Tindall & Saldo - [2015] FamCAFC 1

FAMILY COURT OF AUSTRALIA

TINDALL & SALDO

[2015] FamCAFC 1

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CONTRAVENTION – Where the trial judge found that the appellant mother contravened orders without reasonable excuse – Where the respondent father was charged with numerous serious criminal offences in relation to the appellant mother and the parties’ child – Where part-way through the criminal trial the respondent father pleaded guilty to some of the charges but was released on bail and was not sentenced until some time later – Where the trial judge found that the commencement of the criminal trial and the guilty plea did not change the “underlying family dynamic” and did not provide reasonable grounds for contravening the orders – Where the trial judge erred as there was a palpable change in the family dynamic by the commencement of the criminal trial, with lengthy cross-examination of the appellant mother, the father pleading guilty thereafter, and the delay until his sentence – Where the trial judge erred in finding that supervised time by the paternal grandmother would have allayed the appellant mother’s fears of the respondent father spending time with the child – Where the trial judge erred in relying upon notations on the court file which were not on the sealed copies of the order provided to the parties – Where the trial judge erred in finding that the appellant mother was not “bullied” into entering into consent orders as this finding was not open on the evidence – Where the trial judge erred in finding that the appellant mother had joined in an agreement for the child to spend time with the respondent father supervised by the paternal grandmother – Where the trial judge erred in finding that the statements of a police officer to the mother that she not provide her contact details to the respondent father did not establish a reasonable excuse to contravene the order – Where there is no merit in the complaint that the trial judge erred in finding that the appellant mother had failed to arrange an appointment for an assessment at a contact centre without reasonable excuse – Where there is no merit in the complaint that the trial judge erred in finding that that contravention manifested serious disregard of the order and in failing to consider subsequent events on sentencing – Appeal allowed in part.

FAMILY LAW – APPEAL – COSTS – Where neither the appellant mother nor the respondent father sought costs orders, but the appellant mother sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where no order for costs should be made – Where the appeal was allowed in part on a question of law – Costs certificate ordered for the appellant mother.

Family Law Act 1975 (Cth) – ss 69ZT, 70NAE (1) and (5), 70NAF, 70NDA(c), 70NEB, Subdivisions E and F, Division 13A of Part VII
Federal Proceedings (Costs) Act 1981 (Cth) – s 9

Scott & Scott (1994) FLC 92-457

APPELLANT:

Ms Tindall

RESPONDENT:

Mr Saldo

FILE NUMBER:

NCC

3176

2008

APPEAL NUMBER:

2012

DATE DELIVERED:

9 January 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn & Strickland JJ

HEARING DATE:

18 March 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

3 April 2012
5 December 2013

LOWER COURT MNC:

[2012] FamCA 194
[2013] FamCA 951

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kelly

SOLICITOR FOR THE APPELLANT:

Derham Houston Lawyers

THE RESPONDENT:

In Person

Orders

The appeal be allowed in part.
Orders 1 and 2 made on 5 December 2013 be set aside.
Order 3(c) be varied by substituting the words “commencing on the date the mother enters into the bond” for the words “commencing on the expiration date of the bonds entered into by the mother pursuant to Orders 1 and 2 hereof”.
The application alleging contravention filed by the father on 18 January 2011 be dismissed to the extent that it seeks orders in relation to paragraphs 3, 4b. and 5 of the order made on 10 May 2010.
Otherwise the appeal be dismissed.
There be no order as to costs.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 58 of 2012
File Number: NCC 3176 of 2008

Ms Tindall
Appellant

And

Mr Saldo

Respondent

REASONS FOR JUDGMENT

Bryant CJ

I have had the benefit of reading the draft reasons of Finn and Strickland JJ. Save for one matter, I agree with the reasons and the orders proposed.
Ground 10 of the grounds of appeal asserts that the trial judge erred in finding that the appellant mother did not enter into the orders of 21 January 2009 under duress.
Ground 10 is dealt with by Finn and Strickland JJ in [92]-[94] of the reasons. It is dealt with in conjunction with other grounds but I have a different view about Ground 10. In my view his Honour was not in error in finding that the mother did not enter into the orders of 21 January 2009 under duress.
In so concluding, it is necessary to see what the mother asserted constituted the alleged “duress”. His Honour dealt with this at [52]-[57]:
52.The mother recognised the inconsistency of her consent to parenting orders in those terms and her subsequent refusal to comply with parenting orders providing for the child to spend supervised time with the father. She explained the inconsistency by asserting that she was “bullied into signing the consent orders” by her own solicitor.
53.I find that evidence inherently improbable and do not accept it for a number of reasons.
54.The mother was represented by a lawyer who provided written advice to the mother in advance of the interim hearing in January 2009 about the nature of the father’s demands for parenting orders. The mother attended the Court for the hearing in the company of her father, no doubt so he could provide her with moral support. The mother was not therefore alone and vulnerable to the importunity of an overbearing solicitor. She had her father to rely on for independent advice, protection and comfort.
55.The mother’s asserted disbelief at the Court’s approval of the consent orders is perplexing in the face of her admission she signed the orders because she felt she had little real option in light of her lawyer’s advice. The mother expressly deposed that, rather than because of the duress, she signed the consent orders because:
…I was afraid of the consequences from the legal system and from what [the father] would do if I did not do what I was told.
56.That explanation is difficult to reconcile with the allegation she was forced by her solicitor to act contrary to her will.
57.In all probability, the mother did nothing different to what many litigants do – she accepted advice to compromise the litigation on the cusp of the hearing for fear of receiving a worse result if the hearing proceeded to judicial determination. She later regretted her decision to settle the dispute when she arrived home and then, more than a week later, wrote to her lawyer terminating her instructions. Notably, the mother did not then allege to her lawyer that she had only signed the consent orders because of coercion or duress exerted by the lawyer. Rather, the mother simply expressed dissatisfaction about the lawyer not pressing her case with sufficient vigour.
(Footnotes omitted)
It is a serious allegation to say, as the mother did, that she was bullied and/or coerced into signing the orders. There are many reasons why parties compromise litigation: desire to conclude proceedings without resort to a hearing; desire to bring matters to an end so they can move on with their lives; cost; and advice about the risks of an adverse result are but a few. All bring pressures if the compromised outcome is not the desired outcome. But the mother did not rely on any of these. She asserted she was “bullied into signing the consent orders” by her own solicitor and as the trial judge noted “it was submitted she consented to the consent orders under duress from her own solicitor” (at [52]).
In my view his Honour was not in error in finding that he did not have to accept the mother’s unchallenged evidence if it was inherently improbable. The inconsistencies identified in [54], [55] and [57] in my view entitled him to reject the mother’s assertion that she was bullied into consenting to the orders and did so under duress.
I accept that his Honour may have gone further than necessary in dealing with this issue and appears to have relied on speculative matters to bolster his finding. This could be seen to undermine his finding at least when Ground 10 is combined with other grounds. However, I remain of the view that as far as Ground 10 alone is concerned, his Honour was not in error and I find no merit in that ground.

Finn & Strickland JJ

Introduction

By Amended Notice of Appeal filed on 14 February 2014 Ms Tindall (“the mother”) appeals orders made by Austin J on 3 April 2012 and 5 December 2013. The appeal is opposed by Mr Saldo (“the father”).
On 3 April 2012 his Honour found that the mother had contravened, without reasonable excuse, orders made on 10 May 2010 and 10 December 2010 (see Saldo & Tindall [2012] FamCA 194). On 5 December 2013 his Honour ordered that the mother enter into good behaviour bonds in respect of each of those contraventions (see Saldo & Tindall [2013] FamCA 951).

Background

The mother was born in 1981 and the father in 1977.
The parties commenced their relationship in about September 1998 and they separated in November 2008.
There is one child of the relationship, T (“the child”), born in 2006.
For the entirety of the parties’ relationship the mother was the victim of domestic violence perpetrated by the father, and once the child was born that violence involved the child, including the child being the subject of an assault by the father. It seems that the most serious assaults of the mother and the child occurred on 1 July 2007. The seriousness of the conduct of the father towards the mother and the child on this occasion can be seen from the criminal charges that were subsequently laid against him, namely:
a)assault on the mother occasioning actual bodily harm;
b)detaining the mother without her consent with the intent of inflicting physical punishment upon her and in fact occasioning actual bodily harm to her;
c)assault of the child;
d)sexual assault upon the mother aggravated by occasioning actual bodily harm to her; and
e)further detaining the mother without her consent with the intent of ensuring her presence upon the father’s return.
The mother commenced parenting proceedings in December 2008 following the father’s retention of the child.
On 12 December 2008 the court made a recovery order in relation to the child in favour of the mother, and orders that the child live with the mother and not spend any time with the father. These orders were continued on 17 December 2008 and an interim hearing was set for 21 January 2009.
The hearing on 21 January 2009 was vacated as the parties entered into interim parenting orders by consent providing for the child to live with the mother and spend regular time with the father, some of which was subject to supervision by the paternal grandmother. Apparently, the registrar made notations on the court file that the father’s time with the child would graduate to an unsupervised basis, and that the parties were nearing settlement.
In early September 2009 the mother filed an Amended Initiating Application together with a Notice of Child Abuse or Family Violence. It was alleged that the father sexually abused the child, and as a result the mother sought that the child only spend supervised time with the father.
An Independent Children’s Lawyer (“ICL”) was appointed. The Director-General of the NSW Department of Family and Community Service also intervened (“the intervener”) in the proceedings, but withdrew in March 2010.
In November 2009 a further agreement was reached between the parties, the ICL, and the intervener, that the child spend supervised time with the father with a supervisor provided by and/or approved by the intervener. Thereafter the intervener engaged a professional supervisor, but when the intervener withdrew from the proceedings the paternal grandmother was approved by the intervener as an appropriate supervisor. This agreement was not ratified by any court order.
At or about the same time as the November 2009 agreement, the father was charged by the New South Wales Police with numerous criminal offences including those offences allegedly committed on 1 July 2007 and identified above, and also charges of assault of the mother occasioning actual bodily harm on 12 May 2002, 8 November 2004 and 10 September 2006.
On 3 May 2010 the mother filed an Application in a Case seeking a discharge of the existing orders and orders providing that the child spend only supervised time with the father.
On 10 May 2010 interim orders were made discharging the existing orders and providing, inter alia, that the child live with the mother, and spend supervised time with the father.
The father’s criminal trial began on 4 August 2010 in the District Court of New South Wales. The mother was cross-examined initially for a period of two days.
On Saturday 7 August 2010 the mother failed to provide the child for the purposes of spending time with the father pursuant to the interim orders made on 10 May 2010.
On 9 August 2010 the father pleaded guilty to charges of detaining the mother without her consent and assault of the mother occasioning actual bodily harm, and the further charges of assault of the mother occasioning actual bodily harm and assault of the child were taken into account. Thereafter, and up to and including 4 December 2010, the mother failed to provide the child for the purposes of spending time with the father pursuant to the interim orders made on 10 May 2010.
Upon the father’s guilty plea he was granted bail until sentence. Significantly, the father was not sentenced until 19 July 2011, apparently because he required back surgery. The father was then sentenced to a term of imprisonment of five years with a non-parole period of two and a half years.
On 2 September 2010 the mother filed a further application seeking an order that the child spend no time with the father. On 10 December 2010 this application was dismissed, but the interim orders were varied to provide, inter alia, that the child spend supervised time with the father at a contact centre for two hours each alternate weekend.
On 6 September 2012 Cleary J made final parenting orders. They provided for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to communicate with the father in writing three times each year.

The orders alleged to have been contravened by the mother

The specific orders the subject of the application alleging contravention were as follows:
Orders made 10 May 2010
…
3.Each of the parties shall take all reasonable steps to ensure that the child spends time with the father, unless otherwise agreed, from 1:00 pm until 5:00 pm each Saturday, commencing on Saturday 15 May 2010, with such time to be supervised by the paternal grandmother.
4. …
b.The mother or her nominee shall cause the delivery and the father or his nominee shall cause the collection of the child at the commencement of the time to be spent with the father at the KFC Restaurant at [G], New South Wales, and the father or his nominee shall cause the delivery and the mother or her nominee shall cause the collection of the child at the conclusion of the time spent with the father at the same place.
5.Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
…
Order made 10 December 2010
…
2.2Each party must:
(a)contact the [G] Children’s Contact Service on […] within 2 business days of the date of this Order and arrange an appointment for assessment for suitability for supervision of the time the child is to spend with the Father;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre;
(e)comply with all reasonable requests or directions of the staff of the Contact Centre.
…

The findings made by the trial judge on 3 April 2012

On 3 April 2012 the trial judge found that the mother contravened orders 3 and 4b made on 10 May 2010 without reasonable excuse at 1:00pm on Saturday

7 August 2010, and on each Saturday thereafter up to and including Saturday

4 December 2010. His Honour further found that the mother contravened paragraph 5 of the order made on 10 May 2010 without reasonable excuse, on 11 May 2010 “and continuing”. Finally, his Honour found that the mother contravened paragraph 2.2 of the order made on 10 December 2010 without reasonable excuse, on 15 December 2010 “and continuing”.

Orders made on 5 December 2013

Having made the findings on 3 April 2012, the trial judge made the following orders on 5 December 2013:
(1)For the contravention of Order 5 made on 10 May 2010 without reasonable excuse, pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into a good behaviour bond upon the following conditions:
(a)The bond shall be without surety and without security;
(b)The mother must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and
(c)The bond shall be for a period of 6 months, commencing on the date the mother enters into the bond.
(2)For each of the 18 contraventions of Orders 3 and 4(b) made on 10 May 2010 without reasonable excuse, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into separate good behaviour bonds upon the following conditions:
(a)The bonds shall be without surety and without security;
(b)The mother must be of good behaviour for the duration of the bonds, which shall include compliance with all existing parenting orders; and
(c)The bonds shall be for periods of 12 months, commencing on the date the mother enters into the bonds.
(3)For the contravention of Order 2.2 made on 10 December 2010 without reasonable excuse, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into a good behaviour bond upon the following conditions:
(a)The bond shall be without surety and without security;
(b)The mother must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and
(c)The bond shall be for a period of 12 months, commencing on the expiration date of the bonds entered into by the mother pursuant to Orders 1 and 2 hereof.
(4)Within 14 days hereof the respondent mother shall serve upon the applicant father sealed copy of the bonds she enters pursuant to Orders 1-3 hereof.

The mother appeals all of these orders.

The reasons for judgment delivered on 3 April 2012

His Honour recorded that the mother formally admitted the contraventions and that the dispute turned on whether the mother could establish a reasonable excuse for those contraventions.
In the absence of any viable challenge, his Honour accepted the evidence of the mother and the expert witnesses, save and except in the “few” instances where his Honour considered the mother’s evidence to be “inherently improbable” (at [36]).
His Honour identified the relevant sections of the Family Law Act 1975 (Cth) (“the Act”), namely ss 70NAE (1) and (5), 70NDA(c) and 70NAF.
Sections 70NAE(1) and (5) provide as follows:
70NAEMeaning 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 circumstances set out in subsections […](5)[…] .
…
(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).
Section 70NDA(c) prescribes that the onus falls on the mother to establish the existence of a reasonable excuse, and s 70NAF provides that the standard of proof required is on the balance of probabilities.
Thus, his Honour correctly recorded at [16] that it was incumbent on the mother to prove that “she believed on reasonable grounds that not allowing the child to spend time with the father in accordance with the Court’s orders was necessary to protect the health or safety of either the child or herself” (original emphasis).
His Honour found on the evidence “that the mother had a genuine belief that refusing to comply with the Court’s orders was necessary to protect the ‘safety’ of both herself and the child” (at [37]). That belief was based on the long history of domestic violence perpetrated upon her (and the child) by the father, and the threats that the father had made to the mother’s life.
Importantly, his Honour accepted that as the father’s criminal trial approached the mother’s fear for the safety of the child and herself increased, and once she gave evidence at that trial, and the father changed his plea to guilty, the mother feared that the father would “carry out his threats to kill her and the child” (at [45]).
As a result, his Honour found as follows (at [46]):
The mother therefore genuinely believed the “safety” of both the child and herself was at serious risk from the father, which risk could only be attenuated by avoiding any interaction with him. In her mind, it was therefore necessary for her to contravene the Court’s orders providing for the child to spend time with the father.
However, his Honour correctly noted that (at [47]):
… irrespective of the genuineness of the mother’s belief about the necessity for her disobedience of the Court orders, elemental to her establishment of reasonable excuse was proof that her belief was based on reasonable grounds. That element imports an objective standard, which overlays the subjectivity of the mother’s belief.
In that regard, his Honour was not satisfied “that the mother’s belief was reasonably held” (at [48]), and his Honour’s reasons for that are conveniently summarised at [73], [74] and [75] as follows:
73.In these proceedings the mother deposed she defied the Court’s orders because she feared the father would kill her and the child, or at least abduct the child from her en route between the contact centre and her home.
74.The mother adduced no evidence which would rationally permit such fears to be evaluated as reasonable. The father last made a threat to her by text message in January 2008, long before their final separation in November 2008. Since separation, bar one unremarkable exchange of correspondence initiated by the mother, they have had no personal interaction. In January 2009 the mother agreed to the child spending time with the father, some of which time was unsupervised. In November 2009 she joined in another agreement for the child to spend time with the father, supervised by the paternal grandmother. In May 2010 she moved the Court for orders that the child should continue to spend time with the father, but supervised in a contact centre rather than by the paternal grandmother. At each one of those junctures the mother was independently advised and represented by lawyers. Objectively, the mother would not have made such proposals or reached such agreements unless she was satisfied there was no undue risk to the safety of either herself or the child.
75.It was not until August 2010 that the mother changed her mind about the child spending any time with the father. The event that changed the mother’s mind was the father’s change of pleas in the criminal trial.
(Footnotes omitted)
Importantly for the purposes of this appeal, his Honour said this at [71]:
As was observed by the Court during that hearing [on 10 December 2010], the only change in circumstances was the father’s admission of some of the criminal charges. But that was not really a change to the underlying family dynamic. The father’s decision to publicly admit his past violent behaviour changed nothing about the history of the parties’ relationship. His pleas of guilty were only vindication of the mother’s allegations of past domestic violence.
(Footnote omitted)
His Honour then referred to the evidence of Dr L, a social worker and researcher with expertise on the topic of domestic violence, who was instructed by the mother to offer a professional opinion on the mother’s “fluctuating attitude” in relation to the proposals of time spent between the child and the father appearing “illogical” (at [77]). His Honour found that Dr L’s opinion “…implicitly acknowledged the mother had acted in ways which objective observers may not consider ‘rational’…” (at [81]).
His Honour rejected that Dr L’s evidence provided “any foundation for a conclusion that the mother had objectively reasonable grounds to act the way she did”, only that the evidence explained why the mother may have acted irrationally (at [83]).
His Honour reiterated the “pivotal issue” at [88] as follows:
…[It] is not the reasonableness of the mother’s fears for the safety of herself and the child. Rather, it is whether the mother had reasonable grounds to believe that it was necessary for her to contravene the Court orders to preserve the health or safety of herself or the child. There is a material and important difference between those two concepts.
Thus, his Honour found that the safeguards built into the 10 May 2010 and

10 December 2010 orders, in that the child was to spend time with the father supervised by the paternal grandmother, and later at a contact centre, removed any “reasonable” fear for the child’s safety. Accordingly, there was no need to contravene the orders to protect the child’s “safety”, nor was “there any reasonable basis for the mother’s belief that it was necessary to contravene Court orders to protect her own safety” (at [90]-[91]).
His Honour also found that in the absence of actual or threatened violence from the father for a period exceeding two years, “the prospect of the father acting violently towards the mother when he had just been convicted of committing past violent offences against her, for which he was due to be sentenced, was objectively quite remote.” His Honour said “[i]t was quite unlikely that the father would have compromised his precarious liberty on bail awaiting sentence by committing further offences, particularly against the mother who was the primary victim of the offences for which he was waiting sentence”

(at [92]).
His Honour then turned to s 70NAE(5) of the Act and noted the distinction between the “health” and “safety” of a person. At trial, the mother relied on both limbs alternatively, and hence his Honour considered separately the issue of contravening the orders for the preservation of her “health”.
His Honour noted the evidence from the mother’s treating psychiatrist,

Dr N, and his diagnosis of a Major Depressive Episode, Anxiety Disorder, and Post Traumatic Stress Disorder. His Honour found that the evidence of Dr N tended to suggest that it would have been reasonable for the mother to contravene the court’s orders to protect her own mental “health” (at [98]). However, his Honour found that this opinion was inconsistent with the mother’s evidence. The contraventions from August 2010 onwards were not to preserve the mother’s mental health, rather the orders were contravened in the belief it was necessary to protect the physical safety of herself and the child against “death, injury or abduction” (at [99]).
As to the second contravention (of paragraph 5 of the order made on 10 May 2010) his Honour emphasised the deficiencies in the mother’s evidence in finding that the existence of a “reasonable excuse” was not established. For example, there was no evidence:
a)as to when the mother was given the advice by the police officer that she should not provide her contact details to the father; it needed to be contemporaneous with her obligation under the order; and
b)that the police officer was aware of the mother’s obligation, and thus it can be inferred that the police officer was unaware of that obligation.
In relation to the third contravention (of paragraph 2.2 of the order made on

10 December 2010) his Honour rejected that the mother had a “reasonable excuse” on the basis of “comments and opinions” expressed to her by a staff member of the contact centre (at [108]).

The reasons for judgment delivered on 5 December 2013

After providing the relevant background to the proceedings, his Honour outlined the legislative scheme prescribed by Division 13A of Part VII of the Act where a party fails to comply with orders.
His Honour noted that for all practical purposes, from the time that the father was imprisoned (July 2011), it was not unreasonable for the mother to cease compliance with at least the interim orders made on 10 December 2010, and the sanction for breaching paragraph 2.2 of the order must reflect this (at [17]).
His Honour rejected the submission of the mother that none of the contraventions should attract sanction as there was “no utility” in the imposition of a sanction.
Save and except in relation to the breach of paragraph 5 of the order made on 10 May 2010, his Honour also rejected the submission of the mother that “none of the contraventions manifested serious disregard of the mother’s obligations under the orders” (at [20]).
His Honour then considered the legal principles for the imposition of a sanction at [22], [28] and [29] citing McClintock v Levier (2009) FLC 93-401, Dobbs & Brayson (2007) FLC 93-346, Langer & Griffin (2013) FLC 93-559, and Lindsey & Lindsey (1995) FLC 92-638. We observe that no examination of the principles emerging from these authorities is required because his Honour’s discussion of them was not the subject of any ground of appeal.
In considering the sanctions, his Honour observed that the parties acknowledged that the court was able to have regard to the final parenting orders made by Cleary J on 6 September 2012 and her Honour’s reasons for those orders (see Tindall & Saldo [2012] FamCA 1156).

The first count (failure to inform the father of her contact details)

Because this was the mother’s first proven contravention, the provisions of Subdivision E of Division 13A of Part VII of the Act were enlivened and the court’s powers are found in s 70NEB of the Act.
In the circumstances, his Honour found that the only appropriate sanction was to require the mother to enter into a bond without surety or security, and which required her to be of good behaviour (obliging her compliance with existing orders for the duration of the bond). His Honour then determined that the bond should be for a period of six months.

The second to nineteenth counts (withholding the child between 7 August 2010 and 4 December 2010)

His Honour found that the mother, on each of the 18 occasions between

7 August and 4 December 2010, deliberately intended to contravene the orders to preclude the father’s interaction with the child and that her conduct “…was calculated and brazen. She could no longer be fairly regarded as guileless and timorous” (at [45]).
His Honour found that the contraventions “manifested serious disregard of the obligations created by the subject orders, thereby triggering application of Subdivision F (see ss 70NEA(4); 70NFA(1),(2) [of the Act])” (at [48]).
His Honour considered each contravention by the mother as “objectively serious”, and “premeditated” (at [50]). His Honour recorded that the mother had a genuine fear of the father causing harm to her or the child, but as found in the April 2012 reasons the fear was not grounded on any reasonable basis.
After considering the available sanctions and the mother’s circumstances, his Honour determined that the mother should enter into a good behaviour bond without surety or security for a period of 12 months for each contravention.

Twentieth count (failing to enrol at the contact centre)

The effect of this contravention was to deprive the child of interaction with the father at a contact centre. For reasons previously given, his Honour saw this as a serious disregard of obligations created by the orders and also invoked the operation of Subdivision F of Division 13A of Part VII the Act.
His Honour found the aggravating and mitigating factors the same as those attending the second to nineteenth counts and imposed the same penalty, namely a good behaviour bond of 12 months.
In conclusion, his Honour found that the bonds imposed for each of the first to nineteenth counts should be served concurrently, but the bond for the twentieth count should be served cumulatively upon the bonds imposed by the other counts.

Grounds of Appeal

At the hearing before us, and at our invitation, counsel for the mother recast the 45 grounds of appeal contained in the Amended Notice of Appeal filed

14 February 2014, and reduced them to the following grounds:
1.That the trial judge erred in finding that the appellant mother’s fears for hers (sic) and/or the child’s health and/or safety were allayed by the time the child spent with the respondent father being supervised.
2.The trial judge erred in finding there was not a change to the underlying family dynamic in August 2010 by the appellant mother giving evidence at the respondent’s criminal trial (for the sexual assault of the appellant mother, the kidnapping of the appellant mother, the assault of the mother and the assault of the child) on or about August 2010.
3.The trial judge erred in the absence of any evidence by the respondent by making findings that the respondent would take no action or pose no threat to the appellant mothers (sic) or the child’s health and/or safety.
4.The trial judge erred in making a finding that the appellant mother had not made proper contact with the designated supervision centre pursuant to order 2.2 of the orders made on 10 December 2010.
5.The trial judge erred in finding that the appellant mother’s contravention of order 5 of the orders made on 10 May 2010 was not reasonable.
6.That the trial judge erred by making a finding that the appellant mother’s personal safety was not likely in jeopardy after the appellant mother had given evidence against the respondent during his criminal trial.
7.That the trial judge failed to accord procedural fairness to the appellant mother by relying on notations made on the court file by a registrar which were not in evidence where the trial judge did not advise the appellant mother that he would be relying upon such notations made on the file without affording the appellant mother the opportunity to address such notations.
8.The trial judge erred in making findings that the mother’s honest and genuinely held belief was not reasonably held.
9.The trial judge erred in making findings against unchallenged evidence.
10.The trial judge erred in finding that the appellant mother did not enter into the orders of 21 January 2009 under duress.
11.The trial judge erred in finding that the appellant mother’s honest and genuinely held fears for her safety and/or the safety of the child were not reasonable because she entered into consent orders on 21 January 2009 for the respondent to spend supervised and unsupervised time with the child.
12.The trial judge erred in finding that the appellant mothers (sic) honest and genuinely held fears for her safety and the safety of the child were not reasonable because she joined in an agreement for the child to spend time with the father (in November 2009) supervised by the paternal grandmother.
13.That the trial judge erred in finding that the contraventions of:
a.Orders 3 and 4(b) (sic) made on 10 May 2010
b.Order 2.2 made on 10 December 2010
manifested serious disregard of the orders and failed to consider ex post facto events on sentencing.
14.The trial judge erred in finding that contravention no 2 which occurred on 7 August 2010 was contemporaneous with the commencement of the father’s criminal trial.

Orders Sought

On appeal, the mother seeks the following order:
1.That the Application – Contravention filed by the respondent father on 18 January 2011 be dismissed.

Discussion

The reduced grounds of appeal lend themselves to being combined into groups and addressed accordingly. Those groupings are Grounds 1, 7, 10, 11 and 12, and Grounds 2, 3, 6, 9 and 14, with Grounds 4, 5 and 13 being considered discretely. As to Ground 8, that is not a proper ground of appeal given that it is a mere assertion of error without identifying how his Honour is said to have erred. Thus we do not propose to say anything at all about this ground. Grounds 4 and 5 are strictly in the same category, but because they are the only grounds that relate specifically to the contravention of paragraph 5 of the order made on 10 May 2010, and paragraph 2.2 of the order made on 10 December 2010, it is necessary for us to address them as best we can. Finally, in relation to Ground 13, that is the only ground to directly challenge the sanctions imposed by his Honour, but whether it will be necessary to consider that ground will be dependent upon whether any of the challenges to the findings made by his Honour on 3 April 2012 are successful.

Grounds 2, 3, 6, 9 and 14 – whether there were reasonable grounds for the mother’s belief

It would not be too simplistic to summarise his Honour’s reasons for finding that the mother’s belief as to why it was necessary for her to disobey the orders for the child to spend time with the father was not based on reasonable grounds as follows:
a)There was an unchallenged history of serious domestic violence by the father against not only the mother but also the child.
b)Despite this history, the mother reconciled with the father in 2008 following the incidents that occurred on 1 July 2007 and the threats to her life in early 2008, and the parties did not separate finally until November 2008.
c)There was no contact between the mother and the father following the final separation, and the last threat to the mother was in 2008.
d)Following the institution of proceedings in December 2008, consent orders were made on 21 January 2009 providing for the child to spend supervised and unsupervised time with the father, and agreements were reached in November 2009 providing for supervised time.
e)Although the mother reported the assaults on 1 July 2007 to the police, the father was not charged until November 2009.
f)The father’s criminal trial commenced on 4 August 2010 and he changed his pleas from not guilty to guilty on 9 August 2010 to a number of the charges laid against him.
g)The first contravention occurred on 7 August 2010, namely before the father changed his pleas to guilty.
h)His Honour found that neither the commencement of the criminal trial, nor the admissions made by the father in pleading guilty, changed anything from the mother’s perspective, and specifically did not provide reasonable grounds for her to disobey the court orders.

Plainly his Honour laid great store in the implication from what occurred throughout 2008, 2009 and into 2010, and how the mother conducted the litigation, that she, despite her belief that the safety of herself and the child was at serious risk from the father, had willingly permitted the child to spend time with the father including at times unsupervised.
The mother cavils with that implication, suggesting for example that she was “bullied” into consenting to the order made on 21 January 2009, and that the fact of supervision being provided by the intervener was part of the agreement in November 2009, but we will address that when considering Grounds 1, 7, 10, 11 and 12.
Nevertheless, we do consider that his Honour has erred in finding that the commencement of the criminal trial and the father’s pleas of guilty did not change anything from the mother’s perspective (Ground 2).
There was a palpable change in “the underlying family dynamic”, first, by the commencement of the trial and the lengthy cross-examination over two days of the mother in the context of the father to that point denying the charges, secondly, by the father pleading guilty to many of the charges soon thereafter, and thirdly, by him not being taken into custody at that point and not being sentenced.
The mother’s unchallenged evidence was that as the criminal trial approached her fear for the safety of herself and the child “increased” believing that the father “would not accept the fact that he was going on trial quietly” (paragraph 271 of the mother’s affidavit filed on 24 January 2012).
The trial commenced, and after the mother was cross-examined, the father changed his plea. The mother’s unchallenged evidence about this turn of events was that as far as she was concerned the father would carry out his previous threats to kill her and the child “for taking him to court to accept responsibility for his many assaults on [her and the child]” (paragraph 272 of the mother’s affidavit filed on 24 January 2012).
The mother’s evidence was that she believed that the only way to prevent this was to avoid any interaction with the father, and she contravened the order providing for the child to spend time with him.
We accept that his Honour erred by failing to have regard to material facts, namely the events of and surrounding the criminal trial, in finding that the mother’s belief was not based on reasonable grounds.
It must also be remembered that the order in existence at that time provided for the child’s time with the father to be supervised by his mother, and it was not being conducted under the auspices of the intervener or at a contact centre. This highlights a further complaint by the mother (Ground 1), namely that

his Honour found that the mother’s fears would have been allayed by the fact of the time the child spent with the father being supervised. His Honour said this at [90]:
After the orders were made in May 2010, the constant supervision of the child when spending time with the father eradicated any reasonable fear for the child’s “safety”. The supervision precluded any appreciable risk of the child’s sufferance of any physical or psychological harm. There was no need to contravene Court orders to protect the child’s safety.
However, his Honour clearly erred in making that finding. At no time did the mother agree to or consider it an appropriate safeguard for the paternal grandmother to supervise the time the child spent with the father. Indeed, his Honour was in error in saying at [74] of the reasons that “[i]n November 2009 [the mother] joined in another agreement for the child to spend time with the father, supervised by the paternal grandmother.” The fact of the matter is that the agreement in November 2009 provided for the intervener to engage a professional supervisor. Certainly, in the order of 10 May 2010 the father’s mother was installed as the supervisor, but as his Honour himself recognised at [74] of the reasons, the mother wanted supervision at a contact centre and opposed using the paternal grandmother. Thus, from 10 May 2010 the mother’s fears were certainly not allayed by the provision of supervision, since it was being undertaken by the paternal grandmother.
In Ground 3 it is said that “[t]he trial judge erred in the absence of any evidence by the [father] by making findings that the [father] would take no action or pose no threat to the appellant mothers (sic) or the child’s health and/or safety”, and in Ground 6 it is said that “…the trial judge erred by making a finding that the appellant mother’s personal safety was not likely in jeopardy after the appellant mother had given evidence against the [the father] during his criminal trial”.
What that all relates to is what his Honour found at [92] quoted above at [42]. It is said that the findings at [92] were not open to his Honour because the father did not give evidence (and did not cross-examine the mother on these issues). We agree with that submission and find merit in Ground 3.
Ground 9 also bears on this issue given that, and to repeat, the mother’s evidence was unchallenged. Although there is “no rule of law that a Judge must accept evidence which is unchallenged … a number of authorities establish that it may be “wrong, unreasonable or perverse to reject unchallenged evidence” (original emphasis) (Scott & Scott (1994) FLC 92-457, at 80,729). Here we consider that it would be “wrong” to reject the mother’s evidence; there is nothing inherently incredible or improbable in the evidence she gave about the events that occurred at the trial, or as to her beliefs, and the basis thereof.
It is of course the case that in her evidence the mother did not specifically explain her failure on 7 August 2010 to comply with the order for the child to spend time with the father. Indeed, his Honour made a point of saying that “[t]he event that changed the mother’s mind was the father’s change of pleas in the criminal trial” (footnote omitted) (at [75]), and thus given the timing that could not have motivated that first contravention (at [76]). However, it is clear from the totality of the mother’s evidence, and there should be no doubt about this, that the commencement of the trial and the harrowing experience of being cross-examined for two days about the serious assaults (including a sexual assault), and the kidnapping of the mother that the father was charged with, would have provided a reasonable basis for the mother in the context of the threats previously made by the father against the lives of the mother and the child to objectively justify the contravention of the order on 7 August 2010 to protect the mother and the child.
Turning to Ground 14, we fail to see how his Honour erred in identifying the contravention on 7 August 2010 as being “contemporaneous” with the commencement of the trial, but more relevantly, even if his Honour did err, we fail to see how this would require appellate interference. Thus we find no merit in this ground.
In summary, apart from Ground 14, these grounds of appeal all have merit.

Grounds 1, 7, 10, 11 and 12 – historical matters as to the mother’s conduct

We have dealt with Ground 1 above, but the common theme of the other grounds is that his Honour erred in finding that how the mother conducted the litigation in 2009 militated against her claim that her fears for the safety of herself and the child were reasonably held. With due respect to his Honour, we do not consider those historical matters to be necessarily relevant, and the more critical issue is the effect of the commencement of the criminal trial, the cross-examination of the mother, and the father’s change of pleas in August 2010. Nevertheless, it is still incumbent on us to deal with the complaints raised in these grounds.
That said, Ground 7 is somewhat different from Grounds 10, 11 and 12 and we propose to address that ground first.
The challenge in Ground 7 raises two related issues. First, it is apparent at [59] of his Honour’s reasons that he was quoting from “notations” made on 21 January 2009. However, as has been demonstrated to us by the handing up of a copy of the order, no such notations appear on the order of 21 January 2009 issued by the court. That highlights the second and principal complaint, namely the lack of procedural fairness in his Honour relying on these notations, which presumably then were somewhere on the court file, to reject the suggestion that the mother’s consent to the orders was not voluntary and that she believed the child should not spend time with the father. Critically, his Honour observed that the mother “afforded no explanation at all for why she would have authorised her lawyer to represent the … propositions [identified by his Honour] to the registrar at the time the consent orders were approved…” (at [59]). However, on the basis that the notations did not appear in the sealed order that was issued, and the parties did not have access to the court file, it could not have been expected that the mother would address them in her affidavit, and at the hearing not only was the mother not cross-examined about this, but it was not raised with her or her counsel by his Honour. Thus, she was not given the opportunity to provide an explanation, and plainly there is merit in this ground.
Grounds 10 and 11 also relate to the consent orders made on 21 January 2009. The mother’s case was that she was “bullied” into consenting to the orders by her solicitor. However, his Honour did not accept this, finding that evidence to be “inherently improbable” (at [53]). His Honour emphasised that the mother attended court with her father and considered that that would have prevented her solicitor engaging in overbearing behaviour. Pausing there, this was a finding that was not open to his Honour on the evidence. For example, there was no evidence that the mother’s father was present at any discussions which took place between the mother and her solicitor, or indeed whether he was at the court for the entirety of the hearing. Again, the mother’s evidence that she entered into the orders under duress was not challenged before his Honour; there was no cross-examination about this and it was not suggested to the mother that the presence of her father prevented her from being overborne.
In making his finding though his Honour also relied on the mother’s own evidence and the correspondence that passed between her and her solicitor. As far as the mother’s evidence was concerned, in our view, and contrary to his Honour’s view, she was consistent in saying in her affidavit evidence that she signed the consent orders under duress from her solicitor, and she explained what was said and why she felt she had no choice. We can find nothing in that evidence that demonstrates the inherent improbability of the mother’s claim of being coerced and therefore there was no basis to reject her unchallenged evidence to that effect. With the correspondence, true it is that in terminating her instructions the mother did not say that it was because of coercion or duress by the solicitor, but we do not consider that to be fatal to the mother’s argument.
It must also be remembered that another reason for his Honour’s rejection of the mother’s claim of being coerced into consenting to the orders was the mother’s failure to “explain” the notations referred to above. However, we do not need to say anything more about that topic.
Ground 12 relates to the agreement reached in November 2009 between the mother, the father, the intervener and the ICL providing for the child to spend supervised time with the father. At [74] his Honour said that in this regard the mother “joined in another agreement for the child to spend time with the father, supervised by the paternal grandmother”. However, this was a clear error by his Honour. The agreement provided for supervision to be by an employee of the intervener, someone approved by the intervener, or an employee of an agency engaged by the intervener. At no stage did the mother consent to the paternal grandmother supervising, and in accordance with the agreement a professional supervisor was engaged by the intervener. The paternal grandmother only became a supervisor by order of the court on 10 May 2010. That followed the intervener withdrawing, and the grandmother being approved to undertake the supervision. However, as his Honour records at [74] the mother opposed this and sought that the time spent be supervised at a contact centre.
Accordingly, we find merit in all of these grounds of appeal.
As touched on above, and before leaving these grounds, we feel constrained to indicate that even if his Honour’s findings as to the mother’s conduct of the litigation in 2009 were justified, they do not bear upon whether the mother had reasonable grounds to contravene the spend time with orders between August 2010 and December 2010. As we have found, there was such a change to the underlying family dynamic caused by the commencement of the father’s criminal trial, the cross-examination of the mother for two days, the father’s change of pleas, and the father not being taken into custody and sentenced, that that change alone provided the objective basis for the mother’s fears, and the need to protect herself and the child by contravening the orders.

Ground 4

His Honour dealt with this contravention briefly (at [107] and [108]).
The mother of course conceded the contravention, namely, she failed to arrange an appointment for assessment at the contact centre, and the issue again was whether she had reasonable grounds to do so. The mother said that she spoke to a staff member and was told “it doesn’t sound appropriate for there to be any contact. I will speak to my supervisor about it and get back to you” (paragraph 268 of the affidavit of the mother filed on 24 January 2012).
However, nothing more was done either by the mother or by the contact centre, and his Honour found that the mother’s contravention was not excusable because of comments and opinions expressed by a staff member. We are not persuaded that his Honour was in error in making this finding, and this ground must fail.

Ground 5

Again, the issue here was whether the mother had reasonable grounds to contravene the order. Her case was that she was told by a police officer not to provide her contact details because of “safety issues”, and she acted on that advice. His Honour found that this did not provide the necessary “reasonable excuse” (at [106]).
His Honour focussed on two issues, namely that the mother gave no evidence of when she was given this advice vis a vis the making of the order (her obligation arose at that time), and there was no evidence that the police officer was aware of the mother’s obligation when he gave the advice.
However, as we have said before, the evidence given by the mother was unchallenged, and neither in cross-examination by the father nor in questions by his Honour, was the mother asked about the two issues that concerned

his Honour. Further, his Honour said this at [36]:
Consequently, in the absence of any, or any viable, challenge to the evidence of the mother and the experts their evidence must logically be accepted unless it is inherently improbable. With few exceptions later addressed and explained, none of the evidence adduced in the mother’s defence could be so categorised and is therefore accepted.
Importantly, this was not one of the “few exceptions” where his Honour considered that the evidence could not be accepted because it was “inherently improbable”.
It is of course plain that the evidence of the mother of what she was told by the police officer was hearsay, but that did not make it inadmissible, and it was just a matter of weight (s 69ZT of the Act). In any event, even under the rules of evidence, although what the mother was told by the police officer could not be admitted as evidence of the truth of what was said, the evidence that the mother refused to comply with the order “for safety reasons” was admissible as evidence of her state of mind.
We also observe that the police officer concerned was Detective M (transcript 2.3.2012, page 13, line 25), and he was the detective who had the carriage of the criminal charges against the father. Thus, he would clearly have been aware of the “safety issues” surrounding contact between the mother and the father.
In that regard it is pertinent to emphasise that this order was made, and the mother’s contravention of it, took place in the context of an upcoming criminal trial.
In all the circumstances we consider that there is merit in this ground of appeal.

Ground 13

As referred to above this ground relates to the issue of the sanctions for the contraventions of paragraphs 3 and 4b. of the order made on 10 May 2010, and paragraph 2.2 of the order made on 10 December 2010. Thus, there is no challenge to the sanction imposed for the contravention of paragraph 5 of the order made on 10 May 2010. Of course though, that is all subject to the challenges to the findings that the mother had failed to establish that she had “reasonable grounds” to contravene the orders. In that regard we have found that his Honour erred in those findings that relate to the contravention of paragraphs 3, 4b. and 5 of the order made on 10 May 2010. Thus the orders imposing sanctions for these contraventions must be set aside.
That leaves the contravention of paragraph 2.2 of the order made on

10 December 2010, and this ground must be addressed in relation to the sanction for that contravention.
His Honour found at [62] of the 5 December 2013 reasons that, “[t]he effect of the contravention was to deprive the child of interaction with the father at a contact centre … [and] manifested serious disregard of the obligations created by the orders and consequently invokes operation of Subdivision F (see ss 70NEA(4); 70NFA(1), (2) [of the Act]).”
We are not persuaded that his Honour erred in these findings, and thus it was appropriate to apply Subdivision F, rather than Subdivision E, of Division 13A of Part VII of the Act.
The further complaint in this ground is that his Honour “failed to consider ex post facto events on sentencing.” This is not elaborated on by the mother’s counsel, but it seems that it relates to the change of opinion by Dr R, the psychiatrist who was instructed to prepare expert reports in the parenting proceedings. His first report, released on 23 February 2010, caused the intervener to withdraw from the proceedings, but in his cross-examination before Cleary J in July 2012 Dr R conceded, inter alia, that he had understated the degree of violence perpetrated by the father on the mother, and that he had formed a wrong conclusion.
The mother submits that his Honour failed to take this into account when sentencing the mother and describing her conduct as “calculated and brazen”, and that she “could no longer be considered guileless and timorous.”
However, his Honour was aware of the change of opinion by the psychiatrist and made a point of referring to it in his reasons delivered on 5 December 2013. His Honour said this at [49]:
The evidence adduced by the mother to prove the change of opinion by the single expert witness appointed in the substantive parenting proceedings was of limited utility. It served to vindicate the authenticity of the mother’s fear and apprehension, but that was not doubted for the purposes of either these contravention proceedings or the substantive parenting proceedings finalised by Cleary J in September 2012. Such evidence could not, however, be used to undermine the veracity of the findings already made in these proceedings that the mother had no reasonable excuse to act in the manner she did. Evidence used to establish mitigating circumstances cannot be employed to controvert findings which are elemental to proof of the [mother’s] contraventions.
(Footnotes omitted)
The point of this is that his Honour clearly proceeded on the basis that the mother “genuinely feared the father and was apprehensive of the harm he may cause her and the child” (at [50]). The change of opinion by the psychiatrist could not and did not alter this. Thus we find no merit in this ground of appeal. We also indicate that this would be the case if we had found that his Honour had not erred in finding that the mother had no reasonable grounds for contravening paragraphs 3, 4b. and 5 of the order made on 10 May 2010.

Conclusion

Having found merit in Grounds 2, 3, 6, 9, 1, 7, 10, 11, 12, and 5, as we have already said, the appeal against the orders imposing sanctions for the contravention of paragraphs 3, 4b. and 5 of the order made on 10 May 2010 must be allowed, and orders 1 and 2 made on 5 December 2013 set aside. Further, the application to the extent that these contraventions were alleged should be dismissed. However, having found no merit in the challenge to the findings made in relation to the contravention of paragraph 2.2 of the order made on 10 December 2010, and to the sanction imposed, that part of the appeal must be dismissed.
The effect of setting aside orders 1 and 2 made on 5 December 2013 will be to require order 3(c) made on that date to be varied to provide for a different commencement date of the bond given that as it stands that bond is to commence on the expiration date of the bonds entered into by the mother pursuant to orders 1 and 2 made on that date. Clearly, on the basis that there will now only be one bond that the mother is required to enter into, the commencement date of that bond should be the date the mother enters into the bond, and we propose to amend the order accordingly.

Costs

At the conclusion of the hearing we sought submissions from the counsel for the mother, and from the father, in relation to costs depending on the result of the appeal.
Insofar as the appeal was successful, it was submitted on behalf of the mother that there should be no order for costs but the mother should have a costs certificate for the hearing of the appeal.
Insofar as any part of the appeal might be dismissed, the father did not seek an order for costs, and because he had not incurred any costs he did not seek a certificate for the appeal insofar as the appeal might be successful.
We do not consider it appropriate that an order for costs be made, but given that we propose to allow the appeal in part on a question of law, the mother should have a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 9 January 2015.

Associate:

Date: 9 January 2015