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Reasonable excuse in contravention proceedings

Reasonable excuse in contravention proceedings

Argyle & Thomas

REASONS FOR JUDGMENT

Introduction

  1. On 3 November 2016, upon hearing of the Application-Contravention filed by the father on 14 October 2016, the Court found that:
    Allegation 1:

The Respondent without reasonable excuse failed to bring the children to school on 8 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Applicant failed to respond to the Applicant’s attempts to contact the Applicant to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b) – Admit but with reasonable excuse

Allegation 2:
The Respondent without reasonable excuse failed to bring the children to school on 16 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Applicant failed to respond to the Applicant’s attempts to contact the Applicant to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(a) – Admit but with reasonable excuse
Allegation 3:
As of 4 September 2016, the children have not called the Respondent as per order 6(a) of the Orders made 7 October 2014. Prior to the contravention, the Respondent and the children would ordinarily communicate by telephone after 4pm. The Respondent has not been able to make telephone contact with the children since 4 September 2016 – Denied
Allegation 4:

The Respondent has failed to communicate to, and keep the Applicant informed of the children’s health, welfare, and schooling; in particular, the Applicant has not received any communication from the Respondent in respect of the children’s schooling results, school reports or other school activities, nor any information on any medical appointments – Denied

Allegation 5:
The Applicant has failed to refrain from making critical or derogatory remarks in relation to the Respondent in the presence of the hearing of the children – Denied
Allegation 6:
The Respondent without reasonable excuse failed to bring the children to school on 22 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Applicant failed to respond to the Applicant’s attempts to contact the Applicant to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b) – Admit but with reasonable excuse

Allegation 7:

The Respondent without reasonable excuse failed to bring the children to school on 30 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Applicant failed to respond to the Applicant’s attempts to contact the Applicant to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b) – Struck Out

  1. Counts 3, 4 and 5 were subsequently dismissed on the basis that the father had not established a prima facie case, and Counts 1, 2 and 6 were set down for hearing of the reasonable excuse argument. That hearing ultimately occurred on 16 February 2017, and these are the Reasons for Judgement in respect of whether the mother established a reasonable excuse in respect of the admitted contraventions.
  2. The overall hearing of the Application-Contravention was conducted on the basis of the Court firstly determining the issue of whether or not there was a contravention as alleged[1] and secondly determining the issue of reasonable excuse[2]. What orders, if any, are to be made upon the determination of these issues is a matter which will be determined after hearing from the parties on sentence.[3]

Relevant Facts

  1. The father was born on (omitted) 1974.
  2. The mother was born on (omitted) 1975.
  3. The parties were married on (omitted) 2007 and they separated in or about June 2012. The parties are yet to be divorced.
  4. There are three children of the parties:
    1. X born (omitted) 2008;
    2. Y bon (omitted) 2009; and
    1. Z born on (omitted) 2011.
  5. On 7 October 2014 final parenting orders were made by consent in the Federal Circuit Court of Australia (“Final Orders”). Relevantly, those Orders provided that the children are to live with the father, inter alia, during school term:
    1. each alternate Friday from after school and concluding at 5pm Sunday; and
    2. each alternate Thursday from after school to 9am Saturday.
  6. From October 2014 until about mid-September 2016, the children, by and large, lived with each of the parents in accordance with the Final Orders.
  7. On Thursday, 8 September 2016 at 3pm, the father attended (omitted) Public School to collect the children at the commencement of their time with the father in accordance with the Final Orders.
  8. The father went to the school office where he spoke to the Principal and learnt that the children had not been at school that day. He left the school at approximately 3:30pm without the children. There had been no communication from the mother advising the father that the children would not be living with him in accordance with the Final Orders on that occasion.[4]
  9. The following morning the father sent the mother a text message asking when the children would be brought to school so that he could pick them up at the conclusion of school later that afternoon. He did not receive any response from the mother and at approximately 9.30am that morning he spoke to the school and was advised that the children were not at school again that day.
  10. On Friday, 16 September 2016 at 3pm, the father attended the children’s school to collect the children in accordance with the final orders. By 3:10pm the children had still not arrived and the father could not locate them. The father then telephoned the mother that she did not answer her mobile phone. The father attended the school office and was again advised that the children did not attend school on that Friday. The father left school at 3:15pm without the children and without any notification or contact from the mother that the children would not be living with the father in accordance with the Final Orders on that occasion[5].
  11. On Thursday, 22 September 2016 at approximately 10am the father telephoned the children’s school and was advised that the children were not in attendance. That afternoon at 3pm the father attended the school to collect the children in accordance with the Final Orders. By 3:10pm the children had still not arrived and he could not locate them. At about that time he telephoned the mother’s mobile number that she did not answer. The father left the school at approximately 3:15pm without the children or any notification from the mother about the children’s whereabouts, or that they would not be living with the father in accordance with the Final Orders on that occasion[6].
  12. On Tuesday, 27 September 2016 the father sent a text message to the mother enquiring about the children’s time with the father during the upcoming school holidays. The mother did not reply. On the father’s evidence the children were not made available to him at the commencement of the school holidays although that issue is not the subject of the Contravention Application. It is a relevant issue in terms of the chronology, as is the concession by the mother that the children had not spent time with the father from after 4 September 2016 until late October/early November.
  13. On 20 September 2016 the father voluntarily (and against legal advice) participated in an electronically recorded interview with the Police regarding the allegation of assaults on the children alleged by the mother against the father. The father denied that he physically assaulted the children and gave an account of the children’s busy weekend with him including attending a children’s (hobbies omitted). The father also denied giving the children medication to sleep or that he banged the children’s heads together. The Police records show that the Police were of the view that there was insufficient evidence to proceed by way of charge and insufficient evidence to make an application for an Apprehended Violence Order.
  14. On 11 October 2016 the father received a telephone call from (omitted) Police in relation to a complaint they received from the mother, that the father had installed a GPS tracking device in a motor vehicle which the father purchased but then transferred to the wife in August 2016. The father agreed to participate in an interview with the Police. At the conclusion of that interview the father was told by the Police that no charges would be pressed and that he was free to go.
  15. In about mid-October 2016 the father received a telephone call from a Family and Community Services (FaCS) case worker, asking the father to participate in an interview in relation to a report about alleged abuse of the children by the father. The father attended such interview on 19 October 2016. The father was told that FaCS had received a complaint about abuse by the father towards the children specifically an incident on the weekend of 4 September 2016.
  16. The father during the interview, denied any allegations of physical abuse, and informed the case officer of the various physical activities in which the children were engaged during the time they were spending with the father between 2 and 4 September 2016. The father has not had any further contact from FaCS since the interview on 19 October 2016.
  17. Tendered in the proceedings were a number of documents produced under Subpoena from the children’s school, from FaCS, from the Police and from the Children’s Hospital. Some of these documents have been specifically referred to in these Reasons, and while all have been considered by the Court not all were relevant to the discrete issue before the Court being the mother’s “reasonable excuse” argument.
  18. While all reasonable efforts have been made in these Reasons to refer to relevant evidence, not all of the evidence in the proceedings has been traversed with a fine tooth comb in these Reasons. The Court is comforted in its approach by what the Full Court has recently said in Searle & Mellor[7]:

It is clear that it is not incumbent on a trial judge to make an explicit finding on each disputed piece of evidence (it being sufficient if the inference as to what is found is appropriately clear). Further, the reasons provided need not be lengthy or elaborate and are not required to mention every piece of evidence, fact or argument relied on by parties as relevant to an issue (because, if a failure to mention every fact and argument was evidence that the same had not been properly considered, reasons would become longer and longer); in fact, when dealing with large bodies of evidence, economy and/or truncation of expression and approach may be required to coherently explain the resolution of an overall controversy.

(citations omitted)

The Law dealing with Contraventions

  1. The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A Family Law Act 1975 (Cth).
  2. Division 13A is organised in a progression from lesser to greater seriousness, as explained in s70NAA. In summary it deals in turn with:
    1. Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdivision A;
    2. Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
    1. Contravention alleged but not established – provision for costs orders against the person bringing the proceedings: subdivision C;
    1. Contravention established, but a reasonable excuse – the Court can make orders for compensation for time lost, and costs orders: subdivision D;
    2. Less serious contraventions, and no reasonable excuse – the Court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
    3. More serious contraventions, and no reasonable excuse – the Court has more punitive powers, including fines and imprisonment: subdivision F
  3. The meaning of “contravened an order” is set out in s70NAC of the Family Law Act 1975 (Cth):

A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

(a) where the person is bound by the order–he or she has:

(i) intentionally failed to comply with the order; or

(ii) made no reasonable attempt to comply with the order;

(emphasis in original)

  1. The mother admitted the contraventions[8]. Therefore, the onus of proof shifted to the mother to establish that she had a reasonable excuse for the contraventions.[9]
  2. The mother submitted that she had a reasonable excuse pursuant to sub-ss 70NAE(5)(a) and (b).

Reasonable Excuse

  1. The meaning of “reasonable excuse” is, relevantly, found in s70NAE of the Act, which reads:
    (1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

(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).

  1. In Taikato v R[10] the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:

… what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defences of ‘reasonable excuse’ is an exception…

… Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.

  1. A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child.[11]
  2. Section 70NAE was considered by Warnick J in Childers & Leslie[12] where his Honour said:
    1. s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found …
  1. … the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5)…
  1. While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “…necessary to protect the health…” and “…not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection…

  1. … The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:

… However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.

  1. Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.

The Mother’s Case

  1. The mother’s evidence is that on 4 September 2016 she picked the children up after they had spent time with the father in accordance with the Final Orders and that on the way home the children said to her that the father had smacked them. The children apparently said similar words to the mother when they got home and when the mother asked what happened and what is it that the father did, Y showed the mother a bruise on her knee and Z showed the mother a bruise on his thigh. The children then apparently started to cry and Y said to the mother that the father hit the children with his belt and slippers, that he carried Z under his arm and threw him on the bed and that Z hit the back of his head on Y’s head. X said that she was told by the father not to make any noise because he was tutoring in the other room and that he gets angry if the children make noise. Y then said to the mother that she had a headache. It appears from the mother’s evidence that the children were all together when these conversations were occurring.
  2. The mother says that she was in shock and concerned about the children’s safety. She called the Department of Family and Community Services that evening when the children went to bed and reported her concerns. The following day she called (omitted) Police and made a complaint that the father had been hitting the children and that she was therefore concerned for their safety. The Police attended the mother’s home later that day. The mother’s evidence is that she said to the Police:

The children came home from their father’s house on Sunday and were upset. They said that their dad hit them and threw them on the bed. They are complaining of headaches now. I don’t know what to do. I am scared he will hurt them again.

  1. What the mother says she said to the Police is not what she says the children said to her. It is at the very least, an exaggeration. There was no complaint that all of the children had been thrown on the bed or that they were all complaining of headaches. Furthermore, at the time that the Police were at the mother’s house, she received a call from the school to say that Y was sick and that she was complaining of a headache.
  2. The mother then took the children to their General Practitioner (‘GP’) at (omitted) Medical Centre. It appears that all of the children were together with the mother and the GP, and that they said to the GP words to the effect of “daddy smacks us and gives this medicine before we go to bed”. The GP then apparently said to the mother that he had to call the Department of Family and Community Services as the children had already complained to him that the father had given them ‘poison medicine’ before. Such evidence is extraordinary.
  3. The mother, importantly, does not say that the child Y had come home from school sick with a headache, nor does she say that Y was in any way examined by the GP in respect of the complaint that she had a headache both on the day that she came home from the father and also that day at school.
  4. The mother, unfortunately, was not cross-examined about this particular evidence. The Court does not say that as a criticism of Counsel for the father who cross-examined the mother at length in relation to some very important matters. It is noted simply because there was no exploration of the issue that more than likely the child had been sick and that was why she had the headache – rather than any inference such as the one that the mother appears to have drawn, that the reason that she had a headache is because of some abuse that she had suffered at the hands of the father.
  5. The mother then took the children to (omitted) Hospital at (omitted) for an assessment at the suggestion of the Police Officers who had attended the home. The mother was not provided with any report from the hospital. However a number of documents produced under Subpoena from the hospital were tendered in the proceedings.
  6. The discharge of referral from the hospital says that the child Y presented to the hospital with an injury, being a soft tissue injury. The discharge referral then notes as follows:

[Y] Was in care of father over the weekend. Mother noticed in bath last night new bruises and Y was c/o headache. Mother has footage on her phone of the children and telling her that the father hit them several times with belt buckle and threw them on to the mattress, hitting side of bed/colliding heads.

Third child oldest girl was not hit by father. Children state that he “loves”her – mother tells me that he licks her ear and snuggles with her in bed.

Ongoing for many years

Previous AVOs against father, now elapsed

GP has apparently reported to FACS as has mother on multiple other occasions

Mother found a GPS tracker in her car, notes cars following her

Never been to hospital before for injuries

Y has had headache since Saturday. No visual changes, vomiting, dizziness.

Running around examination room – mother states they are always “hyperactive” the two days after returning from father’s care

Bruising noted over pre-tibial area, one bruise right buttock, patch of discolouration/dry skin low thoracic spine

Says “ouch” on palpation over entire spine and long bones, smiling throughout

  1. Once again the matters noted in the discharge referral do not strictly accord with the other evidence in the proceedings. For example, the mother’s evidence is that Y complained about having a headache “now”being after she returned from spending time with the father on the Sunday, rather than having a headache all weekend. If what is recorded in the discharge referral is correct, namely that Y has had a headache since Saturday, then what the mother says in her Affidavit is deliberately misleading. The Court is of the view that it is more probable than not, given that the child came home sick from school on Monday with a headache, that she had had a headache since Saturday and that the headache was related to an illness, rather than any alleged abuse at the hands of the father.
  2. The children returned to school the following day.
  3. On 7 September 2016, the mother spoke with the Principal of the children’s school. Her evidence is that she said to the Principal “Mr Argyle has been hitting the children. I don’t want him to have the children anymore.[13] I have already called FACS and told them.” The Principal then apparently advised the mother that due to the Final Orders if the father came to pick up the children that the school could not do anything to stop him. The Principal also apparently said that he had sent something to FaCS but that he could not tell the mother what it was regarding.
  4. On 8 September 2016, the mother took the children to (omitted) Police to report “what had happened”. Y and Z were both interviewed by the Police. The mother was advised that the matter was referred to (omitted) Police and that they would investigate further.
  5. The mother says that she was advised approximately three weeks later by (omitted) Police that the decision had been taken to close the investigation. The mother asserts that the Police officer who spoke to her said words to the effect “there was nothing wrong with Mr Argyle hitting the children.” The mother then gives the following evidence[14]:

…I was concerned for the children’s safety if I let them go to Mr Argyle’s house and did not think the police were taking the investigation seriously.

I was concerned that if Mr Argyle pick the children up from school and had them for the weekend that he would hit them again. I thought that the children were not safe staying with their father overnight. I decided to keep the children at home on 8 September 2016, 16 September 2016 and 22 September 2016 as I thought that this was in the children’s best interest.

(Emphasis added)

  1. It is clear from the above evidence that the mother formed the intention as early as 7 September 2016 not to allow the children to spend any more time with the father, at all, in accordance with the Final Orders. It is also clear from the above evidence that the mother was of the view that she knew better than the Police and FaCS. She also clearly states her reasons for not permitting the time to occur, that being that she thought it was in the children’s best interest because she thought the father would hit the children ‘again’.
  2. Nowhere does the mother give evidence for example, that as soon as she heard back from the Police and/or FaCS that they would not be taking the matter further that she was satisfied that appropriate action had been taken. In fact what she does is make further complaints, complaints which were either historical and had already been investigated, or were said to have been occurring since the Final Orders commenced and were to the Court’s mind of such significant concern that any parent who genuinely believed these matters would have taken appropriate action immediately. The mother did not do so as is clear from the matters referred to below.
  3. The mother’s Affidavit then goes on to explain that since the Final Orders she had been concerned that the father has been inappropriate with X. The mother goes on to say:
    1. That in or around January 2015, X told her that the father “did a wee in me.” The mother apparently went to the Family Court at Parramatta “to try and put a stop to the final orders” where she spoke to a Duty Solicitor and was told that she had to make a report to the Police as it was “too late.” The mother went to (omitted) Police were X was questioned by the Police, the mother also made a complaint to FaCS and a social worker from FaCS also interviewed X.
    2. That since the Final Orders “X would return from her father’s house with redness in her vagina. X would find it very difficult and painful to walk. I tried to ask X how this happened but she would not reply. Since she stopped going to her father’s house on 4 September 2016, the redness stopped.”
    1. That since the Final Orders she has not only witnessed the father licking X’s ear, but that she asked the father to stop and not do it again to which the father replied that he is not doing anything wrong.
  4. It appears that no action was taken by the Police or FaCS in relation to the complaint made by the mother that the father had ‘weed’ in X, at the time the complaints were made or since.
  5. The mother was cross-examined at length by Counsel for the father about the various complaints she made the Police in September 2016.
  6. It is clear from the oral evidence of the mother and the documents produced under Subpoena from New South Wales Police which were ultimately tendered, that the mother did not mention any redness of the vagina relating to Y until 13 September 2016, and that after she was told by the Police that they would not be applying for an Apprehended Violence Order against the father that she repeated to the Police the older complaints about the father doing a “wee” in X and about the father licking X’s ear (in the mother’s presence). The mother also made a number of other complaints on that occasion including that the father showers with the children, that he sleeps with the children by pushing three single beds together and that X sits on the father’s lap and his genitals.
  7. There is no evidence that prior to 13 September 2016, the mother ever made a complaint to the Police, FaCS or the children’s GP about X having redness in her vagina after spending time with her father which had according to the mother, only stopped after Y stopped seeing her father on 4 September 2016. Importantly, the mother did not mention this to the doctors who she spoke to at the Children’s Hospital on 5 September 2016. Certainly the mother does not say that this was a reason why the children did not spend time with the father on the dates the subject of the contravention. In any event, the Police have not taken any action against the father as a result of the complaints made by the mother on 13 September 2016 relating to conduct of an alleged sexual nature by the father towards the children and particularly X.
  8. The mother further says that since the Final Orders the children had expressed to her that they did not want to go to the father’s house and that they had told her that he scared them and asked the mother not to make them go to spend time with the father. When the children were said to have said that these things is not the subject of any evidence.
  9. The mother also makes further complaints X has started to wet herself, that Y started to wet the bed at night and that all three children see a Counsellor. The mother also says that in September 2016 during the time that the children did not see their father they stopped wetting the bed. The mother states that since the children started seeing the father again they have started to wet the bed again.
  10. These matters namely the children’s apparent reluctance to spend time with the father or their incontinence issues[15], were not raised by the mother during submissions as a basis of her reasonable excuse argument.
  11. Distress of a child may give rise to a claim of reasonable excuse, if it results in risk of harm to the child’s emotional wellbeing.[16] It has been said that:
    “… ‘such cases are rare in the absence of precipitating conduct by the contact parent, or otherwise “changed circumstances”. Otherwise, it would simply be a flagrant challenge to the findings of the Court when making the contact orders as the original orders must have been found by the Court to be appropriate parenting orders at the time they were made.”[17]
  12. In the circumstances, none of the evidence establishes that the distress[18] of the children was such that it would result in a risk of harm to the children.
  13. It was submitted on behalf of the mother that the mother had a genuine belief, based on what was disclosed to her by the children, that the children were being hit by the father.
  14. It was further submitted that the Final Orders contained a number of restraints, namely that the father is restrained from conducting his in-house tutoring business at any time he has the children in his care and that neither party is to physically discipline the children. The Court was taken to evidence in the mother’s Affidavit being a text message from the father dated 12 July 2016 showing a number of photographs of the children and other children at the father’s residence “being tutored”.
  15. The Court was asked to accept that there must have been a relevant history, otherwise the orders restraining physical discipline of the children by the parties and restraining the father from conducting in-house tutoring at his home would not have been made.
  16. It was submitted that because of this history and the restraints that it was reasonable for the mother to take steps to protect the safety of the children to ensure that they were not being hit by the father. It was further submitted that it was reasonable for the mother to retain the children while they were ongoing investigations and that such actions were for no longer than was necessary.

Analysis and Conclusion

      1. The wording of s70NAE(5) was referred to earlier in these Reasons.
      2. Section 70NAE(5) was considered by Dawe J in Vaughton & Randle (No.2) [19] where it was held that:
        (82) There are multiple considerations, both subjective and objective, involved in applying subsection 70NAE(5) to the facts…

 

(83) First, there is the issue of whether the respondent believed on reasonable grounds that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child. This issue has a subjective element (consideration of whether the respondent actually believed that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child) and an objective element (consideration of whether this belief of the respondent was reasonable).

 

(84) Second, there is the consideration of whether the period during which the child and the person did not spend time together was “longer than was necessary to protect the health or safety” of the child pursuant to s 70NAE(5)(b).

    (original emphasis)

  1. With these remarks, the Court respectfully agrees. They are a statement of the law which applies to this case.
  2. The Court does not accept that there were reasonable grounds for the mother to believe that the children had been physically abused by the father, despite what she says the children had said to her.
  3. The father’s evidence is that the children had a busy weekend between 2 and 4 September 2016, including a great deal of physical activity. The mother’s evidence does not disclose any discussions with the children about what they did with the father on the weekend. She did not raise any concerns with the father about the bruising which she observed. She concluded that the few bruises which the children had arose as a result of the children being hit by the father, based on what they told her. This must be looked at in terms of what occurred after the disclosures by the children.
  4. The mother complained to the Police. The Police did not take any action against the father[20] as a result of the complaints they did not even apply for an Apprehended Violence Order.
  5. The mother took the children to be examined by the Children’s Hospital. There was nothing sinister reported by the doctors who examined the children, indeed the children were observed to be playing happily and Y was observed to be smiling while complaining of pain.
  6. The children did not see their father in accordance with the Final Orders on 8, 9 and 10 September 2016, 16, 17 and 18 September 2016 and 22, 23 and 24 September 2016. The mother was told by the Police on 13 September 2016 that the Police would not be applying for an Apprehended Violence Order.
  7. The Court finds that the mother has not established the defence of ‘reasonable excuse’ within the meaning of s70NAE(5) in respect of any of the counts.
  8. The father brought his Application-Contravention promptly. It was filed on 14 October 2016. The Court notes that the mother has since then filed an Initiating Application seeking to vary the Final Orders. This is the subject of ongoing proceedings before the Court.
  9. The Court reiterates the long standing authority that parents have positive obligations to comply with orders for children to spend time with the other parent. They must genuinely comply with the order by encouraging children to spend time and to take reasonable steps to deliver the children for time to be spent with a parent. Token compliance or passive resistance is not sufficient.[21]

Conclusion

  1. Lest it be suggested that it was not considered, the Court finds that the cumulative effect of the facts as found is not such that there were reasonable grounds for the mother to hold a belief that withholding the children from the father, was necessary to protect the health or safety of the children.
  2. The list of potential reasonable excuses for contravention at section 70NAE is of course not exhaustive. The Court respectfully agrees with the obiter comments by Warnick J[22], namely that subsection (5) ought to be applied whenever it can “fit” the circumstances[23].
  3. The excuse which the mother relied upon with respect to each of the admitted contraventions was said to be within s70NAE(5) same not being established. The Court also finds that the mother did not have a reasonable excuse for her contraventions that is not within the list of s.70NAE(1).
  4. In summary, the Court finds that the mother has failed to establish on the balance of probabilities a reasonable excuse for the admitted contraventions.
  5. The Court invites the parties to make further submissions on a date to be advised as to the orders the Court should make in light of the findings the Court has made.

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