Walford and Dore

[2007] FamCA 436

FAMILY COURT OF AUSTRALIA

WALFORD & DORE [2007] FamCA 436

FAMILY LAW - Contravention - Reasonable excuse

APPLICANT: Mr Walford

RESPONDENT: Ms Dore

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: CAF 1094 of 1995

DATE DELIVERED: 30 March 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Waddy J

HEARING DATE: 30 March 2007

REPRESENTATION

THE APPLICANT FATHER: In person

THE RESPONDENT MOTHER:  In person

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Ms Lloyd

Orders

1. All Applications in a Case and all Applications for Contravention are dismissed.

2. Order 7 of the orders of the Court of 22 August 2006 is amended by omitting the whole and substituting therefore the following:

   “7.Until the conclusion of the hearing or other order of the Court, the orders made by Her Honour Justice Finn on 17 October 2005 about contact with [the child] and his father are suspended.

3. In relation to the determination of final orders between the parties about with whom the son, born in December 1993, will live and what time he will spend with each of his parents (if any) and under what circumstances, the following directions are given:

IT IS DIRECTED THAT:

4.The trial will take place unless circumstances in the court prevent it from doing so before his Honour Justice Mullane on 22, 23 and 24 May 2007.

(I)The final hearing between the parties will occur on those days and will be completed within that time frame.

(II)Subject to the direction of the trial judge the parties will divide the time available to them within that period equally. 

1. Each of the parties will file such affidavits as he or she seeks to rely upon on or before 4:00pm on Tuesday 24 April 2007 those affidavits will contain only matters relevant under Part VII of the Family Law Act to the things in issue between them and those set out in that part of the Family Law Act relating to the best interests of [the child]r.

2. If either parent seeks to rely upon any affidavit previously filed in proceedings before this court he or she will obtain a copy of that affidavit and provide in a consolidated form (that is in a folder with some method of ensuring that all the documents are contained securely within it) all such affidavits and will identify in a list those parts of those affidavits upon which he or she seeks to rely.  He or she will serve on the other party to these proceedings and file in this court that consolidated folder on or before 4:00pm on Friday 13 April 2007. 

3. Any subpoena that either party seeks to issue in these proceedings may be issued but will be returnable on Thursday 19 April 2007.  Any such subpoena will be served not less than seven working days prior to 19 April 2007. 

4. Each of the parents will file on or before 4:00pm on Friday 4 May 2007 a minute of the orders that he or she is seeking that the court make.  Each of the parents will serve a copy of that minute on the other parent at that parent’s notice of address for service by sending it on 4 May 2007 or earlier by prepaid post.

5. Subject only to the direction of the trial judge no evidence other than that indicated above will be admitted for the purposes of the final hearing (other than documents tendered during the course of cross-examination or of which copies have been made available and served upon the other party not less than fourteen working days prior to the commencement of the hearing). 

6. This is a matter in which the court would be assisted by a further report about the parties and the relationship of each of them with the son.  For these purposes pursuant to Regulation 8 of the Family Law Regulations Mr S is appointed for the purposes of the preparation of the report and each of the parties will attend upon him as directed by him, at the Family Court Registry in Canberra and will, as directed, bring [the child] to take part in the consultations prior to the preparation of the report.  The terms of reference for the report will be as follows:

   (a)The relationship of each of the parents with the child.

   (b)The child’s views about the time he spends with each of his parents.

   (c)What positive advantages would the child derive from spending time with or living with his father.

   (d)What positive advantages would the child derive from spending time with or living with his mother.

   (e)What disadvantages, if any, would there be for the child if he were to live with his mother and spend time with his father.

   (f)What disadvantages, if any, would there be for the child if he were to live with his father and spend time with his mother.

   (g)The attitude of each of the parents to the responsibilities as parents including providing for the intellectual, social, emotional and financial welfare of the child.

   (h)The ability of each parent to provide adequately for the emotional, educational, social and psychological support of the child if he were spending a substantial time with that parent. 

   (i)The attitude of each of the parents towards each other and the ability (if any) for the parents to cooperate in the parenting of the child. 

   (j)Any indication that the reporter may obtain that either parent is attempting to influence the child against the other parent and, if so, what the reporter recommends as being an appropriate way of dealing with this matter. 

   (k)Whether the time that the child spends with either parent should be subject to supervision and if so what sort of supervision and for how long.

   (l)Whether, if the court were to determine that the child should not spend physical time with either parent while living with the other, what arrangements about communication or contact should be made in relation to the son (if any) with the parent with whom he is not then living?

   (m)Bearing in mind the history of the parents in relation to counselling and attendance at courses, are there any other external aids from community-based organisations or otherwise which may provide assistance to the parties to promote the best interests of the child and to become better parents. 

   (n)Nothing in these terms of reference precludes the reporter from raising other matters which may be relevant under the terms of the Family Law Act 1975. 

   (o)The reporter will not make reference to any document or person except with the consent of the Independent Children’s Lawyer and in such case in any event will identify the extent to which the reporter’s opinion is based in whole or in part upon material obtained from that source. 

   (p)If the reporter for the purposes of preparing his report, refers to affidavits filed by either party previously in these proceedings or in support of the application the subject of these proceedings, the reporter will bear in mind that that affidavit may not be admitted in full into the evidence before the court and to the extent that the reporter relies upon any part of that affidavit should identify that part to enable the reporter’s opinion to be assessed if that part of the affidavit should not be accepted into evidence. 

   (q)So far as possible the reporter will produce the report on or before 4:00pm on 30 April 2007. 

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 1094 of 1995

Mr Walford

Applicant

And

Ms Dore 

Respondent

REASONS FOR JUDGMENT

1. A series of matters came into my list this morning.  The applicant husband Mr Walford, appeared on his own behalf.  The respondent wife, Ms Dore, appeared on her own behalf.  The independent children's lawyer was Ms Lloyd and she was concerned with the parties’ son, born in December 1993, and the parent’s longstanding litigation before this Court over with whom he should live and with whom he should spend time.

2. The applications that came before me this morning were, firstly, an application in a case filed 13 July 2005, filed by the father, and that sought that the child reside with his father each alternate week.  I was informed that was not proceeding and I struck it out.  The affidavit of the father filed 7 September 2005 in support of that was not relied upon and so played no further part in the proceedings.

3. Similarly, a second affidavit of the father of 30 March 2005 in support of an application for contravention earlier was not relied upon. 

4. An application in a case filed by the mother on 15 September 2005 was not proceeding in light of subsequent orders.  It had been previously before my sister Finn J and the application I dismissed. 

5. Similarly, there was an application for contravention filed by the father on 20 March 2007.  This alleged that “on 1 November 2005 all day in Canberra the mother did not bring the boy to the Court to ascertain his wishes”, and secondly, “[In] December 2005 all day did not allow [the son] to spend time with his father on his birthday”.  No evidence was offered in support of those two contraventions. 

6. I found that there was no evidence to support the allegation of contravention on 1 November 2005 and the contravention was not established.  I found as to  December 2005 that there was insufficient evidence to support the allegation and the contravention was not established and consequently that application failed. 

7. The application of 20 March 2007 in which the allegations were contained was dismissed.

THE REMAINING APPLICATIONS

1. I then turn to the balance of the applications for contravention.  These were brought by the father against the mother. 

2. The first was brought by way of application for contravention filed on 7 September 2005.  It alleged that “at 3 pm on 22 July at [H] Primary School the respondent refused to allow the child to have contact”.  This contravention was supported by para.9 in the father's affidavit and letter B (sent after the event).  It was denied by the mother.  I found that it was prima facie established.  The mother then relied on reasonable excuse.  I will come to that in due course.

3. The second remaining application for contravention was filed on 7 September 2005.  It alleged that on two dates in September there had been contraventions:  firstly, “on 2 September 2005 at 3 pm at [H] Primary School the respondent refused to allow the child contact and then on 4 September 2005 at 9 am at [H Primary School] the mother refused to allow Father's Day contact”.  These two contraventions were admitted.  The mother pleaded reasonable excuse.

4. The third remaining application for contravention was filed on 25 July 2006.  It alleged that “on 5 July 2006 at 3.15 pm at [H Primary School] the mother without reasonable excuse forced the boy not to attend contact with his father; and on 7 July 2006 at 3.15 pm at [H Primary School] the respondent mother without reasonable excuse forced the boy not to attend contact with his father”.  I struck out the sentence:

   The mother has been contravening Court orders for nearly 12 months.

5. Attached to that contravention were the orders made by Finn J on 17 October 2005. 

6. The contravention of 7 September '05 the father told me was not relied upon and played no further part in the proceedings.  No evidence was offered in its support.

7. So I come then to the evidence in relation to the four remaining matters, 22 July and 2 September 2005 and 4 September 2005 and 5 July 2005.

CONTRAVENTION OF 22 JULY 2005

1. The father's evidence as to the first was a little bit complicated because there were a couple of affidavits but was dealt within para.9 of his affidavit of 7 February 2007 and was as follows:

   (9)  I had arranged to collect [the child] from school on Friday, 22 July 2005.  When I attended the school at 3 pm [the child’s] friends [A] and [D] informed me the mother had taken [the child] out of school at lunchtime.  My understanding is the mother took the boy to [P] for the weekend to contravene Court orders.  Attached to this affidavit and marked "attachment B" is the mother's letter of 27 July 2005.  In the letter the mother clearly states her intention to contravene Court orders.

2. Annexure B, dated 27 July 2005, is a letter from the mother to the father and it states as follows:

   Dear [Mr Walford], In light of the events of Monday, 18 July, and Wednesday, 20 July, as well as the reasons outlined in my affidavit of 1 July 2005, I do not believe it is in [our son’s] best interests to have contact with you at this point.  [The child] will not be available for further contact till this matter has either been determined by the Court or by agreement.  I ask that you do not make any further attempts to contact him either at school or at home until that date.

3. Now, it seemed clear to me on that evidence that the child had not been presented for contact. 

CONTRAVENTION ON 2 SEPTEMBER 2005

1. Then in relation to 2 September 2005 the father's affidavit of February contained the history beginning at para.19.  He said that at approximately 8 am on Friday, the 2nd, he had phoned the son to arrange Court‑ordered contact.  He had always phoned at this time for eight years, and the son would answer the phone.  He stated:

   On this occasion the mother answered the phone and advised she was putting a halt to contact.  I hung up because after 12 years I was fed up with the mother's nonsense.  My understanding is the mother then contacted the police… (I am not reading it all) …I attended the school that afternoon to collect [the child] for Court‑ordered contact.  Two children I don't know approached my car and told me [the child] was not at the school and was playing soccer elsewhere. 

   The school principal then appeared.  I asked her where [the child] was and explained that I had a Court order to collect him from school.  The principal divulged she was not going to tell me anything.  A short argument ensued. 

   I then got into the car and left the school ground.  I went to the soccer oval and told [the child] I'd wait for him for contact at 3 pm.  His mother took him from the soccer field at 10 to 3 and put him in the car and left.  She once again contravened Court orders and this is confirmed in para.24 of her affidavit of 8 September 2005. 

   [The child] had told me he'd like to attend a friend's birthday party that afternoon at 5.00.  I attended the friend's house and [the child] was standing in the front driveway.  I asked him to come for a drive for 10 minutes, (so) we could arrange Father's Day contact.  As [the child] moved towards the car his mother became very aggressive and physically attacked me.  The Court orders were that [the child] was with me every Friday afternoon.  Things settled down.  [The child] and I went for a drive for 10 minutes to arrange Father's Day contact.  My understanding is the mother phoned the police – (and various other allegations).

2. The father he also relies upon letters “B” and “C”.  I have read out the letter “B” from 27 July 2005.  “C” was a letter of 31 August 2005, which was slightly before the alleged date of course.  It is signed again by the mother, addressed to the father:

   When you phoned [the child] this morning I noticed [he] was not saying much and looked distressed.  It seemed you were angry with him.  Based on this observation I decided to listen to part of the call.  I heard you shouting very angrily at [the child], calling me “an evil dog” among other putdowns to myself and [the child].  I don't believe it's in [the child’s] best interests to be exposed to such verbal abuse.  [The child] is innocent.  For this reason I do not believe it's in [our son’s] best interests to have contact with you at this point.  [The child] will not be available for further contact, including this Sunday, until this matter has either been determined by the Court or by agreement.  Please do not make any further attempts to contact him either at school or on the phone until that time.

3. It is quite clear from the father's affidavit that this exchange had spurred him to further contact with the child as set out above in his own words in his affidavit.

CONTRAVENTION 4 SEPTEMBER 2005

1. Now, in relation to the third matter, on 4 September 2005, the father deposes at para.26 of his affidavit of 7 February 2007 as follows:

   On Father's Day, Sunday, 4 September 2005, I phoned [my son] six times during the day and left messages he should contact me.  [The child] told me some months later his mother wouldn't let him answer the phone or attend Court‑ordered contact.  He kept the Father's Day gift and gave it to me six months later.

2. Then there is some question about what the mother had done calling the police and that the police had contacted him and suggested that he file contravention orders at the Family Court which he had done.  The mother had responded by submitting an affidavit to the Registrar of the Court, seeking an urgent hearing.  The affidavit she filed on 8 September confirmed how many times the mother had contravened Court orders.  Again the father relied on attachment C, which I have read above.

CONTRAVENTION 5 JULY 2006

1. The final matter relates to the contravention alleged on 5 July 2006 at 3.15.  The father relies on annexure G to his affidavit.  I will not read it all, it is a full‑page letter.  It was dated 25 June 2006 from the mother, but it is addressed on this occasion to "Dear […]":

   I am writing to ask you to cease contact with [the child] until further notice.

   (She then sets out what had happened on 1 June, 16 June, 19 June,      and the telephone call with the father speaking to the child for 15 minutes).  She continued:

   When I looked at [the child] he was very silent and red in the face.  I could hear you yelling angry at him.  Your voice was so loud I could hear the words while sitting opposite [the child].  Some of the things I heard.  I heard you tell [the child] that you wanted everything back you'd ever given him.  I heard you directly blame [the child] and say, "Why are you allowing your mother to tell lies?  Why are you letting her?"  I heard you say, "Your mother, that evil fucking spastic dog."  Then you hung up.  [The child] said, "I don't want to see my dad when he's like this."  He said, "My dad thinks I'm scared of you, but I'm scared of him."

2. The letter then alleged that the father had been parked outside the house at 10.45 am on Sunday, 25 June, and the mother alleged that the father had contravened several orders of the Court.  (No application for such contraventions came before me).  She added:

   I believe it's in [the child’s] best interests contact of any sort cease until further notice.

3. Now, that was the evidence of the father in that affidavit as I noted it in relation to all those matters. 

4. There was a further affidavit by the father dated 20 March 2007, but it went back over a lot of other material. 

5. It dealt with 2 September 2005 at pars 8, 9 and following.  It just really says that:

   On 2 September weekend I phoned [the child] to arrange weekend contact, Father's day contact.  The mother answered the phone, advised her intention to contravene Court orders and I hung up.

6. As to 4 September 2005, the father repeats he phoned his son six times.  The child told him months later his mother would not let him answer the phone.  And then he talks about contacting the police. 

7. At para.36 of that affidavit the father he dealt with … December 2005: because the mother contravened order 2 of the orders made on 25 February 2000, which he claimed read that the parents “should” share the son’s birthday.  [That is a selective, shortened form of the order.  The order actually says "as agreed": and the mother says there was no agreement].

8. As to the contravention on 5 July 2006, the evidence is set out from para.47 on.  (The father explained a typographical error, that it said "7 July").  He had driven past the school and had seen the mother leaving the school with his son.  He had driven up beside her car and asked the son what was happening.  He had gestured he did not know.  Two days later the mother had attended the Magistrates Court, made a false representation to obtain a domestic violence order, and the father had taken out an application for contravention of orders of the Court on 20 July 2006. 

1. The father has complained that that application had not been listed before me.  I pointed out that they had not been brought on, or listed, in time.  I also pointed out to the father that I have been sitting here in Canberra now for six months or so and have a totally full list and I would think it very difficult to get these further matters listed before this Court.  I do not know what it is like in the Magistrates Court.  I am not familiar with that position here. 

2. I think that is a full and fair summary of the father's material.

OTHER COURT PROCESS

1. The father filed, on 31 May 2005, an amended application for final orders.  It underlies these other applications for contravention.  He is seeking that the child  reside with his father. 

2. I also dealt this morning with an Application in a Case filed 7 February 2007. 

3. The father sought that the separate representative give evidence as to why the matter had not been listed as soon as possible after 31 October.  That I struck out, because the former separate representative had been replaced and there was a new separate representative. 

4. Secondly, the father required that the Registrar give evidence as to why the matter had not been listed as soon as possible after 31 October as ordered by the Court.  I do not have power in these circumstances to compel the Registrar to do that.  I did explain that the congestion in the list would be, I imagine, the reason that would be given. 

5. The father sought thirdly that the contraventions orders be heard.  I am doing that. 

6. The father fourthly sought an order that:

   (4)The mother serve a gaol sentence for contravention of Court   orders. 

7. That was withdrawn.   It was left up to the Court as to what would be an appropriate penalty if I found the contraventions proved without reasonable excuse. 

8. Left on foot was an application for an order that the mother undergo psychiatric counselling, such counselling to be reported to the Court.  There is no possibility of any such counselling taking place before the final hearing and no evidence before me that such counselling is necessary.  It is a matter for submission before the trial Judge if that order is to be pursued.  I make no such order.

9. Finally the father sought an order that the son reside with his father, and have no contact with his mother.  That is, of course, a matter which will be dealt with in May when the principal proceedings are heard.

THE MOTHER’S EVIDENCE IN RELATION TO THE REMAINING CONTRAVENTIONS

PROCEDURE

1. Well, from there I turn to the mother's answer to these allegations. This hearing occurs, of course, in the context of the Family Law Act. The procedure to be followed is set out in Rule 21.08. Accordingly I have informed the respondent of the allegation; I have asked the respondent whether she wished to admit or deny each allegation. She denied one, which I later found established, and admitted the rest, claiming that for all of them she had a reasonable excuse. I have then heard any evidence supporting the allegation and I have referred to that evidence fully above.

2. I have asked the respondent to state her response to the allegations, which she has done, and I have heard evidence from the respondent. 

THE LAW

1. The Parliament of the Commonwealth which passed the Australian Family Law Act and amended it as recently as July last year inserted Div.13A, the "consequences of failure to comply with orders, and other obligations, that affect children".  It defines a simplified outline of the division into A, B and C, application of the Division, Meaning of Contravened an Order, and Requirements Taken to be included in Certain Orders.

2. Section 70NAE(2), Reasonable Excuse For Contravening An Order, deals with various matters which are included as meaning “reasonable excuse” but are not limited to the circumstances set out in sub-ss.(2),(4), (5), (6) and (7).  I read these provisions to the parties, earlier.  I will not do so again. 

3. These alleged contraventions are met, in my opinion, by s.70NAE(5), which deals with contravening an order dealing with whom the child is to spend time with.  (I am not responsible for the grammar).  It reads as follows:

   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 para.(a).

4. The Court has have various powers to vary parenting orders if proceedings are brought in front of it and it is alleged there has been a contravention of s.70NBA(1).  I will hear the parties, whether or not I find these contravention established, as to  or whether there need be any further interim orders made prior to the hearing in May before Mullane J, for which hearing I have referred in directions made earlier today.  Similarly, application can be made for orders compensating a person for time lost, where there is reasonable excuse established for contravention.  Those contraventions without reasonable excuse, with less serious contraventions, are dealt with in Subdivision E.  The powers of the Court, to which I referred earlier, extend to costs and various other things.  Ultimately there are powers of confinement, the powers of the Court being set out in s.70NEB.

REPORTS OF MR P

I should indicate that during addresses reference was made by the father to a report of Mr P dated 14 October 2005.  Reference was also made by the mother to the report of Mr P dated 22 August 2006.  By consent, I admitted each as an exhibit.

EVIDENCE OF THE MOTHER

1. The mother set out her grounds for relying on “reasonable excuse” in her affidavit of 7 September 2005 commencing at paras.2 and going through to 11.  I will not put the whole of this evidence on the record any more than I read the whole of the father's evidence.  I will read what I thought were the salient points. 

2. The mother sought to place the breach in July '05 in a context.  She claimed that there had been no contact between the child and the father between Friday, 6 May, which was for just half an hour, and Tuesday, 19 July 2005.  The last contact weekend had been with the father over the weekend of 29 April to 1 May.  Various things had been advanced by the father mainly to do with the mother which conveyed his low opinion of her.  The mother claimed that the child had not been advised that the father wanted to stop contact, and several times had waited at school for his father, when the father had not appeared.  She set out the dates.

3. On 18 July 2005 the mother attended an interim hearing as respondent.  At that hearing she asked that contact be suspended or supervised.  The application was not heard because the applicant was appealing a decision by my brother Faulks J in which the learned judge had declined to disqualify himself from this case, a course the learned judge has later adopted, I gather. 

4. After that hearing the mother had gone to the school and the child had said to her, "I'm very distressed.  My dad came to see me at school today.  All he did was yell at me.  My dad began by saying I'm not happy.  Dad went on and on about me not waving to him when I was in the car and I saw him, but I did wave to him.  I tried to tell him I waved to him.  Dad also went on that all you do is tell lies."  He told his mother that he had cried.  "My friends gathered round me to comfort me," and he said, "I'm so annoyed." 

5. The mother had then advised the principal of what had happened.  She is quite open that she and the principal devised a safety plan.  The father cross-examined her on that and the mother admitted she took the child to the principal so that the boy would know where to go for help. 

6. The mother agreed that no contact had occurred on the Friday and THAT she had sent a letter saying she was going to stop contact on 27 July 2005.  The question is really whether in the context where the mother was seeking a DVO on the 18th July, and the subsequent contact, and her understandable concern for the child, constitutes reasonable excuse or not.  [She says that she was very, very concerned about the effects on the son of being shut in a car]. 

7. On Wednesday, 20 July, another incident occurred.  The mother claimed that she had been expecting the son to come home from school and go to swimming and football training, as had been normal routine since the father had stopped seeing the child on the Wednesdays earlier in the year.  The child had ridden his bike to the school.  Then a friend came and told her that the child had gone with his father and had put his bike in the ute.  The mother panicked, and phoned the school, but the child returned before 5 pm.  The child said the father had been waiting at the school, showed him some papers and said, "You're with me every second Wednesday and Friday afternoons."  The mother read the orders as meaning “second Friday”. 

8. I consider that the order is quite clear that one Friday the child was to stay with the father for the weekend and the alternate week he was to go on the Wednesday and on the Friday until 5 pm. 

9. The child said, "We went down to the oval.  Dad kept me in the car and yelled at me."  The child said the father had said - "My dad is disappointed with me.  He's not just disappointed with my mother but he's also disappointed with me.  He told me - my dad told me about 20 million times, 'Do you want to see all the lies she told?  I've got them here,' pointing to the Court documents." 

10. The mother claimed she was very, very concerned about the effects on the child of being shown the file, and of being yelled at for over an hour and a half.  She had spoken to the child’s separate representative.  An emergency session with the Court counsellor was arranged.  She also wrote to the father, with copies to Ms C and Mr P, advising the father she did not think contact at this point was a good idea for the child. 

11. It seems to me that the actions taken by the mother were not unreasonable in those circumstances.  Had Ms C or Mr P thought them unreasonable, Ms C as separate representative could have been persuaded to bring the matter straight back before the Court.  The mother took counsel.  She acted openly and - certainly not underhandedly - by telling the others what she was doing.

12. One of the things it seems to me that the Court is always keen to avoid is the involvement of children in proceedings.  That may sound utopian, but Court proceedings are adult business, secret women's business and secret men's business and the secret men's and women's business takes place at Court without the children.  The children are quite helpless to take part in it.  In fact, the Court frequently worries about children who feel they are being dealt with without being heard.

13. The way our Courts have traditionally sought to hear children's voices is to rely on trained social workers such as Mr P - and now I have just appointed a new one, for the coming hearing - to hear and report what a child wants to say.  Such experts are trained to pick up whether or not the children are being schooled.  They are trained to pick up a lot more than what the children say: such as, what their eye contact is, how they act, whether they twitch, the speed of speech, the tone of voice and so on.  Unfortunately here the child has been knowingly involved in the proceedings.

14. I find that there was a breach of the orders but I am of the view that, on the evidence, the mother had reasonable excuse for that breach in July 2005.

CONTRAVENTION OF 2 SEPTEMBER 2005

1. I turn then to the second breach, which is 2 September 2005.

2. Here the mother relied upon her affidavit filed on 28 March 2007, para.16.  I do not think para.16 does more, really, than refer to her affidavit of 8 September 2005, paras.14 to 25.  I will turn to those. 

3. The mother claims that on 2 August the father began telephoning the child again.  At para.15 it is reported that the father ignored a request that no contact occur.  Father and child met at the local bakery for half an hour, with a friend of the child’s, on 5 August.  On 12 August the father was told the child was going to the coast, did not come back to the father till 4.30.

4. On 30 August the father phoned the child at 7.55 am.  The mother picked up the other phone and listened in. 

5. The mother sets out what was said by the father including the abuse of the mother and the attack by the father on the child about playing with dolls and asking him whether he was scared of the mother.  Then the conversation turned to football. 

6. Later the child said, "My dad was angry with me because I didn't phone him this morning as he told me to do."  He said "I'm more scared of my dad than I am of you." 

7. Then on 2 September at quarter to 8 the father phoned again.  The mother picked up the phone and spoke to him.  The father demanded: "Put [the child] on the phone."  I said, "No, [the child] won't be talking to you."  He shouted, "Right, you want war, you fucking ugly spastic, you want war, you're on," and he hung up.  The child was very upset, although he did not hear what his dad had said.  He went to school early.  The father phoned again, not shouting, and said, "I'll be picking [the child] up from school at 3 pm as per the Family Court orders."

8. The mother claims she was frightened both of the threat of “war”, and that the father's danger had escalated.  She decided to get a domestic violence order.  She telephone Ms C, the independent children's lawyer, and they decided to get a DVO.  The mother gained an interim DVO.  Then the father went to the school and found the child was at the soccer.  The mother went to the soccer tournament.  (It would have a devastating effect on children, if the parents that they love argue in public). 

9. The mother set out the abuse that she says the father levelled at her then and later.  The DVO could not be served until half past 4.  They kept apart.

10. The mother says then they went away to the shops to get a Father's Day present.  The father insisted the child come in the car with him.  The mother resisted.  She went down to the car and locked the passenger door.  There was more shouting.  She claims that the father dragged her back to his car.  The child was looking scared, almost in tears.  The father was shouting, the mother says, and was very angry.  She claims there was physical contact and verbal abuse.  The father got very, very angry, said he only wanted the child for 10 minutes.  The mother said, "He's not getting in the car with you," and the child got out and said, "Why don't we go for a walk for five minutes, dad?"  The mother said that was a good idea.  They walked away for a bit, then they walked back to the car.  Then he got in the car and the father and child drove away. 

11. The mother spoke to the police and they said they were powerless to intervene.  The father then returned the child after about 15 minutes.  Then there was other evidence a phone. 

12. That is not a happy episode, certainly not a happy episode for the child to witness, whilst in the care of the parents.  But it does appear to me that contact did take place if only for a short time even though it took place in the most awful circumstances imaginable.  The father did get to the game despite the difficulties, the details of all of which I must say he put in issue and were not tested in cross-examination.

13. I am of the view that that contravention is not made out.  I also believe, if I am wrong in that, that the mother had reasonable excuse not to allow the contact to go on, particularly where the situation was so volatile and the mother currently obtaining a domestic violence order. 

CONTRAVENTION ON 4 SEPTEMBER 2005

1. The third allegation concerned the 4^th September 2005.  This related to Father's Day.  The mother relies on her affidavit of 8 September 2005, paras.29 to 34.  She says that, "On 4 September we went out of town for the day.  When we returned there were three messages from the father on the phone where he demanded that the child phone him.  The child had made an undertaking that he'd ring and hadn't phoned." 

2. It seems to me to be sad that he had not phoned his father on Father's Day. 

3. The mother asked the child if he wanted to speak to his dad.  She says for the first time the child said, "Not really.  He's just going to yell at me."  It seems to me that it would have been better to encourage the child to telephone and terminate the call if it became abusive, but that did not occur. 

4. However, the child appeared very glum and quiet.  He asked the mother not to answer the phone when he knew it was the father calling, presumably through reading the dial as to the incoming number.  The child looked fearful the mother said. 

5. The mother claimed she worried about the father.  She then phoned the Mental Health Crisis Team regarding the father, and also the police, but apparently they did not come. 

6. This contravention, two days after the previous one occurred in the same context as the previous one relates to that particular breach.  The child wanted to see the DVO to make sure his dad could not phone him.  He refused to go out.  He said he felt safe at home, and said he did not want to go out again. 

7. The mother said she was very concerned about the child's emotional welfare and wellbeing.  She thought he had been psychologically damaged and it was not in his best interests to see the father at that time.  Those of course are matters that the Court can decide. 

8. The question for the Court is whether it was reasonable in the circumstances to decline contact on Father's Day, 4 September 2005.  In regard to this, the mother seems to have an incorrect view of the orders.  The consent orders of 25 February 2000 were pointed to by the father, who I believe had the correct interpretation.  It reads:

   (3)  In addition to the contact referred to above, the child shall have contact with his father on Father's Day if this is not otherwise a contact day provided the child shall spend Mother's Day with the mother notwithstanding that may be a contact day.

9. It seems to me that it would have been preferable if the child had at least had telephonic communication with the father.  Whether an excuse is reasonable or not is not only the subject of objective evidence, of which there is plenty here, but the reasonable subjective reaction to that evidence, of the respondent. 

10. I have her testimony that she saw the child and the state the child was in.  The child, she says, was fearful and did not want to take calls from his father or make any and hoped that the DVO would stop the calls coming. 

11. In those circumstances it seems to me it would have done more harm than good to force the child to ring.  He could have been encouraged, but failure to encourage, I do not believe, in this case, is sufficient to remove the reasonable excuse put forward by the mother. 

12. Throughout this period an independent children's lawyer had been appointed, to whom contact could have been made and complaint made immediately with a request of either party, although unrepresented, to get the matter back before the Court as soon as possible.  It did of course come back before the Court soon after and orders were made I think by Finn J on 17 October 2005.  The mother claimed vindication by those orders, but I think that is difficult to sustain because the Court would act on the evidence of the day, not on the thoughts only of the mother.

CONTRAVENTION OF 5 JULY 2006

1. I turn then to the final allegation, 5 July 2006.  I dealt with the father's evidence earlier. 

1. In this instance the mother relies on her affidavit of 27 March 2006, para.26 to 36.  Again, there is a great deal of material.  I will not refer to it all.  She points to the making of orders by Finn J.  She says that there were then 53 possible contact afternoons between 26 October 2005 and 19 June 2006 (not including the school holidays), when she asked the father not to see the child.  She claims that only nine of those occasions were made use of by the father, two being out of contact time, one being the father's birthday when he collected the child from the school, and the other to take the child to the circus on a Sunday night.  She sets out the dates of contact.  I will not repeat them. 

2. The orders of Finn J of 17 October 2005 provided that telephone contact was to be “as initiated by the child” but the father, despite those orders, left messages on the answering machine.  A tape of those messages was kept and was played in Court.  The transcript of them appears at annexure number 3 and they are certainly graphic.  [The judgment can show that at this point the father is leaving the courtroom.]  Here the father has clearly initiated contact with the child and done so in the most overbearing terms.

3. On 13 February he says he has got tickets for a circus, please call. 

4. On 24 February he says, "The child had an arrangement to meet me.  I've spent money."  He then becomes abusive.  "I can only assume that ugly spastic won't let you, that dopey prick that is her husband."  "I expect you to call me.  I will be coming to your school today." 

5. The last statement on the tape sounded to me as a threat.  The abuse of the mother, someone that the child is attached to and where he finds his security, would be highly contra-indicated if one were endeavouring to attract a child to the role of another parent.  This of course would be a major matter for the Court to consider in May at the final hearing. 

6. There was another call by the father on Friday, 2 June 2006.  On Wednesday, 5 July another message was left for the child saying the mother is “a really sick person”, and the car was “a heap of junk”.  "You've got to get away from her.  You've got to leave.  She's a really sick person, your mother.  I'll be there for you, help you when you need to get away from her, the sooner the better, mate."  There is another one on 7 July 2006 which of course follows this period and I will not go into that, but, according to the transcript, the abuse got worse and worse.

7. More to the point is the tape of a conversation which the father objected to as being only part.  It is stated to be the tail end of a heated conversation, (taped at the child’s request using a video recorder), demanding everything back from the child that the father had ever given him, again referring to “that ugly spastic” stopping him and stating, "Your mother is an evil and ugly fucking dog,"  before the father hung up.

8. The child then himself recorded a message, according to the mother, on the video camera.  I did not see the video camera but the child does say, (although I felt it halting and without seeing the demeanour of the child I was not overly convinced by it because it sounded to me as though he could have been reading something), "And if you ever hear this, it's [your son] saying I'm scared of you and not my mum.  Everything you've said has not been true and I have known because I've been there listening to you say it and my mum say things and some things are your fault, not just my mum's." 

9. In the circumstances, it seems to me, of the refusal of contact on that occasion, the mother had reasonable excuse. 

CONCLUSION

1. It therefore transpires, in my view, that the mother is not guilty of any of the contraventions alleged against her.  Accordingly, I do not propose to make any of the range of orders set out in the Act.

2. The mother has clearly been through a great deal of trauma.  I observed that the father was threatening in the Court in his demeanour and in his tone of voice, although otherwise respectful to the Court.  He is a large man and she is a small woman.  In my view it is clear that she has acted as she thought she should on these occasions, and, I go no further, on a reasonable basis and with reasonable excuse, for the benefit of her son.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Waddy

Associate: 

Date:  16 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WALFORD & DORE