AMDJ & GEA
[2006] FMCAfam 279
•7 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMDJ & GEA | [2006] FMCAfam 279 |
| FAMILY LAW – CHILDREN – Contravention application – reasonable excuse – where contraventions found established – where further parenting orders made that compensate for contact forgone as a result of contravention – where order made varying order contravened – whether necessary to make an order requiring respondent to enter into a bond – costs order. PRACTICE & PROCEDURE – COSTS – Circumstances justifying order – where proceedings necessitated by failure of party to comply with court orders – consideration of financial circumstances of parties. |
| Family Law Act1975 (Cth), ss.70NE, 70NEA, 70NF, 70NG |
| Applicant: | M D J A |
| Respondent: | E A G |
| File Number: | NCM 593 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 June 2006 |
| Date of Last Submission: | 7 June 2006 |
| Delivered at: | Newcastle |
| Delivered on: | 7 June 2006 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Predny |
| Solicitors for the Applicant: | Fowler Predny Solicitors |
| The Respondent: | Appeared in person |
ORDERS
The name of the Respondent is changed to E A G.
Pursuant to s.70NG(1)(b) in the event that any of the children have a school related or other activity which falls on any contact weekend or other occasion when the father is entitled to have contact with the children the mother shall notify the father in writing not less than seven (7) days prior to the date when such contact is due to commence of such activity and furnish to the father her proposals for compensatory contact.
The father shall notify the mother in writing within three (3) days of receipt of the mother's notification referred to in 2 above of either his acceptance of the proposed variation or his rejection of the same.
If the father rejects the proposed variation, then contact shall take place in accordance with the current orders.
Any such proposed variation by the mother shall not impose upon the father any additional travel obligation or additional expense to be incurred in exercising contact.
Any such compensatory contact shall not be for less duration than the contact which the father is entitled under the current orders.
In respect of the contraventions established in the father's applications filed 27 March 2006 and 8 May 2006, the mother must provide compensatory contact as follows:
(a)that from 12 noon Saturday 10 June 2006 until 3:30pm Monday 12 June 2006, with the mother or her nominee to deliver the children to the father at B at the commencement of contact and that the father return the children to the mother or nominee at B at the conclusion of contact.
(b)that for the July school holidays 2006 the orders made on 27 July 2004 be varied, such that the father shall have contact with the children from 4:00pm on Sunday, 16 July 2006 until 4:00pm on Friday 28 July 2006, provided that the mother may collect the children, J E A and M M A, for any soccer clinic to take place during that additional time.
The Respondent mother is to pay a proportion of the father's costs of these applications fixed in the sum of $1,000.00 and I allow 12 months to pay;
Pursuant to s.70NG(1)(b)(a) of the Family Law Act Orders 3, 4 and 5 of the orders made on 27 July 2004 are varied as follows:
a) Order 3 is varied by (i) substituting for Order 3(a)(i) the following:
“(a) In each school term in the following sequence:
i) In weekends 2 and 7 in the K area from the conclusion of school Friday to the commencement of school Monday;
ii) On weekend 4 from 9:00am Saturday to 5:00pm Sunday with such contact to be in the N area”;
(ii) By substituting for Order 3(b) the following:
“For one half of each of the New South Wales gazetted school holiday periods plus one day, to commence at 12 noon on the Saturday immediately after the end of the school term, until 4:00pm on the day being one day after the halfway point of the school holiday period, with the exception of the Christmas holiday period”;
(iii)By deleting from Order 3(d) the words:
Order 2(a)(i)
and inserting the words:
Order 3(a)(i) and Order3(a)(ii);
b)Order 4 is varied by deleting the words:
Order 2(a)
and inserting the words:
Order 3(a).
c)Order 5 is varied by the deleting the words:
Order 2(b)
and inserting the words:
Order 3(b).
I require a transcript of my reasons for this decision and I will remove the application from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 593 of 2003
| M D J A |
Applicant
And
| E A G |
Respondent
REASONS FOR JUDGMENT
The allegations relate to breaches of contact orders which were made by consent on 27th July 2004. Those orders were made in this Court and the parties were legally advised at the time.
There are four counts, two of which relate to each of the two sets of relevant dates. The first two counts relate to the father's allegation that the mother failed to make available for contact the eldest child of the marriage, J E A who was born on 11th October 1993.
The counts relate to breaches of Order 4 and 3(a)(i). The allegations are that the father should have had contact with the children, including the child J, from 4:30 m on Friday 24th February 2006 until 3:30pm on Sunday 26th February 2006.
Count 1 alleges that the mother failed to deliver the child J at 4:30pm on the Friday of the 24th and failed to make the child available for contact from 4:30pm on the 24th through to 3:30pm on Sunday 26th February 2006. The mother has admitted those contraventions, but has said that she had a reasonable excuse.
The second set of allegations, counts 3 and 4, relate to school holiday contact. That contact is set out in Order 3(b) of the Consent Orders. The children concerned then were the two daughters M L and A R.
Count 3 alleges that the mother, without reasonable excuse, failed to deliver the children to the father at the time specified at the commencement of contact, namely 12:00 noon on 15th April 2006 at B R S and count 4 alleges that the mother, without reasonable excuse, refused to allow the father to have contact with those two children between 12:00 noon on 15th April 2006 and 4:00pm on 23rd April 2006.
Again, the mother has admitted that the contraventions took place, but says that in each case she had a reasonable excuse.
When dealing with the question of a reasonable excuse, the Court looks at s.70NF and s.70NE of the Family Law Act. Section 70NF refers to an order under this part affecting children and the Court having jurisdiction under the Act to satisfy that a person has committed a contravention of a primary order and the person does not prove that he or she had a reasonable excuse for the current contravention.
It is quite clear that the onus of proving reasonable excuse lies on the Respondent. It is not an obligation on the Applicant to disprove reasonable excuse. Under s.70NE(a) the standard of proof to be applied in determining whether a person who contravened an order affecting children had a reasonable excuse is proof on the balance of probability.
Section 70NE sets out the meaning of reasonable excuse and provides some examples, but is not an exhaustive list of the matters which go to make up reasonable excuse.
It should be made clear that to establish a reasonable excuse there are two matters that must be established. It is not sufficient to establish one.
Subsection (3) of s.70NE makes it clear that the reasonable excuse will be established if:
(a) the Respondent believed on reasonable grounds the deprivation of contact was necessary to protect health or safety of a person, including the Respondent or the child;
(b) the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
In respect of the first two counts relating to the child J, the circumstances are that since the orders were made the child J has commenced high school. He also has commenced to play soccer on a Friday night. He, according to the mother's evidence, is under a considerable amount of peer pressure to play for the team. He has also expressed a considerable reluctance at not being taken out of school early on the Friday afternoon when it is a contact weekend.
It is not a question of the contact taking place on every weekend or every alternate weekend, indeed it is the fourth weekend of each term to which we refer. The mother's explanation is that in order to meet the contact changeover requirement of 4:30pm at B, the child J has to be taken out of school early on a Friday afternoon, which he is reluctant to do and the mother has to travel down with the children in the car, the four children of the marriage and also another child of another relationship which has since taken place.
In order to get there on time the child has to be taken out of school because the journey takes a while, there is a need to break the journey, there is a need for the children to be provided with fast food and there is a need for toilet stops. If the mother is late, she has said that the child J becomes agitated.
The circumstances were that J expressed such a degree of reluctance of being taken out of school on that Friday and missing out on playing soccer as goalie for the team on a Friday night that he refused to go. The mother delivered the other children, but not J.
As a result, not only did contact changeover not take place at 4:30pm or any other time on that Friday afternoon, but the father did not have contact with the child for the entire weekend.
In respect of the third and fourth counts which are set out in the second contravention application brought by the father filed on 8th May 2006 relating to the father not having school holiday contact with the two girls on 15th April 2006 and in fact through to 23rd April 2006, the circumstances are that the girls who are not yet at high school have commenced playing soccer. They, like their brother, are apparently very keen on the game, they had the opportunity to attend a soccer coaching clinic for the first week of the school holidays.
It was the mother's evidence that the children had spoken to their father about that and the mother said that the father would not countenance contact not taking place during that period of time.
As a result, the contact changeover did not take place at 12:00 noon at the B R S and the children did not spend the next week of the school holidays with their father. There was no change to the arrangements. The parties were not able to agree and it became quite clear during the evidence that the communication between the parents is at a very low ebb.
The mother alleged that she is not in a position to communicate with the father and indeed any communications that are necessary seem to go through the father's solicitor in writing. The mother made allegations about threatening and intimidatory behaviour in which she said the father engages.
The solicitor for the father called the father to give brief evidence in which he denied that he had ever made any threats to the children that if contact arrangements did not take place as specified then action would be taken to see their mother sent to gaol. The mother elected not to cross-examine the father on that brief piece of evidence and it therefore remains as an uncontradicted statement given on oath.
There was a considerable amount of evidence and some cross-examination about the mother's earlier application last year to vary the orders that had been made by consent on 27th July 2004 on the basis that they were no longer appropriate in meeting the needs of the children. Those proceedings did not result in a variation of the orders as the mother discontinued the proceedings, although I was told from the Bar table by the father's solicitor that an agreement had been reached which would involve the mother's parents from time to time providing some assistance with transport. The mother indicated that her application to vary the orders was discontinued because she no longer had the funds to afford legal representation.
Whilst such matters are relevant they do not establish a ground or breach of parenting orders. It is not a reasonable excuse for a party not to comply with orders on the basis that the party does not agree with them. If a party does not consider the orders are appropriate for the children that party should, as the mother had attempted to do, seek to take proceedings to vary those orders. The fact is that at the time these two contravention applications were taken out, and indeed at the times when the two sets of circumstances took place, the orders remained unchanged.
The fact that the parents have either no avenue for negotiation or communication or at best, a very little avenue to do so due to hostilities between them, is of course most unfortunate. Correspondence directed through the father's solicitor is a way. Of course the father's solicitor is a professional person acting on behalf of the father and cannot therefore offer advice to any other party.
The mother expressed some difficulty at a vehement response by J in the first set of circumstances and the two girls in the second set of circumstances to the fact that they were so strongly of the view that they did not wish to go on contact because of missing school, and in respect of all three of the children missing soccer, either a game or a coaching clinic.
It is understandable why the father has brought two contraventions applications in respect of each incident, because not only was there a specific breach when the children were not handed over at the time and place specified, but that failure meant that there was an ongoing missing out of contact for, in the one case, a weekend, and in the second case, a week.
Whilst I am satisfied that the mother has established a reasonable excuse for failing to make the child, J, available for contact at 4:30pm on Friday 24th February 2006, I am not satisfied that she has established a reasonable excuse for failure to make the child available for contact for an entire weekend as set out in the second count.
It should be borne in mind that s.70NE envisages that not only should there be a belief on reasonable grounds of the necessity of deprivation of contact but there should also be a situation where the deprivation of contact was not longer than was necessary. No matter how distressed the child, J, was on Friday 24th February 2006, there has not been established the fact that the father not having contact at all on that entire weekend was necessary.
Similarly, in respect of the two girls, whilst I am satisfied the mother has established a reasonable excuse in respect of the delivery of the two children, M L and A R, at 12:00 noon on 15th April 2006, I am not satisfied for the same reasons that the reasonable excuse extends to the entire period, from 15th through to 23rd April 2006, being school holiday contact.
Whilst it is understandable that a specific activity such as a soccer coaching clinic for two keen young soccer players would take several days and the children would wish to attend with their peers, the fact that there was no contact at all for the school holiday period is not, to my mind, appropriate in all of the circumstances.
I am satisfied therefore that in respect of count 1, which is the first count set out in the application filed on 27th March 2006 the Respondent has established a reasonable excuse. I am not so satisfied that she has established a reasonable excuse in respect of count 2.
Similarly, whilst I am satisfied a reasonable excuse has been established in respect of the third count, which is count 1 in the application filed on 8th May 2006, I am not so satisfied that a reasonable excuse has been established in respect of the final count.
What that means is that consideration should be given to what orders should be made in respect of the contraventions which have been found.
In these proceedings, which are proceedings relating to the contravention of parenting orders that were made by consent on 27th July 2004, I have found that in respect of two of the four counts, one set out in an application filed on 27th March 2006 and the other set out in an application filed on 8th May 2006, that the Respondent has contravened certain orders that were made without reasonable excuse.
In each case the contravention that I found established and where I found that the Respondent had not made out a reasonable excuse was the second count in each application relating to incidents that should have taken place concerning contact, first between the father and the child, J E A, between 4:30pm Friday 24th February 2006, and 3:30pm Sunday 26th February 2006, and the second being between 15th April 2006 and 23rd April 2006 relating to the father not being able to exercise contact with the children, M L A and A R A.
I have heard submissions from Mr Predny for the Applicant father and from the Respondent mother herself as to the appropriate orders which should be made.
The applications, although issued separately, have in fact been heard together. As such, upon my finding that two contraventions existed where the Respondent had not established a reasonable excuse, I was informed by Mr Predny for the Applicant that no Court exercising jurisdiction under the Family Law Act had previously found a contravention by the Respondent and primary orders. It was not submitted that I should regard these contraventions as satisfying the Court that the Respondent had contravened the primary orders and behaved in a way that showed a serious disregard for her obligations under the primary order. As such, I am satisfied that I should make orders under the provisions of s.70NG(1) of the Family Law Act.
For the Applicant, Mr Predny has very helpfully prepared Draft Minutes of Orders which set out some eight proposed orders. The first six of those are intended to make arrangements for compensatory contact under the provision of s.70NG(1)(b), which allows the Court to make a further parenting order that compensates for contact foregone as a result of the current contraventions. There is also an order that the mother be placed on a bond of good behaviour, requiring her to comply with all orders of this Court, and there is also sought an order for costs of and incidental to the two applications.
The first six orders relate to compensatory contact and have been drafted with a view to avoid difficulties with contact in the future, taking into account the existing difficulties in communication between the Applicant and the Respondent.
The proposals are that in the event that any of the children have a school related or other activity which falls on a contact weekend or other occasion when the father is entitled to have contact, that the mother should notify the father in writing not less than fourteen (14) days prior to the date and furnish to the father her proposals for compensatory contact. The father should notify the mother within seven (7) days of receipt of that notification, either of his acceptance or his rejection of the variations. If he were to reject the variations then contact would have to continue in accordance with the orders. Any proposed variation by the mother should not impose upon the father any additional travel obligation or additional expenses to be incurred in exercising contact. Any such compensatory contact should be not for not less duration than the contact to which the father is entitled under the current orders, and the father suggests that in respect to the contraventions that have been established the mother provide two sets of compensatory contact.
One of them provides for the father to have contact with the children this coming long weekend, from 12:00 noon on Saturday 10th June 2006 until 3:30pm on Monday 12th June 2006. The second one provides that there should be an additional period of contact during the July school holidays commencing from 4:00pm on Saturday 15th July 2006 and going through until 4:00pm on Thursday 27th July 2006.
For her part, the mother has raised certain practical difficulties. As far as notification of the father is concerned she says that if the arrangement which could affect contact is something like a school excursion she normally would have not less than 14 days notice, that in respect of some other matter she would not necessarily receive that amount of notice.
She and the father live some distance from each other in E and M accordingly and such a timetable would at times be difficult for her to meet, and presumably this would apply to the father's notification within seven days of receipt of that notification.
I should say that it has been the mother's position throughout this case that it has never been an intention to reduce the contact between the children and their father and that she has offered compensatory contact, but the father, she says, has not accepted it.
As far as those proposals for notification are concerned I am of the belief that a 14 day period is perhaps difficult to meet and there could well be situations that would occur at less notice. I am mindful of the fact that the mother is in casual employment as a casual shift worker at K H. The father is in receipt of a pension and is not to my understanding in full-time employment.
In my view, rather than periods of 14 days and 7 days, that 7 days and 3 days respectively might be a little less onerous and still be within the capacity of the parties to meet.
Looking at the question of compensatory contact I note that the contact proposed by the father would involve all of the children spending make up time with him and would not involve the separation of the children, even though it has never been the case that the father has been deprived of contact with all of those children.
Mr Predny, for the father, puts to me however that it is appropriate for the children to have contact with their father as siblings and it seems to me that the subject of some of the matters with which I should shortly deal, that dealing with the children as a group rather than individually, is an appropriate way to go.
The mother did raise the question of course that in respect of the additional time in the July school holidays, whilst there was no difficulty with the girls attending, and it was of course contact with the girls that the father missed out on, that it was the boys who may have had a soccer clinic during this additional period of time. She said that she would be prepared to make arrangements to collect them and transport them to attend such an additional activity.
The mother also raised the question of the fact that on 15th July the three younger children were all going to be engaged in soccer during that day which would make it difficult for them both to go to their father by 4 o'clock on the Saturday and still play their appropriate games.
I note that the proposal from the father's solicitor provided that the contact should finish on Thursday 27th July 2006 at 4:00pm to allow some time for the mother to get the children ready for school, which is to my mind a sensible arrangement.
The order that I propose make however is that, bearing in mind the children's sporting commitments on the Saturday, that contact should not start until the Sunday 16th July 2006, that should extend not until 4:00pm on the Thursday 27th July 2006, but until 4:00pm on Friday 28th July 2006. This way the father still receives the same amount of time with all of the children.
I propose also to make an order by way of a proviso, that the mother may collect the children, J and M, to take them to a soccer clinic, but obviously the travelling must be at her trouble and expense.
The next issue raised by the father's solicitor is the question of costs. He submits the mother should pay the father's costs of and incidental to these applications. The father's costs, his solicitor estimates, would be taken from stage 7 of the Rules, it would involve a mention on 10th May 2006, and it would involve preparation costs of two contravention applications and would include a day's hearing fee. It appears to me that the costs sought would amount therefore to $2,975.00..
The mother opposes that on the basis that:
(a)she says these proceedings were unnecessary and that she was always prepared to negotiate on the question of compensatory contact;
(b)she would not be in a financial position to meet that, certainly not in the immediate future.
She is currently a casual shift worker at K H. She is an enrolled nurse by profession, undergoing a Bachelor of Nursing degree which would qualify her to become a registered nurse. Whilst that would increase her income that of course has not happened at this stage and she is working on her degree.
As far as the question of costs is concerned I am mindful of the provisions of the s.117 of the Family Law Act and I look at circumstances which are mentioned in s.117(2) and 117(2)(a). If the Court is of the opinion that there are circumstances that justify it in doing so the Court may make such an order as to costs as the Court considers just. Subsection (2)(a) sets out relevant considerations in considering what order if any should be made.
I have taken those matters into account, particularly the financial circumstances of each of the parties to the proceedings. The father is in receipt of a pension. The mother is employed as a casual shift worker. She has four children of the marriage and another child to support and she indicates that she receives only some $10 per fortnight from the father. I note that an order to that effect appear as Order 10 in the Consent Orders made on 27th July 2004.
It is not put to me that either party to the proceedings is in receipt of assistance by way of Legal Aid, and indeed the fact the mother is not legally represented indicates that she is not. The father does have a solicitor but it is my understanding that he is obliged to meet the solicitor's fees.
I look at the conduct of the parties to the proceedings and in my view neither party has unduly contributed to the prolongation of these proceedings. I am mindful of the fact that the proceedings were necessitated by the failure of a party to the proceedings to comply with a previous order of the Court. I note that the mother has not been wholly unsuccessful but as two out of four counts have been found she has not been wholly successful either. The question of offers in writing of settlement is not relevant.
In my view contravention proceedings are proceedings that quite often call for an order for costs but I am not satisfied that the mother is in a position to meet a costs order amounting to nearly $3,000.00 in the near future and I am not entirely satisfied that I should exercise my discretion in ordering the full amount of the costs sought against the mother. As I said, she has not been wholly unsuccessful and has in fact managed to establish a reasonable excuse in respect of two of the counts. At the same time the father has commenced these proceedings and is in fact walking away with orders in his favour.
In my view there should be some contribution and I propose to make an order for costs, not in the sum of $2,975.00 but in the sum of $1,000.00. I propose to take into account the mother's current financial circumstances by allowing 12 months to pay.
It is also put to me by the solicitor for the father that I should place the mother on a bond to be of good behaviour, to remind her of her obligations. The mother has indicated that a bond would not be necessary and it is certainly not her intention to keep coming back before the Court. Indeed, she gave evidence during the proceedings that it had been her intention to seek a variation of the orders made by consent on 27th July 2004. She had in fact commenced those proceedings and there of course pleadings on the Court file which indicate that, but those proceedings were discontinued. The mother explained that she was legally represented but was not in a position to meet the ongoing expenses. Those are matters that I propose to take into account.
I also raised with the parties the fact that the Court does have power under s.70NG to vary an order that has been contravened. That power comes under s.70NG(1)(b)(a).
A lot of the evidence in the submissions before me today referred not to school holiday contact which seems to me to be unexceptional. The contravention proceedings seem to me to have arisen out of a one-off circumstance, but to have referred to weekend contact. I am mindful of the fact that the parties live some distance from each other and that the consent orders provided for contact on three weekends each term, being weekends 2, 4 and 7. Weekends 2 and 7 involve the father exercising contact in the K area which involves him travelling to the area near where the mother lives with the children, exercising contact there, and then returning to his home.
The contact at week 4 which was the subject of the contravention proceedings in respect of the application filed on 27th March 2006 appears to me to be the sticking point.
There are two separate issues. One, the mother's complaint that it is difficult for her to get the children to B which is the changeover point by 4:30pm on Friday, and this has been exacerbated by the fact that the eldest child, J, has commenced high school this year and also objects to missing out on playing soccer on Friday night. The mother's suggestion is that contact should be retained but that the contact should be exercised in the K area rather than involving the trip down to B. She points to the difficulties involved in travelling with four or five young children, as there is another child, the length of time it takes and the negative effect that is has on the children.
The father's solution that is offered is that it would be relatively easy to change the changeover time for the contact so that instead of the weekend for contact starting at 4:30pm it would start at 6:00pm. That, it is submitted, would not involve J and for that matter the girls being taken out of school on the Friday afternoon, although it would not meet the problem of Js' disappointment of not being able to play soccer. It was put that, notwithstanding the fact that he is a goalie and regarded as being in a key position in his team, that it is not an onerous obligation on a child to miss out on one soccer game each term and there would really only be two terms where this would happen in order that he would have contact with his father.
The mother's proposal that the contact be exercised in the K area on that weekend is to my mind not appropriate. The purpose of having contact on the fourth weekend to be exercised in the N area, is that the children would then spend some time in the father's home and in the father's area during the term as well as just in the school holidays. If there father were to spend that weekend on contact in K it would involve him in extra travel and it would involve him in finding additional accommodation and expense. The mother says that she is aware of accommodation that could be available for the father and all the children for $120.00 over the weekend, but whilst $120.00 does not sound prohibitively expensive, when considered from the point of view of a person who is on a pension it would involve a financial impost and I am not satisfied that that would be justified.
To my mind, although I see that particular contact weekend as being problematic, I am not satisfied that it is a satisfactory solution to vary it to provide that contact take place in the K area. That said, I am not satisfied that just extending the time of contact changeover on the Friday night to 6:00pm necessarily resolves the issue either. It involves more travelling at night. Whilst it would relieve the children being taken away from school on a Friday afternoon, and I am mindful of the fact that whilst J is the only one attending a high school at this stage, both of the girls will attend high school in the not too distant future, and the Court can hardly encourage a contact arrangement that involves children regularly being taken out of school. Education is important
In my view, whilst such contact can take place and should still take place in the N area, to my mind the contact changeover on Friday evening is, from the children's point of view and I am satisfied that the best interests of the children must be taken into account, contact changeover on the Friday evening appears to me to be productive of more problems than it solves. I propose to vary the orders to provide that contact on weekend 4 will commence not at 6:00pm on the Friday night but at 9:00am on the Saturday. That could be compensated for by a later return time on the Sunday afternoon, namely 5:00pm, and by adding one day to each of the mid year school holidays, namely the autumn, winter and spring school holidays. So that instead of the contact coming to an end at 4:00pm on the day being the halfway point of the holiday period it would come to an end at 4:00pm on the day after the halfway point of the school holiday period. That is of course with the exception of the school holiday period.
The other difficulty with the current orders involves the fact that the numbering on the orders made on 27th July 2004 does not coincide with the text. The contact orders are Order 3 which is divided up into paragraphs (a) to (e) and Order 4 and Order 5 which relate to contact changeover refer specifically to parts of Order 3. However, in the drafting the references to Order 3 have come out as Order 2, whilst Order 2 of course provides for an order for residence but has no reference to contact at all.
It has been suggested that I could correct that all under the slip rule.
I am not satisfied that I have the power to do this. The orders were not made by me and they are now nearly two years old. I do consider however that I have the power under s.70NG(1)(b)(a) to vary not only Order 3 but also to vary Order 4 and Order 5 which were involved in correcting the references to those orders, because Order 4 and Order 5 are orders relating to the implementation of Order 3 which is specifically the order that has been contravened.
I do not believe that that action would go beyond the power given to me under the subsection but it would resolve in some rationality taking place in respect of Order 3, Order 4 and Order 5.
I have considered whether or not it is necessary for the mother to be placed on a bond to be of good behaviour. I am of the view that it is not necessary. To my mind these proceedings, the orders that will flow from them and the costs order, not the full costs order but a costs order nevertheless, are sufficient and that nothing would be gained by requiring the mother to enter into a good behaviour bond. She will have amended orders that still place obligations on her. There will be compensatory contact that she will need to comply with and there is a slight variation to the contact that would provide for the children spending a little bit longer with their father during the school holidays, and certainly a slightly longer period with their father during the school holidays and a small amount of contact that he will lose during one weekend each term.
The overall result will be that when adding days and hours and minutes the children will spend a slightly increased amount of time with their father, not a huge amount of an increase but a slight amount of an increase. It is for all those reasons that I do not consider the bond will serve any useful purpose and I do not propose to require the mother to enter into it.
I therefore propose to make a number of orders. I note too, that the mother has changed her surname. Whilst the children I understand retain the surname of "A" the mother has exercised her right to use the surname of "G". In my view the orders which are issued out of this Court should reflect the fact that "G" is the mother's surname, and I will make that order as well as the other orders which I propose to make.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 8 June 2006
0
0
1