Vaughton & Randle (No.2)
[2013] FamCA 286
FAMILY COURT OF AUSTRALIA
| VAUGHTON & RANDLE (NO. 2) | [2013] FamCA 286 |
| FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of nine counts – where the primary order required the mother to bring the child to Adelaide from Tasmania to spend time with the father – where the mother admits all nine counts – consideration of whether the mother had a reasonable excuse for contravention – where the mother claims she has a reasonable excuse pursuant to s 70NAE(5) of the Family Law Act 1975 (Cth) – no reasonable excuse for contravention established. |
| Family Law Act 1975 (Cth) s 70NAC, 70NAE, 70NAF, 70NBA, 70NDB, 70NFA, 70NFB, 70NFG |
| Childers & Leslie (2008) 39 Fam LR 379 |
| APPLICANT: | Mr Vaughton |
| RESPONDENT: | Ms Randle |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 3046 | of | 2010 |
| DATE DELIVERED: | 1 May 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 20 February 2013, 13 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | Adey Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Wabnitz |
| SOLICITOR FOR THE RESPONDENT: | Daniel John Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fuda |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
The contravention applications filed by the father on 29 September 2012 and 11 December 2012 are adjourned to Thursday 30 May 2013 at 10.00 am before the Honourable Justice Dawe for the Court to hear further submissions from each of the parties in relation to the orders.
The question of costs of the applications are adjourned to Thursday 30 May 2013 at 10.00 am before the Honourable Justice Dawe.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaughton & Randle (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3046 of 2010
| Mr Vaughton |
Applicant
And
| Ms Randle |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment considers two applications for contravention orders filed by Mr Vaughton (“the father”). They allege that Ms Randle (“the mother”) has contravened various court orders relating to their child R, (“the child”). The child was born in July 2008 and was accordingly 4 years old at the date of the hearing.
The matter was initially listed for hearing on 20 February 2013. The mother failed to attend. Her then lawyer, Mr Guest of Ian Guest & Associates appearing via telephone link from Tasmania, sought that the matter be adjourned to allow him to receive further instructions from his client. The matter was subsequently adjourned to the 13 March 2013. I ordered the mother to attend Court on this date. I also ordered that the time the father spends with the child was to recommence on Saturday 23 February 2013 and Saturday 9 March 2013 and otherwise in accordance with the existing orders. The question of costs in light of the unforseen adjournment was adjourned.
The applicant was represented by Mr McQuade on instructions from Adey Lawyers at the adjourned date of hearing. The respondent was represented by Mr Wabnitz on instructions of Daniel John Lawyers. Ms Fuda appeared on behalf of the Independent Children’s Lawyer instructed by the Legal Services Commission of South Australia.
The Father’s First Application for Contravention Orders
The father’s first application for contravention orders was filed on 29 September 2012. It alleges four counts of contravention by the mother.
The statement of the alleged contravention is similar across the four counts. The statement of the alleged contravention in Count 1 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00AM ON SATURDAY 11TH AUGUST 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00AM ON SATURDAY 11TH AUGUST 2012 TO 5.00PM ON SUNDAY 12th AUGUST IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011.
The statement of the alleged contravention in Count 2 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00AM ON SATURDAY 25TH AUGUST 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00AM ON SATURDAY 25th AUGUST 2012 TO 5.00PM ON SUNDAY 26th AUGUST IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011.
The statement of the alleged contravention in Count 3 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00AM ON SATURDAY 8TH SEPTEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00AM ON SATURDAY 8TH SEPTEMBER 2012 TO 5.00PM ON SUNDAY 9TH AUGUST IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011.
The statement of the alleged contravention in Count 4 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00AM ON SATURDAY 22ND SEPTEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00AM ON SATURDAY 22ND SEPTEMBER 2012 TO 5.00PM ON SUNDAY 23RD SEPTEMBER IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011.
The alleged contraventions are said to have occurred:
a)Count 1: Saturday 11 August 2012 at 9:00 am at the Suburb B Police Station.
b)Count 2: Saturday 25 August 2012 at 9:00 am at the Suburb B Police Station.
c)Count 3: Saturday 8 September 2012 at 9:00 am at the Suburb B Police Station.
d)Count 4: Saturday 22 September 2012 at 9:00 am at the Suburb B Police Station.
All four counts are said to contravene paragraph 4(b) of the orders made by FM Lindsay on 23 March 2011 as modified by paragraph 6 made with the consent of the parties and certified by FM Lindsay (as he then was) on 1 November 2011. (The judgment will refer to FM Lindsay who at the time of the orders was FM Lindsay but who is now Judge Lindsay).
Paragraph 4(b) of the orders made by FM Lindsay on 23 March 2011 states:
4.Pending trial the mother do all such things as may be reasonably required to facilitate the child spending the following time with the father, namely:
(b)from 9 am Saturday to 5 pm Sunday on alternate weekends commencing 11 June 2011.
Paragraph 6 of the orders made by FM Lindsay on 01 November 2011 states:
6.The cycle of the said child’s time with the father be varied such that the said child’s time with the father coincides with the children of [Ms S] being in the care of [Ms S] and the father commencing as and from Saturday, 28 January 2012 and each alternate weekend thereafter.
The Father’s Second Application for Contravention Orders
The father’s second application for contravention orders filed on 11 December 2012 alleges five counts of contravention by the mother.
The statement of the alleged contravention is similar across the five counts. The statement of the alleged contravention in Count 1 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00AM ON SATURDAY 6TH OCTOBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00AM ON SATURDAY 6TH OCTOBER 2012 TO 5.00PM ON SUNDAY 7TH OCTOBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.
The statement of the alleged contravention in Count 2 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00AM ON SATURDAY 20TH OCTOBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00AM ON SATURDAY 20TH OCTOBER 2012 TO 5.00PM ON SUNDAY 21ST OCTOBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.
The statement of the alleged contravention in Count 3 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00AM ON SATURDAY 3RD NOVEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00AM ON SATURDAY 3RD NOVEMBER 2012 TO 5.00PM ON SUNDAY 4TH NOVEMBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.
The statement of the alleged contravention in Count 4 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00AM ON SATURDAY 17TH NOVEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00AM ON SATURDAY 17TH NOVEMBER 2012 TO 5.00PM ON SUNDAY 18TH NOVEMBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.
The statement of the alleged contravention in Count 5 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00AM ON SATURDAY 1ST DECEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00AM ON SATURDAY 1ST DECEMBER 2012 TO 5.00PM ON SUNDAY 2ND DECEMBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.
The alleged contraventions are said to have occurred:
a)Count 1: Saturday 6 October 2012 at 9:00 am at the Suburb B Police Station.
b)Count 2: Saturday 20 October 2012 at 9:00 am at the Suburb B Police Station.
c)Count 3: Saturday 3 November 2012 at 9:00 am at the Suburb B Police Station.
d)Count 4: Saturday 17 November 2012 at 9:00 am at the Suburb B Police Station.
e)Count 5: Saturday 1 December 2012 at 9:00 am at the Suburb B Police Station.
All five counts are said to contravene paragraph 4(b) of the orders made by FM Lindsay on 23 March 2011 as modified by paragraph 6 made with the consent of the parties and certified by FM Lindsay on 1 November 2011 and further modified on 21 September 2012.
Paragraph 4(b) of the orders made by FM Lindsay on 23 March 2011 as modified by paragraph 6 made with the consent of the parties and certified by FM Lindsay on 1 November 2011 are both provided above in relation to the first application for contravention orders.
The orders of FM Lindsay dated 21 September 2012 do not alter any existing parenting orders. Rather, they impose a penalty upon the mother following the finding that she committed the alleged contraventions in the father’s applications for contravention orders dated 23 November 2011 and 15 February 2012 without reasonable excuse. The penalty imposed was a sentence of imprisonment for one month suspended for so long as the mother is not convicted of contravening court orders without reasonable excuse. The mother’s liability to serve such term of imprisonment is to be discharged from 21 September 2013 (one calendar year after the imposition of the sentence).
Previous Applications for Contravention Orders heard in this Matter
There is a history of applications for contravention orders in this matter.
The first application for contravention orders was filed by the mother on 11 July 2011. It alleged that the father, on three occasions, failed to reimburse the mother for half of the travel costs associated with the child travelling to Adelaide to spend time with the father as required by Order 7 of FM Lindsay dated 28 March 2011.
On 20 September 2011, FM Lindsay found the father guilty of this contravention and further found that the father had not established a reasonable excuse.
On 4 October 2012, FM Lindsay ordered the father to pay the mother $1,100.00 with no orders as to costs (See generally [2012] FMCAfam 1065).
The second application for contravention orders was filed by the father on 23 November 2011. It alleged one breach of Order 4(b) of FM Lindsay dated 28 March 2011. This is the order that forms the substance of the two current applications for contravention orders.
On 1 June 2012, FM Lindsay found that the contravention had been established and that the mother had failed to establish a reasonable excuse (See generally [2012] FMCAfam 490).
On 21 September 2012, FM Lindsay sentenced the mother to a period of imprisonment of one calendar month, to be suspended for so long as she is not convicted of contravening court orders without reasonable excuse. The mother’s liability to serve such term of imprisonment is to be discharged from 21 September 2013 (one calendar year after the imposition of the sentence).
The third application for contravention orders was filed by the mother on 21 December 2011. It alleged that the father, on one occasion, failed to reimburse the mother for half of the travel costs associated with the child travelling to Adelaide to spend time with the father as required by Order 7 of FM Lindsay dated 28 March 2011. FM Lindsay dismissed this application for contravention orders on 7 March 2012 (See generally [2012] FMCAfam 613).
The fourth application for contravention orders was filed by the father on 15 February 2012. It alleges two contraventions of Order 4(b) of FM Lindsay dated 28 March 2011. Once again, this is the order that forms the substance of the two current applications for contravention orders. FM Lindsay found the mother had contravened this order on both counts on 7 March 2012 (See generally [2012] FMCAfam 613). The punishment imposed for the father’s application for contravention orders filed 23 November 2011, being the suspended term of imprisonment, was said by FM Lindsay to also apply to this contravention on 21 September 2012.
Accordingly, the two applications for contravention orders to be dealt with in this judgment are the fifth and sixth in these proceedings.
The Law
Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains provisions concerning applications for contravention orders. The following are the most relevant to these proceedings:
70NACMeaning of contravened an order
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;
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 (2), (4), (5), (6) and (7).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) 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).
(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).
(6) 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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
70NAFStandard of proof
(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The court may only make an order under:
(aa) paragraph 70NEB(1)(da); or
(ab) paragraph 70NECA(3)(a); or
(a) paragraph 70NFB(2)(a), (d) or (e); or
(b) paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.
70NBAVariation of parenting order
(1)A court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i)the court does not find that the person committed a contravention of the primary order; or
(ii)the court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b)there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
70NDBOrder compensating person for time lost
(1) If:
(a) the primary order is a parenting order in relation to a child; and
(b) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court:
(c) may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and
(d) must consider making that kind of order.
Note:If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).
(2) The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so.
Subdivisions C to E of Division 13A of the Act provide the orders available to the Court that can be made:
·Where the contravention has been alleged but not established (Subdivision C);
·Where the contravention is established but reasonable excuse for the contravention is found (Subdivision D); and
·Where the contravention is found to have occurred without reasonable excuse which are “less serious” (Subdivisions E) or “more serious” (Subdivision F).
I note that the suspended sentence of imprisonment imposed upon the mother by FM Lindsay on 21 September 2012 was made pursuant to Subdivision F as his Honour was satisfied that the mother had “behaved in a way that showed a serious disregard of his or her obligations under the primary order” pursuant to subsection 70NFA(2)(b).
If the contraventions alleged in these applications for contravention orders are established without reasonable excuse, Subdivision F will automatically apply as FM Lindsay has made an order imposing a sanction in respect of a contravention by the mother of this order before (subsection 70NFA(3)(a)). I have a discretion not to apply the provisions of Subdivision F if I find that it is more appropriate for the contraventions to be dealt with under Subdivision E pursuant to s 70NFA(4). If I find that the provisions of Subdivision F do apply, then I am bound to make an order for costs against the mother unless I find that it would not be in the bests interest of the child to do so (Section 70NFB).
Section 70NFG(2) Sentences of imprisonment states:
(2)A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).
Evidence and Submissions of the Parties Concerning the Father’s First Application for Contravention Orders
The first count of this application is discussed in paragraphs 12 to 15 of the father’s affidavit filed contemporaneously with his first application for contravention orders on 26 September 2012. These paragraphs assert that the mother did not attend the handover point on the date of the alleged contravention.
The second count of this application is discussed in paragraphs 16 to 22 of the father’s affidavit filed contemporaneously with his first application for contravention orders on 26 September 2012. These paragraphs assert that the mother did not attend the handover point on the date of the alleged contravention. Annexures “E” to “G” of this affidavit are a series of letters which reveal that the mother’s then solicitors had informed the husband’s solicitors in advance that the mother and the child would not be present in Adelaide during the dates of this alleged contravention.
The third count of this application is discussed in paragraphs 23 to 25 of the father’s affidavit filed contemporaneously with his first application for contravention orders on 26 September 2012. These paragraphs assert that the mother did not attend the handover point on the date of the alleged contravention. Annexure H of this affidavit is a letter of the wife’s then solicitor. The letter, dated 7 September 2012, informs the father’s solicitor that the wife and the child will not be in Adelaide with the child on the weekend this count allegedly occurred.
The fourth count of this application is discussed in paragraphs 26 to 36 of the father’s affidavit filed contemporaneously with his first application for contravention orders on 26 September 2012. These paragraphs assert that the mother did not attend the handover point on the date of the alleged contravention. No notice was provided that the mother did not intend to provide the child to the father on the weekend this contravention allegedly occurred.
An affidavit of the paternal grandmother, Ms D, was filed on 26 September 2012. It states generally that the deponent attended the handover point (the Suburb B Police Station) on each of the dates of the alleged contraventions. The mother allegedly did attend with the child on the date of Count 1. The child allegedly said to the deponent: “it’s my choice whether I come today.” The mother allegedly said to the deponent “I’m not happy letting him go after the last fortnight” before leaving with the child. The affidavit further alleges that the mother and child did not attend at the handover point on the date mentioned in Counts 2, 3 and 4.
An affidavit of the father’s solicitor filed on 11 December 2012 annexes written correspondence between the parties’ solicitors. The first letter is addressed to the father’s solicitor from the mother’s solicitor dated 12 July 2012. It suggests that the time that the father is to spend with the child that makes up counts 3 and 4 of the father’s first application for contravention will not go ahead and offers an alternative time during the school holidays in September 2012. The purpose of the proposed alteration was to “allow the child to have the stability of more than one weekend home in a row” and to allow the mother to address an issue that allegedly had arisen concerning the child’s ability to use the toilet.
The second letter is a response to the first letter from the father’s solicitor dated 3 August 2012. It denies the child has an issue with toilet training. Further, it suggests that the offer of altered time will be accepted if certain conditions are met. There is no reply to this letter attached to this affidavit.
A reply to this letter from the father’s solicitor dated 3 August 2012 was tendered at the hearing of this matter on 13 March 2013 by the husband’s counsel. The letter is dated 10 August 2012. The letter generally rejects the amendments to the proposed time suggested by the father’s solicitor.
At the hearing, counsel for the mother asserted that the mother intended to rely on two affidavits she had previously filed as the totality of her written evidence for both applications for contravention orders.
The first affidavit was filed on 9 October 2012. Much of this affidavit contains material in response to affidavits that the father does not intend to rely on for these applications for contravention orders. Paragraphs 42 to 102 detail alleged events on the weekend on 28/29 July 2012. The mother alleges that the child said “because [the father] hits me” in response to an employee of the C Children’s Contact Service (“CCS”) asking the child why he did not want to play with his father. As a result of this statement, the mother refused to let the father take the child for the scheduled visit on 28/29 July 2012.
The mother also alleges that the child said the father “hit me in the face” on the weekend on 30 June 2012/1 July 2012. The comment was allegedly made at the Adelaide Airport when the child and the mother were returning to Tasmania after a visit on the weekend with the father. Annexure AMR4 of this affidavit is a “report of observation of changeover” by Ms E of the CCS documenting the child’s allegation of violence by the father at the CCS.
Paragraphs 103 to 106 comment generally on the child’s behaviour. The mother alleges the fortnightly travel is having a negative impact upon the child. The mother also alleges that the child exhibits excessive separation anxiety when he has to leave her, and that he has regressed with respect to his toilet training.
Paragraphs 150 to 167 comment on the visit that was scheduled to occur on 11 August/12 August 2012. This is the date of the first count of alleged contravention in the first application for contravention orders. The mother states generally that she gave the child the choice of going with the father or not. The mother allegedly told the paternal grandmother and father’ s sister “I am not willing to make [the child] go if he refuses this time based on what happened last fortnight and what he said at the [CCS].” She then left the handover point with the father after the child responded “I want to stay with you mummy” in response to her asking if he wanted to go for a visit with the father.
The second affidavit was filed on 8 March 2013. Some of this affidavit deals with matters extraneous to these applications for contravention orders. The mother alleges that the father has a “violent nature” at paragraphs 29 to 30. Paragraphs 36 to 45 are headed “the father’s attitude toward the child [R]” and contain such allegations as “the father has made little attempt to promote his own relationship” with the child.
The mother also claims that the father would spend little time with the child when he was in Adelaide, despite the child having travelled from Tasmania to see him. Paragraphs 71 to 92 comment on issues relating to the child, including alleged hyper-activity. The mother claims that the fortnightly travel has had an “on-going effect on [the child] and that the travel has affected his ability to self-regulate his emotions at times of stress, anger and sadness.”
At the hearing, the parties and the Independent Children’s Lawyer agreed that all the alleged contraventions would be dealt with at the one time rather than dealing with each count separately given that the evidence would be largely the same.
The mother admitted each of the four counts of this application for contravention orders at the hearing date. She claimed to have a reasonable excuse for these contraventions.
The mother’s evidence was heard first. She was briefly examined by her counsel Mr Wabnitz. The examination-in-chief sought to establish that the contraventions occurred because of the allegations made by the child at the CCS and the airport in July 2012 concerning violence by the father. It also sought to establish that the child’s time with the father is causing him to regress with his toilet training and the general behaviour issues that the time with the father is allegedly causing.
I informed Mr Wabnitz that I had no expert evidence that would enable me to draw the inference that the problematic behaviour the child is allegedly demonstrating was caused by his time with the father. In conclusion, the mother acknowledged the importance of the child having a relationship with his father. She also agreed that she “genuinely believed” the father had assaulted the child in July 2012 and that it would happen again if proper precautions were not put in place.
Counsel for the father then cross-examined the mother. Counsel for the father tendered a letter of the mother’s then lawyers dated 10 August 2012, which states the mother “is hopeful of [the father’s] agreement to her proposal for a variation of the September visits.”. Mr McQuade for the father noted that this is incongruent with the mother suggesting that she formed the view that she would no longer let the child see the father on 28 July 2012 after the CCS statement by the child concerning the father’s violence. The mother responded that she only continued to make these overtures about time for the father to spend with the child in September 2012 because her lawyer had informed her that that was “the course of action I should be taking.”
The cross-examination also dealt with the visit of 30 June 2012/1 July 2012, during which the child received a bump on the head after falling from playground equipment. The mother admitted she accepted the father’s explanation for the bruise. The mother also admitted that the revelation of the child at the airport on 1 July 2012 that “[The father’s first name] hit me in the face” occurred when the mother and child were rushing to the gate to board their flight. The mother also admitted that she dismissed the child’s allegation at the time and did not make a report to any welfare authority.
Counsel for the father then turned to the events at the contact centre on 28 July 2012 and the report that Ms E prepared concerning these events. The mother could not confirm that the child has said where the father hit him after his revelation at the CCS that the father had hit him. The mother also stated that she did not make a complaint to a welfare officer after this revelation.
The cross-examination then turned to the events of the 11 August 2012 at the handover point. This was the scheduled handover at which the child said “it’s my choice whether I come today.” The mother admitted that she did not encourage him to go with the father. The mother denied Ms F’s account of the playground incident and suggested that it was a cover up and in fact the father had hit the child in the face. The mother admitted that, if this were so, it was possible that it could have been accidental.
Ms Fuda for the Independent Children’s Lawyer then cross-examined the mother. The mother agreed that the travelling had taken a toll on the child, and that less travelling would be required if the mother had continued to live in Adelaide.
I then asked the mother what, if any, steps she had taken since the incidents in July 2012 to have the orders changed. The mother replied that issues with Legal Aid had prevented this application.
Some further cross-examination then occurred following my questioning, followed by brief re-examination.
The father then gave his evidence. Mr McQuade for the father did not engage in any examination in chief. Mr Wabnitz for the mother then cross-examined the father. Counsel for the mother commented on the arrangements between the parties for the father and child to Skype (internet-based video camera technology) together as a means of demonstrating that the mother is willing to facilitate a relationship between the father and child through a different medium than actual visits. Mr Wabnitz attempted to suggest that the father was not dedicated in ensuring these Skype contact times went ahead due to his propensity to cancel them. The father responded that his work and family commitments occasionally prevented them from occurring.
Mr Wabnitz then turned to the incident at which the child allegedly hit his head at a playground. It was put to the father that the playground incident did not occur and that the bruising to the child’s head occurred as a result of physical violence inflicted upon him by the father. The father denied this. The father also denied ever committing domestic violence against the mother.
Ms Fuda did not cross-examine the father on behalf of the Independent Children’s Lawyer.
I then called upon the parties to make their final submissions. Mr McQuade for the father noted that for a reasonable excuse on the basis of the child’s health and safety to be substantiated, the mother must show that her belief was reasonable.
Mr McQuade denied that the revelation at the airport had occurred. Counsel also noted that the child looked at the mother multiple times before stating that “Because [the father’s first name] hits me” at the CCS which was indicative of coaching.
Mr McQuade also noted that it defied common sense for the mother, if she did have a genuine belief that the father had been physically violent to the child, to subsequently let that child decide whether to spend time with his alleged abuser as the mother did on 11 August 2012.
Ms Fuda then made final submissions on behalf of the Independent Children’s Lawyer. She highlighted the fact that the mother dismissed the child’s first allegation of abuse by the father made at the airport. Ms Fuda stated that she supported the submissions of counsel for the father.
Mr Wabnitz for the mother then delivered his final submissions. He stated that the mother had reasonable excuse for her contraventions by way of section 70NAE(5) of the Act as she genuinely believed that the child had been physically abused by the father “sometime in July 2012” and would be abused again in the future. This belief was said to be based on the two disclosures made by the child in July 2012 and that these disclosures “need to be seen in the context that the mother, in accordance with evidence that she has given right throughout these proceedings, herself was the victim of past acts of violence that were perpetrated by the father.”
Evidence and Submissions of the Parties Concerning the Father’s Second Application for Contravention Orders
The father filed an affidavit in support of this application for contravention orders on 11 December 2012. It is a brief document that states generally that the mother failed to comply with the orders for the child to spend time with the father on the dates on which the five counts are alleged.
An affidavit of the father’s solicitor filed on 9 October 2012 annexes written correspondence between the parties’ solicitors. The effect of this correspondence is that the mother’s solicitors had given the father’s solicitors notice that the mother would not be attending Adelaide on the date of the Count 1 alleged contravention as the mother was “concerned about [the child’s] safety while he is in the care” of the father.
An affidavit of the father’s sister Ms F was filed on 11 December 2012. It speaks generally of an incident that occurred on 16 June 2012. The child was allegedly playing on playground equipment at a local park when he fell and hit / bumped his head. The deponent returned the child to the CCS and informed the Centre of the incident. It states that the deponent heard nothing further from the CCS after this incident.
An affidavit of the paternal grandmother Ms D was filed on 11 December 2012. It states generally that the deponent attended the handover point (the Suburb B Police Station) on each of the dates of the alleged contraventions. The mother and child allegedly did not attend at the handover point on the dates of the five counts alleged.
As noted previously the mother is relying on her affidavits filed on 9 October 2012 and 8 March 2013. The relevant contents of these documents are discussed earlier.
The mother admitted each of the five counts of this application for contravention orders at the hearing date. She claimed to have a reasonable excuse for these contraventions.
The evidence of the parties at the hearing was not split between the two applications for contravention orders. As such, the summary of the oral evidence outlined above is equally applicable to the second application for contravention orders.
Consideration of the Father’s Applications for Contravention Orders
The respondent has admitted the nine counts that make up these two applications for contravention orders. She claims she has a reasonable excuse for those contraventions. She must prove on the balance of probabilities that she had a reasonable excuse for this contravention. (Section 70NAF(1) & (2) and 70NDA(c)). That reasonable excuse is said to be that the respondent was concerned that the child had been subjected to physical violence by the father and would face similar violence in the future.
Section 70NAE of the Act provides a list of circumstances in which a person may be taken to have had a reasonable excuse for contravening an order. This is not an exhaustive list.
Subsection 70NAE(5) provides that a person is taken to have had a reasonable excuse for contravening an order which concerns the time a child is to spend with a person if 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.)” In addition, the period during which the child and the person did not spend time together must not be “longer than was necessary to protect the health or safety” of the child.
There are multiple considerations, both subjective and objective, involved in applying subsection 70NAE(5) to the facts of these applications for contravention orders.
First, there is the issue of whether the respondent believed on reasonable grounds that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child. This issue has a subjective element (consideration of whether the respondent actually believed that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child) and an objective element (consideration of whether this belief of the respondent was reasonable).
Second, there is the consideration of whether the period during which the child and the person did not spend time together was “longer than was necessary to protect the health or safety” of the child pursuant to s 70NAE(5)(b).
I read the provisions as referring to the period during which the child and the person did not spend time together was no longer than was necessary to protect the health or safety of the child on the basis of the respondent’s belief, if that belief is found to be reasonable pursuant to s 70NAE(5)(a).
The first issue is whether the respondent genuinely believed that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child.
Warnick J in Childers & Leslie (2008) 39 Fam LR 379 stated that:
“there is no fundamental reason why the proof of facts relevant to a contravention on a particular occasion may not in part depend on inferences about those facts drawn from findings about ex post facto events” (at 387).
To that end, the genuineness of the mother’s belief that not allowing the child and the father to spend time together was necessary to protect the health and safety of the child can be tested by looking at the mother’s actions following the events that allegedly caused this belief, namely, the two disclosures by the child concerning the alleged violence of the father
The first disclosure allegedly occurred at the Adelaide Airport on 1 July 2012. The mother admits to having dismissed the comment at the time due to being “physically and mentally exhausted.” She does not make any complaint to any relevant child welfare or law enforcement authority following this event.
On 14 July 2012, the mother presented the child to the father for a weekend visit with the father.
The second disclosure allegedly occurred at the CCS on 28 July 2012, the next scheduled date for the child’s visit with the father. Once again, no complaint is made to any relevant child welfare or law enforcement authority following this event.
On 10 August 2012, the mother’s then lawyers sent a letter to the father’s then lawyers stating that the mother “is hopeful of [the father’s] agreement to her proposal for a variation of the September visits.” The “variation of the September visits” suggested by the mother’s then lawyers involved the father and child spending four consecutive days together in September 2012, months after these two disclosures. In cross-examination, the mother stated that she only continued to make these overtures about time for the father to spend with the child in September 2012 because her lawyer had informed her that that was “the course of action I should be taking.”
On 11 August 2012, the mother attended at the handover point with the child on the understanding that it was the child’s choice as to whether he would be spending the weekend with his alleged attacker. (The child was 4 years old at the time).
At no time after these two disclosures did the mother make any application to have the existing orders varied. In response to my questioning, the mother stated that such an urgent application to stop the father’s contact with the child had been drafted but that it “sort of, just got drawn out”. Furthermore, the mother also stated there were “difficulties with Legal Aid”. The mother stated that “with the difficulties that [she] had, it wasn’t able to be filed.”
This series of events following the child’s alleged disclosures do not paint a picture of a mother who genuinely believes that her child is in danger of physical abuse. I accept that the mother did not want the father to spend time with the child. However, I do not accept that the mother genuinely believed that her contravention of the existing orders was necessary to protect the health and safety of the child.
Having found that the respondent did not genuinely believe that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child, I do not need to consider whether her grounds for this belief were reasonable. Nor do I need to consider whether the period during which the child and the father did not spend time together was “longer than was necessary to protect the health or safety” of the child pursuant to s 70NAE(5)(b).
However if the mother did genuinely believe her behaviour was necessary to protect the child the evidence does not establish that her belief was reasonable. This is based on the circumstances surrounding the comments of the child, the age of the child and the mother’s offers.
Given that the list of potential reasonable excuses for contravention at section 70NAE is not exhaustive, I must also find that the mother did not have a reasonable excuse for her contraventions that is not within this list.
The evidence provided by the mother about her concerns relating to the child’s toilet habits and other behaviours did not establish that these behaviour problems were caused by the father spending time with the child.
Accordingly, I find that the mother has not established any reasonable excuse for the contravention.
Conclusion
In summary, I find the mother has failed to establish on the balance of probabilities a reasonable excuse for the admitted contraventions.
I invite the parties to make further submissions before me on Wednesday 22 May 2013 at 12 Noon as to the orders I should make in light of the findings I have made in this judgment.
For reasons I have noted earlier in this judgment I direct the parties’ attention to Subdivision F of the Act. Submissions will be required pursuant to subsection 70NFA(4) as to why Subdivision F should or should not apply.
I reserve the question of the costs of these applications to the adjourned date on Wednesday 22 May 2013 at 12 Noon before me.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 1 May 2013.
Associate:
Date: 1 May 2013
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