Y v Najmudin

In committal proceedings for breach of a child arrangements order, the applicant must prove each alleged breach beyond reasonable doubt. A parent cannot treat a child’s age, wishes or willingness to meet as overriding restrictions imposed by a court order. Where the order permits only specified supervised contact, unauthorised direct or indirect meetings constitute breaches if the parent knowingly acts outside its terms. The court may reject an asserted lack of knowledge of the order where the evidence demonstrates deliberate non-compliance.

The applicant father applied to commit the respondent mother for serial breaches of an order governing her contact with their 13-year-old son. The order required contact to take place at specified times in a professionally supervised contact centre and prohibited other direct or indirect contact without the father’s written agreement.

The mother admitted meeting the child on numerous occasions after school. She argued that the child was sufficiently mature to make his own decisions and said that she did not recall the order’s terms. The central issues were whether the alleged meetings occurred, whether they breached the order, and whether the breaches were deliberate.

1. Proof of breach. The court reminded itself that the burden of proof rested on the applicant and that the criminal standard applied. Each alleged breach had to be proved beyond reasonable doubt.
2. Construction and effect of the order. The order allowed contact only in the specified supervised sessions. It also prohibited the mother from making direct or indirect contact outside those arrangements without the father’s prior written agreement. The mother accepted that the father had not agreed to alter the arrangements.
3. Findings of fact. The court accepted the father’s evidence and found that the mother had met the child on each occasion identified in the schedule. It rejected explanations that she was uncertain whether a meeting had occurred or that her partner had attended instead. The mother’s evidence that she did not remember the order’s terms was rejected.
4. Child’s wishes and maturity. The child’s age, maturity and apparent wish to see his mother did not make the restrictions irrelevant. The mother was required to comply with the order. Her conduct placed the child in a serious conflict of loyalties and caused him discomfort and anxiety, demonstrated by his attempts to take different routes home to avoid further encounters.
5. Disposition. The court found beyond reasonable doubt that the mother had breached paragraph 6 of the order on each occasion alleged. She was therefore in contempt of court. The question of punishment was adjourned to allow her to make submissions in mitigation.

Not stated in the judgment.