T and McP-B
[2002] FMCAfam 372
•30 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & McP-B | [2002] FMCAfam372 |
| FAMILY LAW – Children – contact – orders – contravention – reasonable excuse for contravention – belief that deprivation of contact necessary to protect health or safety of child – child aged fifteen months – continuing contravention commencing the day after the order was made. |
Family Law Act 1975 (Cth), s.70NE
Gaunt (1978) 4 Fam LR 305; FLC 90-468
Cavanaugh (1980) FLC 90-851; (1982) 6 Fam LN N3
O’Brien (1992) 16 Fam LR 723; (1993) FLC 92-396
| Applicant: | J-P N T |
| Respondent: | R McP-B |
| File No: | PAM 855 of 2002 |
| Delivered on: | 30 October 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 24 October 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant in person: | J-P N T |
| The Respondent in person: | R McP-B |
ORDERS
Count no. 1 of the Application filed on 3 July 2002 alleging that the respondent contravened on 18 May 2002 Order 1 made on 24 April 2002 is dismissed.
The allegations that the respondent did on 22 June 2002, 29 June 2002, 6 July 2002, 13 July 2002, 20 July 2002, 27 July 2002, 3 August 2002, 10 August 2002 and 17 August 2002 contravene Order 7(a) made on 21 June 2002 are all found proved.
The respondent has not established that she had a reasonable excuse for any of the above contraventions of the said Order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 855 of 2002
| J-P N T |
Applicant
And
| R McP-B |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father to have the mother dealt with by the court for contravention of contact orders made by the Federal Magistrates Court of Australia at Parramatta. The orders were:
a)interim orders made on 24th April 2002; and
b)final orders made on 21st June 2002 after a defended hearing.
Background
The orders concerned relate to the Applicant father’s contact with the parties’ daughter, S R McP-B, who was born on 18th March 2001. The child lives with the mother.
The Federal Magistrates Court made an interim contact order on
24th April 2002, the relevant part of which provided for the father to have contact with the child each Saturday from 11.00 am until 4.00 pm. Count 1 of the contravention application filed by the father on
3rd July 2002 alleges that the mother failed to deliver the child to the applicant father for the purpose of contact on 18th May 2002.
On 21st June 2002, after a defended hearing, the court made orders that the father should have contact with the child until that child turns 2 years old, each Saturday from 10.30 am until 4.30 pm. The father has brought further contravention applications, alleging that the mother has breached the order made on 21st June by failing to deliver the child to him for the purpose of contact on the Saturdays 22nd and 29th June, 6th, 13th, 20th and 27th July, 3rd, 10th and 17th August 2002.
The mother admits each of the contraventions, but says that she has a reasonable excuse for each one. In respect of the breach of the interim order on 18th May, she says that the child was ill, and was not well enough to go to the father for contact.
In respect of each of the other breaches, the mother says that the father is unable to meet the child’s basic needs and provide the necessary equipment to keep the child safe.
Issues
The mother says that her denial of contact was necessary to protect to health and safety of the child. The issue to be decided is what constitutes the actions necessary to protect the child’s health and safety. The mother says that the fact that the father will not provide a cot for the child to use for her daytime sleep, and requires her to sleep on an adult bed.
Principles to be considered in contravention proceedings
Section 70NC of the Family Law Act provides that a person is taken to have contravened an order affecting children “if, and only if:
“(a) where the person is bound by the order – he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order.”
Section 70ND(b) provides that “a contact order is taken to include a requirement that people act in accordance with section 65N in relation to the order.”
Section 65N(2), for its part, provides as follows:
“[Person must not hinder, prevent or interfere with contact].
A person must not:(a)hinder or prevent a person and the child from having contact in accordance with the order; or
(b)interfere with the contact that a person and the child are supposed to have with each other under the order.”
A person may establish that he or she had a reasonable excuse for contravening an order (section 70NE). The standard of proof to be applied in determining whether the person had a reasonable excuse for the contravention is proof on the balance of probabilities (section 70NEA).
A person may allege that they contravened a contact order to protect the health or safety of the child, or the person. Section 70NE(3) explains:
“[Breach of contact order to protect health or safety] A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:
(a) the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).”
The hearing
The respondent has the task of establishing that she had a reasonable excuse for the contraventions. She gave evidence both orally and by affidavit. She also produced affidavit evidence from her father and husband, and from one L D and one A R G. The latter two were not required for cross-examination. Their evidence is unchallenged, but it does not go any way at all towards establishing the mother’s claim of a reasonable excuse. The respondent’s father and husband were cross-examined.
The allegation of the 18th May 2002
The mother says that the child was not made available for contact on 18th May because she had been ill with gastroenteritis the day before. The evidence is that the child had been ill the day before and had been treated at the Emergency Department of the Children’s Hospital at Westmead during the afternoon. The mother tendered in evidence and attendance form from the hospital, showing that the child attended the hospital at 2.35 pm on 17th May, the day before the contact was due to take place. The form bears the written words “Been advised to see family doctor tomorrow & to keep at home.” The mother also tendered a fact sheet she was given by the hospital containing the advice that children with acute gastroenteritis should be kept away from other children and not taken to kindergarten or day care.
The mother’s evidence is that she followed this advice and did not make the child available for contact. The father argued that he would have been able to have looked after the child even if she were ill, but I am not convinced that this is the point. There is clear evidence that the mother received advice at the hospital to keep the child at home on the appointed contact day, and I am satisfied that the mother has shown that on this occasion she had a belief on reasonable grounds that her action in doing so was necessary to protect the child’s health. The deprivation of contact was for one period of contact scheduled to last for five hours. I am satisfied that this can be described as being not longer than was necessary to protect the child’s health or safety.
As a result, I am satisfied that the mother has established that she had a reasonable excuse for not making the child available for contact on 18th May 2002. Count number 1 of the Application filed on 3rd July 2002 will therefore be dismissed.
The allegations of contravention of the orders of 21 June 2002
All the other contraventions alleged, and admitted to, relate to contraventions of Order 7(a) made on 21st June 2002, which provide for the father to have contact with the child “Each Saturday from 10.30 am until 4.30 pm.” These contraventions date from Saturday 22nd June 2002 through every Saturday to 17th August 2002.
The mother claims a reasonable excuse, in that she again acted to protect the health and safety of the child. Her case is set out in paragraphs 1 and 3 of her affidavit of the 16th July 2002, in which she says:
“The reason S has not been getting delivered to Mr T for the purpose of Saturday contact is that he has been unable to meet S’s basic needs and provide the necessary and appropriate equipment to make her contact visit with him safe…He should be providing S with safe and hygienic sleeping environment during the time that she is with him…Unfortunately Mr T has been unable to do this due to a lack of cot…This is putting her at significant risk of harm.”
In support of her claim, the mother attaches to her affidavit, and tendered as an exhibit, various material about the advisability of a child sleeping in a cot rather than an adult bed, including the suggestion that the age of 2 years to 2 years and six months is the appropriate time to move a child to a bed. The mother also submitted that not providing a cot would expose the child to “extreme risk”.
The mother says in her affidavit of 16th July that the father “by his own admission during the final contact hearing on the 20th June 2002, stated that he took no steps to ensure that S did not fall off his bed.” She wrote to him on 28th June 2002, saying:
“I am writing to inform you that I am not willing to continue to put my daughter’s health and safety at risk by making her available for contact while you do not have the appropriate equipment.”
The evidence of the mother’s husband shows that he sent the father a text message at approximately 10.20 am on 22nd June 2002, saying that the child would not be attending contact that day. He also said that on 28th June he delivered to the father the mother’s letter of that day quoted in paragraph 20.
It is the evidence of the mother’s father that he spoke to the father on 23rd, 26th and 27th June about the mother’s concern for the child’s sleeping arrangements. He said they had discussions about the purchase of a cot. He went on to say that the father telephoned him on 4th July, advising him that he had purchased a bed attachment instead of a cot, and that BabyCo (a business that sells furniture and other equipment for babies and toddlers) had advised him that the bed attachment would be suitable and a cot may be dangerous once a child starts to climb.
He went on to say that he told the father the next day that the mother still required the child to spend her sleeping time in an approved cot and that she did not agree with BabyCo’s comments. He has spoken to the father on occasions since then in an attempt to resolve the matter, without success.
Conclusions
The evidence in this matter is that the mother formed a view during the hearing of the contact application on 20th June that the sleeping arrangements proposed by the father were not satisfactory. The Court made orders on 21st June regarding contact arrangements that were to start at 10.30 am the next day. It is clear, from Mr B’s evidence of his text message to the father at 10.20 am on 22nd June, ten minutes before the contact was due to start, that the mother had already formed the view that she was not going to comply with the orders made the day before.
The orders were not complied with on any of the following Saturdays, for the same reason, the father’s lack of a cot that meets the mother’s requirements. No appeal has been lodged against the decision of the 21st June, nor has the mother made any attempt to deliver a suitable cot to the father for use during the time when the child has a sleep. I note that the contact ordered was to take place during the daytime, and did not involve an overnight stay. At the same time, it is not unusual for a child of the age of this child (19 months) to require a sleep during the day.
What has happened is that the mother has, within 24 hours after the orders were made, sought to impose her own modification on those orders. She in fact denied contact even before informing the father of the reason why she did not intend to comply with the order. She had no intention of complying with the order as it stood.
The situation has been considered by the Full Court of the Family Court in Gaunt (1978) 4 Fam LR 305; FLC 90-468, and by single judges of the Family Court in Cavanough (1980) FLC 90-851; (1980)
6 Fam LN N3, and O’Brien (1992) 16Fam LR 723; (1993) FLC 92-396. The Full Court made it clear in Gaunt that 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 for not complying with an order. Evidence of changed circumstances or of matters not considered when the order was made might meet that requirement.
In this case, the mother formed a view based on the father’s evidence during the hearing that she was not satisfied about the proposed sleeping arrangements. The orders were made the next day, with no provision made for the child to sleep in a cot during contact. The following morning, before the contact was even due to commence, the mother’s husband informed the father that the contact order was not going to be complied with. Contact did not take place on any of the occasions thereafter.
The mother has not lodged an appeal against the Court’s decision of 21st June. She has failed to comply with the orders since the orders were made. She has, since then, filed an application on 9th August, seeking to suspend and then vary the orders by reducing the duration of the contact. I will deal with that application shortly.
I am not satisfied that the mother has established a reasonable excuse for contravening order 7(a) made on 21st June 2002 on the following occasions – 22nd June, 29th June, 6th July, 13th July, 20th July, 27th July, 3rd August, 10th August and 17th August 2002.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 22 November 2002
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