Virtanen & Ferreyra
[2023] FedCFamC1F 1078
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Virtanen & Ferreyra [2023] FedCFamC1F 1078
File number: BRC 1134 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – CONTRAVENTION – Where the parties entered into final parenting consent orders in August 2022 – Father seeking 10 counts of contravention against the mother – Where Count 1 concerns the mother failing to provide details regarding the children’s medical practitioner to the father without reasonable excuse – Where the mother withheld the children from the father on nine occasions but pled reasonable excuse – Whether the mother understood her obligations of the final parenting orders – 10 counts proven without reasonable excuse – Application listed for consideration of determination of penalty. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, Div 13A, ss 60B, 70NAC, 70NAE, 70NAF
Cases cited: Bunt & Charring (No.2) [2018] FCCA 1153
Childers & Leslie (2008) FLC 93-356; [2008] FamCAFC 5
Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Guant and Guant (1978) FLC 90-468; [1978] FamCA 97
Martin v Norton Rose Fulbright Australia (2021) 289 FCR 369; [2021] FCAFC 216
Division: Division 1 First Instance Number of paragraphs: 128 Date of last submissions: 30 November 2023 Date of hearing: 10 October 2023 Place: Sydney (via videolink) Counsel for the Applicant: Ms Davison Solicitor for the Applicant: BGM Family Lawyers Counsel for the Respondent: Mr Coe Solicitor for the Respondent: HCM Legal ORDERS
BRC 1134 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FERREYRA
Applicant
AND: MS VIRTANEN
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.Count 1 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 17.2 of the orders made on 9 August 2022 without reasonable excuse.
2.Count 2 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.
3.Count 8 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 6.1.1 of the orders made on 9 August 2022 without reasonable excuse.
4.Count 9 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 11.5.2 of the orders made on 9 August 2022 without reasonable excuse.
5.Count 10 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.
6.Count 11 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.1 of the orders made on 9 August 2022 without reasonable excuse.
7.Count 12 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 11.6 of the orders made on 9 August 2022 without reasonable excuse.
8.Count 15 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.
9.Count 16 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.
10.Count 17 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened order 5.2.1.1 of the orders made on 9 August 2022 without reasonable excuse.
11.The matter is listed for hearing at 9.30 am (AEST) on 19 February 2024 to consider the issue of penalty and for further case management.
12.By no later than 4.00 pm on 12 February 2024, the parties are to file and serve their respective case outlines in respect to the issue of penalty.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Virtanen & Ferreyra has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter concerns a contravention application filed by the applicant father on 12 May 2023. The father alleges a number of contraventions of the final parenting orders made on 9 August 2022. Those orders set out parenting arrangements concerning the parties two sons, X and Y (“the children”).
The father contends that the respondent mother has failed to provide him with relevant information concerning firstly, the identity of the medical practitioner who the mother consulted with the children in February 2023, and, secondly, that the mother has withheld the children from spending time with him in accordance with the relevant orders, and she has done so without having a reasonable excuse.
The mother disputes that she has withheld information concerning the identity of the medical practitioner, contending that, at all relevant times, the father was capable of obtaining the information through government records. The mother acknowledges failing to comply with the final parenting orders made on 9 August 2022, by failing to facilitate the children spending time with the father, in respect to the relevant dates identified in those contraventions pressed by the father. The mother contends, however, firstly, that she failed to understand the final orders and secondly that, in any event, she had a reasonable excuse for failing to comply with the obligations imposed by those orders.
BACKGROUND
The parties and the children
In circumstances where both parties rely upon a Child Impact Report prepared by Court Child Expert, Mr C on 1 August 2022, it is convenient to refer to that document in setting out the background to the current dispute.
Both parties are 30 years old. The mother was born in 1993 and the father was born in 1993. The mother generally works in the sales industry but for a limited period of time, engaged in an online business. The father works in the security industry which involves engaging in shiftwork.
The party’s eldest son X, was born in 2017 and is currently 6 years of age. The party’s youngest son Y, was born in 2019 and is currently 4 years of age. Y was born after the date of the parties’ separation in late January 2019.
The children live with the mother within the maternal grandmother’s home in Region B. The father lives in Brisbane with his partner, Ms D, approximately a 45 minute drive from where the mother lives.
Proceedings were commenced by the father on 5 February 2022 following, firstly, a dispute which involved the mother enrolling the children in daycare and school without consulting the father and, secondly, the mother failing to comply with an informal agreement reached between the parties regarding the spend time arrangements for the children.
History of the intact relationship
The parties commenced cohabitation sometime in 2015 and lived together until their final separation on 23 January 2019. Both parties acknowledge that it was the father’s decision to end their relationship.
Family dynamics post-separation
In the Child Impact Report dated 1 August 2022, the Court Child Expert observed the children interacting with both parents and the father’s new partner, Ms D. The Court Child Expert observed that “the children have a close connection to both parents and there exists a natural and spontaneous affection between them”.[1]
[1] Child Impact Report dated 1 August 2022, paragraph 9.
The Court Child Expert also observed an “uncomfortable tension” between the parties at changeover that occurred with “neither party exchanging pleasantries”.[2] Fortunately, the children did not, at that stage, appear to have been adversely impacted by the tension between their parents, with the children being observed to present as “happy and secure individuals” who comfortably explored their environment.[3]
[2] Child Impact Report dated 1 August 2022, paragraph 10.
[3] Child Impact Report dated 1 August 2022, paragraph 11.
Y was too young to be interviewed but the Report recorded X as being “comfortable” in his interactions with the Court Child Expert and that he “chatted easily”.[4] When asked about his favourite activity, X mentioned that he enjoyed playing a video game with his father and that he enjoyed going to an activity park with his mother.[5] X also advised the Court Child Expert of the school he attends, his teachers’ names and the names of his best friends.
[4] Child Impact Report dated 1 August 2022, paragraph 12.
[5] Child Impact Report dated 1 August 2022, paragraph 13.
X indicated that he had a close relationship with his maternal grandparents and that he felt safe in their company. When asked about his relationship with Ms D, X indicated that they played games in the car. That answer was provided in the context of the child explaining that they have to travel some distance between his mother’s house and his father’s house.
The Report recorded X as being aware of tension in his parent’s relationship.[6]
[6] Child Impact Report dated 1 August 2022, paragraph 34.
It is not in dispute that X has been diagnosed for Autism Spectrum Disorder (“ASD”) and is currently receiving assistance by way of occupational and speech therapy. While acknowledging that X has been diagnosed for ASD, the father said that he had some “doubts” about the diagnosis and thought that a review would be appropriate given that X was assessed at such a young age.[7] It has not been necessary to resolve the controversy between the parties as to the extent to which X’s behaviour is impacted by ASD in circumstances where the mother has not sought to rely upon X’s diagnosis as a reason for which she has withheld the children from the father on those dates that it is alleged she has contravened the orders.
[7] Transcript 10 October 2023, p.18 line 39 to p.19 line 3.
Both parties described the children as having a close relationship with their maternal and paternal grandparents.
Ongoing difficulties in the parties’ relationship
The parties agree that a temporary protection order was made in mid-2021, with the mother being named as the aggrieved party and the father being the respondent. The mother contends that she withdrew the application as a result of the father undertaking to be on good behaviour. The father contends that the mother withdrew the application as a consequence of being advised that it was unmeritorious.[8] The evidence is not such that I am in a position to resolve that controversy.
[8] Child Impact Report dated 1 August 2022, paragraph 27.
The mother contends that the father has a controlling and domineering personality and behaved in that manner during the course of the relationship. The father denies those allegations but advised the Court Child Expert that he acknowledged the mother may have perceived him as being controlling due to his logical and reasoned approach to their arguments. The father denied being abusive towards the mother and the Court Child Expert opined, on the basis of the information presented to him, that “family violence is not a significant current or future risk issue” in this matter.[9]
[9] Child Impact Report dated 1 August 2022, paragraph 30.
Both parties acknowledged using marijuana before the children were born, however, both deny any ongoing usage. It was noted that the father utilises prescribed medicinal cannabis as a pain relief measure consequent upon undergoing surgery. The mother contends, however, that the father may be using marijuana on an ongoing basis. It is not possible to resolve that issue in the context of these proceedings. In any event, I note the mother’s concern in that respect was not relied upon by the mother as a reason for withholding the children from the father.
Relevantly, the Court Child Expert noted the following:
33.In a developmental context, both children as mentioned, appear healthy, happy and secure individuals. There is a difference in opinion between the parties regarding [X’s] ASD diagnosis and whether [Y] may be exhibiting aspects of a neurobehavioral disorder. Certainly, within my observations, both children appeared socially engaging and curious, albeit [X’s] - and to a lesser extent [Y’s] – speech and pronunciation will require ongoing support. This aspect of both children’s continuing development should be monitored by both parents.
To their credit, the party’s legal advisers appeared to acknowledge that the parties ongoing parental dispute itself presents a risk to the children’s emotional and psychological welfare and their ability to enjoy their childhood. The Court implores the parties to reflect upon the manner in which they have both conducted themselves towards each other. Without a change in attitude, it is likely that the parties will continue to be engaged in protracted litigation which will be financially and emotionally draining for them and detrimental to the welfare of their children.
Examples of where the parties have failed to show appropriate courtesy and flexibility include:
·In February 2022, the parties were unable to agree upon a variation of the spend time arrangements to accommodate the children’s school and daycare arrangements (father’s affidavit filed 8 May 2023, paragraphs 5–7).
·A request made by the mother to the father in late October 2022 asking whether the father would be prepared to swap weekends for the June/July school holidays in 2023 (father’s affidavit filed 8 May 2023, paragraph 21). The mother sought an urgent response in order to take advantage of a sale for airline tickets. The father declined the request in circumstances where he indicated to the mother that her proposal clashed with plans that he had made.
Despite difficulties in communication, the parties were, however, able to reach agreement in respect to final parenting orders that were made on 9 August 2022. Relevantly, those orders included a notation that while the applicant mother was unrepresented, she confirmed to the Court that prior to the execution of the consent orders she was aware of her right to obtain independent legal advice in respect to the orders and their implication. The notation further recorded that the mother was provided with the details “for the duty lawyer service at the commencement of the dispute resolution conference” that resulted in the parties agreeing to the consent orders.
The final parenting orders – made by consent
In the context of the contravention application filed 12 May 2023, the final parenting orders relevantly provided that, subject to keeping each other party informed of significant decisions, the parties are to have equal shared parental responsibility (Order 2).
The children were to live with “the mother and the father at all times that may be agreed between the parents”, but failing agreement, the children were to spend time with the father on an incrementally increasing basis consistent with the children’s maturity (Order 5). In respect to the period that is relevant to this contravention application, Order 5.2 sets out that the children will live with the father as follows:
5.2.1Commencing immediately:
5.2.1.1From 12 August 2022, from after school (or 3.00pm if a non-school day) Friday until the commencement of school on Monday (or 3.00pm if a non-school day) and each alternate week thereafter;
5.2.1.2commencing on 10 August 2022, each Wednesday from after school (or 3.00pm if a non-school day) until 7.00pm, and each week thereafter;
5.2.2 From June 2023:
5.2.2.1commencing from the first weekend the children are to spend time with the Father in June 2023, from after school (or 3.00pm if a non-school day) Friday until the commencement of school on Tuesday (or 3.00pm if a non-school day) and each alternate week thereafter;
5.2.2.2each Wednesday from after school (or 3.00pm if a non-school day) until 7.00pm, and each week thereafter;
The orders further provided for the children to spend time with both parents during the school holiday periods as follows:
6.1In all mid-year school holiday periods (being March / April, June / July, and September / October school holiday periods):
6.1.1 for the first half of all school holiday periods, with the Father;
6.1.2 for the second half of all school holiday periods, with the Mother;
6.2 In the Christmas school holiday period:
6.2.1commencing from the first Sunday following the last day of school Term 4, until 3.00pm on the second Sunday and each alternate week thereafter, with the Father;
6.2.2from 3.00pm on the second Sunday until 3.00pm on the third Sunday and each alternate week thereafter, with the Mother;
Also, potentially of relevance to this application are dispute resolution provisions that were set out in Orders 7, 8 and 9 as follows:
7.In the event of any dispute as to the interpretation, implementation or enforcement of this Order, or any other parenting matter, the Mother and the Father will first attend family dispute resolution (“FDR”) with a qualified FDR practitioner appointed by the parties prior to the commencement of court proceedings. Failing agreement as to the appointment of an FDR practitioner, the party who is proposing FDR will nominate 3 FDR practitioners, and the other party will choose 1 of those practitioners within 14 days. In the event that the other party fails to choose, then the party proposing FDR will choose.
8.The Mother and the Father will attend the appointment, make a genuine attempt to resolve the dispute and attempt to reach an agreement in respect of their parenting matters.
9. The costs of FDR will be shared equally between the Mother and the Father.
The orders also provided for the parties to exchange information concerning the welfare of the children including, specifically, Order 17.2 which states that the mother and father will “keep the other party informed of the names and addresses of all treating medical or other allied health practitioners who treat the children from time to time”.
THE ALLEGED CONTRAVENTIONS
To their credit, at the commencement of the contravention hearing, counsel for both parties, sensibly, attempted to narrow the issues requiring adjudication. Specifically, the father confirmed that he only pursues Counts 1–2, 8–12 and 15–17 as contained in the Application – Contravention filed 12 May 2023. Without objection, the father amended Count 8 so that the reference to 8 April 2023 was replaced with 5 April 2023.
As amended, those contraventions are:
Count 1: [In] February 2023:
The [mother] informed the [father] that she had taken the children to see a doctor that day. The [father] requested information about the children’s diagnosis and details of where the children had been treated. The [mother] without reasonable excuse has failed to inform the [father] the name/s and address/es of all treating medical or other allied heath practitioners who treated the children [in] February 2023 in accordance with Order 17.2 of the final parenting order made on 9 August 2022.
Count 2: On 15 February 2023 at 3.00 pm at [E School]:
The [mother] without reasonable excuse refused to allow [the children], to spend time with the applicant from 3pm to 6pm per Order 5.2.1.2 of the final parenting orders made on 9 August 2022, (noting that whilst order 5.2.1.2 of the final parenting order made on 9 August 2022 provides for the children to spend time with the [father] from 3pm to 7pm, the parties agreed that changeover would occur at 6pm on Wednesday evenings).
Count 8: On 31 March 2023 at 3.00 pm at [E School]:
The [mother] without reasonable excuse refused to allow [the children] to spend time with the [father] from 3pm on 31 March 2023 to 3pm on
85 April 2023 in accordance with order 6.1.1 of the final parenting order made on 9 August 2022.Count 9: On 6 April 2023 at 5.00 pm:
The [mother] without reasonable excuse refused to allow [the children] to spend time with the [father] from 5pm on the Thursday before Good Friday until 5pm on Easter Saturday in accordance with order 11.5.2 of the final parenting order made on 9 August 2022.
Count 10: On 19 April 2023 at 3.00 pm at [E School]:
The [mother] without reasonable excuse refused to allow [the children], to spend time with the [father] on 19 April 2023 from 3pm to 6pm per order 5.2.1.2 of the final parenting orders made on 9 August 2022 (noting that whilst order 5.2.1.2 of the final parenting order made on 9 August 2022 provides for the children to spend time with the Applicant from 3pm to 7pm, the parties agreed that changeover would occur at 6pm on Wednesday evenings).
Count 11: On 21 April 2023 at 3.00 pm at [E School]:
The [mother] without reasonable excuse refused to allow [the children], to spend time with the [father] from 3pm on 21 April 2023 to commencement of school on 24 April 2023 (except for 1pm to 6pm on 23 April 2023) in accordance with order 5.2.1.1 of the final parenting order made on 9 August 2022.
Count 12: On 23 April 2023 at 12.00am:
The [mother] without reasonable excuse refused to allow [the children] to spend time with the [father] […] all day, other than 1pm to 6pm, in accordance with […] the final parenting order made on 9 August 2022.
Count 15: On 26 April 2023 at 3.00 pm at [E School]:
The [mother] without reasonable excuse refused to allow [the children] to spend time with the [father] on from 3pm to 6pm per order 5.2.1.2 of the final parenting order made on 9 August 2022, (noting that whilst order 5.2.1.2 of the final parenting order made on 9 August 2022 provides for the children to spend time with the [father] from 3pm to 7pm, the parties agreed that changeover would occur at 6pm on Wednesday evenings).
Count 16: On 3 May 2023 at 3.00 pm at [E School]:
The [mother] without reasonable excuse refused to allow [the children] to spend time with the [father] on from 3pm to 6pm per order 5.2.1.2 of the final parenting order made on 9 August 2022, (noting that whilst order 5.2.1.2 of the final parenting order made on 9 August 2022 provides for the children to spend time with the [father] from 3pm to 7pm, the parties agreed that changeover would occur at 6pm on Wednesday evenings).
Count 17: On 5 May 2023 at 3.00 pm at [E School]:
The [mother] without reasonable excuse refused to allow [the children] to spend time with the [father] from 3pm on 5 May 2023 to the commencement of school on 8 May 2023 in accordance with order 5.2.1.1 of the final parenting order made on 9 August 2022.
(As per the original)
The respondent admitted to each contravention, other than Count 1.
In relation to Count 1, the mother contended that:
a. She did not fully understand her obligations under the Orders; and
b.It should be dismissed on the basis she reasonably believed she had complied with the Orders.[10]
[10] Mother’s amended written submissions filed 30 November 2023, paragraph 9.
In relation to Count 2, the mother acknowledges that she withheld the children but submits:
a. The children had been sick that day; and
b. In the case of [X], the [mother] had medical advice that he should rest.[11]
[11] Mother’s amended written submissions filed 30 November 2023, paragraph 10.
DOCUMENTS RELIED UPON
The father relied upon the following documents:
(1)Amended Case Outline filed 6 September 2023;
(2)Application – Contravention filed 12 May 2023;
(3)Affidavit of the father filed 12 May 2023;
(4)Affidavit of the father filed 18 August 2023;
(5)Tender bundle dated 10 October 2023 (marked as Exhibit “A” in the proceedings); and
(6)Supplementary tender bundle received 10 October 2023 (marked as Exhibit “B” in the proceedings;
(7)Written submissions filed 17 October 2023;
(8)Written submissions in reply filed 31 October 2023; and
(9)Amended written submissions filed 30 November 2023.
The mother relied upon the following documents:
(1)Case Outline filed 23 August 2023;
(2)Child Impact Report of Court Child Expert, Mr C dated 1 August 2022;
(3)Affidavit of the mother in support filed 13 June 2023;
(4)Affidavit of the mother in reply filed 13 June 2023;
(5)Affidavit of the mother in reply filed 21 August 2023;
(6)Tender bundle received 10 October 2023 (marked as Exhibit “E” in the proceedings);
(7)Written submissions filed 24 October 2023; and
(8)Amended written submissions filed 30 November 2023.
RELEVANT LEGAL PRINCIPLES
The court’s powers in relation to non-compliance with parenting orders are set out in Pt VII, Div 13A of the Family Law Act 1975 (Cth) (“the Act”). The provisions operate where a parenting order is not complied with in circumstances where a party subject to the order has intentionally failed to comply with the order or has made no reasonable attempt to do so (s 70NAC of the Act).
Parties against whom a claim of contravention is made may, as in this case, argue that they had a reasonable excuse to contravene the parenting orders (s 70NAE of the Act). A reasonable excuse may be established where the party alleged to have committed the contravention shows that they did not understand the obligations established by the orders (s 70NAE(2)(a) of the Act) or they believed on reasonable grounds that the contravention was necessary to protect the health and safety of a person, including the child who is the subject of the order and the conduct was “not longer than was necessary to protect the health or safety of the person” (s 70NAE(4)–(7) of the Act). The civil standard of proof, the balance of probabilities, applies to these determinations (s 70NAF of the Act).
The reasonable excuse defence, based on health and safety concerns, was the subject of detailed consideration by Warnick J in Childers & Leslie (2008) FLC 93-356 at [28]–[32] (“Childers & Leslie”). Helpfully, that decision identified the following principles that are relevant to the consideration of this matter which I have endeavoured to summarise in the context of subsequent decisions that have applied those principles:
·While the parent must have a genuine belief that contravention was necessary to protect a child’s health or safety – such a belief is, in itself, insufficient.
·There may be circumstances other than those set out in s 70NAE of the Act that constitute a reasonable excuse: Childers & Leslie at [22].
·The contravening party carries the onus of also establishing that they held that belief “on reasonable grounds” (s 70NAE(4) of the Act).
·The test of reasonableness is an objective test, that may include “subjective” elements: Childers & Leslie at [23]. Per Bunt & Charring (No.2) [2018] FCCA 1153 at [26], quoting Guant and Guant (1978) FLC 90-468 at 77,398, “a parent’s “subjective” view of what was/is in the child’s best interest does not, of itself, constitute a sufficient base or foundation to establish a “reasonable excuse”.
·The test of reasonableness in s 70NAE of the Act is to be considered and applied in the context of the Act as a whole and, specifically, the legislative purpose of Pt VII, which is to ensure that, consistent with the objects set out in s 60B of the Act, the child or children have a right to spend time with each parent in accordance with the applicable orders.
·Parenting orders place “serious obligations” on the resident parent to ensure that the child spends time with the non-resident parent in accordance with the orders: Childers & Leslie at [29].
·A parent who is entitled to spend time with the child “ought be able to do so in various conditions and circumstances, including care for a child when the child is unwell” unless an exception is applied: Childers & Leslie at [33]. That is, unless the extent of the illness is such that the child spending time with that parent was necessary to protect the health or safety of the child and providing that the withholding the child was for a period of no longer than was necessary to protect their health or safety.
·The defence is time focussed. That is, it applies “not longer than was necessary to protect the health or safety” of the child (s 70NAE(5)(b) of the Act).
In summary, it is a serious matter for a party to fail to comply with their obligations under a parenting order. The defences do not apply simply because a parent disapproves of the orders that were originally made or where a parent unilaterally considers they have become inappropriate for reasons other than one that falls within the terms of the accepted defences. If a party takes issue with the efficacy of orders that set out parenting arrangements, the appropriate course is to apply for a variation of those orders pursuant to s 64B(1)(b) of the Act.
CREDIT
Both parties contended that the evidence of the other should be given diminished weight as a result of concerns regarding the substance of the evidence and the manner in which it was given. In each case, there is merit to the parties’ respective submissions. That is not to say, of course, that an adverse credit finding in respect to one aspect of a witness’s evidence justifies the rejection of the totality of the evidence provided by that witness: Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128 at [188]. My consideration of each of the specified contraventions will include the finding I have made in respect to the credibility concerns of particular aspects of the parties’ evidence.
THE ALLEGED CONTRAVENTIONS
Count 1: did the mother, without reasonable excuse, fail to inform the father of the names and addresses of all treating medical or other allied health practitioners who treated the children in February 2023 in accordance with Order 17.2 of the final parenting orders made on 9 August 2022?
It did not appear to be in dispute that, after collecting the children from spending time with the father in February 2023, on the way home, the mother took X to a doctor as he was feeling unwell. It was not in dispute that the mother was entitled to do so pursuant to Order 4.1 of the orders which provided that “the [m]other will be responsible for making decisions for the daily care, welfare and development of the children when the children are spending time with her”.
It was also not in dispute that the father requested the names and addresses of the doctors who treated the children in February 2023 via an electronic message sent to the mother. Additional requests were made via correspondence from his solicitors and by way of further text message sent on 30 March 2023 (father’s affidavit filed 8 May 2023, paragraphs 34 and 50).
On 7 August 2023, the mother provided some of the children’s medical information but did not provide the applicant with the name and address of the medical practitioner(s) who treated the children in February 2023 (father’s affidavit filed 18 August 2023, paragraph 34).
The mother further deposed that the children had been treated at “[F Medical Centre] in [Suburb G]” but that she did not remember the specific doctor’s name. The mother also provided a summary of her recollection of the advice provided by the doctor (mother’s affidavit in reply filed 21 August 2023, paragraph 12).
The father subsequently obtained the records from that practice in August 2023 which confirmed that the children attended Dr H. The records provided by the medical practice confirmed that the doctor provided the mother with a medical certificate in respect to the appointment (father’s amended written submissions filed 30 November 2023, paragraph 37).
In her affidavit in reply filed 13 June 2023, the mother contended, at paragraph 34, that the information concerning the name and address of the doctor who treated the children in February 2023 “was provided to [the father’s] solicitor via email” and, further at paragraph 35:
The Applicant Father has always had access to information of all the children’s treating professionals via My Health records through MyGov in the public health records. These records are readily available to both me and the Applicant Father.
Additionally, in her amended written submissions filed 30 November 2023, the mother contends that she did not fully understand the orders of 9 August 2022 (paragraphs 21–27). This occurred, in circumstances, where the mother stated that although she was advised of her right to obtain legal advice prior to entering into the consent orders, she was unable to obtain that advice because of difficulty in contacting a duty lawyer.[12]
[12] Transcript 10 October 2023, pg.49 lines 33–44.
It is contended, on behalf of the mother, that, in those circumstances “it is plausible” that the mother was not aware that the responsibility of providing day-to-day care for the children when they were spending time with her, as specified in Order 4.1, did not displace her obligation to advise the father of the names and addresses of the children’s treating medical practitioners (mother’s amended written submissions filed 30 November 2023, paragraph 24).
The difficulty for the mother in respect to that aspect of her defence is, however, that she carries the onus of establishing a lack of understanding. The contention that it is “plausible” that she lacked such an understanding does not discharge that onus. In particular, there is no explanation as to why, even as a layperson, the mother failed to understand the clear wording of Order 17.2.
My conclusion that it is probable that the mother did understand the wording of clause 17.2 is made in the context where the mother’s affidavit referred in [46] of these reasons for judgment, did not raise the issue of absence of understanding of the order, but rather, contended that the order had been complied with albeit, by indirect means, in the form of advising the father of an ability to obtain information from a government website.
The second aspect of the mother’s defence is that, in any event, the mother substantially complied with Order 17.2 because she provided information to the applicant’s solicitor regarding the medical practice that the children attended to and that she directed the father to a government website which she contended would provide the relevant information. (mother’s amended written submissions filed 30 November 2023, paragraphs 28–36).
When cross-examined as to why she did not simply make a photocopy or take a photo of the medical certificate provided to her in February 2023, the mother stated that she was tired and that her phone battery was dying.[13] I do not accept that evidence of the mother in circumstances where she agreed that subsequent to sending a text message to the father on the evening of that date indicating that she was fatigued and running out of battery on her telephone, she made a telephone call to the Queensland Department of Child Safety, Seniors and Disability Services (“the Department”).[14]
[13] Transcript 10 October 2023, p.61 lines 7–26.
[14] Transcript 10 October 2023, p.84 line 39 to p.85 line 12.
In circumstances where the mother acknowledged having, in her possession, on that date in February 2023, a medical certificate from the doctor who had treated X on that day, it would have been a simple task to take a photograph of the certificate and include it in a message.
The obligation set out in the clear wording of Order 17.2 which requires both parties to extend the courtesy to the other of informing them of the names and address of the children’s treating medical professionals cannot be satisfied by delegating that responsibility to a third party, including a government agency such as MyGov.
I therefore find that Count 1 has been established.
Count 2: did the mother contravene the orders by failing to facilitate the children spending time with the father [in] February 2023 in respect to the period from after school/daycare until 6.00 pm?
In her affidavit in reply filed on 13 June 2023, the mother contended at paragraph 36:
… The Applicant Father intentionally caused the children extreme bowel issues and they were suffering, by feeding the children food which the Applicant Father was fully aware would harm the children. Thus, the children were physically not able to leave the house or even attend school. Thus, the children were not physically able to attend the visitation for that single particular day.
That contention is not supported by the evidence. In cross-examination when asked why the mother only took X and not Y to a general practitioner on that date, the mother replied “[Y] had gotten a lot better, so he just had – he just had, basically, the sniffles”.[15] As earlier noted by reference to relevant case law, parents are required to facilitate their children spending time with the non-resident parent, in compliance with orders of the Court, even in circumstances where the children are slightly unwell. That is, unless the parent believed, on reasonable grounds that withholding the child was “necessary to protect the health or safety” of the child. It cannot, in my view, reasonably be contended that withholding Y from spending time with his father for a limited period in February 2023, in circumstances where he had the “sniffles,” was necessary to protect his health or safety.
[15] Transcript 10 October 2023, p.65 lines 10–15.
Accordingly, the contravention is established in respect to the mother withholding Y from spending time with the father in February 2023.
As noted, the reason why the mother contended that she withheld the children, including, relevantly, X, from spending time with the father in February 2023 was that he had “extreme bowel issues” (mother’s affidavit in reply filed 13 June 2023, paragraph 36).
The fact that the mother subsequently acknowledged that that representation was not accurate in respect to Y, calls into question the genuineness of the mother’s belief that X was suffering from “extreme bowel issues” on that afternoon. Even assuming, however, that the mother genuinely had that belief, the task becomes assessing whether that belief was held “on reasonable grounds”.
The objective evidence does not establish that such a reasonable ground existed for the mother to hold that belief. Specifically, the clinical notes in respect to X’s attendance upon his general practitioner on that day record that the only symptom from which he was suffering was a cough and that he had had “a slight vomit” that day. It was noted he had normal stools and no fever (Exhibit “A” at page 90). The notes do not indicate that he was suffering from “extreme bowel issues”.
Accordingly, I find that Count 2 is also established in respect to X.
Counts 8, 9, 10, 11, 12, 15, 16 and 17: was the mother justified in withholding the children from spending time with the father as a result of her lack of understanding of the orders or otherwise had a reasonable excuse?
The date and times in respect to each of the alleged contraventions, in this category, are as follows:
(a)31 March 2023 to 5 April 2023 (Count 8);
(b)5.00 pm on Thursday before Good Friday to 5.00 pm on Easter Saturday (Count 9);
(c)3.00 pm to 6.00 pm on 19 April 2023 (Count 10);
(d)3.00 pm on 21 April to the commencement of school on 24 April 2023 (Count 11);
(e)1.00 pm to 6.00 pm on 23 April 2023 (Count 12);
(f)3.00 pm to 6.00 pm on 26 April 2023 (Count 15);
(g)3.00 pm to 6.00 pm on 3 May 2023 (Count 16); and
(h)3.00 pm on 5 May to the commencement of school on 8 May 2023 (Count 17).
The mother’s argument that she failed to understand the obligations pursuant to the orders because she was without legal representation at the time the consent orders were entered into is, with respect, difficult to accept in circumstances where the consent orders were broadly consistent with the mother’s own proposed parenting orders (father’s amended written submissions filed 30 November 2023, paragraphs 27–28).
Additionally, the mother’s stated lack of understanding is inconsistent with her pattern of conduct where she complied with the orders from the time they were entered into in August 2022 until February 2023. That is, no explanation has been offered as to how she understood her obligations in respect to that period, but subsequently had doubt or uncertainty as to their force and effect during the alleged contravention periods.
For these reasons, I do not accept the mother’s assertion that she failed to understand the obligations pursuant to the relevant spend time orders.
The question then becomes whether the mother believed, on reasonable grounds, that it was necessary to withhold the children from the father on those particular dates in order to protect the health or safety of the children. In that respect, it is to be emphasised that the defence set out in s 70NAE(5) of the Act is time specific. That is, it provides that the period during which the children are withheld from the non-resident parent, in order to protect the child’s health or safety, must be for a period that “was not longer than was necessary” to provide the protection (emphasis added).
More generally, in considering the reasons advanced by the mother, in respect to Counts 8, 9, 10, 11, 12, 15, 16 and 17I have focused upon those reasons provided in her amended written submissions filed 30 November 2023 from paragraphs 53–112 and in doing so I will adopt her sub-headings.
Neglecting medical needs
The mother contends that the father has “failed to follow medical treatment for the children”. Most relevantly, in the context of these proceedings, the mother contends that, on numerous occasions, the husband has failed to administer medication prescribed in respect to the children (mother’s affidavit in support filed 13 June 2023, paragraphs 33–34). Specifically, the mother stated that that father failed to administer an ointment to a rash on Y. Clinical notes produced in the father’s tender bundle relate to an appointment that took place in February 2023 during which the doctor noted a mild rash and prescribed an ointment with the notation for the parents to “observe” the rash and to provide “symptomatic treatment” (Exhibit “A” at page 96).
In responding to questions relating to this issue, during cross-examination, the father exhibited a degree of arrogance in expressing his opinion that the medication so prescribed was inappropriate for such a young child and, moreover, on his observations, the rash was clearing without the need for its application.[16] Despite what was, with respect, unjustified confidence in his own medical diagnostic capabilities, in the context where the medical evidence indicated that the medication was to be administered based on observations of the rash and to address the child’s symptoms, the father’s observation of the child’s symptoms and decision not to apply the rash cannot, in my view, reasonably be extrapolated to impute that the father neglects the children’s medical needs.
[16] Transcript 10 October 2023, p.18 at lines 1–12.
Moreover, as I have earlier explained, the reasonable excuse defence based on health and safety needs, is time-limited. That is, it applies to the specific period of time that the children were to spend time with the father. There is no indication, in respect to the period during which the contraventions are alleged in March 2023 to May 2023, that the children suffered from any medical condition that required the administration of either topical cream or other medication, including an antibiotic. Accordingly, the mother has failed to discharge the onus that rests upon her that, in respect to each such occasion, when she contravened the orders by withholding the children, she believed on reasonable grounds that the father would fail to administer medication to the children. This is in circumstances where there is no evidence that any such medication had been prescribed for the children during the relevant period of the alleged contraventions.
Accordingly, this aspect of the mother’s defence is rejected.
It was not disputed that X was diagnosed with ASD at two years of age. I accept and agree with the submission of counsel for the mother that the father prevaricated in responding to questions asked of him as to whether he acknowledged that the child suffers from that condition (mother’s amended written submissions filed 30 November 2023, paragraphs 58–60). Clearly, it is in the child’s best interests if the parents are both on the same page in respect to this issue. It is important that they can agree because the issue is potentially one of great significance to the child’s future development, including whether it is necessary to engage services to address special educational or social challenges that may confront the child.
In that sense, the failure of the father to acknowledge the ASD diagnosis could potentially prejudice the child’s ongoing future development, including properly attending to his educational needs and general socialisation. However, it cannot, in my view, reasonably be contended that the father’s ambivalence in respect to whether the child suffers ASD created a situation where it was necessary to withhold the child from the father in respect to the relevant periods in order to protect the child’s health or safety.
Moreover, I note that this contention relates to X and not both children.
In submissions, the mother referred to her entitlement to withhold the children following the father’s insistence on the children spending time with him in February 2023 on the basis of the father neglecting the child’s medical care. That is, the mother contends that he failed to accept the medical advice provided by the children’s doctor that X, “rest and get plenty of fluids” (mother’s amended written submissions filed 30 November 2023, paragraph 63). As I have earlier addressed, there is no indication that the father was in a position to accommodate the child’s needs if the child came into his care on that occasion. Accordingly, I am not satisfied that the mother had a reasonable excuse for withholding X from spending time with the father on that day.
Accordingly, the mother has not discharged the burden of proof of establishing that there were reasonable grounds for withholding the children from the father during the relevant periods on the basis of the father neglecting the children’s medical needs.
Neglecting dietary needs
At paragraph 43 of her affidavit in support filed 13 June 2023, the mother contends:
The Applicant Father neglected the children dietary needs, and feed the children food to which they have allergies to. Both children experienced intense [physical symptoms and] extreme emotional dysregulation due to the trauma from the symptoms. This resulted in the children having to miss more than a month of school in total thus far in 2023. The children are still too young to be in overnight care with the Applicant Father, especially [Y] who is only three (3) years of age.
I initially observe that the mother’s opinion is that the orders that she consented to are inappropriate. Insofar as they provide for the children to spend overnight time with the father, the appropriate course of action would have been for her to have sought a variation of those orders and not to have unilaterally sought to vary the orders by withholding the children from the father.
The mother’s evidence in respect to the precise nature of medical advice she has received in respect to the children’s dietary needs, including potential allergies, was unsatisfactorily opaque.[17] I accept, however, that it may well be the case that the mother has been advised by medical practitioners that, insofar as she contends that the children have stomach and bowel issues after eating food with high fat content, that it is sensible for the children to avoid such foods.
[17] Transcript 10 October 2023, p.70 lines 25–36.
This issue primarily arose in circumstances where, on those mid-week evenings where the children spend just a few hours with the father, he found it convenient to take them to a McDonald’s restaurant. I accept there was also unsatisfactory inconsistency in respect to the mother’s contention and her acknowledgement that she has herself taken the children to restaurant or cafés that sell food in the nature of that sold by McDonald’s. Indeed, the mother acknowledged that at least on one occasion she has herself taking the children to McDonald’s, albeit she stated that she did not feed the children food that she considered to have a high fat content.[18]
[18] Transcript 10 October 2023, p.80 lines 20–37.
While appreciating the mother’s concerns, the appropriate course was to advise the father of those concerns with a view to seeking his assurance that he would not feed the children food of that nature. I am satisfied that occurred and the father did provide that commitment to the mother.
Therefore, it was not for the mother to withhold the children from the father in respect to the relevant periods on the basis of concerns that the father would feed the children food to which they were allergic or which would otherwise prejudice their health and/or safety.
Accordingly, this aspect of the mother’s defence is also rejected.
Father’s alleged preoccupation with nudity
I respectfully accept and agree with the submission of counsel for the mother that there were aspects of the father’s evidence concerning the extent to which the children are naked within his house that was unsatisfactory. In particular, there was a degree of prevarication on the part of the father in responding to questions as to how frequently it occurs and in what circumstances. On one version, of the father’s evidence, it could be inferred that he permitted the children to be naked in circumstances where they had medical issues. However, his evidence was less than clear as to whether he permitted and or encouraged nudity on a more frequent basis.[19]
[19] Transcript 10 October 2023, p.19 line 32 to p.20 line 3.
Accordingly, I accept that the mother has a genuine concern as to the circumstances in which the father permits the children to be naked in his home and the frequency with which that occurs.
In terms of the relevance of those concerns to these contravention proceedings, the mother contends that:
Given that the [mother’s] belief that the children had been spending time naked at the [father’s] home was admitted by the [father], and this has potentially contributed to issues relating to the children’s health and safety, it is reasonable the [mother] would act protectively to withhold the children, while seeking to resolve her concerns through mediation.[20]
[20] Amended written submissions of the mother filed 30 November 2023, paragraph 80.
In her written submissions, the mother speculates that the children would have been in their naked state in the father’s backyard. She further speculates that, if that occurred, they may well have been visible to other third parties. Similarly, the mother speculates that third parties may have seen the children in a naked state if the children came to the door when a guest or invitee arrived at the premises (mother’s amended written submissions filed 30 November 2023, paragraph 78). I respectfully agree with the submissions of counsel for the father that the mother’s submission is based on unsubstantiated speculation which is “always insufficient” to discharge the evidentiary burden set out in s 140(2) of the Evidence Act 1995 (Cth): Martin v Norton Rose Fulbright Australia (2021) 289 FCR 369 at [60].
Accordingly, the mother has failed to establish that there were reasonable grounds for her belief that the father permitted the children to be naked in circumstances where they would be seen by third parties.
Further, no persuasive evidence was presented to support the mother’s general assertions that the children had sustained injuries to vulnerable parts of their bodies as a result of being permitted to be naked in the father’s household. Specifically, no direct evidence of any such instance was provided, save to the extent that the mother contends that one such incident “crystallised” with Y requiring treatment in February 2023 (mother’s amended written submissions filed 30 November 2023, paragraph 79). That treatment is referring to the instance, as noted above, where Y was prescribed topical medication.[21] The medical records referred to by the mother do not support her allegations that the children sustained injury as a result of being naked when in the care of the father. Accordingly, the mother has failed to establish reasonable grounds for concluding that the children were at risk of injury to vulnerable parts of their body as a result of being allowed to be naked when in the care of the father.
[21] Amended written submissions of the mother filed 30 November 2023, paragraph 77, citing Exhibit “E” at page 4.
I accept, however, that the mother, justifiably, in my view, has a legitimate concern as to the circumstances in which the children are allowed to be naked in the father’s home. I further accept that the mother was entitled to act protectively in seeking clarification from the father as to the circumstances in which that occurred and to take further steps if dissatisfied with that response. However, that is not the basis of the reasonable excuse defence. As earlier explained, the defence is limited to circumstances where the contravention, which is in this case, the withholding of the children from spending time with the father, was “necessary to protect their health or safety” of the children on the particular occasion in question.
For reasons which I have explained, the mother has failed to present evidence that satisfies me that the children were at risk of sustaining injury as a result of being naked in the father’s household or that they were placed in an unsafe situation as result of the potential for third parties to see them naked.
Accordingly, this aspect of the mother’s defence is also without merit.
Children’s images, videos and personal information
The primary concern of the mother in respect to this aspect of her defence appears to be the conduct of the father in publishing, by way of social media, a video of the children being bathed. That video was marked as Exhibit “D” in the proceedings.
In that respect, the mother notes that the father stated that the video was posted on his own social media accounts, but denied that they were ever published to the general public. The mother contends, however, that “it would have been easy for him to change his social media privacy setting at any time”, and that the father’s denial that the video had been published more broadly, was “open to doubt” (mother’s amended written submissions filed 30 November 2023, paragraph 82).
I respectfully agree that it is reasonable for the mother to have concerns regarding the father publishing such videos of the children in the bath on social media even in circumstances where the father stated that he was at pains to ensure that the videos were taken from behind rather than displaying the genitalia of the children.
As I have indicated, however, the reasonable excuse defence is time focused. That is, that the withholding of the children is only excusable for so long as it is necessary to protect their health or safety. In that respect, the mother acknowledged in cross-examination, that she had first seen the posting of the video two years prior to the hearing of the contravention application.[22] The mother acknowledged that she posted a comment on the video at the time, that read “was this from when you had them last? He’s so funny. Do you have a bubble machine?” The mother’s response also included a crying-laughing emoji.[23]
[22] Transcript 10 October 2023, p.88 line 7.
[23] Transcript 10 October 2023, p.88 lines 9–17.
The fact that the mother sent a light hearted response at the time she viewed the video of the child in the bath does not, of course, and on further reflection, preclude her from sensibly raising concerns regarding the posting of videos of that nature on social media. There is, however, no suggestion, that the father posted a similar image in the intervening two-year period. In those circumstances, the appropriate course for the mother to have pursued in order to address her legitimate concerns was to seek an assurance that no such similar video or images would be posted by the father on social media in the future rather than, some two years after that video was posted, determining that the children should be withheld from spending time with him in order to protect their safety.
Accordingly, the mother has failed to discharge the persuasive burden of satisfying the court that there were reasonable grounds for withholding the children from the father in respect to the periods that are the subject of the contravention on the basis of his unwise decision to post the video of the child in the bath on social media and I find this aspect of the mother’s defence is also without merit.
The submissions of the mother, to the effect that she has concerns that the children have been sexually abused by the father’s relative in 2022, were appropriately guarded, reading:
The [mother’s] most serious allegation related to her concerns about possible sexual child abuse and alleged reports from the children. Only the [mother] was cross‑examined on those matters. She noted (reasonably) that she was concerned about what had been reported by the children. The matter cannot be taken further than that.[24]
(Footnote omitted)
[24] Mother’s amended written submissions filed 30 November 2023, paragraph 86.
Self-evidently, that submission does not assert that the children have, in actual fact, been sexually abused in the father’s care, and the mother is not seeking a positive finding to that effect.
The question is whether the mother acted reasonably in withholding the children in the relevant period during the period between February 2023 and May 2023 (the alleged contravention period) on the basis of an asserted suspicion that they might have been sexually abused in the father’s care.
In considering that issue I note, firstly that the mother took no action in respect to the father’s suggestions that the children attend counselling in respect to the concerning behaviour that the mother observed after they returned from the visit to the father on that day.[25] Further the mother did not make a contemporaneous report to either the police or the Department, with the evidence of a first report being in February 2023 – many months after that day in 2022.
[25] Father’s affidavit filed 18 August 2023, paragraph 91, citing annexure “MF-9” containing text message correspondence between the parties about the event of 4 September 2022.
Accordingly, on the basis of evidence that has been presented in these proceedings, there is no reasonable ground for the mother to believe that the children have been sexually abused in the care of the father. Moreover, in circumstances where the mother’s concern related to potential inappropriate conduct on the part of a third person, the appropriate course was for her to seek an assurance that the children would not be brought into contact with that person until the issue was clarified. It was not appropriate to unilaterally withhold the children from the father for an indefinite period.
For these reasons, the mother has failed to satisfy me that there were reasonable grounds for withholding the children on the basis of either of the children having potentially been sexually abused in the care of the father.
Exposure of the children to weapons
I respectfully agree with the submission of counsel for the mother that the father’s evidence in respect to whether he has shown the children weapons, including a hunting knife, was unsatisfactory.
When asked in cross examination whether he had shown the children knives, he replied to the effect that kitchen knives could be considered to be a weapon but did not directly respond to the question.[26] In response to the father’s answers that he had hunting equipment, I inquired of the father as to whether he had a hunting knife. He confirmed that he did, but denied showing that knife to the children.[27]
[26] Transcript 10 October 2023, p.28 lines 11–19 and p.29 lines 1–7.
[27] Transcript 10 October 2023, p.39 line 36 to p.40 line 11.
The manner in which the father gave evidence on that matter and his prevarication in giving a direct answer detracts from the credibility of his evidence and tends to support the veracity of the mother’s evidence that the children have advised her that the father has shown them weapons.
For the purpose of this decision, I accept that the mother genuinely believed that it was not in the children’s best interests for the father to show weapons to the children. In light of the manner in which he gave his evidence and the content of that evidence, I am satisfied that it is likely the father has shown the children at least his hunting knife. Appropriately, there was no suggestion by the mother that the father would physically harm the children with any such weapon and the evidence falls far short of establishing a reasonable basis for the mother to conclude that the children were at risk of emotional distress or that their mental health would be affected by the father’s conduct in showing them his hunting knife.
Moreover, the appropriate course for the mother to follow in circumstances where she had an understandable concern about the children being shown such an item was to seek an assurance from the father that children would not, in the future, be shown items of that nature rather than to, again, unilaterally withhold the children from spending time with the father.
Accordingly, the mother has failed to satisfy me that there were reasonable grounds for her contravening the orders on the basis that the father has expose the children to weapons.
Alleged neglect and loss of capacity
The mother contends that between December 2022 and January 2023 that:
a. The youngest child [Y] forgot how to read, use basic utensils and reversed his potty training, and developed major issues with emotional regulation and eating; and
b.The oldest child [X] forgot how to read and spell his name, use basic utensils and go to the toilet, and the [father’s] neglect has caused major issues with [X’s] emotional regulation.[28]
(Footnotes omitted)
[28] Mother’s amended written submissions filed 30 November 2023, paragraph 96.
The mother contends that this regression is due to what she believes to be “the [father’s] emotional abuse through rejecting, bullying, yelling, criticising, isolating, and exposing the children to domestic violence” (mother’s amended written submissions filed 30 November 2023, paragraph 97).
The mother acknowledged the father’s rejection of those allegations, which are based on “stories from the children, in combination with [the mother’s] other concerns” (mother’s amended written submissions filed 30 November 2023, paragraph 99).
The reference to “other concerns” is further particularised by the mother where she refers to becoming aware of the father “allegedly physically assaulting and abusing [Y]” by dragging and throwing him, and locking Y in a room without food (mother’s amended written submissions filed 30 November 2023, paragraph 100).
There is no specific evidence concerning this matter, however, in cross examination, the factual scenario presented to the father was that the mother “became aware” of the alleged assault in February 2023.[29]
[29] Transcript 10 October 2023, p.19 lines 9–13.
It is to be noted that the first time that the mother withheld the children from spending time with the father was in February 2023.The reasons why she withheld the children from spending time with the father on that day were provided as being the mother’s concerns regarding the children’s health. No mention was made, in respect to that occasion that the mother had concerns about Y having sustained a physical injury in the care of his father.
The fact that the mother waited until March 2023 to withhold the children from next spending time with the father, for reasons which included her concern that Y had been physically assaulted, casts doubt her assertion that she genuinely held that belief. Moreover, even accepting that for the purpose of this decision she genuinely held that belief, no explanation has been provided as to why she waited until March 2023 to withhold the children from the father for reasons which concerned an alleged perpetration of a physical assault on Y.
Accordingly, the mother has failed to satisfy me that the reasons that she withheld the children from spending time with the father were due to her concerns that the father has physically assaulted either of the children or that she believed, on reasonable grounds, that it was necessary to do so to protect the children’s health or safety.
Exposure to violent video games
The mother’s brief submissions in respect to this issue relate to her concern that “the [father] has exposed the children to violent video games, which she believes has led [X] threatening to “kill [Y] with a knife” because in video games the [father] kills guys who annoy him with a big knife and guns”. The mother also expresses concern that father plays violent “First Person Shooter” games that the children may have observed him playing (mother’s amended written submissions filed 30 November 2023, paragraphs 103–105).
The father denied playing violent video games with the children, and to his credit, acknowledged that it is possible the children may have seen him playing those games if they walked into the room at the relevant time.[30] Accordingly, I accept that it is probable that the children have observed the father playing these games. The father acknowledged that the video games include one in which the participant is the “first person shooter”.[31] I therefore accept that it is likely that they were not suitable for children aged four to six years.
[30] Transcript 10 October 2023, p.30 lines 20–24.
[31] Transcript 10 October 2023, p.31 line 11.
Again, it is understandable that the mother would be concerned about reports being made by the children that they have observed the father playing these violent video games. However, that is not the test of reasonable excuse. The test is whether the mother believed, on reasonable grounds, that withholding the children from the father was necessary in order to protect their health and safety. The appropriate course would have been for the mother to raise the issue with the father with a view to seeking his assurance that he would take greater care to ensure that the children did not inadvertently see him playing violent video games.
In other words, there was a course of action available to the mother that did not result in it being necessary to withhold the children from the father. Accordingly, this aspect of the mother’s defence also fails.
Proposed mediation
There is a dispute between the parties as to whether each party made reasonable attempts to participate in dispute resolution to resolve the mother’s issues of concern in accordance with Orders 7 and 8 of the orders made on 9 August 2022.
For the purpose of this decision, even accepting that the mother had made genuine attempts to seek to resolve her concerns in mediation, is a red herring and misses the point. The reasonable excuse defence is, as I have indicated, based on whether the mother believed on reasonable grounds that it was necessary to withhold the children from their father in order to protect their health and safety.
CONCLUSION
For the reasons which I have set out above, the mother has failed to satisfy me that there were reasonable grounds for the mother withholding the children from the father at the relevant times specified in the contravention applications.
Accordingly, I find:
(1)The mother understood the obligations imposed by the final parenting orders;
(2)The mother contravened the final parenting order as alleged; and
(3)The mother did not believe, on reasonable grounds, that contravening the orders was necessary to protect the health and safety of the children.
The matter will be listed for hearing the parties’ submissions on the question of penalty and to make such directions as are necessary for the further progress of the parties respective applications to seek a variation of the existing parenting orders.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 14 December 2023
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