SMOOTHE & ENMORE

[2014] FamCA 44

FAMILY COURT OF AUSTRALIA

SMOOTHE & ENMORE [2014] FamCA 44

FAMILY LAW – CHILDREN – Where the father seeks a Contravention Order – Where the mother failed to facilitate changeover of the child – Where the mother failed to facilitate a telephone call between the father and child – Where the mother claimed she had “reasonable excuse” for contravention – s 70NAE Family Law Act 1975 (Cth) – In the marriage of Gaunt (1978) FLC 90-468 – Moulden & Tan (No. 2) [2010] FamCA 927 – Where the mother alleged she had a genuine belief that the child was at risk of sexual abuse while in the father’s care – Where there was no evidence of sexual abuse – Where “reasonable excuse” was not proved – Where the father seeks a bond – Where the father seeks for time which was not spent between the father and the child in contravention of earlier orders to be made up.

Family Law Act 1975 (Cth)

In the marriage of Gaunt (1978) FLC 90-468
Moulden & Tan(No. 2) [2010] FamCA 927

APPLICANT: Mr Smoothe

RESPONDENT: Ms Enmore

INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

FILE NUMBER: BRC 4709 of 2012

DATE DELIVERED: 29 January 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 16 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Carroll Fairon Solicitors

COUNSEL FOR THE RESPONDENT: Ms Merkin

SOLICITOR FOR THE RESPONDENT: Kim Eccleston Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

Orders

Notation:

A.IT IS NOTED that Orders in respect of these reasons for judgment will be made following submissions from counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Smoothe & Enmore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4709 of 2012

Mr Smoothe

Applicant

And

Ms Enmore

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons concern the contravention application filed by the father, Mr Smoothe, on 11 December 2013, pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The subject child in respect of these proceedings, R, was born in May 2009 and is presently four years of age. The father alleges that the mother, Ms Enmore, has contravened Order 1 of the Order of Federal Magistrate Demack (as her Honour was then known) dated 18 December 2012 on seven occasions since 16 August 2013 and contravened Order 4 of the order of Federal Magistrate Demack dated 7 August 2012 on one occasion. These alleged contraventions consisted of “[failing] to facilitate changeover of the child” (at 3.00 pm on each of 16 August 2013, 23 August 2013, 30 August 2013, 20 September 2013, 8 November 2013, 22 November 2013 and 29 November 2013) and “[failing] to facilitate a telephone call between the child and the father” (at 6.00 pm on 10 October 2013).

2. The application was heard before me on 16 January 2014. Linklater-Steele of Counsel appeared for the father and Merkin of counsel appeared for the mother. It was conceded by Merkin that the mother had contravened the orders of Federal Magistrate Demack in question. However, it was the mother’s case, as advanced by Merkin, that the mother has a “reasonable excuse” for having contravened the orders. Merkin submitted that the mother is afeared of the child spending time with the father because she has a genuine belief that the child is at risk of sexual abuse while in the father’s care.  

3. Before I continue further with the case advanced before me on 16 January 2014, it is necessary to outline the earlier history of these proceedings.

Relevant background of proceedings

1. On 7 August 2012, Federal Magistrate Demack made interim orders which included an order that the child speak to the father by telephone on Thursdays (commencing on Thursday, 16 August 2012) between 6.00 pm and 7.00 pm, with the child to have a private place to take the telephone calls.   

2. On 18 December 2012, Federal Magistrate Demack made interim parenting orders. Order 1 of those orders provided:  

   1.        That the child … spend time with the father as follows:

   a. on the first, third and fifth weekends of every month from after day care Friday (or 3.00 pm if the child is not otherwise in day care) to 3.00 pm Sunday;

   b. on the second and fourth weekends of every month from after day care Friday (or 3.00 pm if the child is not otherwise in day care) to 3.00 pm Saturday;

   c.from 11.00 am on 25 December 2012 to 11.00 am on 26 December 2012; and

   d. from 5.00 pm Easter Sunday to 7.00 pm Easter Tuesday with such arrangements to alternate each year.

3. The mother instituted a further interim application which was heard by Judge Demack (as her Honour is now known) on 11 September 2013. The mother sought orders inter alia for the matter to be designated Magellan and transferred to the Family Court, that an Independent Children’s Lawyer be appointed, that the orders of 18 December 2012 be suspended, that the father have supervised time with the child at a contact centre, that the father pay for the aforementioned supervision, that the mother have sole parental responsibility for the child, that the child live in the mother’s care, and that the father have twice weekly telephone contact. The father opposed the mother’s application and sought orders for the order of 18 December 2012 to remain in force.

4. On 17 September 2013, Judge Demack gave ex tempore reasons in respect of the application and ordered that:

   1.        the orders dated 18 December 2012 remain in full force and

   effect;

   2.        the mother's application otherwise be dismissed; and

   3.        the proceedings be transferred to the family Court of Australia.

5. In relation to her Honour’s reasons, it was the mother’s case that the child was at risk of sexual harm in the father’s care. As was noted by Judge Demack at the outset of the reasons, those allegations were “contrary to what [had] been alleged by [the mother] or on her behalf at any earlier juncture”. Her Honour further went on to say:

   [t]he mother makes some complaints that previous solicitors have not effectively represented her. If that is said to be a concern, I point out at this juncture that the affidavit relied upon by the mother in the December 2012 hearing was an affidavit that she, alone, had attended to without the assistance of a lawyer, and that affidavit did not contain any allegations of the child being at risk of sexual harm.

6. Her Honour dealt at length with the various evidence of the mother about the disclosures the child was alleged to have made to her, the alleged redness on the child’s genital area which the mother claimed was not nappy rash, and also the alleged sexualised behaviour exhibited by the child. Her Honour also made reference to the DoCS investigation which was undertaken in respect of the child, the outcome of which was that the child was not in need of protection from either the mother or the father and that their investigations were closed. 

7. At [84] – [90] her Honour considered the primary considerations – being first, the benefit to the child in having a meaningful relationship with both of her parents and, second, the need to keep the child safe from harm from being subjected to or exposed to abuse, neglect or family violence – and concluded at [91]:

   Weighing up all of those matters, it seems to me that there is no evidence of any change in terms of the matters which should now be determined by the Court from the matters which were before the Court last December. The change in terms of characterisation of nappy rash is no more than a change of characterisation. There is no indication that the child has made any disclosures to anyone other than the mother and it seems to me that the benefit to the child in continuing to have a meaningful relationship with the father when the Court cannot be satisfied on an interim basis that there is a risk of harm in the father’s car [sic] necessarily means that the decision made by me in December must remain the same.

8. The mother subsequently lodged an appeal against Judge Demack’s orders dated 17 September 2013.  That appeal is yet to be heard.

9. The mother also applied for a stay of the orders dated 17 September 2013.  On 5 November 2013 Judge Demack dismissed that application. The mother has also lodged an appeal against Judge Demack’s orders dated 5 November 2013. That appeal is yet to be heard.

Material relied on

1. The father relies on the following material:

   1.Application for contravention filed 11 December 2013

   2.Affidavit of the father filed 11 December 2013

   3.Order of  Federal Magistrate Demack of 7 August 2012

   4.Order of Federal Magistrate Demack of 18 December 2012

   5.Case outline of the father filed 9 September 2013

   6.Order of Judge Demack of 17 September 2013

   7.Reasons of Judge Demack of 17 September 2013

   8.Order of Judge Demack of 5 November 2013

   9.Reasons of Judge Demack of  5 November 2013

   10.Family Report of Mr M filed 21 November 2012.

2. The mother relies on the following material:

   1.Affidavit of the mother filed 17 January 2014

   2.Affidavit of the mother filed by leave on 16 January 2014

   3.Affidavit of the mother filed 15 August 2013. 

3. As regards the affidavit of the mother filed 17 January 2014, I wish to make some comments about the administration of the mother’s case. During the hearing I raised in question related to the apparent deficiency of evidence to support the mother’s case that she had a “reasonable excuse” for the contravention. Consequently, I required that the mother file an affidavit to provide evidence in respect of a consultation with a Dr C which consultation, Merkin submitted, documented the child’s rash. That consultation I understand, Merkin found out about the day before the hearing, and was only raised in Merkin’s submissions when I questioned whether or not Merkin had any expert evidence to support the mother’s case. Such affidavit was settled by Merkin and filed the day after the hearing. The affidavit did not advance the Respondent’s case in proving “reasonable excuse”, and, if anything, it detracted from it.  In the notes from the consultation with Dr C, it was evident that the doctor had no concerns that the child was at risk of sexual abuse.

The father’s application for contravention

1. As set out above, the father’s application was filed in respect of the mother’s alleged contraventions of the orders of 7 August 2012 and 12 December 2012.

2. At the hearing of 16 January 2014, Linklater-Steele sought orders that the court impose a bond pursuant to s 70NEB(1)(d) and for the time which was not spent between the father and child in contravention of the earlier orders to be made up.

The law relevant to this application   

1. Division 13A of Part VII of the Act deals with the consequences of failing to comply with orders. Section 70NAA sets out the powers of the Court in circumstances where one party alleges that the other party has contravened orders of the Court. While the mother concedes that she has contravened the orders in question (see section 70NAC for the meaning of “contravened”), it is her case that she has a reasonable excuse for having done so.

2. Section 70NAE relevantly provides:

   (1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

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

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

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

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

   …

   (5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not spend time together was not, longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

3. It is apparent that section 70NAE(5)(a) and (6)(a) involve both a subjective and an objective test.  That is, a person will not have a “reasonable excuse” under that section for contravening a parenting order unless, in addition to the other requirements set out in section 70NAE:

   1.the person “believed” that not allowing the child and the other person to spend time together was necessary to protect the health or safety of a person (the subjective test); and

   2.the person had 'reasonable grounds' for that belief (the objective test).

4. Merkin, however, submitted that a genuinely held belief is sufficient to establish a "reasonable excuse".  This interpretation disregards the words “on reasonable grounds” that appear in section 70NAE(5)(a) and (6)(a).  As Evatt CJ, Emery and Hogan JJ said in In the marriage of Gaunt (1978) FLC 90-468:

   A party's subjective view of the rights and wrongs of a decision cannot be relied on as "just cause or excuse" or "reasonable cause".

Did the mother believe on reasonable grounds that not allowing the child to spend time with the father or communicate with the father was necessary to protect the health or safety of the child?

1. As set out above, the mother relied on three affidavits sworn by her on 15 August 2013, 16 January 2014 and 17 January 2014 respectively.  The affidavit sworn on 15 August 2013 is the same affidavit as that which the mother relied upon in the application before Judge Demack decided on 17 September 2013.  In the reasons for that decision, Judge Demack did not consider that there was any basis for the orders made on 18 December 2012 (which included orders that the child spend certain periods of time with the father) to be set aside.  Judge Demack indicated that the mother’s evidence was “strangely internally inconsistent in an unexplained way” and did not accept that there was evidence showing that the father sexually abused the child or perpetrated family violence.  In coming to that conclusion, Judge Demack noted inter alia that:

   ·the mother had not adduced any evidence to the effect that the rashes present on the child were inconsistent with nappy rash;

   ·in particular, the mother had not adduced any relevant medical evidence;

   ·the child had not made any statements to DoCS or to the police which “could be said to be consistent with child sexual abuse”; and

   ·the mother had previously claimed that the rashes were “nappy rash” and had told DoCS that the rashes were nappy rash. However, the mother subsequently changed her position to state that the rashes were not consistent with nappy rash.

2. I have considered the reasons of Judge Demack in detail.  I respectfully agree with those reasons and incorporate them into these my reasons. Accordingly, I consider that the mother’s affidavit sworn on 15 August 2013 does not show that the mother believed “on reasonable grounds” that the child was at risk of harm if she spent time with the father.

3. Accordingly, the mother’s case can only succeed on the basis of new evidence or submissions which were before this Court but not before Judge Demack. In this regard, the mother relies on the evidence in the mother’s additional affidavits sworn on 16 and 17 January 2014. At the hearing of this application, the mother also placed weight on the submission that the mother’s “genuine belief” that the father poses a risk of sexual harm to the child is evidenced, inter alia, by the fact that she appealed both of the earlier decisions of Judge Demack. That factor, Merkin submitted, distinguishes this case from earlier decisions of this Court.    

4. I turn then to my consideration of the additional affidavit evidence. So far as the mother’s additional affidavits are concerned, I find that they do not contain any additional information that would lead me to find that the mother believed “on reasonable grounds” that the child was at risk of harm if she were in the care of the father.

5. In her affidavit sworn on 16 January 2014, the mother swears inter alia that since the child has ceased spending time with the father, the mother has noticed that:

   1.the child’s behaviour has improved dramatically.  In particular, the mother swears that the child no longer wakes up having had nightmares, and no longer wets the bed or soils herself;

   2.the child’s relationship with her older sister has improved;

   3.the child’s eating habits have improved such that the child has “put on healthy weight” and “eats regularly”; and

   4.the child no longer “play[s] with her vaginal area” and “no longer makes remarks about the father rubbing or touching her genital area”.

6. The mother’s affidavit sworn on 17 January 2014 exhibits the child’s medical records from the M Medical Centre. This affidavit was filed following the hearing of 16 January 2014. At the hearing, I raised the issue of there being a lack of evidence before me to support the mother’s claims. Merkin then submitted that on 15 January 2014, having made her own enquiries with the mother (after the affidavit filed 16 January 2014 had been settled), the mother had informed her that she in fact, attended a general practitioner in respect of a rash around the child’s genital area. Despite being informed of this, the mother’s legal representatives had not taken steps to obtain the medical records for the purposes of the hearing the next day. As such, I suggested to Merkin that her client ought file an affidavit attaching those medical records. That was done on 17 January 2014.

7. The medical records annexed (see annexure SE-1 at page 5) to the affidavit do not contain anything which supports an allegation that the father sexually abused the child.  In her affidavit, the mother relies in particular on the child’s appointment with Dr C on 29 October 2012.  The record of that appointment is relevantly as follows:

   She [the child] live with Mother mostly

   Parents separated for 2 years

   Mother says She is with Father for 24 hours – Sat 4pm == 8 visits so far.

   Mother is unsure if Father live alone or has girl friend at times.

   Mother says everything is documented with the contact centre and DOCS is aware.

   …

   Mother say on Sun / when return from Father nappy rash, emotional ( angry, sad, low mood ), medial upper both thigh 7 cm diameter area red skin swelling. Also anal area now wipped [sic] property at times / stool present.

   On exam today / 29/10/12.

   medical upper both thigh 7 cm diameter area red skin swelling.

   Minor nappy rash- pink 5 x 3 cm

   Treatment

   Canestan cream or hydrozole cream to try.

   Review anytime advised by Mother for any concerns

1. Nothing in those records indicates a concern on the doctor’s part that the child may have been sexually abused.  To the contrary, the records show that the doctor was aware of the separation and parenting arrangements, was aware that the father was having overnight contact with the child, was aware that DoCS had had some involvement with the child, and, having examined the child in light of the background provided to him by the mother, diagnosed the child with nappy rash and prescribed Canestan cream and hydrozole cream.  The mother’s own affidavit exhibits information suggesting that those creams are prescribed for nappy rash.

How the court ought treat the mother’s appeals from the earlier decisions of Judge Demack   

1. Merkin for the mother submitted that the mother’s appeal of Judge Demack’s decisions of 17 September 2013 and 5 November 2013 is an additional “factor” which goes to whether the mother had a “genuine belief” that the child would be at risk of harm in the father’s care. As I indicated earlier in those reasons, the mother must establish not only that she believed that the child would be at risk but also that there were reasonable grounds for that belief.  It may be that the fact that the mother appealed Judge Demack’s decision is a factor which suggests that the mother believed that the child would be at risk (although it could be at most a factor of limited weight, given that it is perfectly conceivable that a person may appeal a decision without actually believing that the child in question was at risk of harm).  However, it is quite irrelevant to the objective aspect of the test; that is, whether the mother had reasonable grounds for her belief.

2. Merkin for the mother relied on the following cases in support of the submission that the fact that the mother appealed Judge Demack’s decision is a ground showing that the mother had a “reasonable excuse”: In the marriage of Gaunt (1978) FLC 90-468 and Moulden & Tan(No. 2) [2010] FamCA 927. In particular, Merkin drew the Court’s attention to the following paragraphs from of the decision of the Full Court comprising Evatt CJ, Emery and Hogan JJ in Gaunt (see 77,398):

   The essential question is this – can a party who does not agree with a Court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate himself to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court’s order or from the consequences of non-compliance would undermine the purposed and intentions of the Act.

   That is not to say that the Court’s decision, once reached, determines the matter for all time. It can be challenged by appeal and it can be reviewed and varied if new evidence or new circumstances dictate such a course of action (see Hayman v. Hayman (1976) FLC 90-140). The Husband did not appeal. Nor did he apply to vary the order. His reasons for failing to do so suggest that he was given bad advice but we cannot determine whether that is so. A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”. Evidence of changed circumstances or of matters not considered when the order was made might be.

3. That passage indicates that a party who is dissatisfied with an order may, as an avenue of redress, appeal that order or, if new evidence is adduced or new circumstances arise, may seek the variation of that order.  It does not suggest that the mere fact that a party has appealed a set of orders is sufficient to establish that (or is even a relevant factor in determining whether) a party who does not comply with the orders has a reasonable excuse for that non-compliance. Merkin sought to distinguish the facts of the case before me from the facts of Gaunt and also the facts of Moulden because here, the mother has lodged an appeal whereas the Full Court in Gaunt and Dawe J in Moulden stated, “…the [respondent to the contravention application] did not appeal…” and “…the [respondent to the contravention application] did not appeal either of the Court orders…” at page 77,398 and [31] respectively. Such interpretation of these cases and such application of that interpretation to the facts before me is, respectfully, incorrect. I reiterate that the Courts’ comments to appeals referred to are in relation to avenues of redress.

4. Such an interpretation as Merkin suggests is contrary to the view clearly expressed in the passage from Gaunt cited above – that a party cannot arrogate to himself or herself a supervening power to make an independent decision contrary to the Court’s orders.  It may be noted also that the view of the law put on behalf of the mother would, if accepted, be likely to have the effect of encouraging baseless appeals and thereby place an unnecessary burden on public resources.

5. On the evidence before me I am not satisfied that there are reasonable grounds for the mother to believe that the child would be at risk of harm if the mother complied with the orders made by Federal Magistrate Demack on 7 August 2012 and 8 December 2012.  Indeed, quite apart from the reasonableness of any such belief, there is evidence which leads me to doubt whether the mother did in fact have even a subjective belief that the child would be at risk of harm. However, it is unnecessary for me to make any definitive finding in that regard. 

6. As regards the question of what orders ought be made, I shall be seeking brief further submissions from counsel at the handing down of these reasons in respect of whether it is appropriate to order that the mother enter into a bond to deter her from further contraventions of the current parenting orders.  

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 29 January 2014.

Associate: 

Date:  29 January 2014