Somers and Somers

[2009] FamCA 998

FAMILY COURT OF AUSTRALIA

SOMERS & SOMERS [2009] FamCA 998

FAMILY LAW – CHILDREN – Contravention

Family Law Act 1975 (Cth)

APPLICANT: Mr Somers

RESPONDENT: Ms Somers

FILE NUMBER: MLC 2109 of 2009

DATE DELIVERED: 19 OCTOBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 19 OCTOBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS BENJAMIN

SOLICITOR FOR THE APPLICANT: KLIGER PARTNERS

COUNSEL FOR THE RESPONDENT: MS BEN SIMON

SOLICITOR FOR THE RESPONDENT: WHYTE JUST & MOORE LAWYERS

Orders

1. That the allegations numbered 1, 2 and 3 of the contravention application filed by the father on 24 September 2009 are found proved.

2. That allegation number 4 of the said contravention application filed by the father is dismissed.

3. That the allegations referred to in paragraph 1 of these orders are established pursuant to sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth).

4. That all outstanding applications are adjourned to the first day of a less adversarial trial at 3.15pm on 5 November 2009.

5. That neither party file any further material without leave of the court until further order.

6. That pursuant to Section 68L(2) the Family Law Act 1975 the child … born … March 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

7. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

8. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

9. That the question of any sanction arising out of paragraph 1 of these orders is adjourned to 5 November 2009.

10. That paragraph 3 of the orders of Federal Magistrate Connolly made on 15 April 2009 incorporating the minutes of interim consent orders is varied as follows:

    (a)    Minute 2 is suspended until further orders;

    (b)    Minute 3 is suspended until further order.

11. That until 5 November 2009, the father spend time with the child … born … March 2008 as follows:

    i.      On each Sunday from 10.00am until 1.00pm; and

    ii.     As otherwise may be agreed in writing between the parties.

12. That all time between the father and the child be supervised by Ms W and that she be present at all times whilst the child is in the father’s company.

13. That for the purposes of this order, the mother hand the child to Ms W for delivery to the father and such handover occur at S Street, R.

14. That the first period of time between the father and the child pursuant to these orders shall commence at 10.00am on 25 October 2009.

15. That until further order, the mother be restrained from removing the child from the Geelong environs.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That costs of both parties of this day are reserved.

3. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2109  of 2009

MR SOMERS

Applicant

And

MS SOMERS

Respondent

REASONS FOR JUDGMENT

1. In the Duty List on 19 October 2009, I found the respondent mother had breached the extant parenting orders in three out of four of the contraventions alleged by the father.  At that time, I varied the orders for time between the father and the child, a daughter born in March 2008.  I shall refer to those orders further.  I indicated at the time that I would give reasons.  These are those reasons.

2. On 15 April 2009, the parties were before Federal Magistrate Connolly in the Federal Magistrates Court of Australia in Melbourne.  The proceedings involved the child who was then aged 13 months.

3. Both parties were represented by lawyers although the orders were made in the absence of the mother’s lawyer. 

4. The orders provided for the father to spend alternate Sundays from 2.00pm to 5.00pm with the child provided the time was supervised by two named women.  The first supervisor was a nominee of the father and the other was the nominee of the mother.  The time was to be spent at the mother’s residence or such other place as was to be agreed between the father and the two supervisors.  A variety of restrictions was imposed upon the father including that he not be allowed to change the child’s nappy, be left alone with her but that the child be allowed to keep her routine of naps and feeding.

5. The significance of the supervision and the restrictions arose because on 9 April 2009, the mother filed a Notice of Child Abuse or Family Violence in which she alleged that the father had “inappropriately touched the genitals of the child” and “behaved inappropriately to the child”.  It was further alleged that the father had been engaged in “viewing and having in his possession articles of child pornography”.

6. The risk notice did not preclude the mother consenting to the orders to which I have referred.

7. On 24 September 2009 the father filed a contravention application alleging that the mother had failed to make the child available for the periods 25 July 2009, 8 August 2009, 5 September 2009 and 19 September 2009. 

8. The father relied upon an affidavit filed 24 September 2009 and gave oral evidence.  The mother relied upon an affidavit for which leave was granted to file on 19 October 2009 and some oral evidence.

9. Both parties were represented by counsel.  

10. The mother conceded that the father did not spend time with the child on each of the four stipulated dates but said that she had a reasonable excuse for not complying with the order because the child was ill.  The mother’s counsel said that there was a medical certificate in respect of each of the four periods and the mother had tried to arrange make-up contact.

Contravention 25 July 2009

1. Late on the afternoon of Friday 24 July 2009, the mother’s solicitor sent to the father’s solicitor a fax.  It said:

   Unfortunately we are instructed that both our client and the child are ill, suffering from the flu.

2. The solicitor for the father responded to the letter expressing some surprise about the sudden onset of the flu and lateness of the notification and then requested information.  That information was not forthcoming.

3. In her evidence, the mother said that at 5.30am on Friday 24 July, the child woke and was “clearly unwell”.  She said that she felt that on the previous days the child had been “coming down with something as a cold or flu was going around”.  She then made an appointment with a doctor and reported that the doctor noticed a slightly high temperature and some “cold/flu like symptoms”.  She said the doctor diagnosed both she and the child with a virus and gave the child a medical certificate.  Whilst I appreciate that general medical practitioners have very busy schedules, a medical certificate which reads:

   She will be unfit to continue her usual occupation

   is less than helpful for evidentiary purposes and particularly, for the purposes a litigant endeavouring to establish a reasonable excuse for the purposes of Division 13A.

4. The father relied upon the notes of the doctor which showed that the child looked well, her ears were normal and her mucus membranes were moist.  The doctor recorded that there was no increased work of breathing and no crepitations and the “management” was noted as “reassurance”.  In the same file note, there was a reference to the father requesting records and the mother being told by the doctors of that.  The doctor recorded that the mother said she had a court order to prevent the release of that information.  The mother in evidence denied that she said that to the doctor.  The father’s case which was consistently put to the mother, was that she lacked credibility.  The doctor’s recorded notes were disputed.  Things said by the doctor, according to the mother, were not recorded.  Letters between legal practitioners were claimed by the mother to have either been a misunderstanding or done without instruction.  I have little confidence in the truth of the mother’s evidence based on the number of inconsistencies between her word and the written word of others.

5. Section 70NAE sets out the following:

   (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.

   …

   (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).

   There is no suggestion that the mother did not understand the obligations in the order.

6. Once the applicant has established that the order has been contravened and the respondent relies upon the “defence” set out in s 70NAE, the onus of proving that falls upon the respondent.  The standard of proof is the balance of probabilities.

7. In my view it is not sufficient for the respondent to simply say that the child was ill.  It is certainly not satisfactory to produce a medical certificate in the terms to which I have referred.  The reference to “protect the health or safety” in s 70NAE(5) requires the respondent to show why it is that the illness of the child is such that the time with the other parent should not proceed.  It is an objective standard because of the words “reasonable grounds”.

8. The doctor issued a medical certificate that bears no resemblance to the statutory requirements for the respondent to establish.

9. The mother did not give any evidence to indicate that the father was incapable of caring for the child based on any objective standard.

10. I am satisfied therefore that the first contravention is established.

8 August 2009

1. The next successive period that the father should have spent with the child was Saturday 8 August 2009.

2. The father said that Ms W arrived at the mother’s property but was refused entry saying that the “contact had been cancelled” and that the solicitors were aware of the reason.

3. Late on Friday 7 August 2009, there was a telephone conversation between the respective solicitors in which it was again said that the child was ill and the contact would not take place.

4. The mother’s evidence was that on 8 August 2009, the child was still “unwell with the same flu/virus”.  She took the child to the doctor who “informed” her that the child had a throat infection.  She said that the doctor noted that the child had the same virus and because it was lingering, prescribed antibiotics. 

5. Dr T had seen the child on the Thursday late in the afternoon.  She noted that the child seemed to have a sore throat and was coughing at night but the examination of the child’s chest was clear and there was increased expiratory fraction.  She said the throat was red and there was a possible bacterial infection but the ears were clear.  Medication was provided.

6. A certificate was issued but not until the following day.  The medical records showed that there was discussion at 10 o’clock on the Friday morning between the mother and the medical practice receptionist.  Dr T then created a certificate but not until late in the afternoon.

7. For the same reasons set out in the first contravention, the mother has not established to the requisite standard of proof, the defence of health and safety for the child nor any other reason why the father could not have spent some time with the child notwithstanding the child may not have been well.

Contravention 5 September 2009

1. Around the end of August, discussions were taking place about changing the arrangements for supervision to have the contact occur at the Y Centre.  None of those issues is relevant to the determinations. 

2. For the weekend of 5 September 2009, the mother obtained a medical certificate from a different medical practitioner which stated:

   This is to certify that [the child] is receiving medical treatment and for the period Thursday, 3 September 2009 to Sunday, 6 September 2009 inclusive she will be unfit to continue her usual occupation.

3. The mother’s evidence was that on 5 September 2009 the child was still displaying the same symptoms of the virus from previous weeks however her throat and ears were then swollen and red.  She said her temperature was high and she was in need of close monitoring and was prescribed another dose of antibiotics.  There was no evidence again as with the previous two occasions as to why the father could not have spent some time with the child notwithstanding the child was generally unwell.

19 September 2009

1. On Friday 18 September 2009, the father was notified that a conversation had taken place between his solicitor’s secretary and the mother’s solicitor’s secretary.  The message said:

   [The mother] advised us that she is unable to provide the child for contact with [the father] as arranged tomorrow, a fax will be sent confirming this and contact will be made up in due course.

2. The solicitor for the father followed that conversation up with the secretary to the mother’s solicitor but was unable to ascertain the reason why the problem occurred.

3. The mother’s evidence was as follows:

   On 19 September 2009, [the child] was ill with gastro as this was going around the [R] area – many neighbours and their children were ill with gastro.  [R] Medical Centre can confirm that this was the case.

4. Although the medical records produced by the father indicated very little about what occurred in the month of September, the mother produced a plethora of medical certificates and Medicare records to indicate that she was taking the child to the doctor during that month.  This situation was somewhat different from the other three.  The mother’s evidence was that she was not prepared to allow the child to proceed with a visitation because after every supervised visit, the child had diarrhoea.  She said she did not want her to get any more ill than she already was.  She then gave evidence about the discussions with the medical practitioner who was not the practitioner with whom she had dealt on previous occasions.  She said that a thorough examination was undertaken for the child and a confirmation of a stomach virus occurred. 

5. Section 70NAE(5) refers to the need to protect the health of a child.  I am satisfied on this evidence that the mother did have a reasonable belief that it was not appropriate for the child to attend with her father because of the gastro illness and the diarrhoea.

6. It is important to point out however that it is not satisfactory for a parent to simply continue to produce evidence of that nature if it is asserted that the diarrhoea problem arises on each occasion that a visit occurs.  If it is said that the visits are causing the problem, it behoves the parent to make an application to vary the orders.  It is not appropriate for the parent to take the law into her own hands.

Summary

1. I am satisfied on the balance of probabilities that the mother does not have a “defence” in respect of the first three contraventions but I am satisfied that there is a doubt in respect of the fourth.  The fourth contravention will therefore be dismissed. 

The mother’s affidavit

1. On 19 October at the hearing, the mother was given leave to file an affidavit.  In addition to dealing with the contravention matters, paragraph 21 set out a litany of issues associated with her concern about the father’s behaviour in spending time with the child.  The allegations are extensive but it is unclear as to any of the dates.  There is little probative value in the material.  As I earlier indicated, orders were made on 15 April to which the mother consented.  If the allegations which are extremely serious relate to the period after that order was made, evidence should have been set out in detail as to exactly how the mother became aware of the details and when they occurred.  An example of the problem can be seen in paragraph 21(a) and (b).  In those, the mother said:

   He would take [the child] into bed naked with him and lie her on his genitals.

   He has digitally penetrated [the child] and touches her genitals inappropriately.

   It is not at all clear when those assertions arose let alone when the incident is said to have occurred.

2. There are certainly allegations in the paragraph relating to the period subsequent to the orders. 

3. The mother also indicated that she wanted the supervisor arrangement continued.  However, as the evidence unfolded, it appears that on the last two visits in October, contact did occur.  On the last of those occasions, an unnamed woman and certainly not the person named in the order attended.  Apparently no introductions were given but the evidence was that this person sat at a kitchen table and used a computer.  That is hardly consistent with the sort of supervision necessary in circumstances where there are serious allegations of digital penetration and inappropriate sexual behaviour with a child. 

4. The father however said that Ms W had been diligent in her role and when cross-examined about Ms W, the mother said that she had no problems with her.

5. It is clear that there are two problems with the existing orders.  The first is that there are two supervisors one of whom seems to have a focussed role and the other does not and the mother seems to have approached the matter on the basis that she could nominate whomsoever she pleased.  That is certainly not consistent with the terms of the order of 15 April 2009.   The second is that the visits were taking place at the home of the mother unless the two supervisors otherwise agreed.  Having regard to the fact that Ms W was a satisfactory supervisor from the mother’s perspective it seems illogical to have the contact occurring at the mother’s home particularly as it was envisaged in April that an alternate venue could be arranged.

6. I propose therefore to deal with this matter on the basis that it needs a hearing urgently.  The father applied for an expedited hearing and I propose to grant it having regard to the serious nature of the allegations made by the mother and a very unsatisfactory amount of evidence relating to the period subsequent to 15 April 2009.  I propose to defer the question of what if any sanctions should be imposed to ensure the existing orders work.

7. In relation to compensatory time, the mother was at pains to say she had endeavoured unsuccessfully to make some arrangement but there were always problems.  In discussion, it transpired that the problems were more of the mother’s making than those of the father who is committed to work on a Saturday and therefore limited in terms of the time that he could make himself available.

1. I see no reason for two supervisors to be present simply to placate the mother and I propose to combine the protection of the child with the makeup time necessary to enable the father to have a meaningful relationship with the child by having the visits occur on a weekly basis over the ensuing weeks until the matter can be formally commenced as a trial.

2. This is a matter in which the child’s interests need to be considered specifically.  The evidence needs to be tested particularly having regard to not only the serious nature of the allegations against the father but the concerns that I have about the mother’s persistent use of doctors.  I accept without any reservation that very young children often have illnesses and that commonsense needs to prevail about visitation by the contact parent.  That is particularly difficult in circumstances where there is not only no communication between the parties but a distinct ill feeling.

3. For the benefit of the child therefore the matter needs to be heard quickly.

4. The mother now has contraventions recorded against her and I express the warning that I gave in discussion with counsel that subsequent breaches may put her in the category of serious breaches.  

I certify that the preceding Forty Eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  26 October 2009