SS and AH

[2009] FamCA 174

FAMILY COURT OF AUSTRALIA

SS & AH [2009] FamCA 174

FAMILY LAW – CONTEMPT – Contravention of Court order – Reasonable excuse for contravening and order under section 70NAE – Father’s concern for Child’s welfare under section 70NAE(5) – Reasonable belief judged in fact rather than law – Reasonable duration of contravention

APPLICANT: Ms SS

RESPONDENT: Mr AH

FILE NUMBER: BRF 1070 of 1999

DATE DELIVERED: 26 February 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 23 July 2008

REPRESENTATION

FOR THE APPLICANT: The Applicant Mother appeared in person

FOR THE RESPONDENT: The Respondent Father appeared in person

Orders

1. The contravention applications filed by the Mother on 1 February 2008 are dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1070/1999

MS SS

Applicant

And

MR AH

Respondent

REASONS FOR JUDGMENT

1. On the 1 February 2008 the Applicant Ms SS (“the mother”) filed three contraventions alleging breach of orders by the Respondent Mr AH (“the father”).  The orders which are alleged to have been breached are in the orders of Justice Buckley of 10 June 2005 made after a protracted twelve day hearing. 

2. Paragraph 4 of those orders was in the following terms:

   “4.The Mother to have contact with the children at all times as may be agreed between the parties, to include as follows:

   a.each alternate weekend from after school Thursday to the commencement of school Monday with such contact to commence on Thursday 14 July 2005.

   b.that during Queensland gazetted school holiday periods the weekend contact provided for in paragraph (4)(a) above be suspended and the Mother have contact for one half of each such holiday period.  For the second half of each school holiday period which commenced in 2005 and likewise in each alternate year thereafter and for the first half of each such school holiday period which commences in 2006 and likewise in each alternate year thereafter with changeovers for such holiday contact to take place at McDonalds […] with each such holiday period deemed to commence on 9.00 am on the day after the last day of term and deemed to conclude at 5.00 pm on the last day before commencement of the next school term.”

3. The three contraventions as alleged by the Mother are as follows:

   “1.At 9.00 am on the 9 December 2006 at McDonalds […] the Father failed to make [K] available for collection to me as per the Court order.  This continued until and inclusive of 8 February 2007 when he attended early at [K’s] school and collected her on my contact day to prevent contact.

   2.On 19 April 2007 at 3.20 pm at the child’s school the Father was already at the school on that day despite knowing it was my contact day with [J] and collected him.  The Father has failed to ensure that [J] is made available for contact as per the Court orders since then.  The Father has refused to confirm in writing or otherwise via Mr [C] that he will not attend at the school on my contact days to collect [J] and continue to collect [J] on my contact days.  At the times that the Father has made [K] available for holiday contact he has failed to ensure that [J] is made available also at McDonalds […] as per the Court orders for collection for his contact with me.

   3.That on the 10 June 2005 the Father has failed to maintain a Communication Book since the inception of the Orders.”

4. On the day of the hearing of the contraventions being 23 July 2008 for reasons I gave at the time I found a prima facie case had not been made out in relation to contraventions 2 and 3.  For the sake of convenience a copy of those reasons will be appended to this determination.

Evidence Surrounding Count 1

1. On 25 September 2006 the two children were at the Mother’s residence exercising holiday contact.  The evidence is that the child J was abusive towards his Mother (refer transcript page 23 Mother’s evidence).

   “On that particular day he was threatening to smash up vases, he had called me an ‘f…ing bitch’ – he had pretty much used the same sort of language that you used towards me during the marriage and at one point he said he was going to leave, or not at one point, he said he was going to leave the house which he had never done before when he was living with me without telling me where he was going.  I asked him where he was going and he wouldn’t tell me, he said he would just leave the house.  He was just totally out of control and out of just pure instinct I ended up closing the garage door and saying to him through the door, “When you calm down you can come back.”  At that point he just completely lost control banging on the door ‘f…ing this f…ing that’ banging on the windows.  It was a pure instinctive protection reaction and he went round the house jumped over the fence just totally out of control.”

2. The first count relates to the commencement of the Christmas school holidays with the changeover scheduled to be at McDonalds restaurant.  The Father concedes that he did not make K available.  At transcript page 31 with the Father directly questioning the Applicant Mother the following appears:

   “Christmas 2006.  You’ve acknowledged the receipt of my correspondence.  That correspondence also gave you notice that if you didn’t come up with some sort of plan, right, with the assistance of Mr [U] - with Mr [U] preferably, of course - to mend the rift that you have with [J], I advised you that I would withhold [K] for the Christmas holiday?---I don’t have that correspondence in front of me, but I do recall that you decided at that point that you were going to withhold [K] from contact as well.”

3. At transcript page 32:

   “His Honour:          Now you’re saying because [J] wouldn’t go, then you then decided to withhold [K], even though she would go?

   Mr [AH]:      There’s a few more things to that, your Honour.  There’s a  few more things to that.  That was just one of the deciding factors in my action; but just another question for the Mother.

   Mr [AH]:      Have you sent [J] SMS messages telling him that he’ll be a failure and that he is failing, and had conversations with him to that effect?

   Ms [SS]:       I have never sent [J] messages telling him that he is a failure.  I have sent messages to [J] saying to him that I am concerned about his education and he has called me where he has said that he is very concerned about his education - and I would just like to correct for the record, you said a few minutes ago that I refused to have [J] on Christmas contact over that period of 2006.  That in fact is blatantly untrue, because I wrote to you and Mr [U] on more than one occasion, and to Mr [C] - and I know Mr [C] forwarded that correspondence to you - saying that I thought that I should have [J] on shorter periods of contact and that we should slowly start meeting in a safe place, because I felt so threatened by his behaviour - such as McDonalds, such as go-karting, such as a park.  So to say that I refused to have [J] on contact during that time is completely untrue.  I tried every single thing I could.

   Mr [AH]:      So for clarity you weren’t looking for normal contact, you were looking for just to have meetings with him.

   Ms [SS]:       - Short meetings with him over a period of time to ---?---During that period, and Mr [U] in fact suggested it, that we met for shorter periods and with Mr [U] regularly in order to try and get [J] to take some responsibility for his actions.”

4. At transcript page 34 the father addressing the Bench:

   “Your Honour this was - leading up to that Christmas 2006 I was very concerned for [K’s] emotional welfare, being with her mother on her own for that significant period of time.  It would have been the first time that the siblings had been separated.  They were both still quite young.  [K] would have been, you know, 8 or 9 and [J] you know, 12; and given the history of this matter and the emotional - I use the word trauma, your Honour - that [K] has been under as a result of these proceedings and the mother’s actions, I was very concerned about it.  I broached the subject with Mr [U], and I believed he evidenced - without putting words into his mouth, your Honour - I believe he evidenced my concern, or he agreed with that - he concurred with that concern for [K], and I decided that unless both children were there, (a) it wasn’t - and it wasn’t in [J’s] interests either.  He at that point was feeling very rejected by his mother, he found that she was just finding fault with him all the time.”

5. At transcript page 35, the father – addressing the Bench:

   “You know, she took [K] on birthday contact and not [J].  So, you know, he’s getting all these, as far as I’m concerned, messages of rejection, and he wasn’t able to manage that reconciliation with his mother.  So I was very concerned to the emotional welfare of [K].  I think it’s pretty well documented for some of the trauma she’s been through, and I decided to withhold [K] for that period of time, and after the Christmas holidays, you know, having given it further consideration and realising that it was highly unlikely that there was going to be much improvement in the relationship between [J] and his mother in the short term, and realising that the weekend contact is a much shorter period, I instigated contact again between [K] and her mother for the weekends going forward, and she’s been on regular contact with her mother since that time, on her own without [J].”

6. At transcript page 36, the father to the mother:

   “Mr [AH]:Would you say the children, [K] in particular, has ever

   been stressed or anxious in your care?

   Ms [SS]:       I think it is well documented, [Mr AH], that [K] has been stressed and anxious.

   Mr [AH]:      In your care?

   Ms [SS]:       In my care and in the care of others as well.”

7. At transcript page 40:

   “Ms [SS]:     If you felt that I was doing the wrong thing then you needed to come back and seek modified orders with the Court’s permission.”

8. It is at the heart of the Father’s case that the orders provided for the Mother to have contact for holiday periods with both children.  The Mother was not willing to have J for the whole of such periods.

9. Her proposal was that she would have meetings with J.  It is reasonable to infer that J was unwilling to engage in such meetings nor was he willing to attend for the whole of the holiday period.  The Father says whilst agreeing in relation to count 1 that he did not make K available at the relevant time he did so because of concerns of the child going by herself and because of a belief that the orders required the Mother to have time with both children and she could not be selective about that.  He was concerned the Mother would denigrate him in the presence of his daughter and such to alienate her from him.

Law to be Applied

1. Section 70NAE is in the following terms:

   Section 70NAE Meaning of reasonable excuse for contravening an order

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

   (2)      [lack of understanding of the order] – Not applicable in this case

   (3)      [if contravened under (2) then court must explain order to party]

   (4)      [same as (5) but ‘live with’ rather than ‘spend time with’]

   (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).  live with rather than spend time with – order was for Mother to spend time with – subsection not applicable.

   (6)      [same as (5) but ‘communicate with’ rather than ‘spend time with’

   (7)      [excuse for contravention of parental responsibility order].”

   To establish a reasonable excuse pursuant to subsection 5 two elements are needed:

   ·Belief on reasonable grounds that the contravention was necessary for health or safety.

   ·Contravention lasting no longer than necessary to protect health and safety.

2. In Childers & Leslie [2008] FAMCAFC 5 Warnick J sitting as a single Judge on Appeal dealt with the provision in subsection 1 that the reasonable excuse for contravening an order is not limited to the circumstances set out in the following subsections. His Honour’s view is in the following terms (paragraph 24):

   “24.While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “…necessary to protect the health…” and “…not longer than was necessary”, which if not met will exclude some “excuses”.  I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection.  So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.”

Evidence Presented by Respondent Father

1. The Father had prepared a lengthy affidavit in two volumes which numerous annexures which he presented as summarising the basis on which he had not complied with the order in question.  At paragraph 102 he makes reference to paragraph 251 of the judgment of Justice Buckley of June 2005 in the following terms:

   “251.As a consequence of the allegations of sexual abuse and the Mother’s involvement in all of the critical events which followed, the children and [K] in particular have endured the following:

   (a)The children’s contact with the Father has been seriously curtailed by supervision over an extended period;

   (b)[The children] have been subjected to interviews by Police Officers and Officers of the Department of Child Safety;

   (c)[K] has been repeatedly taken to Ms [H] and Ms [L] in particular;

   (d)The pressure on [K] was such that from the happy, cheerful and talkative child in early October seen by the authorities, and indeed as she presents in the tape recording episode by Ms [L] on 13 October, [K] descends to the level that by 18 October she is so distressed she is incapable of even coming to the telephone to speak to Ms [L] and on that day Dr [C] prescribes Zoloft;

   (e)[K] is subjected to the statements made by Dr [C] on 18 October 2004 as alleged by the Mother;

   (f)On 31 October 2004 [K] leaves two “suicide notes” in the car for the Mother;

   (g)On 17 November 2004 [K] tells Ms [H] that she wants to kill herself with a knife when it gets too hard.”

2. The Father annexes diary notes the Mother kept in the period October 2004 – November 2004 at a time when K was in her full time care.  I did not specifically enquire but I assume those diary notes were in evidence before Buckley J and thus in the Father’s knowledge as at December 2006.  At paragraphs 104 and 106 of his affidavit the Father says:

   “104.It has never been reported by anyone when [K] has been away from the Mother’s care that [K] has been distressed or acted in any way like she behaved in the Mother’s care as described by the Mother in the diary notes.

   106.I can report that, since the change of residence, I have not been advised by the school or anyone else that [K] has suffered from stomach aches, headaches, vomiting, dizziness or intermittent school refusal as reported by the Mother.”

3. At paragraph 126 of his affidavit the Father says:

   “126.Another difficulty for [K] is that the Mother will typically be openly disparaging to [K], of adults and children that the Mother does not like.  The Mother attempts to break down [K’s] friendships with friends where that family might be friendly with me, for example [K’s] best friend, […].”

4. I do not propose to quote extensively from the Father’s lengthy affidavit but have referred to the above examples as examples the Father uses to support the reasonableness of his views that K should not be required to attend with her Mother for three weeks by herself over the Christmas 2006 period in order to protect the “health and safety” of the child.

5. At transcript page 37 whilst the Mother was giving evidence she was asked:

   “Mr [AH]:     So is it your evidence that when she is with you now since the change in residence, that she’s a happy child, or do you think she’s - you know, you’re saying she’s anxious, she’s teary – you know, has there been any more incidences of her stabbing soft toys or – you know?

   Ms [SS]:       Well, at that time – she hasn’t raised the allegations of sexual abuse again since that period in 2005.  So the time that she was stabbing dolls and stabbing cereal boxes and hiding under chairs and refusing to leave the house was the time that [K] raised allegations of sexual abuse by you against her, with me and other professionals who were involved in the matter.

   Mr [AH]:      I think’s matter of record that all the professionals, when spoken to by the police denied that [K] had made any allegations or any?

   Ms [SS]:       That’s not true, in fact.

   Mr [AH]:Well, it’s in the crime report and you can read it if you choose to?

   Ms [SS]:       That’s not true at all.  She made allegations.  Whether directly or to the professionals, she made them.

   His Honour:  Do you still believe those allegations?

   Ms [SS]:       I believe that [K] was terrified at that time of her father, yes.

   His Honour:  Do you believe her father sexually abused [K]?

   Ms [SS]:       Yes, I do.”

Conclusion

1. I do not accept it is a valid lawful excuse to refuse to send a compliant child to spend time with a parent when the order provides for two children to attend and one child refuses to do so.

2. However, section 70NAE is not directed to a reasonable excuse in law but a reasonable excuse determined on a factual basis.

3. I have no doubt whatsoever the Father’s concerns for K’s wellbeing were genuinely held but the question I must determine is whether it constituted a reasonable belief.

4. I propose to find the Respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health and safety of K.

5. My reasons for so concluding are:

   ·The Father’s concerns as to the Mother’s description of the behaviour of the child in her care on previous occasions.

   ·The Father’s concerns the Mother would denigrate the Father’s friends and himself in the presence of the child.

   ·The Father’s concerns the Mother would create “hysteria” in the child (refer Father’s affidavit paragraph 103 referring to the annexed diary notes).

6. The parties were not legally represented.  Notwithstanding that the presentation of material was voluminous I have to observe that it was not particularly well presented by either side.  In making this comment I am not being critical as they do not have legal training.  I expect an additional concern of the Father which was not specifically articulated was that the Mother still believed he had sexually abused K and would once again seek to question her on that subject.  At the hearing before me the Mother confirmed that notwithstanding the evidence which had emerged at the trial before Buckley J in June 2005 and the reasons delivered by his Honour, she was still of the view that abuse had taken place and the Father would have been only too well aware of the Mother’s ongoing attitude in that regard.

1. All of the above concerns of the Father would occur in an environment where K’s older brother would not be present to offer some form of protection.

Duration of the Contravention

1. Buckley J’s orders were silent on the issue when weekend time was to resume after a school holiday period.

2. The Mother was to have K for the first half of the school holidays and the Father for the second.  In the end result the Mother did not have the child for any of that period.  It appears to be common ground all other things being equal the Mother’s weekend time would have recommenced on Thursday 8 February 2007.  The Father’s evidence was to the effect that even though K would be attending on her own on such weekend time he believed there was less risk of harm to her as the time spent with the Mother would only be for three nights a fortnight.

3. He maintained his position of refusing to permit K to attend by herself up to and including 8 February but relented on 9 February.  From that time up until about August 2008 K attended on her Mother in compliance with the orders.

4. It is highly artificial but in coming to this determination I am unable to refer to events which have subsequently been the subject of proceedings before me namely the orders and the reasons delivered on 30 September.  As best I have been able I have dismissed that material from my mind.

5. I find that the period of non-compliance continued no longer than was necessary to protect the health and safety of the child.

6. In the event I had not found the Father had a reasonable excuse pursuant to section 70NAE (5) I would still have been of the view his concerns were genuinely held.  In such circumstances I would have only imposed a nominal penalty in recording a contravention.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  26 February 2009