority to the father to obtain records and information from X’s school.
The final parenting Orders provide for equal shared parental responsibility and for the children to spend time with the father, initially, each alternate weekend and overnight in the off week and then, as of 8 December 2021, for the children to live in an equal time 5:2, 2:5 rotation with provision for special occasions and fairly standard orders scaffolding those arrangements.
Significantly, however, those Orders also provide for paternity testing in relation to X and then provision for how X is to be advised that the applicant is, in fact, his biological father and not, as he has always believed, his stepfather. The Court documents filed state that there has been no contact between the children and the father since 26 December 2021 and that has been confirmed during the evidence today. The evidence before the Court is also to the effect that X is still unaware that the applicant is his biological father. The mother did not present X for the paternity testing until 10 January 2022, noting that the subsequent results confirm the applicant as the biological father.
It is the understanding of the Court that the parties have not yet followed the process set out in the final consent Orders for informing X about his paternity.
The Contravention Application
The Contravention Application alleges six contraventions regarding the children, being X, born in 2012, and Y, born in 2017. The six alleged breaches concern failures to make the children available for time with the father in accordance with the final consent Orders.
The application alleges six contraventions of the Orders as follows:-
Count Specific Order Contravention Alleged 1 4(c) 29 December 2021
The mother, without reasonable excuse, withheld the children in her care and failed to deliver up the children to spend time with the father from Wednesday 29 December 2021 until Friday 31 December 2021 (two nights)2 4(a) 5 January 2022
The mother, without reasonable excuse, withheld the children in her care and failed to deliver up the children to spend time with the father from Wednesday 5 January 2022 until Monday 10 January 2022 (five nights)3 4(c) 12 January 2022
The mother, without reasonable excuse, withheld the children in her care and failed to deliver up the children to spend time with the father from Wednesday 12 January 2022 until Friday 14 January 2022 (two nights)4. 4(a) 19 January 2022
The mother, without reasonable excuse, withheld the children in her care and failed to deliver up the children to spend time with the father from Wednesday 19 January 2022 until Monday 24 January 2022 (five nights)5. 4(c) 26 January 2022
The mother, without reasonable excuse, withheld the children in her care and failed to deliver up the children to spend time with the father from Wednesday 26 January 2022 until Friday 28 January 2022 (two nights)6. 4(a) 2 February 2022
The mother, without reasonable excuse, withheld the children in her care and failed to deliver up the children to spend time with the father from Wednesday 2 February 2022 until Monday 7 February 2022 (five nights)
The mother concedes the alleged contraventions but argues that she had a reasonable excuse on each of those six occasions.
The Interlocutory Application
I will leave aside the issue of the interlocutory applications, but simply note that the mother is seeking in her Initiating Application to suspend the father’s time with the children and proposes that, in the alternative, he spend supervised time with the children each Sunday from 10:00 am to 2:00 pm, supervised by the paternal grandmother and to take place in the paternal grandmother’s home in the absence of Ms B, the father’s partner.
The father’s Response simply seeks that those applications be dismissed and I presume that’s on the Rice & Asplund argument[1].
THE CONTRAVENTION APPLICATION
[1]Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Issues for determination
The contravention application issues for determination are as follows:-
(a)firstly, whether the mother had a reasonable excuse for the six contraventions alleged and, if that is established, that will be the end of the matter save for any arguments as to legal costs.
(b)Secondly, if however I find that the mother did not have a reasonable excuse for one or more of the alleged breaches, then I must turn to the issue of whether the contraventions fall within the category of less or more serious contraventions. I must then thirdly decide what penalty or consequence should apply to the mother and
(c)Lastly, I will determine whether it is necessary to appropriate to vary the orders made by consent on 13 October 2021 under the power invoked by section 70NBA.
Material relied upon
The material relied upon for the Contravention Application is the application itself filed on 15 February 2022 and the supporting Affidavit filed on the same date. I also have a Tender Bundle from the Applicant which was marked as Exhibit F1, which is the same documents as contained in exhibit number 1, which is the Court’s Exhibit which was released by the Court prior to today’s Court date, being the section 69ZW material from the South Australian Police and also from Child Protection.
The mother did not file any material. However, she did indicate her plea to the alleged contraventions in the Contraventions Summary Sheet which she filed on 2 May 2022. The mother also gave evidence-in-chief under oath in the witness box today.
Orders sought
In relation to the Orders sought, the father proposes that in the event I find the mother has breached the Orders without reasonable excuse on the six occasions as alleged, that she enter into a Bond to comply with a $10,000 surety, that he have compensatory time with the children in a way that is specified in the Contravention Summary Sheet, being that the children are in his care for nine nights each fortnight over a 14-week period and that he have block time with the children from 31 August to 19 September 2022, being an additional week over the holiday period.
The mother proposes that the contact Orders be suspended, that a Child Impact Report be prepared and the Contravention Application be adjourned until such time as that report is to hand.
Witnesses
In relation to witnesses, I have only the two witnesses before me, which is the applicant and the respondent. In addressing the witnesses, I will go through their evidence in some summary and also deal with it when I deal with each count.
The Applicant
The Applicant was the first in the witness box. He gave clear and straightforward evidence when answering questions. I found the father to be an impressive witness. I formed the view that he answered the questions openly and honestly. Though occasionally keen to get into criticism of the mother, he was overall calm and child-focused in the cross-examination.
The Respondent
The Respondent was not required to file an Affidavit and did not do so, although in the Contravention Summary Sheet, she referred to her Affidavit in the substantive proceedings.
The mother’s evidence-in-chief was unremarkable. However, much was revealed by the cross-examination. It is clear to me that the mother is still very angry and bitter towards the father and particularly towards Ms B, his partner. She said, under cross-examination, that her feelings towards the father were ambivalent, but that was certainly not the impression that she gave under cross-examination. She openly acknowledged that Ms B had nothing to offer her children.
When pressed, the mother often spoke over Mr Anderson of Counsel as he cross-examined. She became elevated, with increased volume and intensity. When challenged about not facilitating phone contact on X’s birthday and then the father’s birthday, the mother initially said, “Why should I?” and then noted that there was no requirement to facilitate communication on the father’s birthday set out in the Orders. That disregards, of course, that she, herself, is not complying with those Orders and this is in circumstances where she has prevented contact between the children and their father since December 2021 and yet she saw no obligation on her part to facilitate communication on those special occasions. The mother clearly saw an obligation on the father’s part, however, as she noted in her evidence that he had not attempted to organise any time or take her up on offers of phone or supervised contact.
The mother’s evidence was, at times, contradictory. For example, she gave evidence that things went smoothly until the disclosures of 26 December 2021, but on the other hand, alleges that the children make multiple disclosures of threats of physical discipline prior to that, about which she did nothing, not even asking the father if such disclosures were true. She acknowledged also that some of those disclosures occurred prior to the making of the consent Orders on 13 October 2021.
I do not accept the submission that the mother was not of the view that those allegations warranted taking such action. I do not accept that the parties’ inadequate levels of communication are sufficient justification for not approaching the father about allegations of threats of abuse. I do not accept the submission that the mother was not of the view that allegations warranted taking such action.
During cross-examination, the mother referred to her notes and I have formed the view that the mother has been “evidence gathering” for an unknown period of time but for the sole purpose of damaging the father and, in particular, undermining his relationship with the children.
The mother would not concede during cross-examination that entering into consent Orders for equal shared parental responsibility and equal time meant that she and the father could effectively co-parent. She was, in fact, quite dismissive of that suggestion.
I accept the submissions of Mr Anderson that much about the mother’s behaviour is alarming. I am extremely alarmed that the mother thought it appropriate to take photos of her four year old’s genitals in the presence of her 10 year old son. I cannot begin to think what message that sends to a 10 year old boy.
I am alarmed that the mother thought it appropriate to sit down with her 10 year old son and make notes of alleged abuse by his father and that she did this on three or four occasions. The mother’s evidence was that the note contained the following evidence, using my words, that – to remind him that Ms B had smacked him when he left his water bottle out, to remind him that he was sworn at for not putting his laundry out and told that they had to “do the fucking two loads of laundry” and a reminder that his father had smacked him when he left his clothes out. Also, a reminder that he was scared to go back to his father’s home.
I do not accept the submission made on behalf of the mother that she did not do this of her own volition, but was forced to do so because of X’s learning difficulties. Such evidence gathering must be left to the experts. The message that the mother sends to X by this conduct is that they are working together against the father and that the father is someone about whom he should be alarmed and concerned.
I am alarmed that the mother thinks it’s appropriate to suspend time and yet terminate phone calls from the father when he calls for an explanation. It may be appropriate to do so whilst the children are in the car, but to not return the father’s calls is indeed troubling.
I am also alarmed that the mother thought it appropriate to take the children for interviews with the police and Child Protection without further approaching the father on any level about the disclosures that they had made.
I am also alarmed that the mother makes allegations of inappropriate behaviour by the father yet she seems to have no insight into the impact of her own behaviour on the children.
In her evidence, the mother was, at times, evasive. She split hairs and she was, at times, patronising. At one point, Mr Anderson of Counsel asked the mother whether something was amusing because she was smiling when under cross-examination. Quite clearly, the mother can see no other side to this situation than her own.
I am troubled that it does not seem to have ever occurred to the mother that the children have picked up her negative feelings about their father and Ms B. Children are incredibly intuitive and they know very well when their parents do not like each other. In this jurisdiction, we frequently see children telling parents different stories for a variety of reasons. These are two very young and, in the opinion of the Family Report writer from the substantive proceedings, they love both parents very much and they are closely bonded to them and comfortable with both parents.
[X] presented as having well-established relationships with all three members of his family.
…
[Y] too presented as being comfortable with both parents…[2]
[2] Affidavit of Ms C filed 15 September 2021, page 31
It is not unusual for a child to tell a parent what is, in effect, falsehoods about what occurs in the other parent’s home. This is to gain attention, to please the parent or simply because they think it is required of them. I note that the father’s Affidavit reflects that the children have also made disclosures and negative statements to him about what occurs in the mother’s home. Such statements, for children, garner them attention and importance but are not always true and I trust that both parents will take such disclosures with a little more caution in the future.
DISCUSSION AND FINDINGS
I find that the mother has completely lost her objectivity and any insight into her own behaviour and its impact on the children.
I find that the mother is so angry and embittered with the father and Ms B that she is actively looking for reasons to suspend time. I have read the opinion of the Family Report writer set out at page 20 of that report, where she expresses the opinion that the mother is “fixed in her negative views regarding the father and outwardly hostile in her express views of Ms B.”[3] Under cross-examination, it was very clear that nothing has changed for the mother.
[3] Affidavit of Ms C filed 15 September 2021, page 31.
As a consequence of that, wherever their evidence is at odds, I will always prefer the evidence of the father.
I also do not accept the disclosures that the children made to the mother, to the psychologist or to the Police are truthful or honest disclosures. Those disclosures are contaminated by the mother’s involvement in recording and writing down those disclosures and her conduct and apparent inability to facilitate and encourage the children’s relationship with their father. I do not accept the mother’s evidence that she does not question the children or, indeed, invite the children to make these disclosures to her. The very attention that these disclosures have attracted is an invitation in and of itself.
I accept the submission that the mother’s termination of the father’s time with the children is completely at odds with the proposal in her parenting questionnaire that he spend time with the children for up to five nights each fortnight – five nights during school holidays and alternate weekends, but no weeknight overnight time. To me, this says that the mother herself does not believe that the children are at risk of harm in the father’s care.
I do not accept the submission that the only reason the Police did not take action was so as not to undermine their relationship with X and prevent further disclosures. They did say that, but their records also reflect that the matters did not meet the threshold for the Police.[4] The same is true for the Child Protection notes; no action was taken by either of those departments and the father’s evidence was that he had not been approached.
[4] Exhibit “F1” - Tender Bundle, page 31.
I have formed the view that the mother is attempting to wrest control of these children and to undermine the father’s relationship with his children – more importantly, to undermine the children’s relationship with their father.
THE LAW
Firstly the procedure that I must follow at a hearing is set out at Rule 11.69 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. I then turn to the law relevant for the determination today.
The section of the Family Law Act 1975 (Cth) (“the Act”) that sets out the meaning of contravening an Order is found in section 70NAC(a) (i) and (ii). The person has contravened an order if the person has intentionally failed to comply with the order or made no reasonable attempt to comply with the Order or intentionally prevented compliance or aided and abetted contravention.
There is significant case law surrounding Contravention proceedings. Determining whether a person has contravened a court order is not an enquiry into the best interests of a child affected by the order which is alleged to have been contravened. They are quasi criminal in nature and serious consequences may follow for a person if the contravention is found to have occurred without reasonable excuse. The procedural requirements pertaining to a contravention proceeding are strictly complied with due to the seriousness of the proceedings and the potential consequences.
Subsection 70NAE(1) and (2) set out that a person is taken to have a reasonable excuse if a person contravened substantially because at the time the person did not understand the obligations imposed by the order and the court is satisfied the person ought to be excused from the contravention.
Subsection 70NAE(4) – (7) sets out that a person is taken to have a reasonable excuse if a party believes on reasonable grounds that the breach was necessary to protect the health or safety of a person (including the respondent or the child) AND the Order was contravened only for so long as it was necessary to protect the health or safety of that person.
In the case of Kelly & Kobelnek (1998) Fam CA296, guidance was provided to the effect that in order to successfully defend a contravention a party must establish that they had a reasonable excuse according to an “objective test namely, whether a reasonable person in the position of the (mother) would consider on reasonable grounds that (she) had a reasonable excuse for the contravention.”
The defence of reasonable excuse requires the court to examine the individual circumstances of each alleged contravention. The process does not involve an examination of the conduct of the parties over the years of their relationship, separation or litigation in this court.
Section 70NAF provides that subject to subsection (3), the standard of proof applicable to contravention proceedings is proof on the balance of probabilities – the civil and less onerous burden of proof. Subsection (3) however provides that certain specified penalties will only apply if the court is satisfied beyond reasonable doubt that the grounds for making the order exist. In particular when the court is considering either a fine or imprisonment, the burden of proof required shifts to beyond reasonable doubt.
Subdivision E of the Act deals with the less serious contraventions and the sanctions that are available whilst subdivision F deals with the more serious contraventions and the applicable penalties.
Less Serious - Where it is established that a contravention has occurred without reasonable excuse and is deemed to be a less serious contravention the court may impose a number of penalties including:
·Order the defaulting parent to attend a post-separation parenting program;
·Make a compensatory parenting order compensating a parent for time lost with any child concerned;
·Adjourn the proceedings to allow either party to apply to the court to vary the orders contravened;
·Order the defaulting parent to enter a bond;
·Make an order for costs against the defaulting parent;
·Make an order compensating the contravened parent for any expenses incurred as a result of the contravention in question — eg lost fares etc;
·An order for costs.
More Serious -Where it is established that a contravention has occurred without reasonable excuse and is a more serious contravention, then the court has a greater range of penalties at their disposal including:
·Impose a community service order or bond;
·Make an order for compensatory time;
·Make an order for compensation;
·Award costs;
·Fine or imprison the contravening parent;
Section 70NBA provides that a court having jurisdiction under the Act may make an order varying a primary order if contravention proceedings in relation to the primary order are brought before the court having jurisdiction under the act. The power to vary exists regardless of the outcome of the contravention.
Where however it is proposed that I make an order varying living arrangements for a child or children then I am bound by the best interests principles and must follow the legislative pathway to ensure that any orders I make are in the best interests of these two children. This court will not lightly vary final parenting Orders where a full enquiry has not been undertaken.[5]
[5] Sandler and Kerrington [2007] FamCA 479 at [48]
The Order of 13 October 2021 has the standard Annexure made in accordance with s 65DA(2) of the Act. In particular it is noted to state as follows
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so…
I was also assisted by the cases of Stavros & Stavros (1984) FLC 91-562 and Stevenson & Hughes (1993) FLC 92–363 [1993] FamCA 14 (“Stevenson”).
In the case of Stevenson at [25] it was said:-
…there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.
I was, in a large part, troubled by the fact that the mother does not seem to have taken any active steps to address the concerns that she says she has and, in fact, the mother filed her Initiating Application only after the Contravention Application was filed by the father, which is another troubling circumstance. I know each of these parties told me that they were delayed by financial issues, but where you believe your children are genuinely at risk of harm and where you suspend a parent’s time with a child, there is an obligation on that parent to act immediately and protectively, as well as to bring the matter back before the Court.
APPLYING THE LAW TO THE FACTS WITH REFERENCE TO EACH ALLEGED CONTRAVENTION
Count 1
The first count is that on 29 December 2021, the mother, without reasonable excuse, withheld the children for a period of two nights. The mother has admitted that plea, but alleged that she has a reasonable excuse.
I have made a finding that I did not accept the mother’s evidence about those matters and I do not accept that the mother had a reasonable belief that the children were at risk of harm in the father’s care. In particular, I do not accept that the mother genuinely believes that the father has perpetrated physical violence on the children and I, in fact, make a finding now that the father has not physically disciplined the children because I have accepted his evidence over and above the evidence of the mother.
I have also made findings that I do not accept that the children’s evidence was honest or genuine evidence and that that evidence given was contaminated by the mother’s interference with that evidence.
I therefore accept the father’s evidence about those matters over and above the mother’s evidence. I note generally that the mother’s evidence about those matters applies to each and every count.
For the reasons that I have outlined above and for the findings that I have made in this matter, I find that the mother did contravene the Order in relation to count 1 and that she did so without a reasonable excuse.
Count 2
In relation to the second count, which is that on 5 January 2022, the mother, without reasonable excuse, withheld the children for a period of five nights in breach of order 4(a). The mother admitted that contravention but pleaded that she had a reasonable excuse.
The father’s evidence as to the mother’s failure to deliver the children is unchallenged. The mother’s evidence in relation to the reasonable excuse which she has argued has not been accepted and I have made findings which I have referred to previously that the mother did not have a reasonable excuse and the mother contaminated the evidence that was given by the children in relation to those particular matters.
In relation to the second count, I do not accept that the mother had a reasonable excuse for contravening the Orders. I have made findings that the mother did not believe the allegations made to her by the children and the mother was actively seeking to undermine the relationship between the children and the father.
Count 3
In relation to count 3, it is alleged that on 12 January 2022, the mother, without reasonable excuse, withheld the children for a period of two nights in breach of Order 4(c). The mother admitted that, but pleaded that she had a reasonable excuse in relation to same.
The father’s evidence that the mother failed to deliver the children is unchallenged. The mother’s evidence is that she had a reasonable excuse.
For the reasons outlined above, in relation to the previous matters and the findings that I have made, I find that the mother did contravene the Order and that she did not have a reasonable excuse for doing so in relation to count 3.
Count 4
In relation to count 4, the allegation is that on 19 January 2022, the mother did, without reasonable excuse, withhold the children for a period of five nights in breach of order 4(a). The mother admitted the breach but said that she had a reasonable excuse.
The father’s evidence as to the mother’s failure to deliver the children is unchallenged. The mother’s evidence has been outlined previously in relation to her reasonable excuse.
For the same reasons and the same findings outlined above, I find that the mother did contravene the Order and that she did not have a reasonable excuse for doing so.
Count 5
In relation to count 5, the allegation is that on 26 January 2022, the mother did, without reasonable excuse, withhold the children for a period of two nights in breach of order 4(c). The mother admitted the contravention but pleaded a reasonable excuse.
The father’s evidence as to the mother’s failure to deliver the children is unchallenged. The mother’s evidence is as outlined previously in this matter.
Based on those reasons and the findings that I have made, I again find that the mother did contravene the Order without a reasonable excuse.
Count 6
In relation to count 6, the allegation is that on 2 February 2022, the mother did, without reasonable excuse, withhold the children for a period of five nights in breach of order 4(a). The mother admitted that but, again, pleaded a reasonable excuse.
The father’s evidence as to the mother’s failure to deliver the children is unchallenged. The mother’s evidence has been previously outlined and my findings in relation to that evidence remains the same.
For those same reasons and findings, I find that the mother did contravene the Orders and that she had no reasonable excuse for doing so.
CONCLUSION
I find on the balance of probabilities that the mother has breached the Orders on six separate occasions without reasonable excuse.
Those breaches consist of six failures to make the children available for contact with their father. The total amounts of time that the children were not made available to spend time with their father was a period of 21 nights, but I note for the record that the contraventions are ongoing.
CONSEQUENCES OF FAILURE TO COMPLY
In relation to consequences, I am of the view that this matter does fall within the more serious range of breaches for the following reasons:-
(a)All six of the alleged contraventions have been established;
(b)This is the second time that the mother has withheld the children, though no contravention has previously been filed or findings made;
(c)The breaches all involved a denial of contact between the children and their father;
(d)The allegations relied on by the mother as a justification for her breach were also relied on in the previous proceedings, being allegations of physical abuse and threats of abuse prior to the making of the consent Orders;
(e)The children have not spent time with their father since 26 December 2021;
(f)The mother did not file proceedings to vary the Orders until March 2022, more than two months after time had been suspended and after the Contravention Application had been filed by the father;
(g)The Family Report writer’s opinion that the mother struggled to speak positively of the father and the remarks that she made in that regard;
(h)The Family Report writer’s evidence that the child, X, made disclosures that the mother asked a lot of questions when he spent time with the father’s partner; and
(i)What evidence there is of the mother, in relation to attempting to address those issues, has been unsatisfactory and has been, indeed, alarming on many fronts and I have made findings about those matters.
In considering all of those matters, I have formed the view that the breaches fall within the more serious category.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Cope on 13 May 2022. Associate:
Dated: 7 June 2022
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