Everybody Knows, Part 10: What’s the Scoop on Family Law Act, sec 70NAE?

by Mary W Maxwell, LLB

The forthcoming “criminal” trial of Russell Pridgeon and Patrick O’Dea, on 5 June 2023, has motivated me to look into the relevant section of the Family Law Act. I am not a practicing attorney and I don’t pretend, in this article, to evaluate whether RB and PO contravened a court order concerning two girls in one family and one boy in another family, by withholding them from fathers.

As readers of this series know, I do indeed have something to say about the October 2018 arrest of these two good men, Russell and Patrick.  Namely, it was 100% uncalled for, it’s a sign of major criminality within government, and is a damned waste of my time. Nevertheless, I will be happy to report what the law actually says, relevant to protective parents “stealing” their child from the other abusive parent. Don’t we have decent law in Australia?

Yes, we do. The happy bits are in Sections 60 and 70 of the Family Law Act 1975 (Whitlam era!).

Sec 60CC says, that in deciding what is in the best interests of the child, in order “to make a particular parenting order… the court must consider:  (2) (a) the benefit to the child of having a meaningful relationship with both of the child’s parents [very good, we all need a Mum and Dad] and (b) …the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.”

As you can see that’s a tall order. And if you have only a few weeks of experience with the law you will realize that subsections (a) and (b) contradict each other. If the parents do not live together, and one of them subjects the kid to abuse, how can the other parent, even if almost saintlike with good intentions, see to it that the kid has a meaningful relationship with the abuser?

It is impossible. So how do the courts overcome that juxtaposition? I believe the IN-HOUSE court rule is that a judge must deem “(a)” to be more of a guidance than “(b).”  In short, they toss (b) to the winds.  I say this is malevolent on their part, insofar as you never hear of the judiciary pointing out to Parliament that the a/b problem calls for a re-wording of the statute.

But don’t take it from me that there is something underhanded going on.  Take it from cases. Below, I’ll present the 2017 ruling by a Federal judge in Sydney that word-picks in the typical way. The case was lost even tho’ “Dad had done a wee in me” because it was foreordained that the judge was not going to find in the mother’s behalf.

Rather, he was going to: 1. order the dad visits to continue, and 2. adjudicate against mum for contravening the parenting order, and also “award costs.” (That is, make her pay the dad’s lawyer for these various court hearings.)

Oops wait, wait, hold your horses, Everybody! I also mentioned Section 70 of the FLA. Ah, goody! That’s where we get into the fact that in some instances a parent SHOULD steal the child, for a specific time period.  It’s the famous subsection 70NAE. It says you may contravene a parenting order if: (4)(a) the respondent believed on reasonable grounds that the actions constituting the contravention [e.g., hiding the kids in a warehouse] were necessary to protect the health or safety of a person. Whew! There’s a way out for kids who are suffering and may grow up permanently damaged if no one rescues them. Thank God.

Um. Not so fast. For that to happen, judges would have to apply that law — 70NAE. But they don’t. I’m willing to bet substantial money that you can’t find a case where NAE saved the day. Even if the protective parent arrives in court armed with the exact, above quoted wording, she won’t see it used. She will leave that day’s hearing completely dumbfounded at how a judge can eviscerate, water down, or waltz around NAE.

Or how the judge can just busy his tongue with distracting commentary. Funnily enough, he doesn’t blush or stammer. It’s as smooth as if he were reciting a railway timetable. (I shouldn’t be using the He pronoun for every judge. More than 50% of them may be females; I’m not sure.)

But now I leave it up to you. The case here of Argyle, a pseudonym, is 4,000 words. I deletd another 3,000 where it was repetitive, so you will indeed miss out on some of the best eviscerating mechanisms.

How did I locate such a case? Easy. I went to the website of the Australian Legal Information Institute, at austlii.edu.au. I typed “70NAE” into the search box.

Up came first the case of ENRIGHT & SCHENK.  And then this one: Argyle & Thomas. (The ampersand is used in Australian cases in place of the “v” for versus.  An Oz abortion case would have been called Roe and Wade.)

Take it away, Judge Obradovic! — Argyle [the dad] & Thomas [the mum] FCCA 621

Decided 2017, Last Updated: 4 April 2017:

ORDERS

(1) That a finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 7 October 2014 in that:

• (c) 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 Respondent failed to respond to the Applicant’s attempts to contact the Respondent 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).

FEDERAL CIRCUIT COURT OF AUSTRALIA [in Sydney]

Relevant Facts

4. The father was born on (omitted) 1974.  The mother was born on (omitted) 1975.
5. The parties were married on (omitted) 2007 and they separated in or about June 2012. The parties are yet to be divorced.  There are three children of the parties: [ages 5, 7, and 9]
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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]:

, 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. 

The Law dealing with Contraventions

22. The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A Family Law Act1975 (Cth). 23  b Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
    • 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

24. The meaning of “contravened an order” is set out in s70NACof 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;

…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]

26. The mother submitted that she had a reasonable excuse pursuant to sub-ss 70NAE(5)(a) and (b).

Reasonable Excuse

27. The meaning of “reasonable excuse” is, relevantly, found in s70NAEof 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,
    • 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]
28. Section 70NAEwas considered by Warnick J in Childers & Leslie^[12] where his Honour said:
29. … 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 70NAEis, 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] FamCA 60;  (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, ….

29. 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

31. 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.
32. 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.

33. 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.
34. 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.
35. 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.
36. 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

39. 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.
40. 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)

45. 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.
46. 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.”

• 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.

47. 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.
48. The mother was cross-examined at length by Counsel for the father about the various complaints she made the Police in September 2016.
49. 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.
50. There is…. 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.
51. 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.
52. 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.
53. 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.
54. 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]
55. 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.
56. 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.
57. 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”.
58. 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.

Analysis and Conclusion

60. The wording of s70NAE(5) was referred to earlier in these Reasons.
61. 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 actuallybelieved 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)
62. With these remarks, the Court respectfully agrees. They are a statement of the law which applies to this case.
63. 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.
64. 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.
65. 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.
66. 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.
67. 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

71. 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.
72. The list of potential reasonable excuses for contravention at section 70NAE is of course not exhaustive. The Court respectfully agrees with the obiter commentsby Warnick J^[22], namely that subsection (5) ought to be applied whenever it can “fit” the circumstances^[23].
73. 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).
74. In summary, the Court finds that the mother has failed to establish on the balance of probabilities a reasonable excuse for the admitted contraventions.
75. 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.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Obradovic.

Note: Please keep the comments On Topic today. Russell and Patrick need your voice. I hear you say “The vaccination stuff is more urgent.  Maybe. But if a judge can get away with misreading the law, what hope is there for anyone?