Tate and Roberts

[2010] FamCA 926

FAMILY COURT OF AUSTRALIA

TATE & ROBERTS [2010] FamCA 926

FAMILY LAW – CONTRAVENTION – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: MR TATE

RESPONDENT: MS ROBERTS

FILE NUMBER: MLC 9607 of 2008

DATE DELIVERED: 12 OCTOBER 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: CRONIN J

HEARING DATE: 12 OCTOBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR JACKSON

SOLICITOR FOR THE APPLICANT: RHONDA G. WILKINSON

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT: CINQUE OAKLEY SENIOR

Orders

IT IS ORDERED:

1. THAT the allegations of the father relating to the contraventions of 22 July 2010, 28 July 2010, 7 August 2010, 15 August 2010 and 25 August 2010 are dismissed.

2. THAT the contraventions referred to in paragraph 1 are dismissed on the basis that the wife has had a reasonable excuse.

3. THAT the contraventions in relation to the failure to comply with the order on 22 June 2010 and the wife failing to sign the necessary documents to allow the husband to attend a kindergarten session are proved.

4. THAT the Court finds that the contraventions referred to above fall within Sub-Division E of Division 13A of Part VII of the Act.

5. THAT the contravention application filed 27 August 2010 is adjourned to a date to be fixed to enable the respondent mother to issue an application for variation of parenting orders under the Family Law Act 1975.

6. THAT the parties have liberty to apply to bring the matter back on before the Honourable Justice Cronin in the event that the mother fails to bring the said application.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the applicant father.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9607 of 2008

MR TATE

Applicant

And

MS ROBERTS

Respondent

REASONS FOR JUDGMENT

1. On 27 August 2010, the husband filed an Application that the wife be dealt with for contravening orders made on 15 April 2010.

2. The orders of Brown J on 15 April 2010 set out a regime of specific time between the husband and the child N born … February 2006.

3. The contravention application alleged against the wife six breaches of those orders and a seventh breach relating to the wife’s failure to sign the necessary documents at a kindergarten which would have enabled the husband to have access to information.

4. The wife conceded all of the allegations.

5. The wife was unrepresented throughout the proceedings and the husband represented by Counsel.  I explained to the wife the process and she said that not only did she understand but she had also had legal advice about the matter.  She said there was no dispute about the fact that the husband did not spend time with the child nor that she had failed to sign the necessary documents at the kindergarten although she had given the husband the necessary details.

6. In relation to the various allegations however, the wife said that she had a reasonable excuse for failing to so comply. 

7. The first of those allegations related to a weekend in which the wife said that she made a mistake and read the order incorrectly.  She took the child to the husband one day late.  Turning to the opposite end of the contraventions, the wife conceded that she had just not signed the necessary documents. 

8. It goes without saying that forgetting an obligation under an order or misreading it is not an acceptable excuse in circumstances where orders are carefully crafted.  Accordingly, I find that the wife has contravened the orders in respect of those matters.

9. The two contraventions to which I have referred however pale into insignificance in relation to what was really in dispute between the parties.  For the five successive periods subsequent to the 17^th of July 2010, the wife conceded that she had not provided the child to his father. 

10. The wife did not dispute any of the evidence of the husband and he was not called for cross examination.

11. The wife gave evidence as to her reasonable excuse.  She said that on 17 July 2010, her son was brought home after the visitation.  He complained of a sore bottom.  She said he was in tears.  When she asked what had happened, he said that toys had been put into his bottom by people and people were touching his bottom.  She said that he later went to the toilet where he had a bowel action and the toilet and the paper were covered in blood.  She said he cried and could not walk properly.

12. Those facts are alarming save that they have to be seen in the context of a number of matters that have gone on in these proceedings between the parties in the preceding months.  This case is a very significantly disputed parenting case which is currently awaiting a trial in the Magellan list.  I was told and it was not disputed by the wife that there have been orders precluding her from taking the child to various professionals.  Those apparently include the CASA organisation. 

13. The wife’s version however was that she rang the hospital because she was concerned about the child and she spoke to a social worker Mr O.  She said that he worked at the hospital and he told her that she should bring the child to the hospital but because of the preceding proceedings and orders, she was not comfortable to do so.  She said that the child had a sleepless night but the following morning, she took him to the doctor where it was noted by Dr P that the child had a fissure. 

14. The wife said that subsequent to these days, the child has had night terrors and talks whilst he sleeps.  She said he is scared to get dressed or undressed while there are other people in the room.  She said in the toilet, he bent over and pulled the cheeks of his bottom apart and said that that was where things were inserted into his bottom.

15. The wife was cross examined by Counsel for the husband about all of these matters.  She said she had a lot of witnesses but they were not available to come to Court.  She had apparently tried to have the Court issue subpoenae but the Court said that could only be done for a final hearing.  She mentioned the social worker and the doctor along with other people who were present at the house.  None of those witnesses were called other than the wife’s mother.

16. The wife’s mother was called and she corroborated everything that her daughter said because she was present at the time and apparently also when the examination was undertaken by the doctor. 

17. When cross examined, the wife said that she conceded that the doctor did not support her view and in fact there were no people who supported her view including representatives of the Department of Human Services.  She conceded that the Department file had not expressed any concern about the care of the child in the presence of his father.  She confirmed that she had not made any application to suspend the father’s time pursuant to the orders.  She said that the child had been interviewed on a VATE tape but nothing came out of that.  She also confirmed that she was precluded by the orders of this Court from attending the CASA and that although she was endeavouring to take the child there, it had not yet happened.

18. When asked about what her proposal was about time between father and son, her position was that it had to be supervised by a professional agency. 

19. When asked about the nature of the relationship between the child and his father, she confirmed that the reports were glowing.

20. The only issue in this case is whether or not the wife has a reasonable excuse.  There is no doubt that she does have an excuse but that can only be on the basis that it is reasonable.  Section 70NAE(1) provides that the circumstances in which somebody may be taken to have had a reasonable excuse for contravening an order relating to children are not limited to the various provisions set out in the Act.  That means that the Court is at large in relation to what matters would justify a reasonable excuse being accepted.  The Court however is constrained by the fact that in section 70NAE(5) a person is taken to have had a reasonable excuse if that person believed on reasonable grounds that not allowing the child to spend time with another parent was necessary to protect the health or safety of the child and that the withholding of that time was not for any longer than was necessary to protect the health and safety of that child.

21. It is quite clear that the mother did withhold the child after the 17^th of July 2010 but took no steps beyond that. The medical evidence has an innocent explanation for the child’s bleeding and discomfort.  The father’s evidence would indicate that he had done nothing wrong.  The mother’s evidence is that she has had considerable problems in the past relating to allegations and no professional body has accepted there is any basis for any concern.  In those circumstances, I can readily accept that the first few days after 17 July 2010 would justify any reasonable person saying that there was an excuse for not delivering the child but beyond that without some plausible evidence to link the events of 17 July with the ongoing need to protect the health and safety of the child, the mother would be in a precarious position. The mother’s evidence was that she was endeavouring to gather that evidence and in fact is doing so at the moment. 

22. Once there is a concession that the order was not complied with, the onus is on the person who wishes to rely upon the excuse to establish its reasonableness.  In this case, I am satisfied that the mother did believe on reasonable grounds that it was necessary to withhold the child for safety reasons because of what he had said and the apparent evidence of the doctor. 

23. That however only remains reasonable for so long as the wife reasonably needs to protect the child.  In circumstances where no evidence has been produced, the reasonableness begins to fade. 

24. In this case, I am satisfied that the periods alleged are covered by reasonable excuse but I have warned the mother that that may not necessarily be the case in future.

25. For those reasons and on the basis that the wife said that she was going to obtain legal advice to bring an urgent application, I have dismissed the contraventions subsequent to 17 July 2010 save for the first and last which I earlier referred.

26. I have set up some orders that would enable the issue of any application being made by the wife.  If she fails to make that application, there is a realistic possibility that a further application for contravention may follow.

27. Counsel for the husband did not argue strongly about what should happen in respect of the two contraventions that were proved.  In my view, the matter fits within sub-division E which is set out in section 70NEA of the Act.  The powers of a Court under those divisions include to adjourn the proceedings to allow one or both of the parties to bring an application for further parenting orders so that the issue can be properly dealt with.  It seems to me that that is the appropriate course of action in this case having regard to the fact that the wife’s view as expressed clearly in evidence was that she would not comply with any order other than that which she thought was appropriate.  This matter needs to be dealt with within the proper environment of a parenting application.  I propose under those circumstances to make orders as follows:

    (a)the allegations relating to the period 22 June 2010 and that the wife had failed to sign any necessary documents to allow the husband to attend the child’s kindergarten are proved;  and

    (b)allegations relating to the failure to comply with the orders in respect of the periods 22 July 2010, 28 July 2010, 7 August 2010, 15 August 2010 and 25 August 2010 are otherwise dismissed.

    For the purposes of Division 13A of Part VII of the Act, the Court declares that the contraventions fall within Sub-Division E.

I certify that the preceding twenty-seven
(27) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice
Cronin delivered on 12 October 2010

Associate: ……………………………………………………………

Date:  …………………………………………………………………