Tishler and Conti
[2009] FMCAfam 127
•24 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TISHLER & CONTI | [2009] FMCAfam 127 |
| FAMILY LAW – Contravention. |
| Family Law Act 1975, ss.65M, 60B, 65N, s.65M 70NAC |
| Childers & Leslie [2008] FAMCAFC 5 In the Marriage of Gaunt (1978) FLC90-468 O’Brien & O’Brien [1993] FLC92-396 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MS TISHLER |
| Respondent: | MR CONTI |
| File Number: | HBC 532 of 2008 |
| Judgment of: | Baker FM |
| Hearing dates: | 10 & 17 February 2009 |
| Date of Last Submission: | 17 February 2009 |
| Delivered at: | Hobart |
| Delivered on: | 24 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Turnbull |
| Solicitors for the Applicant: | Ogilvie Jennings |
| Counsel for the Respondent: | Mr Cameron |
| Solicitors for the Respondent: | PWB Lawyers |
IT IS NOTED that publication of this judgment under the pseudonym Tishler & Conti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 532 of 2008
| MS TISHLER |
Applicant
And
| MR CONTI |
Respondent
REASONS FOR JUDGMENT
Background
This matter concerns two applications for contravention filed by the applicant mother on 3 December 2008 and 16 December 2008.
On 18 June 2008 consent parenting orders were made by the Family Court of Australia. Order 1 provides that the parties have equal shared parental responsibility in respect of the child [X] born in 2005. The orders provide that the parties have shared care of [X] on a week about basis from Sunday at 4.00pm until the following Sunday at 4.00pm.
On 28 November 2008 the father filed an Initiating Application seeking that the week about order be discharged and that the child [X] live with the father. He also sought interim orders seeking that [X] live with him and that the respondent mother’s time with [X] be suspended.
On 3 December 2008 the applicant filed a Recovery Order application and a Contravention Application. The recovery order application was listed for hearing on 18 December 2008.
On 3 December 2008 an Independent Children’s Lawyer was appointed for [X].
In a letter dated 12 December 2008, the Independent Children’s Lawyer gave her view to both parties that [X] should be returned to the applicants care.
On 18 December 2008 consent orders were made essentially allowing the mother to resume the shared care arrangement contained in the consent orders dated 18 June 2008.
Relevant Orders
Order 3 of the consent orders made 18 June 2008 provides that the child will live with the mother at all other times other than that provided in order 2, which is each alternate week from Sunday at 4.00pm until the following Sunday at 4.00pm.
Alleged Contraventions
The Contravention Application filed 3 December 2008 contains an allegation, that in breach of paragraph 3 of the orders made 18 June 2008:
“the respondent failed without reasonable excuse to allow the child to live with the mother from 4.00pm Sunday 23 November 2008 until 4.00pm Sunday 30 November 2008”
The Contravention Application filed 16 December 2005 contains an allegation that:
“the respondent in contravention of paragraph 3 of the order made on 18 June 2008 failed without reasonable excuse to allow the child to live with the mother from 4.00pm Sunday 7 December 2008 until 4.00pm Sunday 14 December 2008”
Law
The Applicant has the onus of proving the allegations. The standard of proof is on the balance of probabilities.[1] In proceedings where sanctions, such as community service orders, fines, imprisonment or bonds are contemplated, the court must be satisfied beyond reasonable doubt.[2]
[1] Section 70NAF(1)
[2] Section 70NAF(3)
The meaning of contravention, with respect to an order, is defined in s.70NAC of the Family Law Act 1975, which provides:
“A person is taken for the purposes of this Division to have contravened an order under this Act 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; or
(b) otherwise--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.”
If a person has a defence of reasonable excuse, the onus is on that person to prove, on the balance of probabilities, the asserted reasonable excuse.[3]
[3] Section 70NAF(1) and (2)
Section 70NAE(1) sets out the meaning of reasonable excuse. While it sets out the circumstances which can give rise to a reasonable excuse, the section does not limit the meaning of reasonable excuse to those circumstances.
Section 70NAE(4) provides:
“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 live with in a way that resulted in the child not living with a person in whose favour the order was made if: :
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not, live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Counsel for the applicant referred me to the decision of Childers & Leslie[4] in which Warnick J sitting as the Full Court discussed the test of reasonableness under s.70NAE. He stated:
“the question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regards to the terms of ‘reasonable grounds’ and ‘reasonable excuse’ in s.70NAE is, I think, similar to that of like generality for example, ‘any just cause’ in In the Marriage of Lutzke(1979)5FamLR at 553 at 559:
…However, the Act is silent as to what may constitute ‘just cause’ for the discharge of an order. In my opinion, however, the words ‘just cause’ are not used in any broad sense, nor are they intended to import any abstract notions of justice, ‘Palm tree’ or otherwise, into the determination of applications for discharge. In my opinion, those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a ‘cause’ only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is ‘right’ or ‘proper’ that the order should be discharged”.[5]
[4] [2008]FAMCAFC 5
[5] at paragraph 28
Warnick J stated that an order that entitled the father to spend time with the child places serious obligations on persons in the position of the mother in that case. He referred to s.65N, which was the relevant section in that case, and the objects set out in s.60B.
Warnick J said:
“the objects and principles offer considerable support for the proposition that a parent who is entitled to spend time with a child ought to be able to do so in various conditions and circumstances…unless of course an exception such as that within s. 70NAE(5) deals, applies”[6]
[6] para.33 Childers & Leslie [2008] FAMCAFC 5
Warnick J referred to the statement In the Marriage of Gaunt[7]:
“the essential question is this – can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from consequences of non-compliance would undermine the purpose and intentions of the Act.
…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…’”
[7] (1978)FLC90-468
I refer to the decision of O’Brien & O’Brien [8] in which Smithers J said:
“…the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.”
[8] [1993]FLC92-396
The relevant section in respect of the respondent’s obligation in this matter is s.65M . Section 65M(2) provides:
“A person must not, contrary to the order:
(a) remove the child from the care of the person; or
(b) refuse or fail to deliver or return the child to a person; or
(c) interfere with the exercise of performance of any of the powers, duties or responsibilities that a person has under the order.
The Evidence
The evidence before me consisted of the two Contravention Applications and the applicant’s affidavits of 3 December 2008 and
16 December 2008. The respondent relied on an affidavit filed
26 November 2008. Paragraphs 55 and 56 were, by consent, not read into evidence. Both the applicant and respondent were cross-examined.
I will deal with both allegations together as the conduct alleged and the excuse is the same for both counts.
The Applicant
The applicant was due to have her week with [X] from 4.00pm on
23 November 2008and also from 4.00pm on 7th December for one week. The applicant said that on Thursday 20 November 2008 she was telephoned by the Hobart Children’s Contact Centre. She was told that the respondent would not be dropping [X] off. The applicant then spoke to the respondent and he advised her that [X] would not be returned to her care, because he had seen an injury to her. The respondent claimed that the applicant’s son [Y], from a previous relationship, was responsible for the injury. [Y] is 15 years of age.
The respondent told the applicant that he had been to the police station and the police were concerned. The applicant contacted the police and was told that no action was going to be taken. She also spoke to Child Protection Services and was told that they would not be taking action.
The applicant said that she had spoken with the respondent, by telephone, on a number of occasions and he made it clear that he was not going to return [X] to her care.
The applicant’s lawyer wrote to the respondent on 26 November 2008 informing him that he was in breach of a court order and that he must return [X] to the applicant’s care and allow her a further 3 days compensatory time.
On Friday 28 November 2008, the applicant went to the respondent’s home, to ask that [X] be returned. The respondent refused, stating that he was within his rights to retain her. He then asked the applicant to leave and called the police.
During a period of one month the applicant did not see [X]. The telephone time she had with her was dependant on what the respondent would agree to. The respondent said that he allowed the applicant to speak to [X] on a few occasions on the telephone, although he denied her on other occasions claiming “you spoke to her yesterday and therefore you do not need to speak to her today.”
During cross-examination of the applicant, she was asked about a telephone conversation she had with the respondent in about July 2008. She could not recall the conversation but she could remember telling the respondent that [X] and [Y] “fight like cat and dog”. She also said that [X] is the one who hurts [Y].
The respondent
The respondent does not dispute that he contravened order 3 of the orders made on 18 June 2008 in respect of both contravention allegations. The respondent says he had a reasonable excuse in respect of both allegations.
The respondent gave evidence that on Sunday 16 November 2008, [X] was returned to his care with bruising on the backs of her legs and a mark on her face. He picked [X] up from the Hobart Contact Centre and nothing was mentioned to him about the mark on [X]’s face or bruising on her legs. He noticed the bruising and a mark on the side of her face whilst [X] was in the bath. He asked [X] how it happened but she was vague and avoided the question. She then mentioned that [Y] had caused the scratches but was vague about how it happened.
The respondent contacted the police and was advised to take [X] to a doctor. He took her to the [D] After Hours Medical Centre on
16 November 2008. He said that Dr T informed him that he believed the bruise on [X]’s leg had been caused by being hit with a straight solid object. The respondent did not call Dr T to give evidence, nor did he file a medical report or the doctor’s notes.
The respondent took [X] to the Hobart Police Station and reported the incident on 16 November 2008. He gave the police a copy of Dr T’s notes. The police took photographs of the bruise.
On Monday 17 November 2008 the father took [X] back to the Hobart Police Station where she was interviewed.
During cross-examination of the respondent, it became apparent that when [X] was questioned by the police she spoke about [Y], who did not want to play with her and got angry at her. She also spoke about having a dolly thrown at her and that the dolly then chased [Y]. She did not say how the bruise to her upper leg was caused. This evidence was not included in the respondent’s affidavit.
The respondent telephoned the police after the interview to state that [X] had informed him that [Y] had caused the bruising. The respondent did not press charges. On 20 November 2008 he was informed by the Department of Health and Human Services that it was not taking any action.
The respondent did not speak to Dr T to inform him about [X]’s explanation to the police of having a dolly thrown at her.
The respondent told an employee of the Hobart Contact Centre on Wednesday 19 November 2008 that he would not be providing [X] on Sunday 23 November 2008 for handover to the applicant. He said in his affidavit:
“I have informed [Ms Tishler] and the Hobart Contact Centre that I will not be providing [X] for more time with her until the recent incidents of abuse have been fully investigated.” [9]
[9] paragraph 47 of the respondents affidavit filed 28 November 2008
In support of his defence of reasonable excuse, the respondent referred to past incidents of bruising on [X]’s legs, photographs of which he had taken and annexed to his affidavit.
The first incident, which he referred to, occurred approximately three to four months prior to the November incident. He said that [X] returned to him from the applicant with a large distinguishable bruise on her thigh. The respondent stated that [X] had told him that [Y] had punched her. He then approached the applicant and explained what happened. The applicant agreed that [Y] had hit [X], however she stated that [X] had instigated it. The respondent told the applicant that [Y] should not be hitting [X] regardless of who instigated it.
The respondent made a notification to the Child Protection authorities in respect of the bruising. The respondent said that there was no option other than to make a notification because [X] said she was hit.
Over the next two to three months the respondent did not notice any more bruises. He stated that [X] told him that she was being hit in places other than her thighs. She would often have bruising on her shins, however he believed that this was from falling over. He was aware that on one occasion [X] had fallen out of tree and may have been taken to the [W] Medical Centre.
The second incident which he relied upon, was approximately one month prior to the November incident, when he saw major bruising on [X]’s thigh and scratches on her ribs. He took photographs of the bruises and scratches.
The respondent did not contact the applicant after 16 November 2008 to discuss the bruising or scratches. He did not ask his lawyer to raise the matter with the applicant. He did not contact the Family Relationship Centre to make an appointment for the issue to be discussed with the applicant.
The respondent admitted that the applicant contacted him on Thursday 20 November 2008, after an employee of the Contact Centre had advised her of his intentions not to return [X]. The respondent admitted that he might have told the applicant that he was not bound by the Court orders.
The respondent admitted that on Friday 28 November 2008, when the applicant went to his home to ask that [X] be returned to her, he refused and told the applicant that he would not return her because of what had happened and because of the legal advice he had received.
The respondent was asked about the letter written by the applicant’s solicitors on 26 November 2008 to the respondent to inform him that he was in breach of a court order and that he must return [X] to the applicant’s care. The respondent said he had seen the letter and that he acted on legal advice and was not going to return [X] until he was sure that she was not in a dangerous situation.
The respondent, when asked during cross-examination whether the reason he was justified in preventing the applicant from seeing [X] for nearly a month, was because he found bruises on [X] on 16 November 2008, he answered:
“No, on advice from my solicitor, what the police and doctor told me.”
The respondent was asked whether he thought that nothing was going to happen whilst the spotlight was on the applicant. He said “yes but I doubted it”. It was put to him, that by 30 November 2008 lawyers for both parties were involved, the court process was underway and that was enough protection for [X]. The respondent’s answer was that he was advised not to return [X]. He said:
“The applicant could have taken [X] and I would have had to go for custody to get her back.”
He said:
“I was not prepared to let her go back under that environment. I was concerned for her safety.”
He further said:
“I had no way of protecting myself, part of my reason was that she might do the same to me. I was advised that she could retain [X] if I returned her. She may do to me what I did to her. It was a minute percentage of the reason”.
In respect of the letter written by the Independent Children’s Lawyer advising that [X] should be returned to the mother the respondent’s answer was:
“I didn’t return her because of the advice I was given by
Mr Cameron”.
The father admitted that [X] is an active child. He understood that [X] becomes bruised from falling over and often presents with bruising as a result of playing. However, he questioned the amount of bruising she gets.
The respondent stated [X] told him that she was told not to say anything about the bruising and was told to say that she walked into a door. He also said that [X] told him she was kicked and punched by the boys, they thump her because the applicant is not there. This evidence was not included in the respondent’s affidavit, nor was it put to the applicant by the respondent Counsel during her cross-examination.
Discussion
The issue is whether the respondent has proved, on the balance of probabilities, that he believed on reasonable grounds that his action in depriving the mother of having [X] live with her from 23 November 2008 to 30 November 2008, and from 7 December 2008 until
14 December 2008, was necessary to protect the health or safety of [X]. The test of whether the grounds are reasonable is an objective one.
The first bruising to [X]’s leg occurred in about August 2008. I accept the respondent’s evidence that he telephoned the applicant to discuss the bruising on the [X]’s leg and the applicant said that [X] had instigated the fight. Whilst the applicant could not recall the conversation she could remember telling the respondent that [X] and [Y] ‘fight like cat and dog’. She also said that [X] is the one who hurts [Y].
The second incident of bruising took place approximately one month prior to the November 2008 incident. I accept the respondent’s evidence that [X] was vague as to how it occurred and that she would tell him that it happened when she was walking into something and then tell him a different story. It is not surprising that an active 3 year old child would not be able to tell him how a bruise on her body was caused.
As soon as the respondent discovered the bruises on [X]’s leg on
16 November 2008, he telephoned the police, and on their advice he took [X] to the doctor. His immediate belief was that [Y] caused the bruising, because [X] had said that [Y] caused the scratches, but was vague about how it happened, and because of prior incidents.
There is no evidence of what the respondent told Dr T whilst he was examining [X]. Dr T was not called to give evidence by the respondent. The respondent did not inform Dr T of what [X] told the police on
18 November 2008. It would be reasonable to expect the respondent to have called evidence from Dr T. As he has not explained his failure to do so, I draw an inference that the evidence of Dr T could not have assisted the respondent’s case[10].
[10] see Jones v Dunkel (1959) 101 CLR 298
The respondent did not inform the applicant about the bruising and of his concerns that [Y] may have hit [X]. He did not tell her that he had been to the doctor and to the police. Instead, on Wednesday 19 November 2008, he informed the Hobart Children’s Contact Centre to tell the applicant that he would not be delivering [X] for hand over to her on 23 November 2008.
So, at least by 19 November 2008, the respondent had made the decision that he would not return [X] to the applicant, without having had any discussions with the applicant.
When the applicant telephoned the respondent on 20 November 2008, the respondent did not ask the applicant whether she had noticed the bruise and whether she knew how it had been caused.
The respondent may have had a belief, that his act of not returning [X] to the applicant’s home, was necessary to protect the health and safety of [X], either between 23 November 2008 and 30 November or 7 December 2008 until 14 December 2008.
However, in my view, the respondent’s belief was not based on reasonable grounds. There was no independent evidence that [Y] has caused the bruising to [X]. The police were not taking any action, which the respondent knew on 23 November 2008. The respondent did not raise the issue of bruising with the applicant or propose any protective measures for [X] prior to 23 November 2008.
I am of the view that the respondent deprived the applicant of having [X] living with her, due to his own conclusion that [Y] caused [X]’s bruising. This view was based on vague explanations from his 3 year old daughter, and based on his belief that [Y] had caused bruising previously.
By 30 November 2008, the court process was underway and lawyers for both parties were involved. The respondent said that he was advised not to return [X] to the applicant. Whilst he said that he was concerned for [X]’s safety, I am of the view that his reason for not returning [X] was, at least at that point, due to the advice he had received and because he thought that the applicant would retain [X] and not let him see her, as he had done.
On 12 December 2008 the Independent Children’s Lawyer recommended that the respondent return [X] to the mother but the father was still not prepared to do so.
Conclusion
Having regard to the onus of proof, I find that the respondent does not have a reasonable excuse in respect of each alleged contravention.
It follows that the respondent has contravened the relevant order without a reasonable excuse in respect of the periods 23 November 2008 – 30 November 2008 and 7 December 2008 – 14 December 2008.
I will hear the parties on the appropriate orders to be made.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Baker FM
Associate: Sita Buick
Date: 24 February 2009
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