The Mother withheld the Children from the Father in breach of Court Orders previously made for 4 months and also breach those previous Court Orders by failing to provide her contact details as had been ordered.
The Father’s time was to be supervised at a Contact Centre.
The Mother alleged receiving threatening text messages from the Father.
The Father pleaded guilty to a number of serious offences relating to his assaults of the Mother and Child over an earlier 5 year period.
The Court found the Mother’s decision to withhold the Children from the Father was not reasonable and that she had no reasonable excuse for contravening (breaching) the Court Orders.
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.
Saldo & Tindall  FamCA 194 (3 April 2012)
Last Updated: 11 May 2012
FAMILY COURT OF AUSTRALIA
SALDO & TINDALL
FAMILY LAW – ORDERS – contravention of orders affecting children – orders made for child to spend supervised time with father and for the mother to provide her contact details to the father – where father was charged with a number of serious offences in late 2009 relating to his assaults of the mother and child between 2002 and 2007 – where the mother admits to contravening the parenting orders – where mother asserts she had a reasonable excuse for contravention – application of s 70NAE(5) – onus on mother to establish the existence of reasonable excuse – where mother alleges that her failure to comply with orders was necessary to protect her and the child’s safety and her health – mother failed to prove the existence of any reasonable excuse for contraventions to the requisite standard of proof – orders that contraventions proven
INDEPENDENT CHILDREN’S LAWYER:
Boyd Olsen Lawyers
3 April 2012
2 March 2012
CUNSEL FOR THE APPLICANT:
Mr Brian Kelly
SOLICITOR FOR THE APPLICANT:
Derham Houston Lawyers
COUNSEL FOR THE RESPONDENT:
SOLICITOR FOR THE RESPONDENT:
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
(1) The respondent mother contravened Orders 3 and 4(b) made on 10 May 2010, without reasonable excuse, at 1.00 pm on each of the following dates:
- (a) 7 August 2010;
- (b) 14 August 2010;
- (c) 21 August 2010;
- (d) 28 August 2010;
- (e) 4 September 2010;
- (f) 11 September 2010;
- (g) 18 September 2010;
- (h) 25 September 2010;
- (i) 2 October 2010;
- (j) 9 October 2010;
- (k) 16 October 2010;
- (l) 23 October 2010
- (m) 30 October 2010;
- (n) 6 November 2010;
- (o) 13 November 2010;
- (p) 20 November 2010;
- (q) 27 November 2010; and
- (r) 4 December 2010.
(2) The respondent mother contravened Order 5 made on 10 May 2010, without reasonable excuse, on 11 May 2010 and continuing.
(3) The mother contravened Order 2.2 made on 10 December 2010, without reasonable excuse, on 15 December 2010 and continuing.
FAMILY COURT OF AUSTRALIA AT NEWCASTLE
FILE NUMBER: NCC 3176 of 2008
Independent Children’s Lawyer
REASONS FOR JUDGMENT
- On 18 January 2011 the father filed an Application–Contravention alleging successive contraventions by the mother of interim parenting orders made on 10 May 2010 and 10 December 2010.
- The mother formally admitted the contraventions alleged against her, but asserted she had a reasonable excuse for each and every contravention.
- The Application–Contravention was consensually adjourned for some time whilst the parallel parenting proceedings progressed, but was ultimately listed for separate hearing.
- The outcome of the dispute turned on whether the mother could establish the existence of a reasonable excuse for the contraventions.
PROCEDURE AND EVIDENCE
- Since the alleged contraventions were admitted by the mother, she conceded there was no need for the father to adduce evidence to prove their occurrence.
- One of the allegations was abandoned by the father at the commencement of the trial, and some others much earlier, but those that remained were as follows:
- In relation to Orders 3 and 4(b) made on 10 May 2010:
Contraventions on Saturday 7 August 2010 and each consecutive Saturday up to and including 4 December 2010, at 1.00 pm, by the mother’s failure to deliver the child to the father at the designated changeover venue.
- In relation to Order 5 made on 10 May 2010:
Contravention on 11 May 2010 “and continuing”, by the mother’s failure to inform the father forthwith of her contact details in writing.
- In relation to Order 2.2 made on 10 December 2010:
Contravention on Tuesday 15 December 2010 “and continuing”, by the mother’s failure to enrol with the designated contact centre.
- The summary of the contraventions does not accord precisely with the particulars in the Application–Contravention, but it is sufficiently accurate for present purposes. Given the contraventions were admitted, there was no argument over the particularity of the pleading. The gravamen of the first set of contraventions and the third contravention is that the mother failed to act as ordered, thereby precluding the child from spending time with the father. The gravamen of the second contravention is that the mother failed to provide her contact details to the father.
- In her endeavour to prove the existence of reasonable excuse for her contraventions, the mother relied upon:
- Her affidavit filed on 24 January 2012;
- The affidavit of her treating psychiatrist, Dr N, filed on 19 January 2012; and
- The affidavit of Dr L filed on 19 January 2012.
- The mother was also permitted, with the consent of the father, to adduce some additional oral evidence-in-chief dealing with the reason for her refusal to supply the father with her contact details.
- There was no dispute about either the procedural or substantive law by which the dispute would be determined.
- The procedure is prescribed by the Family Law Rules 2004 (Cth) (Rule 21.08).
- The Family Law Act 1975 (Cth) (“the Act”) prescribes, firstly, that the onus falls upon the mother to establish the existence of reasonable excuse (ss 70NDA(c)), and secondly, the standard of proof required is on the balance of probabilities (s 70NAF).
- There was no suggestion, either express or implied, that the mother did not understand her obligations under the interim parenting orders.
- At least in respect of the first set of contraventions and the third contravention, the mother’s defence hinged entirely upon her ability to prove the existence of reasonable excuse pursuant to the provisions of s 70NAE(5) of the Act. The mother’s defence did not rely upon any other circumstances (s 70NAE(1)).
- Section 70NAE(5) provides as follows:
- (5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
- (a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
- (b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
- It was therefore incumbent upon the mother to prove, inter alia, she believed on reasonable grounds that not allowing the child to spend time with the father in accordance with the Court’s orders was necessary to protect the health or safety of either the child or herself.
- In her affidavit the mother considered it necessary to plot the course of both the parties’ relationship and the as yet unresolved parenting proceedings by way of explanatory background.
- The parties finally separated in November 2008, and the mother commenced the parenting proceedings a short time later in December 2008 following the father’s retention of the child.
- On 12 December 2008 the Court made a recovery order in relation to the child in favour of the mother and ordered that the child not spend time with the father. Those orders were extended on 17 December 2008 until an interim hearing could be conducted, which was fixed for 21 January 2009.
- The hearing on 21 January 2009 was averted when the parties entered into consensual interim parenting orders, which provided for the child to spend regular time with the father, some of which was subject to supervision by the paternal grandmother and some of which was unsupervised. The orders also made provision for telephone communication between the child and the father.
- Showing no aptitude for prophecy at all, the parties invited the registrar to make notations to the consent orders to the effect that they expected the time spent by the child with the father would shortly graduate to a regime of “fully unsupervised contact” and that there were “significant prospects of settlement”.
- In early September 2009, the mother filed an Amended Initiating Application, together with a Notice of Child Abuse or Family Violence. She asserted the father had sexually abused the child and as a consequence she proposed the child spend only supervised time with the father.
- Despite the prevailing orders made in January 2009, the mother unilaterally prevented the child from spending any time with the father until other arrangements were agreed some months later.
- An Independent Children’s Lawyer was appointed and the Director-General of the NSW Department of Family and Community Service briefly intervened, before withdrawing in March 2010.
- In November 2009, an agreement was reached between the parties, the intervener, and the Independent Children’s Lawyer that the child would spend time with the father under the supervision of a supervisor approved by the intervener. When the intervener later withdrew from the proceedings, the paternal grandmother was regarded by the intervener as a satisfactory supervisor, just as the parties thought when they reached agreement on parenting orders previously in January 2009.
- For reasons which remain unexplained, Court orders were never solicited to ratify the agreement reached in November 2009.
- At about the same time that agreement was reached over parenting arrangements, the father was charged by police with numerous offences. The charges related to both the mother and the child, but primarily the mother, and concerned incidents said to have occurred between May 2002 and July 2007, while the parties were cohabiting.
- Months later, on 3 May 2010, the mother filed an Application in a Case seeking to discharge and replace the former orders with fresh orders providing for the child to spend only supervised time with the father.
- The dispute proceeded by way of interim hearing on 10 May 2010, following which interim orders were made which provided for:
- Discharge of the former parenting orders (Order 1);
- The child to live with the mother (Order 2); and
- The child to spend time with the father for four hours each Saturday, supervised by the paternal grandmother (Orders 3-4).
- The mother unilaterally ceased compliance with the Court’s orders within a short period of months – she admits by August 2010 at latest, contemporaneously with the commencement of the trial of the criminal prosecution against the father. The child last saw the father just before the trial, which commenced on 4 August 2010. The mother felt that the father’s pleas of guilty to some of the charges justified her decision to cease compliance with the parenting orders.
- Shortly afterwards, on 2 September 2010, the mother filed another application seeking orders from the Court precluding the child from spending time with the father, presumably in the hope of vindicating her continuing contravention of the existing interim orders. That application was not filed on 2 November 2010, as the mother deposed.
- The mother’s fresh application led to another interim hearing on 10 December 2010, at which time the mother’s application to terminate all interaction between the child and the father was dismissed, but the interim parenting orders were remodelled to provide for the child to spend supervised time with the father at a contact centre for two hours each alternate weekend.
- The mother failed to comply with those orders from the moment they were made. She deposed to the reasons why.
- The mother’s counsel confirmed that, essentially, it was the mother’s contention she had both an honest and reasonable belief that disobedience with the Court’s orders was necessary to protect both her own “health” and “safety” and the “safety” of the child.
- The father was not legally represented. His lack of forensic ability precluded him from effectively testing the evidence adduced by the mother and the evidence given by the two experts.
- Consequently, in the absence of any, or any viable, challenge to the evidence of the mother and the experts their evidence must logically be accepted unless it is inherently improbable. With few exceptions later addressed and explained, none of the evidence adduced in the mother’s defence could be so categorised and is therefore accepted.
- It follows from general acceptance of the evidence given by the mother and the experts that the mother had a genuine belief that refusing to comply with the Court’s orders was necessary to protect the “safety” of both herself and the child.
- The mother recounted a long history of the father’s perpetration of domestic violence upon her.
- In particular, the mother deposed that the father threatened her by sending her text messages in the following terms on 4 January 2008:
You chose the wrong person to hurt. You really think I’m going to live with the shit you’ve done and say nothing?
No death is too easy! You will get yours in good time. You’ll eventually realise what you did yo (sic) [the child’s] life for a fuck with a loser! You will hurt a lot more.
You better watch your attitude. I’m being very considerate by letting you stay there. Keep it up. All treat you like a dirty slut for the rest of your sad life (sic).
- The mother believed such messages constituted a threat to at least her life.
- The parties’ relationship was suspended shortly afterwards in January 2008. They later resumed their relationship, but their cohabitation finally ended in November 2008.
- The father retained the child in December 2008 and the mother commenced proceedings to recover the child from the father and to secure a family violence order against him.
- The mother believed she was placing herself at risk by divulging in court proceedings what the father had done to her, in light of threats he had made to her about what he would do in those circumstances. She believed the father would hurt the child if he wanted to hurt her.
- Notwithstanding, the mother spoke with police some months later in July 2009 about her allegations of past domestic abuse by the father, and the father was later charged with a number of serious offences in November 2009 relating to his assaults of the mother and child between 2002 and 2007.
- The prosecution of those charges against the father proceeded to trial in August 2010. As the trial approached, the mother’s fear for the safety of the child and herself increased, but once she had given evidence at the criminal trial and the father had changed his pleas from “not guilty” to “guilty”, the mother feared the father would carry out his threats to kill her and the child.
- The mother therefore genuinely believed the “safety” of both the child and herself was at serious risk from the father, which risk could only be attenuated by avoiding any interaction with him. In her mind, it was therefore necessary for her to contravene the Court’s orders providing for the child to spend time with the father.
- As already noted, irrespective of the genuineness of the mother’s belief about the necessity for her disobedience of the Court orders, elemental to her establishment of reasonable excuse was proof that her belief was based on reasonable grounds. That element imports an objective standard, which overlays the subjectivity of the mother’s belief.
- The mother’s counsel submitted, in effect, the Court must necessarily be satisfied by the evidence that the mother’s belief was reasonably held. I do not share that view of the evidence and am not so satisfied on the balance of probabilities, let alone to the degree of certainty urged by the mother’s counsel, for reasons which follow.
- By the time the parties finally separated in November 2008 the mother had experienced severe domestic violence at the hands of the father, to which the father later admitted. However, the mother conceded in cross-examination that, bar an exchange of letters initiated by her on one occasion, there had been no contact of any sort between her and the father after their final separation.
- The mother successfully secured the return of the child to her from the father by Court order made in December 2008, consequent upon which the interim parenting dispute between the parties was listed for hearing before the Court a month later in January 2009.
- The mother consented to orders in January 2009 which provided for the child to spend time with the father reasonably frequently, some of which time was subject to supervision by the paternal grandmother and some of which was not supervised at all. The mother’s allegations of domestic violence against the father lay behind the requirement for the partial imposition of supervision.
- The mother recognised the inconsistency of her consent to parenting orders in those terms and her subsequent refusal to comply with parenting orders providing for the child to spend supervised time with the father. She explained the inconsistency by asserting that she was “bullied into signing the consent orders” by her own solicitor. It was submitted she consented to the orders under duress exerted by her own solicitor.
- I find that evidence inherently improbable and do not accept it for a number of reasons.
- The mother was represented by a lawyer who provided written advice to the mother in advance of the interim hearing in January 2009 about the nature of the father’s demands for parenting orders.The mother attended the Court for the hearing in the company of her father, no doubt so he could provide her with moral support. The mother was not therefore alone and vulnerable to the importunity of an overbearing solicitor. She had her father to rely on for independent advice, protection and comfort.
- The mother’s asserted disbelief at the Court’s approval of the consent orders is perplexing in the face of her admission she signed the orders because she felt she had little real option in light of her lawyer’s advice. The mother expressly deposed that, rather than because of duress, she signed the consent orders because:
…I was afraid of the consequences from the legal system and from what [the father] would do if I did not do what I was told.
- That explanation is difficult to reconcile with the allegation she was forced by her solicitor to act contrary to her will.
- In all probability, the mother did nothing different to what many litigants do – she accepted advice to compromise the litigation on the cusp of the hearing for fear of receiving a worse result if the hearing proceeded to judicial determination. She later regretted her decision to settle the dispute when she arrived home and then, more than a week later, wrote to her lawyer terminating her instructions.Notably, the mother did not then allege to her lawyer that she had only signed the consent orders because of coercion or duress exerted by the lawyer. Rather, the mother simply expressed dissatisfaction about the lawyer not pressing her case with sufficient vigour.
- The lawyer wrote back to the mother explaining her perspective about the litigation. In particular, the lawyer explained how documents produced on subpoena were not entirely corroborative of the mother’s instructions and that other available records directly contradicted the mother’s expressed fear of the father by demonstrating she voluntarily contacted him frequently and at odd hours.
- Although the mother deposed she signed the consent orders providing for the child to spend time with the father believing the child should not spend any time with the father, she afforded no explanation at all for why she would have authorised her lawyer to represent the following propositions to the registrar at the time the consent orders were approved:
The parties have entered into a regime of increasing supervised contact (with some unsupervised contact) which is likely to lead to fully unsupervised contact by the time of the adjourned Family Report.
There are significant prospects of settlement if the contact arrangements proceed without incident.
- Such notations on the Court record would not have been made by the registrar other than in reliance upon representations made by the parties’ legal representatives.
- I reject the suggestion that the mother’s consent to the orders in January 2009 was anything other than voluntary, albeit that her consent may have been offered hesitantly.
- When the mother filed another application months later in September 2009 seeking to amend the interim parenting orders, it had nothing to do with the history of domestic violence between them. Rather, the mother alleged the child had made statements to her which led her to believe the child had been sexually abused by the father. The mother’s proposal was that the child should continue to spend time with the father, but only under supervised conditions at a contact centre.
- The mother acknowledged she was hard-pressed to explain the inconsistency between that proposal and her contention the child should spend no time at all with the father. She asserted a feeling of hopelessness, which caused her to make the proposal despite her knowledge it was not in the child’s best interests. The mother’s asserted belief was incompatible with the manner in which she was conducting the litigation and such incompatibility does not withstand logical scrutiny.
- Only a relatively short time later in November 2009 the mother again agreed to an arrangement for the child to spend supervised time with the father. That agreement was reached in concert with the father, the Independent Children’s Lawyer and the NSW Department of Family and Community Services. That agreement was still operational months later in March 2010 when the Department withdrew from the proceedings, at which time the paternal grandmother was endorsed as a suitable supervisor, just as the parties had agreed long before in January 2009.
- The mother did not offer any explanation at all for why she entered into that agreement. She did not depose that her consent was involuntary or that her compliance with the agreement was coerced.
- In May 2010 the mother filed another application proposing the child spend only supervised time with the father, but with the supervision provided at a contact centre rather than by the paternal grandmother. The mother’s application was filed in response to an application filed by the father the month before, in April 2010, in which he sought an expansion of the time spent by the child with him and dispensation of the need for any supervision.
- The Court heard and determined those competing applications on 10 May 2010 by ordering the child to spend time with the father, supervised by the paternal grandmother, as had been agreed by the parties in January 2009 and November 2009. The imposition of supervision was designed to guard against the alleged but untested unacceptable risk of the child’s sexual abuse at the hands of the father.
- The mother ceased compliance with the Court’s orders for the first occasion on 7 August 2010, contemporaneously with the commencement of the father’s trial on criminal charges. That is the date of the first contravention alleged by the father and admitted by the mother.
- On 9 August 2010 the father pleaded guilty to some of the charges proffered against him and some little while later on 24 August 2010 the mother’s solicitors wrote to the father’s former solicitors advising them that the father’s admission of those offences constituted changed circumstances. The mother then filed a fresh application on 2 September 2010 seeking orders terminating all interaction between the child and the father.
- The mother’s fresh application was heard and determined by the Court on 10 December 2010, when orders were made for the child to continue spending supervised time with the father, albeit less frequently and at a contact centre.
- As was observed by the Court during that hearing, the only change in circumstances was the father’s admission of some of the criminal charges. But that was not really a change to the underlying family dynamic. The father’s decision to publicly admit his past violent behaviour changed nothing about the history of the parties’ relationship. His pleas of guilty were only vindication of the mother’s allegations of past domestic violence.
- During the interim hearing on 10 December 2010 the mother deposed to her fear the father would abduct the child. That fear was reasonably addressed by ensuring the child only spent time with the father in the formal setting of a contact centre.
- In these proceedings the mother deposed she defied the Court’s orders because she feared the father would kill her and the child, or at least abduct the child from her en route between the contact centre and her home.
- The mother adduced no evidence which would rationally permit such fears to be evaluated as reasonable. The father last made a threat to her by text message in January 2008, long before their final separation in November 2008. Since separation, bar one unremarkable exchange of correspondence initiated by the mother, they have had no personal interaction. In January 2009 the mother agreed to the child spending time with the father, some of which time was unsupervised. In November 2009 she joined in another agreement for the child to spend time with the father, supervised by the paternal grandmother. In May 2010 she moved the Court for orders that the child should continue to spend time with the father, but supervised in a contact centre rather than by the paternal grandmother. At each one of those junctures the mother was independently advised and represented by lawyers. Objectively, the mother would not have made such proposals or reached such agreements unless she was satisfied there was no undue risk to the safety of either herself or the child.
- It was not until August 2010 that the mother changed her mind about the child spending any time with the father. The event that changed the mother’s mind was the father’s change of pleas in the criminal trial.
- It should be observed that the mother’s evidence that the father’s guilty pleas motivated her decision to cease compliance with the Court orders cannot be entirely correct. That is because her first contravention preceded the entry of the father’s guilty pleas by several days. The change of pleas may, however, have influenced her subsequent contraventions.
- The mother anticipated that her fluctuating attitude to the expenditure of time by the child with the father appeared illogical. For that reason, in December 2011, the mother’s lawyers solicited an opinion from Dr L, a social worker and researcher with expertise on the topic of domestic violence. The apparent purpose of the engagement was to acquire an expert opinion to contextualise the mother’s past behaviour towards the father and the pending litigation.
- The mother’s solicitor specifically instructed Dr L in the following terms:
It is [the mother’s] case that her actions, in consenting to orders that [the child] spend time with [the father] and indeed her sending the father message and images and re-commencing her relationship with [the father] are actions that although a reasonable person might see them incongruous, she did such actions due to the emotional abuse she suffered during the relationship. This had an impact on her proper judgment in relation to risks to herself and the child in continuing their relationship with [the father].
- Self-evidently, the instructions furnished to Dr L entailed a concession that the mother’s behaviour in consenting to parenting orders of the type she later deliberately contravened would be considered “incongruous” by a “reasonable person”. The chronological facts already recited bear out that perception, which was apparent even to the mother’s own legal representatives.
- The opinion expressed by Dr L in response to her instructions was equally clear. She explained as follows:
The context for this inquiry regarding the behaviour of victims of domestic violence is to seek to understand in this context [the mother’s] consenting to her daughter [name] continuing to spend time with [the father] in January 2009 and subsequently in November 2009.
…research into the ways in which women deal with domestic violence reveals that they resist the perpetrator’s violence and control in their intimate relationships, albeit in ways that may not be visible to outside observers and which indeed may not seem rational to others.
…it is indeed common that victims living within an abusive relationship marked by coercive control may act in ways which seem irrational to others.
- Although speaking generally, and even though the mother had not lived with the father since November 2008, Dr L’s opinion implicitly acknowledged the mother had acted in ways which objective observers may not consider “rational”. That was the point of adducing her evidence in the case.
- Dr L did not meet with the mother. Her opinions were sought and expressed hypothetically according to her qualifications and experience, based on a series of assumptions drawn from her instructions and documents she was given. The evidence of Dr L explained how victims of domestic violence may sometimes act irrationally. Although she did not explicitly say that the mother had personally acted irrationally because she was the victim of past domestic abuse that was the imputation of her evidence.
- Even if Dr L’s evidence is properly regarded as establishing a direct causal link between the mother’s irrationality and her subjection to domestic violence, the evidence only explains why the mother acted irrationally. It does not of itself provide any foundation for a conclusion that the mother had objectively reasonable grounds to act the way she did. If a reasonable person would not regard the mother’s conduct as reasonable, the mother’s conduct does not transform from unreasonable to reasonable merely because one appreciates she was victimised.
- During cross-examination Dr L expanded upon the opinions expressed in her affidavit. Dr L said she considered the mother’s fears were “very justified” and “realistic”, having regard to the contents of the documents drawn to her attention. Dr L also said words to the effect that it would have been “very sensible for the mother to be thinking about protecting the child from any further contact [with the father]”.
- If that evidence was an attempt by Dr L to assert only that the mother’s fears of the father’s violent conduct were reasonably held, I accept that is so. The facts pertaining to his physical abuse of the mother in 2007 were dramatic.
- However, if it was an attempt by Dr L to go further and assert that the mother had reasonable grounds to believe it was consequently necessary for her to repudiate Court orders in order to protect herself or the child, I do not accept that her opinion carries any probative weight on that issue. First, such an opinion was well beyond the scope of her written instructions. Secondly, such an opinion was merely personal and not an opinion expressed within the purview of her expertise. Thirdly, such an opinion is not easily reconciled with some of the doctor’s other comments. Fourthly, that is the ultimate issue for the Court’s determination.
- Dr L said in her report that supervised interaction between the child and the father “involved some important safety elements for both the child and [the mother]” and thereafter speculated about the mother’s motivation for agreement to such a parenting regime. Dr L also observed that the consent arrangement in November 2009 “would have been a safer option for both [the mother] and the child”. Dr L also conceded in cross-examination that “supervised contact” is a “very different situation” from “unsupervised contact”. Those concessions about increased safety for the mother and child were not apparently factored into any opinion implied from her oral evidence that the mother had reasonable grounds not to comply with Court orders. Alternatively, the validity of her implied opinion in the face of such concessions was not sufficiently explained.
- The pivotal issue is not the reasonableness of the mother’s fears for the safety of herself and the child. Rather, it is whether the mother had reasonable grounds to believe that it was necessary for her to contravene the Court orders to preserve the health or safety of herself or the child. There is a material and important difference between those two concepts.
- As acknowledged by Dr L, of critical importance to the pivotal issue were the safeguards introduced by the orders to ameliorate any risk to the safety of the mother and child. To accommodate the mother’s safety concerns, the orders made by the Court on 10 May 2010 and 10 December 2010 both made provision for the child to spend time with the father, supervised firstly by the paternal grandmother and latterly at a contact centre. The mother had herself made and adhered to those very same proposals for well over 18 months between January 2009 and August 2010.
- After the orders were made in May 2010, the constant supervision of the child when spending time with the father eradicated any reasonable fear for the child’s “safety”. The supervision precluded any appreciable risk of the child’s sufferance of any physical or psychological harm. There was no need to contravene Court orders to protect the child’s safety.
- Nor was there any reasonable basis for the mother’s belief that it was necessary to contravene Court orders to protect her own safety.
- In the absence of any actual or threatened violence for a period well in excess of two years, between January 2008 and August 2010, the prospect of the father acting violently towards the mother when he had just been convicted of committing past violent offences against her, for which he was due to be sentenced, was objectively quite remote. The father must have realised he was facing condign punishment, which was later proven true with the sentence of imprisonment imposed upon him. It was quite unlikely the father would have compromised his precarious liberty on bail awaiting sentence by committing further offences, particularly against the mother who was the primary victim of the offences for which he was awaiting sentence. Her personal safety was not likely in jeopardy.
- As the provisions of s 70NAE(5) make clear, and as the submissions of the mother’s counsel acknowledged, there is a distinction to be drawn between protection of the “health” and the “safety” of a person. The mother relied on both limbs alternatively and it is therefore necessary to consider the separate issue of her “health”.
- The mother had commenced consulting her treating psychiatrist, Dr N, in late February 2010 and she was told by him she was suffering from Post Traumatic Stress Disorder.
- Dr N was first asked by the mother’s solicitors to provide a report about the mother in January 2011, to which request Dr N responded immediately.
- Dr N reported he had consulted with the mother on seven occasions over the preceding eleven months. His diagnosis of the mother as at January 2011 was “Major Depressive Episode, Anxiety Disorder and Post Traumatic Stress Disorder”. Dr N considered the mother’s condition had “affected her emotions, her behaviour and her perceptions”. Dr N also considered that the father seeing the child would “worsen [the mother’s] illness and jeopardise her recovery” and that any further involvement of the father in the mother’s life would “worsen the post traumatic stress disorder, depression and anxiety [the mother] suffers from”.
- In December 2011 the mother’s solicitors sought further clarification from Dr N about the mother’s thought processes, to which the doctor again responded promptly. The overriding opinion of Dr N was that “anything to do with [the father]” would have a “serious and terrifying adversely psychological influence on [the mother]”.
- The evidence of Dr N tended to suggest it would have been reasonable for the mother to believe it was necessary to contravene the Court’s orders to protect her own mental “health”, for otherwise any interaction by her or the child with the father pursuant to operation of the Court orders would worsen her post traumatic stress disorder, depression and anxiety.
- But that opinion did not correlate with the mother’s evidence. The mother did not contravene the Court’s orders from August 2010 onwards to preserve her mental “health”. Rather, her evidence was that she did so in the belief it was necessary to protect the physical “safety” of herself and the child against death, injury or abduction.
- The defence of “reasonable excuse” is not made out unless the belief actually possessed by the respondent is reasonable. It is no defence to establish a particular hypothetical belief may be objectively reasonable if there is no evidence the respondent actually held that belief at the relevant time.
- There were two other aspects of the mother’s evidence that need to be addressed.
- The mother said nothing in her affidavit of the second contravention – her failure to supply her contact details to the father in accordance with Order 5 made on 10 May 2010. With the consent of the father, the mother gave some short oral evidence-in-chief on that topic. She simply said she had been advised by a police officer not to provide her contact details to the father because of “safety issues”.
- The inference I draw from the mother’s evidence is that she would have complied with the order, but for the officer’s advice. No other inference could conceivably be drawn, for otherwise there was no point to the evidence being adduced.
- The mother gave no evidence about when she was given such advice by the officer. The subject order was made on 10 May 2010, requiring her compliance “forthwith”. Even accepting the mother’s evidence at its highest, she had no reasonable excuse for contravention of the order until such time as she received and relied upon the advice from the police officer, which may have been days, weeks or even months after the order was made. The mother bore the burden of proving that her receipt and reliance upon the officer’s advice was contemporaneous with her obligation arising under the order. She failed to do so.
- But the deficiency of the mother’s evidence on the issue was more pronounced in any event. There was no evidence that the officer was even aware the mother’s obligation to provide her contact details to the father was triggered by a Court order. It is difficult to accept at face value that a police officer knowingly advised the mother to act unlawfully. It is much easier to infer that he did so in ignorance of the legal obligation by which she was bound.
- It seems trite to observe, but the mother cannot prove the existence of a “reasonable excuse”, pursuant to ss 70NAE(1),(5) of the Act, for contravention of the order in reliance solely upon an isolated statement by a third party who was not privy to all of the relevant facts and circumstances.
- In relation to the third contravention, concerning her failure to register with the contact centre as required by Order 2.2 made on 10 December 2010, the mother again adduced evidence of representations made to her by a third party.
- Following the orders being made on 10 December 2010 the mother contacted the relevant contact centre and spoke to a staff member. The mother was told by that staff member “It doesn’t sound appropriate for there to be any contact. I will speak to my supervisor about it and get back to you”. There is no evidence that the staff member ever did, or that the mother pursued the matter. She did not arrange and attend the assessment appointment with the contact centre, as was required of her by the Court orders. Inferentially, the mother was content to rely upon the staff member’s corroboration of her anxieties. Suffice to say the operation of Court orders cannot depend upon one party’s impression of the views of third parties unrelated to the litigation. To the extent the mother was inviting the Court to accept that her contravention was excusable because of comments and opinions expressed to her by that staff member, the invitation is rejected.
- The mother failed to prove, to the requisite standard, the existence of any reasonable excuse for her contraventions of the subject orders made on 10 May 2010 and 10 December 2010.
- The contraventions are proven.
- It will now be necessary to consider the sanctions to be imposed for the contraventions.
I certify that the preceding one-hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 3 April 2012.
Date: 3 April 2012
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties. Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.
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