Siskas & Diaz
[2025] FedCFamC2F 202
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Siskas & Diaz [2025] FedCFamC2F 202
File number(s): ADC 1544 of 2020 Judgment of: JUDGE MCGINN Date of judgment: 18 February 2025 Catchwords: FAMILY LAW – contravention application – contraventions conceded – reasonable excuse Legislation:
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules2021
Cases cited: Dobbs v Brayson (2007) FLC 93-346 at 81,931
Hatfield & Rivas [2024] FedCFamC1A 202; (2024) FLC 94-224
Hedlund v Hedlund [2021] 64 Fam LR 458; [2021] FedCFamC1A 84
In the Marriage of Gaunt (1978) 33 FLR 148; 4 Fam LR 305; (1978) FLC 90-468
Peluso & Karle (2023) 68 FamLR 444; [2023] FedCFamC1F 87
Keehan & Keehan [2019] FamCAFC 250; (2019) 60 Fam LR 276
Maxwell & Miltiadis (2015) FLC 93-644
Millson & Halbert [2021] FedCFamC1F 94
Saldo & Tindall [2012] FamCA 194
Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725; (1978) 6 FamLR 570
Yunghanns & Ors & Yunghanns (1999) FLC 92-836; (1999) 24 Fam LR 400; [1999] FamCA 64
Division: Division 2 Family Law Number of paragraphs: 241 Date of hearing: 5 February 2025 and 13 February 2025 Place: Adelaide Counsel for the Applicant: Mr Wabnitz Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Mr Jelbert Solicitor for the Respondent: Gibsons & Associates Family Law
Table of Corrections 5 March 2025 In paragraph 39 the ages of each of the children were added. 5 March 2025 In paragraph 130 “8 February” was corrected to “10 February”. 5 March 2025 In paragraph 131 “10 February” was corrected to “24 February”. 5 March 2025 In paragraph 172 “discipling” was corrected to “disciplining”. 5 March 2025 In paragraph 188 “she” was corrected to “they”. 5 March 2025 In paragraph 206 “discipling” was corrected to “disciplining”. 5 March 2025 In paragraph 216 “14 June” was corrected to “26 July”. 5 March 2025 In paragraph 240 the word “not” was added in front of the words “merely globally”. ORDERS
ADC1544 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SISKAS
Applicant
AND: MS DIAZ
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
13 FEBRUARY 2025
THE COURT ORDERS:
1.That this matter stand adjourned to 4 March 2025 at 11:00am for submissions to be taken in relation as to sanction and/or orders to be made (if any) in light of the determinations and findings given in the reasons published this day.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 5 March 2025
JUDGE McGINN:
THE APPLICATION
Before the Court is the applicant father’s Application – Contravention of 8 October 2024. That Application is supported by an affidavit of the same date.
The Application – Contravention shall be referred to as the “Application” in these reasons.
The Application alleges contraventions without reasonable excuse by the respondent mother of parenting orders 5.1, 5. 2, 5.3, 5.4, and 9 made 10 November 2023 in the Federal Circuit and Family Court of Australia (Division 2) (“the primary orders”).
THE RELEVANT LEGISLATION
The Application is brought pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
NUMBER AND DATE OF COUNTS
It was alleged in the Application that the respondent mother had made eighteen contraventions of parenting orders without reasonable excuse.
Each of those contraventions was referred to in the course of the proceedings and in these reasons as a “count”.
The counts which fall for determination relate to events which were alleged to have occurred on:
(a)Sunday 31 December 2023 (Count 1)
(b)Saturday 10 February 2024 (Count 2)
(c)Saturday 24 February 2024 (Count 3)
(d)Saturday 9 March 2024 (Count 4)
(e)Saturday 23 March 2024 (Count 5)
(f)Saturday 6 April 2024 (Count 6)
(g)Saturday 20 April 2024 (Count 7)
(h)Friday 3 May 2024 (Count 8)
(i)Friday 17 May 2024 (Count 9)
(j)Friday 31 May 2024 (Count 10)
(k)Friday 14 June 2024 (Count 11)
(l)Friday 28 June 2024 (Count 12)
(m)Friday 12 July 2024 (Count 13)
(n)Friday 26 July 2024 (Count 14)
(o)Friday 9 August 2024 (Count 15)
(p)Friday 23 August 2024 (Count 16)
(q)Sunday 1 September 2024 (Count 17)
(r)Friday 6 September 2024 (Count 18)
CONTRAVENTIONS ADMITTED
In this matter the respondent initially denied the allegations of contravention without reasonable excuse set out in counts 1 to 8 and neither admitted nor denied the allegations of contravention without reasonable excuse set out in counts 9 to 18.
Subsequently, after hearing the applicant’s evidence, the respondent admitted each of the contraventions that had been alleged but claimed that a reasonable excuse existed for each of those contraventions.
Each of the orders said to have been and subsequently acknowledged to have been contravened were “child-related orders” for the purposes of the Act.
THE RELEVANT LEGISLATION, “CONTRAVENTION” AND “REASONABLE EXCUSE”
The Application is brought pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
However, Division 13A was amended with the amendments to take effect on 6 May 2024.[1]
[1] Family Law Amendment Act 2023 (Cth)
The first eight counts related to alleged contraventions that were alleged to have taken place prior to the date of the amendments.
The present Application incorporates to some extent a consolidation of two earlier Applications - Contravention filed 24 February 2024 and 15 April 2024.
Besides the Application-Contravention there are no other applications with respect to parenting proceedings extant nor have any been instituted since the bringing of an Application-Contravention in February 2024 or the current Application.
With the amendment of Division 13A, the Rules of this Court in dealing with Applications for alleged contravention of orders were also amended.
However, the amendment of those Rules did not alter the manner in which the hearing and determination of such Applications were to be undertaken.[2]
[2] Rule 11.69
The amendment of Division 13A is not retrospective and the previous version of that Division has to be applied to the counts occurring before 6 May 2024.[3]
[3] Hatfield & Rivas [2024] FedCFamC1A 202 at [72]
The Court determined that the procedures of the present Rules would apply to all of the counts in the Application and so ordered.[4]
[4] Order 5 February 2025
The amendments to the Division 13A which came into effect on 6 May 2024 substituted a new Division 13A for the old.
Under the previous form of Division 13A, s70NAC (as it was) of the Act stipulated that for a contravention in respect of orders to be established that there had to be an intentional failure to comply with an order, no reasonable attempt made to comply with an order, the intentional prevention of compliance with an order or the aiding or abetting of a contravention by a person bound by an order.
The applicant bears the onus to establish the contravention and, on his/her/their own behalf, an absence of knowledge of a reasonable excuse for the contravention.
The applicant has to establish the contravention on the balance of probabilities unless the applicant is to agitate for a particular type of sanction – namely community service orders, fines or imprisonment – where the applicant must then establish the contravention without a reasonable excuse and other matters beyond a reasonable doubt.[5]
[5] Section 70NAF(3) (in the pre-6 May 2024 version of Division 13A and s70NBF(1)(d) in the current form of Division 13A)
Under that earlier form of the legislation in determining what sanction or order (if any) should follow from a Court finding that there had been a contravention of an order, the Court then had to determine whether a reasonable excuse exists for the contravention.
Section 70NAD of the Act (as it was) set out a non-exhaustive definition of what might constitute a reasonable excuse in respect of a contravention application.
Whilst a “reasonable excuse” in respect of a contravention was not capable of any exhaustive definition, it could include a lack of understanding of the obligations imposed by the order which in the Court’s view ought to be excused, or a belief on reasonable grounds that the contravening action was necessary to protect the health or safety of a person and for a period that was no longer than necessary to protect the health or safety of the person.
Pursuant to s 70NADA of the Act (as it was) the respondent has the legal burden of proving that a reasonable excuse existed if contraventions are found to have occurred.
Following 6 May 2024, the amending legislation in s 70NAC continued to identify that the contravention of an order was constituted by an intentional failure to comply with an order, no reasonable attempt made to comply with an order, the intentional prevention of compliance with an order or the aiding or abetting of a contravention by a person bound by an order.[6] Some circumstances that may constitute a contravention are set out in tabular form in the section.
[6] Section 70NAC
In establishing the contravention of an order, the burden of proof continued to rest with the applicant.
To make out a contravention of an order the applicant must do so on the balance of probabilities. If the applicant is seeking an order for a fine or for the imposition of a term of imprisonment,[7] go beyond that and satisfy a court beyond reasonable doubt that a contravention has occurred.
[7] Sections 70NAE and 70NBF (1) (d)
Under the present form of the Division 13A, an answer to a contravention continues to be a “reasonable excuse”. The relevant provisions are set out in sections 70NAD to 70NAE.
Under the present form of the legislation s 70NAD also does not limit the circumstances in which a reasonable excuse for contravening a child-related order might arise. However, that section also now sets out that a reasonable excuse might arise where the person who has contravened the order did so because they did not understand their obligations under the relevant order or that they contravened the order to protect the health or safety of a person for a period that was not longer than necessary to protect that health or safety. That answer to a contravention was set out previously in s 70NAE.
The respondent submitted that the circumstances which might constitute a reasonable excuse had been broadened by the amending legislation. That submission is rejected as the present form of the legislation is but a restatement in a different form of that substance of the law which went before.
It continues to be the case that the burden of proof in establishing a reasonable excuse falls upon the person who claims to have that excuse for contravening the relevant order.[8] The standard of proof in establishing the reasonable excuse is on the balance of probabilities.[9]
[8] Section 70NADA
[9] Section 70NAE
It is “elemental” that the establishment of a “reasonable excuse” to show that if excuse was based on a belief then there must exist proof that the belief was based on reasonable grounds.[10]
[10] Saldo & Tindall [2012] FamCA 194 at [47]; Peluso & Karle (2023) 68 FamLR 444 at [94], [2023] FedCFamC1F 87
Although the circumstances of what might constitute a reasonable excuse are not limited it must be discerned that such excuse must not only be reasonable but must be borne out on the evidence to necessary degree of satisfaction consistent with both the Act, the Evidence Act 1995 (Cth) and the obligations that are imposed by the making of parenting orders. When orders are made by consent as in this case, the disputes which existed between parties (and the Independent Children’s Lawyer if there was one) are subsumed or resolved[11] by the fact of consent (where that is present) and the making of orders.
[11] Maxwell & Miltiadis (2015) FLC 93-644 [9]
It cannot be answer to a contravention that, absent the occurrence of events since the making of orders, a party no longer considers the orders appropriate or that the orders no longer address concerns or worries previously held. To think otherwise is to permit a subjective view of the rights and wrongs of a decision to make an order to constitute a reasonable excuse.[12] Hence a belief as was advanced on behalf of the respondent in this case that the children were at risk of physical abuse or sexual abuse on account of grooming must not be merely a reassertion of what had been or could have been ventilated by her before the making of parenting orders.
[12] In the Marriage of Gaunt (1978) 33 FLR 148; 4 Fam LR 305, (1978) FLC 90-468
STANDARD OF PROOF
In determining where required that a contravention or a reasonable excuse is established on the balance of probabilities, regard must also be had to section 140 of the Evidence Act 1995 (Cth) which provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
THE CHILDREN AND AGES
The primary orders relate to the parties’ five children V born in 2014, aged 10 years, W born in 2016, aged 8 years, and triplets X, Y and Z, born in 2019, aged 4 years.
THE PRIMARY ORDERS CONTRAVENED
In this case there has been various contraventions of orders 5.1, 5.2, 5.3, 5.4 or 9 of the primary orders.
The relevant provisions of 5.1 of the primary orders provided:
The children spend time with the father as follows:
For a period of twelve (12) weeks, each alternate Saturday and Sunday from 11.30am to 4.30pm commencing 18 November 2023;
The relevant provisions of order 5.2 of the primary orders provided:
For a period of twelve (12) weeks, each alternate weekend from 11.30am Saturday to 4.30pm Sunday;
The relevant provisions of order 5.3 of the primary orders provided:
For a period of twelve (12) weeks, each alternate weekend from the conclusion of school (or 3.00pm) Friday to 4.30pm Sunday;
The relevant provisions of order 5.4 of the primary orders provided:
Thereafter, each alternate weekend from the conclusion of school (or 3.00pm) Friday to the commencement of school (or 9.00am) Monday AND if the Monday is a non-school day to 4.30pm Monday;
Those orders in so far as they comprised overnight time, were to be supervised.[13]
[13] Order 6
The relevant provisions of order 9 of the primary orders provided:
In the event the children are not in the care of the father on Father's Day, then the children spend time with the father from 11.30am to 4.30pm on the said day.
To assist in understanding the allegations in the Application it is necessary also to have regard to orders 12 of the primary orders which respectively provide:
Handover occur as follows:
12.1. for the children who attend school and or kindergarten, at the said school or kindergarten with parent who is not spending time with the children to not be present;
12.2. for the children who do not attend kindergarten or school or a non-school day at the handover service of [B] Children’s Contact Services; or
12.3. in the event that the children’s school or the Contact Service is not available then at the [Suburb D] Police Station.
Each of the parties were legally represented at the time of the making of the primary orders.
The primary orders were made with the consent of each of the parties.
There was no claim that the orders had not been understood by each of the parties.
In her evidence the respondent also made reference to the applicant having, in her view, failed to comply with orders prohibiting physical discipline of the children and the applicant failing to undertake cognitive behavioural therapy.
To assist the understanding of findings made in relation to the respondent’s evidence given in these proceedings it is also appropriate to set out those provisions of the primary orders which the respondent was referring to.
As to the topic of therapy the primary order provided at order 13:
Forthwith the father do all things and sign all documents necessary to partake in Cognitive Behavioural Therapy with [Ms E] of [C Centre].
At the conclusion of that therapy, order 17 of the primary orders provided that the parties were to attend Family Dispute Resolution to discuss and negotiate the lifting of supervision and time spending arrangements during school holidays.
On the topic of physical discipline, order 24.1 of the primary orders provided for each of the parties to be restrained with injunction from:
[P]hysically discipling the children or allowing any other person to do so.
ORDERS NOW SOUGHT BY THE APPLICANT
By the Application the applicant seeks, adopting the terms the applicant utilised in his case outline, the following orders and/or sanctions:
(a)mother to compensate Father for all of the time missed with the children as a result of contraventions in accordance with Section 70NB(2)(c) [sic] of the Family Law Act 1975.
(b)revoke the bond that the mother entered into on 3 March 2023 and impose a fine in accordance with Section 70NCB of the Family Law Act 1975.
(c)mother to pay Father's legal costs in accordance with Section 70NFB(2)(g) of the Family Law Act 1975.
No particulars are given as to when compensatory time is to occur and under what conditions, the amount of the proposed time or the amount of the costs that are sought.
The applicant father also seeks a variation of the primary orders in the form of deletion of orders 6 and 13 of the primary orders. This is referred to below.
The orders sought, which are expressed by reference to sections of the Act, appear to be references to a mixture of old and new legislative provisions.
Any orders that are to be made shall have to be made by reference to the facts as they are found to be in relation to each count and the legislative provisions that then applied at the time of which the contravention occurred. In other words, post-6 May 2024 legislative provisions as to the orders or sanctions to be made cannot be applied to contraventions that occurred prior to that date and pre-6 May 2024 sanction provisions cannot be applied to post-6 May 2024 contraventions.
There was no separate count brought forward that specifically alleged that the bond of 3 March 2023 referred to in the applicant’s case outline and in the supporting affidavit had been failed to be complied with without reasonable excuse.
THE PURPOSE OF CONTRAVENTION PROCEEDINGS
Prior to the amendment of Division 13A, the purpose of contravention proceedings was to ensure continued and future compliance with orders of the Court and a contravention application could not be directed to deterrence or punishment.[14] Neither punishment of the individual concerned nor deterrence (either specific to the individual or general deterrence) was to have any legitimate role in such proceedings and, specifically, the imposition of sanctions under Division 13A of the Act either as they were. That purpose has to be borne in mind when the Court comes to consider the question of what, if any, orders are to be made consequent upon findings relating to the existence of contraventions and any excuses associated with them.
[14] Keehan & Keehan [2019] FamCAFC 250; (2019) 60 Fam LR 276
Following the amendment of Division 13A this understanding of the purpose changed. Section 70NAB sets out that amongst the current objects of the present form of Division 13A is “deterring non-compliance with child-related orders”[15] and expressly speaks of “sanctions”.[16]
[15] Section 70NAB(c)
[16] “[A] provision of a law enacting a penalty for disobedience”: Macquarie Dictionary, 7th edition
VARIATION OF PARENTING ORDERS IN THE ASSOCIATED CONTEXT OF CONTRAVENTION APPLICATIONS
Section 70NBA in the earlier form of Division 13A and s 70NBC of the current Act provides that a primary or any other child-related order may be varied or suspended at any stage of the proceedings taken in relation to the alleged contravention of the child-related order.
The Court presently remains of the view that in considering whether to make any such variation of the primary order, the Court must approach such a variation in the way that it would approach any other variation of a parenting order and, in particular, should not do so in a summary or abbreviated way and, in particular, must give consideration to whether the so-called “rule” in Rice and Asplund[17] and any statutory requirements such as those found in sections 60CA and 65DAAA have been satisfied.
[17] Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725; (1978) 6 FamLR 570.
In Millson & Halbert [2021] FedCFamC1F 94 it was determined that in exercising the power under the then s 70NBA a Court should “attempt to cure the issues exposed by the contravention”[18] so as to return orders to “an operable state” rather than there being a recasting or usurping of any parenting regime contained in the primary orders said to have been contravened.
[18] Millson & Halbert [2021] FedCFamC1F 94 at [63]
This Court respectfully adopts that view and also considers this position applies to the current power located within s 70NBC. The “proceedings” referred to in s 70NBC are taken to be those that can be undertaken under the Subdivision as to an issue arising out of an alleged contravention and not generally. That said, the “issue” may sometimes require a broader rather than narrower variation of orders, particularly where orders are no longer appropriate in the light of changed circumstances.
Any variation of the primary orders requires the Court to be satisfied, after considering, amongst other matters those things set out in s 60CC of the Act, that the proposed variation is in the best interest of the child or children concerned.
The Applicant sought variation of orders 6 and 13 of the primary orders.
Order 6 of the primary orders provided for the supervision of the applicant’s overnight time with the children under the orders and order 13 related to the requirement that the father undertake cognitive behavioural therapy.
These applications if they are persisted with will fall to be considered at the adjourned hearing of this matter.
MATERIAL RELIED UPON BY THE PARTIES
The applicant relied upon his Application and his affidavit filed in support of it. That affidavit was read into evidence without objection.
Some exchanges of text messages were tendered as part of the father’s case.
The applicant was cross-examined by the respondent’s counsel.
The applicant gave his evidence in a straight-forward manner. The Court has no cause not to accept his evidence either as to that contained in his supporting affidavit or given in the course of his first cross-examination.
There were matters that arose in the respondent’s cross-examination that appeared to be her reasons for not complying with primary orders on those occasions conceded to be contraventions of orders and which were not put at all to the applicant in the course of his cross-examination nor opened upon on behalf of the respondent.
These matters comprised:
(a)that the three youngest children had been hit on the head by the applicant;
(b)that the second eldest child had been bruised whilst in the applicant’s care in the period January 2024 to 7 March 2024;
(c)that there had been a failure on behalf of the applicant to undertake cognitive behaviour therapy;
(d)that the father had told the children to tell the mother to kill herself; and
(e)Sexual grooming of the children in account of the children raising their tops and saying “nipples”.
The submission on the mother’s behalf by the Counsel on the conclusion of the trial was that there was no evidence that sustained a finding of grooming of the children. That was an appropriate conclusion.
As discussed elsewhere in these reasons the failure to undertake Cognitive Behaviour Therapy is of little or no weight.
The remaining allegations of what came to be asserted as the children being physically disciplined and of speaking of the mother killing herself are dealt with subsequently in these reasons.
DETERMINATION OF REASONABLE EXCUSE(S)
In respect of giving effect to the primary orders and generally, the parties only communicate by way of electronic means by using an “app”. This is consistent with provisions of the primary orders.[19]
[19] Orders 7, 19, 20.
The mother’s counsel opened on her behalf informing the Court that the following reasonable excuses would be made out in relation to each of the counts as follows:
(a)Sunday, 31 December 2023 (Count 1): withholding of the children for the purposes of the children’s safety because the mother was sick and the mother was concerned about the children being sick and other family members were not prepared to facilitate handover;
(b)Saturday, 10 February 2024 (Count 2): children were unwell and a concern of a risk of harm to the children and others, if the children were handed over;
(c)Saturday, 24 February 2024 (Count 3): the child X had COVID and there was a risk to the children’s health and of harm because of COVID;
(d)Saturday, 9 March 2024 (Count 4): concern of risk of harm on report to the mother by the children that they had been subject to physical discipline and psychological abuse by the father and so avoiding a risk of harm by avoiding handover. The sign of physical disciplining was bruising to the children and so the psychological harm was to be implied from that;
(e)Saturday, 23 March 2024 (Count 5): a repeat of physical abuse and psychological harm on account of the children having shown bruising on an earlier occasion. There was a bruise to the child W’s upper arm;
(f)Saturday, 6 April 2024 (Count 6): reports to the mother from the children which the mother interpreted as physical abuse and psychological harm because the father had hit the triplets on the head;
(g)Saturday, 20 April 2024 (Count 7): a continued concern about risk of the abuse of the children on account of the matters referred to in count 6;
(h)Friday, 3 May 2024 (Count 8): the children were unwell with COVID;
(i)Friday, 17 May 2024 (Count 9): a continued concern about risk of the abuse of the children on account of the matters referred to in count 6;
(j)Friday, 31 May 2024 (Count 10): children had COVID;
(k)Friday, 14 June 2024 (Count 11): a persistent concern of the father physically disciplining the children and coercing the children’s behaviour;
(l)Friday, 28 June 2024 (Count 12): coercion of the children’s behaviour in that the children reported to the mother that the father had asked the children to tell the mother to kill herself giving rise to a risk of psychological harm;
(m)Friday, 12 July 2024 (Count 13): a feeling that the children’s well-being was at risk if they spent time with the father on account of the disclosures of the children to tell the mother to kill herself;
(n)Friday, 26 July 2024 (Count 14): children were sick with the “flu”;
(o)Friday, 9 August 2024 (Count 15): a belief that the children were at risk of harm of being groomed and sexually abused based on historical reports giving rise to a concern that put the remaining children at risk and a belief that the father was already psychologically and physically abusing the children based on the bruising and reports of hitting the children as previously described along with the reports of the children that the father had told the children to tell the mother to kill herself;
(p)Friday, 23 August 2024 (Count 16): a belief that the children were at risk of physical, psychological and sexual abuse if in contact with the father based on behaviour during the parties’ relationship;
(q)Sunday, 1 September 2024 (Count 17): the mother holding a persistent belief that the children were at risk of physical and sexual harm if handed over to the father based on the children’s reports throughout 2024; and
(r)Friday 6, September 2024 (Count 18): same as for count 17.
The mother gave evidence orally.
Her evidence was at times vague and uncertain. In many respects her evidence lacked particularity that exposed her evidence, along with the opening given by counsel on her behalf, as only being able to be understood as constituted by bare, generic statements. In this regard her evidence disclosed her being motivated by a general and subsequent dissatisfaction with the Court having made the primary orders (albeit with her consent) and a determination not to comply with them.
The mother amongst other matters gave evidence that she held concerns that the children would be at risk of harm in the care of the father as it had been reported to her that the triplets had been hit on the head and that they were being groomed to be sexually abused as the children had raised their tops and said “nipples” at the same time. Despite this evidence it was submitted (appropriately) that there was no evidence of sexual grooming of the children.
The father’s denial of events said to comprise hitting the triplets about the head, bruising the child W or other abuse of the children insofar as they were put to harm were no less credible than the allegation brought forward by the mother.
There is likelihood that the eldest two children in making remarks to the mother critical of the father were seeking to ensure stability in their relationship with the mother.
The parents’ conflict appears to be deep seated.
Considering the mother’s evidence generally, she appeared to have adopted a narrative rather than a preparedness to give evidence of behaviours in terms of who did or said what and when.
The fact that the parties exchanged messages about the mother’s reasons for not complying with orders and the father’s demands was a consequence of the contravention of the orders. The father’s demand for time as per orders and challenging the explanations given by the mother was not in all the circumstances a basis for the establishment of a reasonable excuse on the mother’s behalf.
Her oral evidence was not corroborated in any way by records of third parties nor of other witnesses or earlier notes that she may have prepared.
The mother conceded having memory problems and the submissions made on her behalf included one that her evidence was “not impressive” at least in this regard.
The mother mentioned in her evidence that she suffers from post-traumatic stress disorder but the evidence did not reveal, and no submission was made, as to how that condition should be understood to affect any assessment of her evidence.
The mother gave evidence that she has been seeking advice consistently to bring an application to suspend or vary orders.
The mother conceded in her evidence in these proceedings that she does not encourage the children to spend time with their father and that she does not speak to the children about their father at all.
The mother agreed that there was no physical evidence of any physical harm of the children by their father.
Where there is conflict between her evidence and that of the father, the father’s evidence was to be preferred unless the mother’s oral evidence is meaningfully supported by some document or record that might otherwise be regarded as reliable.
COUNT 1
As to count 1, the mother’s evidence in chief was consistent with the opening given on her behalf by counsel. However, some of the mother’s evidence was in some respects just conjecture.
Her evidence was that she was sick with “gastro” (which from her evidence included symptoms of vomiting and diarrhoea), the children could already have had that condition when she fell ill, she was uncertain as to how long she had been ill for although it might have been a few days and she had asked family members to take the children to the police station where the handover was to then occur but no one wanted to do so because they did not want to risk contracting her illness or, in the case of her brother, who was working, and, in the case of her mother (the maternal grandmother), was not sure that the maternal grandmother wanted to get the illness.
The mother went on to say in her evidence that the children were not displaying symptoms but could have contracted the illness by the time of handover and could have passed it onto others.
Yet in another part of her evidence the mother was adamant in her evidence under cross-examination that she had “gastro” but the children did not but could have had it.
The mother had told the father via message on the “app” on 1 December 2023 (some four weeks before the Contravention) that the children had been unwell the past week with “gastro” and vomiting but that she was still willing to bring the children to spend time with their father. The children’s time with their father of that period appears to have occurred despite the children’s then unwellness.
The mother said that on 31 December 2023 she could barely stand up and her symptoms she then experienced precluded her from driving. She said she had been up all the previous night vomiting. This lead up does not explain the delay in notifying the father until minutes beforehand.
Despite the seriousness of her condition and her position of being the carer of seven children, the mother said she did not seek medical assistance.
There was no corroborating evidence from a medical practitioner.
The mother’s medical condition on 31 December 2023 was not the object of a doctor’s attendance on her behalf. The mother explained in her evidence that she was of the view that a doctor would not see a patient if suffering from “gastro” and that no-one goes to the doctor for that condition.
There was no evidence of any attempt by the mother to seek medical assistance and no evidence of any refusal of a medical practitioner to attend upon or advise the mother in relation to the symptoms she said that she was then experiencing.
Neither was there evidence adduced from the maternal grandmother or the mother’s brother as to their inability or refusal to undertake the delivery of the children to the father or of the mother’s request to them to undertake that task.
It is to be observed that by 31 December 2023 the children would have attended with their father for time spending on Saturday and Sundays of the weekends of 18 November, 2 December, 16 December 2023 and on Christmas Day from 2 to 6pm.
The father’s affidavit evidence was that the mother told the father by the “app” about 20 minutes before the scheduled handover on Sunday 31 December 2023 that she was suffering from gastroenteritis and would not be facilitating the handover of the children and, despite his request that someone else facilitate handover, the children were not presented either by the mother or anyone else on her behalf to spend time with the father on that day.
The father’s evidence under cross-examination was that he did not accept that the mother’s illness (which he had been informed was “gastro”) was experienced to such a degree that the mother was incapable of at least causing the attendance of the children to see him because she had previously had the handovers conducted on her behalf by her brother, mother or somebody else to do the changeover then being at a police station. The father conceded that it was his expectation that someone else other than the mother could undertake the delivery of the children on behalf of the mother to him on the occasion in question.
The mother bears the onus to establish a reasonable excuse for the non-compliance with the orders. Considering the evidence, as a whole the Court is satisfied that the mother has established, on the balance of probabilities, that she had a reasonable excuse for contravening the order as set out in count 1 in that she was not physically able to deliver the children to the father nor secure the assistance of her brother or mother to do so. It may have been the case other modes of delivery or pick up could have been arrived at but this was not explored in the evidence.
COUNT 2
As to count 2 of 10 February 2024 the mother’s evidence in chief was that because sleep overs were about to occur and the children were afraid of going to their father to sleep over along with what the mother described as “disclosures of physical discipline”, the mother did not feel it was safe for the children to go.
The disclosures were described by the mother in her evidence to be that every time the children had come back from time spent with the father one of the children had said they were hurt, the triplets had said they had been hit in the head, W had said while “he” (understood to mean the father) was hitting the children “in the head” that W heard the noise from that and whilst W was outside she heard the triplets screaming and crying inside (understood to be inside the father’s house) and that she (W) was worried that the father was hurting the triplets.
The mother told the father on Thursday, 8 February 2024 by “app” message that the children would not be attending that weekend. The children were due to be with their father from 11.30am to 4.30pm on each of the Saturday and Sunday of that weekend. Supervised overnight time was due to commence from the weekend of 17 February 2024.
On 8 February 2024, the mother gave the reason to the father for the children not attending as being him continually putting the girls’ (i.e. the children the subject of the primary order) health, safety and well-being at risk along with denigration of her and what she had “seen and witnessed” upon the children’s return from “access” with their father.
The mother in her oral evidence under cross-examination explained that what she meant by the content of that message was that the children came back to her care from spending time with their father and then told their mother they had been hurt, the children had returned sunburnt and the children had not been given any water.
When asked when this had occurred the mother said: “Numerous times over the years”.
The general nature of her answer spoke to a reconsideration on her behalf of the appropriateness of the primary orders being entered into.
The mother then said that “every time” the children came back from seeing their father that one of the children told her that they had been hurt. That answer also spoke to a reconsideration on the mother’s behalf of the appropriateness of the orders being entered into.
The mother said the children reported these matters to her on the last occasion they had seen their father which the mother in the tranche of her evidence reckoned to be Saturday, 13 January 2024.
Upon questioning from the Court, the mother said that she expressed herself in general terms to the father about his lack of care and abuse of the children because the mother did not think that if she expressed herself in specific terms as to what the difficulties the children had reported as being experienced and how they might be addressed so as to be avoided in future, she felt the father would not take the complaints given by her seriously. She said she felt this way as the father did not respect her or listen to her. In short, the mother said if she informed him of things that concerned the children’s safety or welfare, she was of the view that the father would not care and call her a liar.
The mother said she did report these matters to authorities and had sought legal advice to stop the father’s time.
No other evidence of the claimed reports to authorities were brought forward by the mother. There was no evidence of any action on behalf of any such authority. The father when cross-examined about any enquiry of him by any such authority denied any such enquiry. The court accepts that evidence.
The inference to be drawn is that there were no such enquiries of the father and that no authority was or has moved to do anything in relation to complaints, if any, as the mother made known to them.
A court application to stop or suspend the father’s time was not proceeded with by the mother due to lack of legal aid funding being available. There is no evidence adduced to indicate that such an application could or should be considered to be likely to be successful.
The mother also said in relation to this count (and later others) the father did not comply with orders that he undertake cognitive behavioural therapy because at the time she consented to the primary orders the father did not believe he needed such therapy. The historical nature of that evidence as well as it being a matter of opinion, does not take the likelihood of a reasonable excuse forward.
On 13 January 2024 the mother had written to the father a series of messages to ensure the children would bring their clothes back when returning to their mother’s care yet at the same time did not raise the issue of sunburn or the children’s lack of water consumption with the father.
These topics appear only to have arisen at trial as matters of concern.
Considering the evidence overall, the Court is not satisfied on the balance of probabilities that the mother has established a reasonable excuse for the contravention of 10 February 2024.
COUNT 3
In relation to the third contravention of 24 February 2024, the mother sent a message to the father that the child X had tested positive for COVID and that due to the incubation period for COVID and the other children’s display of symptoms of a runny nose and cough that the children would not be attending to spend time with their father. The message was accompanied with a picture of a test with a handwritten date on it. The father then questioned the date on the test and sought clarification. There is no evidence the requested clarification was provided. The lack of provision of clarifying particulars turns out to be of little significance.
The mother initially gave evidence that she did not send the children on this occasion as sending the children would have been inconsiderate to the father and his family as well as the children. In expressing a consideration for the father and his family, the mother dissembled. As her subsequent evidence disclosed, her true reason for not sending the children was that the mother held no confidence that the father could care for the children as he had not cared for the children before when they were sick. This appeared to be a reference to matters pre-dating the primary orders as on 31 December 2024 (when the mother was sick with “gastro”) the children did not attend.
There was no evidence as to COVID protocols as at February 2024 stipulating that children with the infection could not pass between parent’s households or that the father could not otherwise care for the children.
The Court is not satisfied that a reasonable excuse has been established on the balance of probabilities.
COUNT 4
In relation to the fourth contravention of 9 March 2024 the mother sent a message to the father on 7 March 2024 saying that the children would not be attending on 9 and 10 March 2024 as the father was in breach of his “continued use of physical discipline and psychological abuse” of the children.
The mother had by 7 March 2024 noticed bruising on the child W.
The bruising was noticed prior to 7 March 2024 but the mother could not recall when. Later in her evidence on another topic, the mother said the bruising would have been after the primary order was made and possibly in the period 18 November 2023 and 10 February 2024 and then again, later still, the bruising could have been in November or December 2023 or in February 2024.
The mother made a police report about the bruise.
That report was not put into evidence by the mother.
The bruising was on an upper arm.
The mother noticed the bruise on a Sunday after W had come back and whilst W was showering.
W had then complained to her mother that she had been hurt whilst in her father’s care at some time after the primary orders had been made.
How that “hurt” arose was not made clear.
The mother did not photograph the bruise as she had unfortunately forgot to do so but had shown the bruise to the police officer to whom the mother had reported the bruising the next day, a Monday, after school in, accordance to the mother’s evidence, either February or March 2024. This evidence did not, in the Court’s view, resolve the question as to when the bruising might have come to be first noticed.
The police told the mother that they made a note of the bruising “on the system”.
The mother thought the police did not photograph the bruise in question either.
The mother did not notify the father of this bruising until the present hearing.
The mother’s explanation for the delay was that “children get bruises”, implying it was not the fact of bruising, but that W had explained to her mother that W had “got” the bruise whilst in her father’s care that was of significance.
What that explanation or link was not made clear. No context was given as to the cause of the bruising.
The submission was made on behalf of the mother that the bruise was a result of “grabbing”. There was no evidence of context for the bruise other than it having occurred in the father’s care and no evidence of grabbing being the cause of the bruise. Should that have been apparent, action by the police, at least by way of enquiry of the father, might be anticipated. There was none.
The mother’s message to the father of that day did not mention the bruise but expressed the mother’s view that the children would not be safe from “grooming and sexual abuse” if they stayed overnight. The mother said she did not believe that either of the supervisors appointed under the primary orders (being the father’s mother and/or sister)[20] would remain present and supervise the father’s time properly.
[20] Order 6, 10 November 2023
The mother acknowledged that she had a suspicion or fear that the father would abuse the children whilst supervisors were asleep. When questioned further about the basis of this suspicion the mother said that she did not want to send the children to the father as he was “not safe”.
It fell to the mother to demonstrate that the father was “not safe” in a way that would persuade a court on the balance of probabilities that he was so under the arrangements put in place by the primary orders and in relation to this particular count (and, as it turned out, the earlier ones).
In a relevant message to the father the mother said that she did not believe that either of the supervisors would remain and supervise as required by the primary orders. No evidence was led that persuaded the Court that would be the case. The supervisors in question were not called and there was no evidence of any behaviour or words by either of them or on their behalf that they intended to disregard their obligations to the children or the Court or why it would be either in their or the father’s interests to do so.
The mother, in her evidence on this topic, went further and said that she does not believe anything the father says. The mother also went onto say that the father would tell the mother anything she wanted to hear despite the proceedings having contained many instances of the father doing precisely the opposite.
On the balance of probabilities, the mother has not established a reasonable excuse in relation to count four.
COUNT 5
In relation to count 5 of 23 March 2024 the mother told the father before 23 March 2024 that the children would not be going because of the father’s continued breach of orders on account of his alleged continued use of physical discipline and his psychological abuse of the children.
The excuse in relation to this breach of the orders was said by the mother to be constituted by what she had alleged had made up her defence to the last count.
When initially asked by the Court as to how that abuse had come about the mother said that she did not know how to give an answer different to that given to the previous count. When enquiry was made further the mother said part of the breach by the father was that the father had not started “CBT” (understood to be the reference to “Cognitive Behavioural Therapy” referred to in paragraphs 13 to 17 of the primary orders) and the children disclosing being hurt by him.
When asked what “the children disclosing being hurt by him” meant, the mother could not recall what events might have constituted the basis for that comment as she had “reported” so many things.
The mother’s evidence in respect of establishing a reasonable excuse in respect of this count and others resorts to claims that the father is not complying with undertaking cognitive behavioural therapy as provided in the primary orders of 10 November 2023.
The relevant orders are found orders 13 to 17 of the primary orders. Those orders provide:
13. Forthwith the father do all things and sign all documents necessary to partake in Cognitive Behavioural Therapy with [Ms E] of [C Centre].
14. For the purposes of paragraphs 13 and 15 herein, [Ms E] be provided with the following:
14.1. A copy of this Order;
14.2. The Family Reports of [Mr F] of 31 August 2022 and 5 October 2023.
15. The father do:
15.1. Attend upon [Ms E] for all such appointments as recommended by her;
15.2. Follow all treatments recommended by [Ms E].
16. At the conclusion of the therapy referred to in paragraphs 13 and 15 herein, [Ms E] do provide a report, at his sole cost, to the mother addressing the following:
16.1. The level of engagement of the father;
16.2. Whether the father has gained any insight as to his emotional behaviour; and
16.3. Any other matters considered relevant.
17. Following the receipt of the Report of [Ms E] referring to in paragraph 16 herein the parties do attend Family Dispute Resolution to discuss and negotiate the lifting of supervision and time spending arrangements during school holidays.
The orders need to be read as a whole and objectively.[21] The extent to which the father complies with those orders relating to CBT does not affect the operation of the orders relating to the father spending time with the children.
[21] Hedlund v Hedlund [2021] 64 Fam LR 458; [2021] FedCFamC1A 84 [122]; Yunghanns & Ors & Yunghanns (1999) FLC 92-836; (1999) 24 Fam LR 400; [1999] FamCA 64
Orders 13 to 17 inclusive are directed to the parties and especially the father taking steps to establish a foundation for family dispute resolution to occur in respect of the father spending unsupervised time with the children. Those orders do not stand as conditions upon which the father is to spend time with the children pursuant to orders 5 to 12.
The mother’s recourse to the extent of the father’s participation in the cognitive behavioural therapy with the therapist identified in the primary orders is not relevant to the consideration of the present applications insofar as they relate to the establishment of a reasonable excuse, or for that matter, a contravention.
Given the findings in relation to the alleged reasonable excuse asserted in relation to count 4, the Court is not satisfied on the balance of probabilities that a reasonable excuse has been made out in respect of the contravention making up the fifth count.
COUNT 6
In relation to the contravention contained in count 6 of 6 April 2024 the mother told the father by message on 4 April 2024 in response to his query as to why the children were not coming, that the children are telling her new things about their father’s abuse often and the effects of that can last years and even a lifetime. The mother said in her oral evidence she was referring to psychological abuse that had occurred at almost any time the father spoke to the children.
This evidence was nothing but hyperbole.
The mother then gave evidence that W had said her father told her to tell her mother that she did not love her mother anymore. This was not put to the father in cross-examination by the mother’s counsel. When the remark was said to have been made or the mother’s reaction to or handling of it was not clarified in the evidence. The remark, if indeed it had been made, does not appear to have damaged W’s or the other children’s relationship with their mother or their development or welfare or on the evidence available indicate a risk to either the children, the children’s relationship with their mother although such remarks can be nascent of such risks. No submission was made that such a remark, if made, was not submitted to be a breach or inconsistent with other parts of the primary orders.
Considering the whole of the evidence and in particular the mother’s evidence in relation to this count, the Court is not satisfied on the balance of probabilities that a reasonable excuse has been made out.
COUNT 7
Count seven related to the contravention of 20 April 2024.
On 18 April 2024 the mother wrote to the father telling him that time would not occur on account of his abuse of the children and his contravening the court orders in disciplining of the children, denigration of her and there being no compliance with “CBT”.
The mother readily agreed under cross-examination that she meant to convey by this message that the children were never to be regarded as safe in their father’s care.
The mother in cross-examination then acknowledged that despite her expressing the view that the children were unsafe in his care, offered in balance of the same message that she was prepared to deliver the children to the father at the police station to spend time with the father from 11.30am to 4.30pm unsupervised.
When confronted with this contradiction between her view of the lack of safety, justifying the withholding of the children, and the offering of time, the mother said the offer of time was made to demonstrate that the father did not really wish to see the children but rather that all he really wanted to care about were his entitlements under court orders as he wanted to control arrangements.
The mother said she knew that the father would decline the mother’s proposal as his spending time with the children is a “game” on the father’s behalf.
The mother’s evidence on this topic disclosed a capacity to be strategic, cynical and not genuine in relation to her obligations under orders. Her evidence demonstrates that her concerns to that point in time about safety and abuse were not so great as to preclude the children spending time with their father but also that those concerns insofar as they impacted upon the children’s relationship with her could also be attenuated by the children spending time with their father.
The Court is not satisfied that a reasonable excuse has been made out on the balance of probabilities in respect of the contravention of 20 April 2024.
COUNT 8
The Contravention of 3 May 2024 in count 8 was foreshadowed in the mother’s message of 2 May 2024 telling the father that the children could not attend that weekend without giving a reason.
The prospect of a reasonable excuse appears to evolve when subsequently, on 3 May 2024, the mother told the father that the primary order provided that the children’s time with the father was to progress from day time and then to overnight time and that the children were sick and the mother did not wish to risk the father and members of his family’s health by exposure to then unwell children.
In messages the mother attached a document being a carer’s leave certificate that related to V and W having or having had chicken pox. No other children had the condition.
One of the certificates was dated 22 April 2024 and the other 3 May 2024.
No evidence was led as to the incubation or infection period for the chicken pox.
There is no evidence that the children could not then be cared for by the father. The decision for him to do so was taken out of his hands by the mother having made the decision on his behalf that the children would not be attending.
The evidence adduced under the mother’s cross-examination as to none of the children being able to attend at all on account of chicken pox infections was not convincing.
The misidentification of the relevant medical condition in the mother’s opening and the number of children that were affected is not fatal to the establishment of a reasonable excuse on the mother’s behalf.
Given the children had been withheld from their father for some months by this stage, dismissing her familiarity with him and the children’s with him, two of the children being ill with chicken pox and the timing of the contraction of that illness, a reasonable excuse is made out on the balance of probabilities.
COUNT 9
The contravention located within count 9 relates to 17 May 2024. The mother did not have the children at school that day. The mother said under cross-examination that she had withheld the children from school so that they would not come into the father’s care that day.
The mother also subsequently conceded she had deliberately withheld the children from school that day so that the father could not pick up the children as she considered the children would be unsafe in his care.
The mother had sought some legal advice at this time.
The mother did not adduce any evidence indicating any new matters that gave rise to a fresh consideration by her relating to the development of her consideration about the children’s safety whilst in their father’s care.
Given the findings above and the evidence led in respect of this count by the mother, the Court is not satisfied on the balance of probability that a reasonable excuse has been established by the respondent in respect of this count.
COUNT 10
The respondent’s counsel opened on the basis that the reasonable excuse that existed in relation to this contravention was that the children had COVID.
The mother in her evidence in chief said that she could not recall the day but that the reason was either sickness or worry for the children’s safety.
If the children had suffered from COVID there was no evidence of the extent of symptoms or whether those symptoms were such that the father and those assisting him in the care of the children were unable to care for the children or that the children were so affected that they needed to remain in their mother’s care so that the father was informed of the reason or afforded an opportunity to care for the children or at least unaffected children.
A mere worry that the children would not be safe with their father without more does not constitute a reasonable excuse to contravene the order on this occasion.
The Court is not satisfied that the mother established on the balance of probabilities a reasonable excuse for the then contravention of the parenting orders.
COUNT 11
In relation to the existence of a reasonable excuse for this count, the mother gave evidence that the child X had, whilst pretending to have had a telephone conversation with her father, said that her father had called X “disgusting” and that X then said she never wanted to go to her father’s house again - not wanting to walk there, drive there or anything.
The mother in her evidence in chief said there were also then “other reasons” for not facilitating the children’s handover and X’s behaviour was the “psychological stuff” where X was really upset about “it” and she then was worried about her father hurting her physically. The mother expressed this view it appeared because the mother said that X had a lot of “emotional regulation issues” and that, in the mother’s experience, the father had not had patience for that.
The mother’s evidence on this topic calls for caution when considering it.
Firstly, the mother’s evidence that X spoke of her father and that the mother seemingly spoke to X about the father on this occasion was not consistent with her evidence that the father was not spoken of by the children or by her.
Secondly, the mother’s evidence that the father called X “disgusting” was not given any context as to whether X herself was generally so regarded by the father or whether something X had said or done was so regarded by the father or why that remark would lead X, at 4 years and after not having seen her father for about 5 months, to assert that she would not go and see her father.
Thirdly, there was no evidence that satisfied this Court that something had occurred to or in the presence of X to see her or her actions come to be called to be “disgusting” by her father or that her father or his actions should be so regarded by her.
Fourthly, X (or her actions) being called “disgusting” or this pretend telephone conversation was not put to the father in his cross-examination.
The Court is not satisfied that a reasonable excuse has been established on the balance of probabilities in respect of the contravention of 14 June 2024.
COUNT 12
The respondent’s counsel opened on the basis that the reasonable excuse that existed in relation to this contravention of 28 June 2024 was that the father was physically disciplining and coercing the children’s behaviour in that the father had asked all of the children to tell the mother to kill herself, this being a psychological harming of the children.
The mother in giving her evidence in chief in relation to this ground about 30 minutes after the opening given in her presence could not recall these matters or give any specific evidence in relation to this contravention.
The mother’s failure to be able to recall what her evidence was to be on this topic was redolent of the mother having developed a narrative or rationale to explain her contraventions of order generally rather than an ability to advance evidence of particular facts upon which the narrative or rationale might be based and which related to particular contraventions.
The Court was not satisfied on the balance of probabilities that reasonable excuse was made out to explain the contravention of 28 June 2024.
COUNT 13
In answer to the contravention of 12 July 2024 the mother’s evidence was that she did not facilitate handover on that occasion as:
(a)the children did not want to go;
(b)the children were getting ready to go on a holiday but not with their father;
(c)the children kept telling the mother they were being hurt;
(d)the mother could not recall what the children told her that day about being hurt; and
(e)the mother did not encourage the children to attend with their father, who in the wife’s view was “an abuser.”
The evidence of the mother did not meet the opening made on her behalf as to the existence of the reasonable excuse in respect of this contravention. In all the circumstances, this difference adds little to the consideration of whether a reasonable excuse exists.
Given the findings made above as to the basis of physical abuse either in respect of the triplets or W or the father’s behaviour generally and the mother’s lack of encouragement, the Court is not satisfied on the balance of probabilities that a reasonable excuse existed for the contravention of 12 July 2024.
COUNT 14
The reasonable excuse in respect of the contravention of 26 July 2024 was stated in the mother’s opening to be that the children were sick with the “flu”.
However, the wife’s evidence in relation to this contravention was that she had at the relevant time contravened the order on account of a continued fear of the father hurting the children and not by reason of illness.
That may well have been so, but the fear must be reasonably based. In this case the reasonable basis must relate principally to events that have occurred since the making of the primary orders as previously held fears and their basis would have been considered and brought to account in determining to give consent to the primary orders. Given earlier findings the Court is not persuaded on the balance of probabilities that such a fear was reasonably based upon what had occurred since the making of the primary orders.
The Court is not satisfied that a reasonable excuse has been made out by the respondent in relation to this contravention of 26 July 2024 on the balance of probabilities.
COUNT 15
The opening on behalf of the wife informed the Court that this contravention of 9 August 2024 arose on account of a reasonable excuse existing in that the mother held a belief that the children were at a risk of harm by being groomed and sexually abused based on historical reports and a concern that those reports put the remaining children at risk and further, a belief that the father was already physically and psychologically abusing the children based on bruising and reports of the children being hit previously described by the mother and that the children reporting to the mother that the father had told the children to tell the mother to kill herself (being the basis of the reasonable excuse asserted in respect of the contravention identified in count 12[22]).
[22] Inadvertently referred to as count 13 by the mother’s counsel in that counsel’s opening remarks.
The mother gave her reason for not facilitating handover on this occasion as “the same as before.”
Given the earlier findings of the Court, the Court is not satisfied on the balance of probabilities that a reasonable excuse in respect of this contravention has been made out.
COUNT 16
This contravention occurred on 23 August 2024. The wife’s counsel’s opening was that a reasonable excuse was constituted by a belief that the children were at risk of physical, psychological and sexual abuse if in contact with the father based on the mother’s reported experiences of the father’s behaviour during the relationship and the risk that created for the children, in particular, of being physical and/or sexually abused.
The mother in her oral evidence in chief said her recollection of not sending the children at that time was on account of her not wanting the children to get hurt.
This desire in its general terms does not constitute a reasonable excuse, nor does it do so in the circumstances of this case in light of the earlier findings.
The Court is not satisfied that a reasonable excuse has been made out on the balance of probabilities in respect of this contravention.
COUNT 17
In answer to the contravention of 1 September 2024 the mother’s counsel opened on the mother’s behalf saying that a reasonable excuse arose on account of a persistent belief that the children were at risk of physical and sexual abuse if handed over to the father (there being no particulars other than the culmination of the events said to be underpinning the previous 16 alleged excuses and the reports of the children throughout 2024 collectively).
The mother’s oral evidence given not quite 30 minutes later was a marked departure from this opening.
The wife's evidence in chief on that day was that she determined that the children should accompany her to visit her father (the maternal grandfather). She determined to visit the grandfather at his residence in Suburb G as she was uncertain how long "he would be with them" as he was stricken with a terminal illness.
There was no evidence lead in the wife's case as to her father's condition or prognosis or whether the condition was known of prior to the date of when orders were made.
There was no evidence that visitation on that day arose out of acute circumstances of the father's health or the impact of such circumstances on her own wellbeing necessitating a visit that day.
No explanation was given to the father at that time of need for children to then see the paternal grandfather in the company of their mother or of opportunities to organise alternate time arrangements in respect of the children’s time with their father or paternal grandfather.
The fact that the children were to spend time with the father on Father's Day was stipulated in the order, reflected an intention to ensure that both parents maintained meaningful relationships with the children, in spending time with them on significant occasions of which that day was one.
There was no evidence that the mother did not have capacity to see her father with or without the children at other times or had not done so. Furthermore, there was no evidence to suggest that alternative arrangements were sought to balance her personal obligations to her father with her duty to facilitate the children’s time with their father in accordance with the orders.
The Court is not satisfied on the balance of probabilities that the mother has made out a reasonable excuse for her failure to comply with the parenting orders on 1 September 2024.
COUNT 18
In respect of the contravention of 6 September 2024 the mother did not send the children to school so they could be picked up by their father therefrom to spend time with him because, according to the mother’s counsel’s opening, of the bases given in his opening in answer to the contravention in count 17.
The mother’s evidence in chief was simply that she then contravened the orders as she did not want the children to get hurt.
The Court is not satisfied that the mother’s want constitutes a reasonable excuse.
SUMMARY OF DETERMINATIONS
A summary of the findings the Court has made is set out below:
Count number Date of alleged contravention Contravention established Reasonable excuse established on the balance of probabilities 1 31 December 2023 yes Established 2 10 February 2024 yes Not established 3 24 February 2024 yes Not established 4 9 March 2024 yes Not established 5 23 March 2024 yes Not established 6 6 April 2024 yes Not established 7 20 April 2024 yes Not established 8 3 May 2024 yes Established 9 17 May 2024 yes Not established 10 31 May 2024 yes Not established 11 14 June 2024 yes Not established. 12 28 June 2024 yes Not established 13 12 July 2024 yes Not established 14 26 July 2024 yes Not established 15 9 August 2024 yes Not established 16 23 August 2024 yes Not established 17 1 September 2024 yes Not established 18 6 September 2024 yes Not established
In making these determinations, the Court has not found on the evidence available to it that the father has assaulted or physically disciplined the children or any of them contrary to the primary orders or sexually groomed the children or that the father was likely to have done so since the making of the primary orders.
The Court is also satisfied the determinations set out above should stand when the mother’s evidence is considered as a whole and across all of the circumstances as the Court has found them to be between November 2023 and September 2024.
CONSIDERATION OF THE ORDERS TO NOW BE MADE
The Court indicated at the outset of the hearing that the Court would after making its determinations as to the existence of contraventions and whether reasonable excuses under the terms of the legislation exists in respect of each of the contraventions afford the parties an opportunity to consider those determinations before receiving submissions as to the types of orders that might be made, if any, in respect of the contraventions and any other orders that might be sought to be made under the various and differing statutory provisions that apply in the circumstances of this case.
Those submissions should also address the question of “sanctions” in respect of each count and not merely globally.
The Court having made the determinations summarised in Table 1 above will now adjourn this matter to 4 March 2025 at 11:00am to enable parties to confer and then for the Court to receive submissions in relation to the further orders, if any, to now be made under the relevant “old” and “new” legislative provisions of the Act.
I certify that the preceding two hundred and forty-one (241) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 18 February 2025
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