Contravention by Mother proven

Contravention by Mother proven

Crompton & Crompton

CONTRAVENTION – REASONS FOR JUDGMENT

1. The application is one by the father alleging 13 separate counts of contravention by the mother of parenting orders made by Judge Baker and by consent on 27 October 2014 in respect of the parties’ child X born (omitted) 2009.
2. The applicant father prepared his own application and supporting affidavit. However, both parties were represented by counsel at the hearing before me. The mother, although not necessary under the Rules, has filed an affidavit affirmed 17 March 2017.
3. Counts 1, 2, 7, 8 and 13 were abandoned by the father.
4. The mother entered not guilty pleas to 2 counts being, firstly, that on 29 December 2016 and contrary to order 4 of her Honour’s orders, she had the father arrested under a Police Family Violence order and then collected the child from the police whilst the father was being interviewed thereby denying the father Court ordered or agreed time with the child. Secondly, she entered a plea of not guilty to a charge that on the 22 February 2017 and contrary to order four of her Honour’s orders that she collected X from her school preventing the father’s time with the child.
5. To the remaining six accounts, the mother entered pleas of guilty but with a reasonable excuse.
6. Both parties gave evidence in accordance with their affidavit material and were cross-examined.

10. At count three the applicant alleges that contrary to order four of the relevant orders and on 17 February 2016 the respondent collected the child from her school preventing his time with X. The mother admits the particulars of the count but argues a reasonable excuse.
11. The mother says that she acted on reasonable grounds to protect the emotional health and/or safety of X in not sending her for time with father.
12. The mother offers two arguments. Firstly, she says that the father had lost his driver’s licence and was in Court on the relevant day being the 17 February 2016 on a breathalyser charge. She said that the father attended school on the relevant day in his car.
13. The father says that he did attend the school. He says that he was driven by a friend, Mr J. Whilst Mr J was not at Court to give corroborating evidence, I tend to prefer the evidence of the father given that he adduced evidence that he had, in fact, lost his licence as long ago as November 2015. In any event, if the mother is relying on such a defence then she must have been simply anticipatory in attending at the school when the orders provide for the father to collect X from the school. The father’s denial of driving on that day was not successfully challenged. I prefer the evidence of the father. Secondly, the mother argues that she did not send X because of the father’s abuse of her by text messages on or about Friday 12 February 2016 and because of his ‘deteriorating mental state’. She does not particularise the latter. The alleged abusive messages comprise of:
    “too easy cock, payback is a bitch… Question is, when are you gunna start fucking (omitted).
14. Whilst such language may be inappropriate and arguably abusive, the mother notably did not come to this Court to seek a suspension or variation of the Court orders. I am not satisfied, therefore, that this language within context and chronology amounts to a reasonable excuse. I find, therefore, that the mother contravened the orders as to count three of the application.
15. At count four the father argues that on 26 August 2016 and contrary to order 4 her Honour’s orders the mother collected X from the school preventing the father’s time with her. The mother again argues a reasonable excuse.
16. The mother says that on the relevant day she received a text message from the father saying that he was ‘losing it’ and ‘needed to see a physc’. She says the father claimed that he was drinking and could not have X on that day. The mother says that she offered to collect X so that the father could ‘have time out’. He responded that she should not be at the school because he will ‘go off’. She says that the father made a statement being ‘now I am close to leaving everything to be with the worms’. She said that she interpreted this as suicidal ideation. The mother responded that the father could see X the following weekend which would be the Father’s Day weekend.
17. The father concedes that he made the text comments attributed to him.
18. Counsel for the father argues that the mother is not acting reasonably after denying the father time on 26 August as on that day she, in fact, offered him time the following week and could not therefore have had legitimate concerns as to his psychiatric state. I do not accept this rationale. I prefer that the mother confronted with the text comments made on the relevant day and now conceded by the father was acting reasonably in denying the father time with X on that day. I find count four not proven.
19. Thirdly, at count five the father alleges that on 19 October 2016 and contrary order 4 of her Honour’s orders, the mother collected the child from her school preventing the father’s time with X. The mother offers a reasonable excuse argument.
20. The mother says that the father had seen X only irregularly between August and October 2016 and at other times it was agreed that he would not see X as he had agreed he needed professional help. She deposes to messages to this effect in her affidavit.
21. The mother says that in late October she maintained concerns as to the father’s psychiatric health and that there was an agreement reached that the orders would not be followed. She says, however, that she did take X to see the father on the following day being 20 October 2016 which is Hobart Show Day. Essentially, therefore, the mother argues a reasonable excuse being that there was a collateral agreement between the parties between August and October 2016 that the father would not always see X given the mother’s and his own health concerns. The father in his evidence conceded that he has had difficulties with his emotional or psychological health and has received a referral from his general practitioner to a psychologist. Significantly, he conceded a text message on the relevant date to the mother saying ‘I’ve been medicated all weekend…’ and ‘thank you, Ms Crompton, thank you. I am working through it for a better life for me and X’. In the witness box the father conceded that the ‘medicated’ meant that he was dealing with his problems with alcohol.
22. I generally accept the evidence of the mother in this respect. Given the above-mentioned text message conversations, I am satisfied that the mother acted reasonably in withholding X from time with the father on 19 October 2016. I find that the count is not proved.
23. Fourthly, the father alleges that on 21 December 2016 and contrary to order 4 of her Honour’s orders the mother did not to attend the (omitted) police station for a change-over thereby denying the father time with the X.
24. The mother argues a reasonable excuse. She says that 21 December was the last day of school. She said that there was an end of year party at the school and she invited the father to attend. It seems that the father did attend but that the times were confused. He became agitated and left the school. He concedes that he later sent a text message to the mother saying ‘always got to make me the fool at school, hey, you can pick her up and apologise for me and X. I am not because I’m having a rum.’ She alleges further abusive comments.
25. The mother concedes that she did agree to a collect X and take her to the father’s home. She says, however, that his behaviour was volatile, threatening and abusive and she determined not to leave X.
26. I accept the mother’s evidence in this regard. The father’s own evidence suggests that he was upset at the confused arrangements at school. He concedes that he indicated that he would be drinking rum on the relevant day. I accept that the mother altruistically agreed to a collateral arrangement that she would drop X at the father’s house. Within context, therefore, I also accept the mother’s evidence that the father’s behaviour was then so volatile that she did not believe it in X’s best interest to leave the child with the father. Consequently, I find the count not proved.
27. Fifthly, the father alleges that on 29 December 2016 the mother denied him time with X by making a complaint to Tasmania police under the Police Family Violence order and collected the child from the police whilst the father was being interviewed. He alleges a collateral agreement that he was to spend time with X for a period of 14 days from Christmas Eve.
28. The mother enters a plea of not guilty. She says that there was a collateral agreement. She does not, however, particularise it with any detail. She suggests that she let X go to the father and would ‘telephone X’ to organise the end of the period of time. The orders made by her Honour would have the mother collecting X on Christmas Day at 5.00 p.m. from the (omitted) police station. She did not do so and it is clear that X overstayed that time with father with the consent of the mother. Further, the mother is unable to give a satisfactory explanation as to why she should involve Tasmania police in what was effectively a collection of child. There is no evidence of any relevant antecedent behaviour such to involve the police.
29. In all the circumstances, I prefer the evidence of the father that there was an agreed period of the time outside of her Honour’s orders but that the mother reneged on that agreement and involved Tasmania police thereby securing the return of X into her care contrary to the collateral agreement.
30. I find the count proven.
31. Sixthly, the father argues that on 8 February 2017 and contrary to order four of her Honour’s orders the mother collected X from school thereby preventing his time with X. The mother offers a reasonable excuse. She says that she had attended at Court ordered changeovers on Wednesday 4 January, Wednesday 11 January and Saturday 14 January and on each occasion the father had not to attended. She said that X had, in any event, indicated that she would resist going with the father. She said that X gave similar indications on 8 February 2017 which was the first day of school and where changeovers would happen at the school. She said that X resisted going with the father at the appointed time and the police attended, intervened and encouraged the father not to insist on his Court ordered time.
32. The father says that the mother was holding X’s hand and running away with her saying ‘run X run’.
33. I do not accept the mother’s evidence as a reasonable excuse for her failing to hand X over to the father on the 8 February 2017. Firstly, this was a school day and the orders provide for changeovers to happen at school. There was no reason for the mother to be in attendance. Secondly, if as indicated by the mother, X had been exhibiting resistant behaviour for a number of weeks, then the mother could and should have come to a competent Court so as to obtain relevant orders suspending or varying X’s time with the father. As she did not do so, I am not satisfied that she successfully argues a reasonable excuse. I find the count proven.
34. Seventhly, the father argues that on 15 February 2017 and contrary to order 4 of her Honour’s orders, the mother did not provide X for time with the father by collecting X herself from the school.
35. The mother argues a reasonable excuse. She said that X did not go to school on the relevant day because she was ‘upset’. The mother concedes that she did not advise the father accordingly. She says that she did not to obtain a certificate from a doctor or otherwise. She says that she did not contact solicitors. I do not accept this as a reasonable excuse where it is well established that a parent with primary care of a child has a positive duty to encourage and facilitate a child’s time with the other parent. I find the count proven.
36. Finally, the father argues that the mother contravened the relevant orders on 22 February 2017 when she did not provide X for time with the father. The mother has entered a plea of not guilty. Nevertheless, when giving her evidence, it appears that she argued a reasonable excuse. Her evidence was simply that X was physically ill with gastroenteritis on the relevant day. The father concedes that he did receive information on the day before in these terms. The father suggests that X did, in fact, attend at school on that day. I have no evidence from the school one way or the other. Given the mother’s advice to the father, I accept her evidence and therefore attribute to her a reasonable excuse in not sending X for time with the father. The count is not proven.
37. Consequently, I find as follows: –
    1. That the mother, Ms Crompton, contravened Court orders on 17 February 2016, 29 December 2016, 8 February 2017 and 15 February 2017.
    2. Allegations in respect of alleged contraventions on 26 August 2016, 19 October 2016, 21 December 2016 and 22 February 2017 are not proven and thereby dismissed.
38. I will hear counsel as to penalty in respect of the four counts of contravention proven.