BERTRAM & BERTRAM
[2011] FamCA 180
•17 March 2011
FAMILY COURT OF AUSTRALIA
| BERTRAM & BERTRAM | [2011] FamCA 180 |
| FAMILY LAW – CHILDREN – Contravention – equal shared parental responsibility – contravention – telephone communication – failing to facilitate – text messages – communications book – emails |
| Family Law Act 1975 (Cth) |
| Jets & Maker [2010] Fam CAFC 55 Stevenson and Hughes (1993) FLC 363 |
| APPLICANT: | Mr Bertram |
| RESPONDENT: | Ms Bertram |
| FILE NUMBER: | SYC | 2201 | of | 2010 |
| DATE DELIVERED: | 17 March 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 14 February 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Ms Koorey of Reid Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Ms Middleton of Paul & Paul Lawyers |
Orders
That the matter be listed at a time and date to be fixed for the hearing of submissions as to which Subdivision of Division 13A of Part VII should apply in the circumstances of the contraventions found and as to penalty.
IT IS NOTED that publication of this judgment under the pseudonym Bertram & Bertram is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: SYC 2201 of 2010
| Mr Bertram |
Applicant
And
| Ms Bertram |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 8 June 2010, his Honour Federal Magistrate Kemp made final orders in parenting proceedings between Mr Bertram and Mrs Bertram with their consent and in accordance with a ‘Minute of Proposed Consent Order’ that was signed by Mr Bertram and Mrs Bertram and their legal representatives. Those final orders, as are many that are drawn by agreement between legally represented parents, are extremely comprehensive, covering many aspects of the co-parenting relationship in respect of their two young children, H, born … February 2004, aged 7 and O, born … June 2005, aged 5.
Those final parenting orders were as follows:-
1.That the mother and father have equal shared parental responsibility for the children [H] born […] February 2004 and [O] born […] June 2005.
2.The parent with whom the children are living at the time shall have sole parental responsibility for making day to day decisions concerning the children.
3.That the children live with the mother.
4.That the children spend time with the father as follows:
a.at such times as are agreed between the parties;
b.during the school term from the date of these orders to the commencement of the School Term 1 2011:
i.In week 1 of each school term and thereafter each alternate week from after school Friday or 3:30pm on a non school day to the commencement of school Monday or 9am on a non school day;
ii.In week 2 of each school term and each alternate week thereafter from after school Thursday or 3.30pm on a non school day to the commencement of school Friday or 9am on a non school day.
c.During the school term from the commencement of the School Term 1 2011 and thereafter:
i. Commencing week 1 of each school term and thereafter each alternate week:
1.from after school Tuesday or 3:30pm on a non school day to the commencement of School Wednesday or 9:00am on a non school day;
2.from after school Friday or 3:30pm on a non school day to the commencement of school Monday or 9am on a non school day
ii. Commencing week 2 of each school term and thereafter each alternate week from after school Wednesday or 3:30pm on a non school day to the commencement of school Thursday or 9:00am on a non school day.
d.For one half of all end of Term 1, Term 2 and Term 3 school holiday periods by agreement but in the event agreement can’t be reached for the first half in odd numbered years and for the second half in even numbered years.
e.The father shall each school term have the option to spend time with the children from after school Monday or 3:30pm to 6:30pm on three occasions PROVIDED THAT the Monday nominated is not a public holiday Monday and the father gives the mother notice in writing (via either email and/or SMS text message) by no later than 3pm the Wednesday before the nominated Monday.
5.During the December/January school holidays (“the Christmas holiday periods”) the children spend equal time with each parent as agreed in writing between the parents and in the event agreement cannot be reached as follows:
a.With the mother for a three week period of the Christmas holiday period from 6:00pm on 26 December to 6:00pm on 9 January; and from 6pm seven days before the children resume the new school year to the commencement of school or 9am on the day the children commence the school year in odd numbered years and otherwise with the father.
b.With the father for a three week period of the Christmas holiday period from 6:00pm on 26 December to 6:00pm on 9 January; and from 6pm seven days before the children resume the new school year to the commencement of school or 9am on the day the children commence the school year in even numbered years and otherwise with the mother.
6.Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing the children spend time with the father:
a.From 9.00am Father’s day to the commencement of school Monday;
b.From 9.00am to 5.00pm on the father’s birthday when it falls on a weekend or during school holidays;
c.From after school to 7pm on the father’s birthday when it falls on a school day;
d.From 9am Christmas Eve to 1pm Christmas Day in 2010 and each even numbered year thereafter;
e.From 1pm Christmas Day to 6pm Boxing day in 2011 and each odd numbered year thereafter.
f.In the event the children are not already living with the Father on their birthday in accordance with these orders, then the children shall live with the father from 3:30pm to 7:00pm in the event the birthday falls on day they attends school or from 9:00am to 1:00pm in the event the birthday falls on a day when the children are not at school.
g.From 5:00 pm Easter Thursday to 5:00pm Easter Saturday in odd numbered years and from 5:00 pm Easter Sunday to 5:00pm Easter Monday in even numbered years;
h.From 5:00pm the day before the Queens Birthday Public Holiday to the commencement of school or 9am the next day in odd numbered years.
i.From 5:00pm the day before Anzac Day Public Holiday to the commencement of school or 9:00am the following day in even numbered years.
7.That notwithstanding anything else in these Orders and unless otherwise agreed between the parties in writing, the children spend time with the mother as follows:
a.From 9.00am Mother’s Day to the commencement of school Monday:
b.From after school to 7pm on the mother’s birthday when it falls on a school day;
c.From 9.00am to 5.00pm on the mother’s birthday when it falls on the weekend or during the school holidays;
d.From 9.00am Christmas Eve to 1pm Christmas Day in 2011 and for each odd numbered year thereafter;
e.From 1pm Christmas Day to 6pm Boxing Day in 2010 and for each even numbered year thereafter;
f.In the event the children are not already living with the Mother on their birthday in accordance with these orders, then the children shall live with the mother from 3:30pm to 7:00pm in event the birthday falls on day they attend school or from 9:00am to 1:00pm in the event the birthday falls on a day when the children are not at school.
g.From 5:00pm Easter Thursday to 5:00pm Easter Saturday in even numbered years and from 5:00pm Easter Sunday to 5:00pm Easter Monday in odd numbered years;
h.From 5:00pm the day before the Queens Birthday Public Holiday to the commencement of the school or 9am the next day in even numbered years;
i.From 5:00pm the day before Anzac Day Public Holiday to the commencement of school or 9:00am the following day in odd numbered years;
j.At other times as agreed between the parties in writing.
8.That in the event either parent is unable to care for the children pursuant to the orders for a period of greater than 3.5 hours a day then he or she is to notify the other party as soon as possible but no later than 8 hours prior to the relevant period and provide to the other party the first right of refusal to care for the children.
9.That where changeover does not take place during 2010 at the children’s school, then the father shall collect the children from the mother from [shopping centre 1] car park or such other agreed location and return the children to the mother at [shopping centre 1] car park or such other agreed location.
10.That where changeover does not take place during 2011 and each year thereafer at the children’s school then changeover shall take place at a public location of roughly equal distance between their respective residences as agreed but failing agreement at a service station carpark provided that the mother is not required to travel more than 20km from her residence.
11.That the mother and father shall have telephone communication with the children when the children are not in their care at all reasonable times, and specifically the children shall have telephone communication with the parent with whom they are not living with each day between 7:00 pm to 7:30 pm and the party wanting to speak to the children shall initiate the telephone call and the other parent shall do all acts and things reasonably possible to ensure the children are available to speak to that parent AND FOR THE PURPOSE of this order the father shall provide to the mother $20.00 each month for the purpose of providing credit to the mother’s mobile telephone so that in the event that the mother’s [sic] misses the father’s telephone call she can SMS text message the father that the children are available to speak to him on the telephone.
12.For the purpose of calculating holiday time such time is to commence at the conclusion of school or 3:30pm on the last day of the school term and conclude at the commencement of the new school term or 9:00am.
13.Save that as otherwise provided for in these orders changeover at the mid point of the school holiday period shall take place at 12pm on the middle day of the school holiday period.
14.In the event the father is unable to collect the children at the times provided for pursuant to these orders in the period between the making of these orders and the commencement of the school Term 1 2011 then the father shall so advise the mother and the mother shall collect the children from school and then make the children available to the father at 5:00pm that evening changeover to take place at [shopping centre 1] or such other agreed location provided that in the event the father is unable to collect the children by 5:00pm then such time will not take place and the children will remain with the mother for that evening.
15.That from the commencement of the school term 1 2011 each parent shall be permitted to arrange for a third party to attend on their behalf at all changeovers provided that if changeover is not at the school the party proposing a third party attend on their behalf notify the other party that a third party will be attending on their behalf and for the purpose of this order IT IS ORDERED that each of the parties intend to do all acts and things possible to be present from 5:00pm on the evenings the children are living with them pursuant to these orders.
16.In the event either parent wishes to take the children on a holiday interstate within Australia then the parent proposing such holiday shall notify the other parent no less than 14 days prior to the departure date of such proposed trip, and shall provide to the other parent at that time particulars including the proposed itinerary, the address of where the children will be staying and proposed period of such trip.
17.In the event either parent wishes to take the children on a holiday out of the Commonwealth of Australia then the parent proposing such holiday shall notify the other parent no less than 28 days prior to the departure date of such proposed trip, and shall provide to the other parent at this time:
a.Particulars including the proposed itinerary and proposed period of such trip;
b.At least 10 days before departure, a final itinerary including contact telephone numbers and full street addresses of where the children will be staying;
c.copies of return airline tickets and details of flights once booked and irrespectively at least 10 days before departure.
18.That pursuant to s65Y(2) each party be permitted to travel with the children out of the Commonwealth of Australia, provided such period of proposed travel takes place during the time the children are living with that parent pursuant to these orders unless otherwise agreed between the parties in writing via email.
19.That the mother shall retain the passport and birth certificate of O and the father shall retain the passport and birth certificate of H.
20.That upon the parent giving notice to the other parent of their proposal to travel out of the Commonwealth of Australia pursuant to the orders 17 – 18 (“the travelling parent”) the non-travelling parent shall release the passport they hold of the child to the travelling parent not less than 14 days prior to the notified date of departure and the travelling parent not less than 14 days prior to the notified date of departure and the travelling parent shall return the passport to the non-travelling parent within 7 days of returning from any travel with the children in accordance with these orders.
21.On a without admissions basis each party is hereby restrained from:
a.denigrating the other parent or person with whom the other parent has a relationship in the presence and/or hearing of the child;
b.Discussing these proceedings or the UK proceedings with the children and/or within the hearing of the children.
22.That for the purposes of communicating information between the parties about matters relating to the children only the mother and father shall:
a.communicate by telephone including text messages to personal telephone numbers matters of an urgent nature only;
b.communicate to personal email only about day to day matters; and
c.communicate by writing in a communication book which will remain with the children at changeover and such communication shall include but not be limited to details of extra curricular sporting/recreational activities, birthday parties, and school functions in which the children are involved (the children’s commitments”).
23.That the mother and father shall ensure where possible that the children shall attend the children’s commitments when the children are in their care and in the event that a parent is unable to do this they shall contact the other parent at least 48 hours in advance to see if that parent is able to facilitate the children’s attendance at the children’s commitments.
24.Neither party shall make a commitment for the children during a period when the children will be living with the other parent, without first discussing the commitment with the other parent and obtaining their consent to such commitment.
25.The mother and the father are restrained from contacting the other parent on their work phone, work mobile or work email other than in the case of an emergency relating to the children.
26.That neither parent is precluded from attending any preschool or school function or activity involving the children in the event that such function or activity occurs at a time when the children are with the other parent.
27.That each parent shall do all acts and things and sign all documents necessary to obtain and renew an Australian and British Passport for the children within 14 days of a written request being received. The cost of obtaining or renewing the passport shall be shared equally between the parties.
28.That for the purpose calculating holiday time such time to commence at the conclusion of the school day or 3:30pm on the last day of the school term and conclude at the commencement of the new school term or 9am.
29.That each parent be entitled to obtain and be responsible for obtaining from the children’s school; sporting clubs and other associations with which they may become involved from time to time, particulars of the children’s welfare; progress; school or other reports, details of forthcoming activities and functions provided by the children’s school; sporting clubs or other such associations and that each parent be entitled to attend any event concerning the children including but not limited to sporting days, parent teacher interviews, open days and the like.
30.That the parents consult with each other and the written consent of both parents is obtained prior to the [sic] any non urgent medical treatment including counselling being provided to the children or children and such consent of the other parent shall not be unreasonably withheld.
31.Each of the parents shall:
a.Notify the other parent as soon as possible and in any event within 24 hours of any serious injury or illness suffered by the children while in the care of that parent and any other medical treatment the children may receive when in the care of that parent and advise of any medication prescribed for the children from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover.
b.At all times keep the other informed of their residential address, email address and a personal telephone number.
c.Notify the other parent of the name, address and telephone number of the children’s treating doctor or doctors and authorise that doctor or doctors in writing to release to the other particulars of any of the children’s health or treatment at anytime requested by the other parent.
32.That each party shall complete a post separation parenting course within 6 months of the date of these orders and provide the other parent with evidence of completion of such course.
33.That each party pay their own costs.
NOTATION
A)It is noted that the father’s time pursuant to these orders shall commence 17 June 2010 in accordance with Order 4(b)(ii).
B)It is noted that the father will spend time with the children after school Thursday 10 June 2010 to 5pm Saturday 12 June 2010.
Unfortunately, notwithstanding the comprehensive nature of those final parenting orders, as soon as 23 September 2010, Mr Bertram caused his solicitors to write to Mrs Bertram’s solicitors a letter of nine A4 pages in which he asserted many breaches of the final parenting orders by Mrs Bertram. That letter apparently did not lead to satisfaction for Mr Bertram.
A few months later, on 14 January 2011, Mr Bertram filed an Application in this Court alleging that the final parenting orders had been contravened by Mrs Bertram and seeking that she be dealt with under Division 13A of Part VII of the Family Law Act (“the Act”). Mr Bertram’s affidavit of evidence in support of that contravention application was filed on the same date.
The matter came before me in the judicial duty list on Monday the 14th of February, 2011. Just why the Application was filed in this Court, having regard to the Protocol for the Division of Work between this Court and the Federal Magistrates Court and the fact that the final orders were made in the Federal Magistrates Court, was not adequately explained to me. Nevertheless, the parties were both at Court, legally represented by solicitors and counsel and, in the circumstances, I determined to proceed to hear the matter.
After some objection was taken on behalf of the Respondent mother to the form of the alleged contraventions, the hearing proceeded, in respect of certain of the alleged contraventions, on the basis of the statement of the alleged contravention contained in the Application – Contravention filed 14 January 2011 and, in respect of others of the alleged contraventions, by reference to more specific particulars set out in the supporting affidavit evidence of the Applicant father.
Accordingly, the contravention application proceeded on the basis of the Applicant father alleging that the Respondent mother had contravened paragraphs 1, 4(e), 11, 22(a), 22(c), 23, 25, 26 and 27 of the final orders set out above.
Specifically, the allegations of contravention I determined to deal with were as follows:-
a)That the mother had contravened paragraph 1 of the final orders on 17 August 2010 by failing to provide the child’s school enrolment form to the father despite his repeated requests and by completing the father’s contact details [on that school enrolment form] incorrectly including his email address, telephone number and home address.
b)That the mother had contravened paragraph 4(e) of the final orders on 13 September 2009 by refusing to allow the father to spend time with the children on that date from 3:30 pm to 6:30 pm in circumstances where the father advised her of his intention to spend this time on Wednesday, 8 September 2010 at 2:00 pm.
c)That the mother had contravened paragraph 11 of the final orders by failing to facilitate telephone communication between the children and their father when he telephoned to speak with them between 7:00 pm and 7:30 pm on Wednesday 28 July 2010 and between 7:00 pm and 7:30 pm on Wednesday 15 December 2010 and failing to text message the father back on those occasions to advise him that the children were available to receive his telephone calls.
d)That the mother had contravened sub-paragraph 22(a) of the final orders by sending the father text messages on 10 August 2010 and on 13 August 2010 regarding matters which were not of an urgent nature and did not relate to the children.
e)That the mother had contravened sub-paragraph 22(c) of the final orders by refusing to communicate with the father through the means of a communications book.
f)That the mother had contravened paragraph 25 of the final orders by contacting the father on his work email address on 6 September 2010 and 18 September 2010.
g)That the mother had contravened paragraph 23 of the final orders by failing to ensure that the children attended their commitments as follows:-
·Friday 18 June 2010 O was not taken to gymnastics;
·Saturday, 19 June 2010 both children were not taken to their swimming lessons;
·Tuesday, 22 June 2010 H was not taken to her gymnastics class;
·Tuesday, 2o June 2010 H was not taken to her gymnastics class;
·Wednesday, 30 June 2010 O was not taken to her ballet class;
·Friday, 2 July 2010 O was not taken to her gymnastics class;
·Monday, 19 July 2010 O was not taken to her kindergarten;
·Friday, 23 July 2010 O was not taken to gymnastics;
·Thursday, 29 July 2010 H was not taken to school;
·Friday, 30 July 2010 H was not taken to school;
·Wednesday, 4 August 2010 O was not taken to ballet;
·Tuesday, 14 September 2010 H was not taken to gymnastics;
·Wednesday, 15 September 2010 O was not taken to ballet;
·Tuesday, 21 September 2010 H was not taken to gymnastics;
·Wednesday, 22 September 2010 O was not taken to ballet;
·Friday, 24 September 2010 O was not taken to gymnastics;
·Saturday, 2 October 2010 the children were not taken to their swimming lesson;
·Tuesday, 19 October 2010 H was not taken to school;
·Wednesday, 15 December 2010 H was not taken to school;
·Saturday, 18 December 2010 the children were not taken to their swimming lessons; and
and by not contacting the father at least 48 hours in advance to ascertain if he could take the children when the mother was not able to.
h)That the mother had contravened paragraph 26 of the final orders by refusing to allow the father to watch O at her gymnastics class on 13 August 2010.
i)That the mother had contravened paragraph 27 of the final orders by refusing to provide the father with reimbursement for her half of the cost of the child’s passport.
The father was cross-examined on his evidence by the mother’s counsel. The mother was then asked to state her response to the allegations. Through her counsel, the mother stated that she was “not guilty” of each of the above-listed alleged contraventions. The mother then filed by leave and read an affidavit of her evidence in response and was cross-examined by the father’s counsel. Finally, the father gave further evidence in reply and submissions were made by both counsel.
Relevant Law and Principles
Section 70NAC of the Act provides as follows:
Meaning of “contravened” an order
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; or
(b) otherwise – he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities having regard to the gravity of the allegation and the contravention must be shown to be intentional though not requiring proof of contumacious behaviour. See section 70NAF of the Act and also Jets & Maker [2010] Fam CAFC 55 per O’Ryan J at paragraph 83
Section 70NAE of the Act provides, in certain circumstances, reasonable excuse for contravening an order. Specifically, it provides as follows:-
Meaning of “reasonable excuse for contravening” an order
(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).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4)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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(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).
(6)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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The Specific Allegations
Allegation 1 - That the mother had contravened paragraph 1 of the final orders on 17 August 2010 by failing to provide the child’s school enrolment form to the father despite his repeated requests and by completing the father’s contact details [on that school enrolment form] incorrectly including his email address, telephone number and home address.
Paragraph 1 of the final orders is an order providing for the mother and the father to have “equal shared parental responsibility” for the children. The father’s evidence, in paragraph 6 of his affidavit filed 14 January 2011, was that “on a number of occasions [at least six such occasions are particularised]… [he] wrote to [the mother] by email and requested that [the mother] provide [him] with [O’s] school enrolment form so that [he] could sign it as her parent. Despite numerous requests [the mother] refused to provide the enrolment form to [him] and on 17 August 2010 sent [him] an email advising [him] that the enrolment form was with the school.”
Under cross-examination, the father’s evidence was that he had wanted to see the enrolment form and put his own details on it before it was submitted to the school and that he also wanted to see a copy of the completed form then submitted to the school.
Exhibit D to the father’s affidavit is a copy of the email sent to the father by the mother on 17 August 2010. It said:-
“[The father’s first name],
[Os] [sic] enrolment form in school office [sic] if you insist on signing it. I have supplied copies of parenting orders and avo [Apprehended Violence Order] as school requsted [sic] for their files.
[The mother’s first name]”
The father’s evidence is that upon receiving that email he attended the school (albeit a couple of months later) and met with the school principal to view and sign the form and that when he sighted the form he discovered that the mother had inserted the incorrect email address, incorrect residential address and “a largely redundant” mobile phone number in the parts of the form requesting his contact details to be provided.
Exhibit E to the father’s affidavit is a copy of the said form. It can be seen on page 5 of that form that an apparently incorrect contact email address originally provided for the father has been crossed out and the father’s work email address inserted instead. On page 6 of the form, it can be seen that a mobile telephone number originally provided for the father has been crossed out and another number inserted instead. As a matter of note, the father accepted in cross-examination that even the number he had inserted instead was the incorrect number. That was his error. On that same page, it can be seen that the father’s address, originally inserted as “[unit number]/[20] [street address]”, was corrected to “[unit number]/[18-20] [street address]”
Although counsel for the father put to the mother in cross-examination that she did not get the father’s consent to O going to the particular school that she was to be enrolled at (a proposition the mother denied), and the father did make it clear under cross-examination that he was not satisfied with the communication between him and the mother in the process of their determining the school that O was to attend, in his evidence under cross-examination, the father did accept that he was agreeable for the child to attend that particular school. Indeed, I understood his evidence to be that he had agreed to that, or, at the very least, had accepted that, before the issue of the completion of the enrolment form arose.
Although counsel for the father put to the mother that she did not get the father’s consent before deciding that O was going to go to the particular school that she now attends, it is the mother’s failure to provide the school enrolment form to the father, notwithstanding his repeated requests, for him to insert his details and sign as O’s father, before the form was sent to the school, as well as the mother’s insertion of incorrect details, that form the basis of the allegation that the mother has contravened the order providing for equal shared parental responsibility. The father does not allege contravention based on any failure by the mother to consult with him about and to make genuine effort to agree on the school that O was to attend.
The mother did not deny that she had failed to send the enrolment form to the father for him to complete before she sent it to the school or that she had completed the father’s contact and address details, incorrect as they were, in the form before she had sent it. The mother did not deny that the father had repeatedly asked her to send him the form for him to complete his details and to sign as an applicant parent of the child being enrolled. I accept the evidence of the father that he had made it clear to the mother, by repeated requests, that he wished to be involved in the process of completing the form. Clearly, the content of the email sent by the mother to the father on 17 August reflected knowledge by the mother of, at the very least, the father’s wish to be involved in the process by actually signing the form before it was submitted to the school.
I am satisfied, on the balance of probabilities, that the mother intentionally did not send the ‘Application to Enrol’ form to the father for him to complete the part that required his details and signature before submitting it to the school. I am also satisfied that in not sending him that form she knew that she was acting contrary to the father’s wishes in respect of the issue.
Although the father clearly believed that the mother had deliberately included incorrect details for him in the form, the father’s counsel did not put that to the mother in cross-examination. For that reason, and also having regard to the fact that the father himself accepted that he had inadvertently inserted a wrong mobile phone number in the form when he went in to the school to sign it in October 2010, and also the fact that the address the mother inserted as the father’s address was partly correct in any event, I am not satisfied, on the balance of probabilities, that the mother knowingly and deliberately inserted incorrect contact and address details for the father in the form that she sent to the school.
I must determine though, whether the mother’s actions, as I have found them to have been, constitute a contravention of the order conferring “equal shared parental responsibility” upon both the parents.
Section 61B of the Act provides as follows:-
Meaning of “parental responsibility”
In this Part, “parental responsibility”, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 65DAC of the Act provides as follows:-
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE)
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Section 65DAE of the Act provides as follows:-
No need to consult on issues that are not major long-term issues
(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a)has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major long-term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.
(2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.
“Major long-term issues” is defined in section 4:-
Major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
i.the child’s education (both current and future); and
ii.the child’s religious and cultural upbringing; and
iii.the child’s health; and
iv.the child’s name; and
v.changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
The consultation and genuine effort to come to a joint decision about an issue that is required by section 65DAC is limited to only decisions about “major long-term issues.” “Major long-term issues” include issues about the care, welfare and development of the child of a long term nature about the child’s education (both current and future).
Whilst, conceivably, there might be many decisions about a child’s education, current and future, that will, in the case of an “equal shared parental responsibility” order, require consultation between the persons upon whom such responsibility is conferred, as well as genuine effort by them to reach agreement on the decision, the immediate question to be determined is whether the task of completion of a pro forma ‘Application to Enrol’ in respect of a child at a particular school that the parents are already agreed upon the child attending, however that agreement came about, is properly described as a “decision about a major long-term issue in relation to the child”? In my view, only if it can be so properly described as such a decision could I go on to determine whether intentionally failing to let the father complete his own contact and address details and failing to let him sign the form before submitting it to the school, knowing that is what he was wanting to do, amounts to a contravention of an ‘equal shared parental responsibility’ order.
The form has place for the signatures of two “applicants”, described in the form as the “parents/carers”. The mother signed in one of those places on 13 August, 2010. Page 7 of the form bears the signature of the school Principal evidencing the acceptance of the application to enrol the child at the school and it is dated 16 August, 2010. Apparently, the signatures of two “parents/carers” must not be required before an enrolment is accepted by the Principal. The signature of one parent/carer applicant is clearly sufficient, as it was accepted by the Principal on the mother’s signature alone. The mother’s email to the father telling him the form was in the school office if he insisted on signing it was sent on the 17th August, 2010, the day after the Principal had accepted the enrolment on the basis of only the mother’s signature. The father attended at the school office and made the corrections to his details and added his signature to the form some two months later on the 15th October, 2010, as that is when his signature is dated.
I find then, that the actual completion of the ‘Application to Enrol’ form is simply one part of the process of putting into effect the “decision about a major long-term issue in relation to the child” already taken by the parents to enrol the child at this particular school, rather than being such a decision in itself. As such, I do not find the mother’s intentional unilateral completion of the father’s details on the form and the submitting of the form to the school for the Principal’s consideration before the father had the chance to consider and sign it to be a contravention of the order conferring ‘equal shared parental responsibility’ on the parties.
That said, the mother’s actions, as found by me, clearly reflect a distinct lack of respect for the co-parenting position of the father and were not in the spirit of a mutually respectful co-parenting relationship that the final orders appear to have been drawn up to facilitate. I hasten to add that much of the evidence that I read and heard in this matter caused me to believe that such a lack of respect for the other parent in this co-parenting relationship is mutual.
Allegation 2 - That the mother had contravened paragraph 4(e) of the final orders on 13 September 2009 by refusing to allow the father to spend time with the children on that date from 3:30 pm to 6:30 pm in circumstances where the father advised her of his intention to spend this time on Wednesday, 8 September 2010 at 2:00 pm.
In his affidavit, the father deposed to having sent the mother a text message at approximately 2:00 pm on Wednesday 8 September, 2010, advising her that he intended to exercise time with the children in accordance with order 4(e) the following Monday, 13 September, 2010. His evidence was that despite having done this, the mother refused to allow him to spend time with the children. He did not put into evidence a copy of the text said to have been sent.
In her affidavit, the mother did not deny that the children did not spend time with their father on Monday 13 September, 2010. She said that she and the girls had a dinner engagement in place for the Monday evening but, in defending the contravention application, the mother particularly relied upon the fact that the father had not satisfied the pre-condition required for her to be obliged to facilitate the girls having time with their father on the Monday night, namely, notice in writing being given to her by no later than 3:00 pm on the Wednesday before the nominated Monday.
The mother exhibited to her affidavit (Annexure A) a copy of a text she said she received from the father at 18:58 on Wednesday 8 September 2010 which says “I will collect girls next Monday afternoon.” Clearly, if that was the first notice in writing given by the father to the mother of his intention, he did not satisfy the pre-condition for spending time with the girls on the following Monday.
Under cross-examination, the father said that he did not have a written copy of the text he said that he sent in time on his mobile phone. He checked that phone in the witness box and did not find the text that he had sent. He denied that he had sent the first text at 18:58 and said that he referenced the approximate time of sending it, being around 2:00 pm (14:00), to sitting in an aircraft awaiting departure at that time on that date. He did not produce a telephone account showing the time the text message was sent.
The mother denied receiving any written notice from the father earlier that day although she did say that the father had, in communication on the night of Wednesday 8 September 2010, insisted that he had sent it earlier that day. Indeed, on Annexure A to the mother’s affidavit is a text apparently sent by the father at 23:12 that same day in which he did assert that notice was given in time earlier that day.
Annexure SB1 to the mother’s affidavit is a copy of an email sent to the father at 11:00 pm (23:00) on that date, 8 September, 2010. In that, the mother refers to having received the text from the father that “evening”. She did not, then, assert that he was out of time to have satisfied the pre-condition for time with the girls on the following Monday, but rather told him of the dinner plans that she and the girls had. Apparently, that did not satisfy the father. He insisted that he was to have the girls the following Monday. It did not happen and this application follows.
On the evidence before me, I am not satisfied, on the balance of probabilities, that the father in fact did send a text to the mother before 3:00 pm (15:00) on Wednesday, 8 September, 2010. The evidence before me provides greater support to a finding that the father first texted the mother at 18:58 (6:58 pm). Accordingly, I find, on the balance of probabilities, the pre-condition required to be satisfied before the father could expect time with the children on Monday 13 September 2010 was not satisfied and that the mother did not, therefore, contravene paragraph 4(e) of the final orders by not facilitating time with the father for the children on that night.
Allegation 3 - That the mother had contravened paragraph 11 of the final orders by failing to facilitate telephone communication between the children and their father when he telephoned to speak with them between 7:00 pm and 7:30 pm on Wednesday 28 July 2010 and between 7:00 pm and 7:30 pm on Wednesday 15 December 2010 and failing to text message the father back on those occasions to advise him that the children were available to receive his telephone calls.
In his affidavit, the father made the general complaint that the mother does not appropriately facilitate his telephone communication with the girls. More particularly, he deposed to having called the mother’s number on Wednesday 28 July, 2010 approximately six times over a twenty minute period around 7:15 pm from his office landline to talk to the children. He said that the mother answered the last call but did not say anything and then terminated the call. He did not get to speak to the children at that time.
In her affidavit, the mother’s evidence in response to this was that she could not recall that exact occasion. She said that the area in which she and the children live has very bad phone reception and there are frequent occasions where incoming calls will not be received or when the phone drops out of range when somebody calls. She said that on 28 July 2010 the mobile phone may have dropped out of range but that to “the best of [her] knowledge and belief [the father] did speak to the children that day.” I do not understand how the mother could say that, without more, more than six months later, when she already conceded no recollection of that exact occasion.
Under cross-examination, the mother flatly denied the suggestion that she hung up on the father that night. Again, I do not understand how she could be so confident about that when she had already conceded no recollection of that exact occasion.
The mother had quite timely notice of the father’s allegations of her contravention of the order requiring telephone communication between him and the girls, yet she failed to produce at the hearing any evidence supporting her assertion that the area in which she lives is an area of poor mobile phone reception. She failed also to produce any evidence that she had brought the alleged poor phone reception to the attention of the father previously, save for saying that she had sent him an email about it. In any event, the mother gave no evidence that on the occasions when the phone dropped out and she missed the father’s phone calls that she text messaged him back, telling him that the children were then available to speak to him, as she is obliged to do pursuant to paragraph 11 of the final orders. Accordingly, I accept the father’s evidence in respect of what happened on that evening. I do not accept the mother’s evidence that the explanation for the father not talking to the children on the telephone between 7:00 pm and 7:30 pm on that night was that the phone was dropping out and, on the balance of probabilities, I find that the mother intentionally failed to comply with paragraph 11 of the orders that night without reasonable excuse.
The father alleged that the mother contravened the same paragraph of the final orders on Wednesday, 15 December, 2010 when he called the children fourteen times between 7:03 pm and 7:30 pm. In his affidavit, he said that initially the mother’s phone rang, it seemed to connect (at least on one occasion) and then it disconnected and then the mother’s phone was off.
The mother did not respond to this evidence in her affidavit but under cross-examination she again relied on her assertion that the mobile phone service at her home is poor, saying that she could hear the father when he called but that he could not hear them. The mother said that she tried to call the father back but it was not connecting. She did not give evidence that she sent him a text, as required, saying that the children were available to speak with him or informing him of the problems she asserted she was experiencing with the connections.
There is no dispute that not much later that evening the father went around to the mother’s home, apparently upset at not being able to talk to the girls on the telephone and called out for them from outside. The mother allowed the girls to go outside, where they spoke to the father for some time. However, as positive as that might be in terms of the co-parenting of the parties, it does not amount to compliance by the mother with the obligations of paragraph 11 of the orders. Again, for the same reasons as I expressed in paragraph 42 hereof, I do not accept the mother’s evidence about why telephone communication did not happen between 7:00 pm and 7:30 pm on 15 December, 2010. I find that she intentionally did not let the father talk to the girls by telephone during that time and did not text him to tell him that the girls were available to speak with him.
I find that the mother contravened paragraph 11 of the final orders as asserted by the father and that she did so without reasonable excuse.
Allegation 4 - That the mother had contravened sub-paragraph 22(a) of the final orders by sending the father text messages on 10 August 2010 and on 13 August 2010 regarding matters which were not of an urgent nature and did not relate to the children.
In his affidavit, the father asserted that sub-paragraph 22(a) of the final orders obliges the mother and him to only communicate by text message in respect of matters of an urgent nature relating to the children. Of course, as already seen, paragraph 11 also obliges the mother to text the father if she has missed the father’s telephone calls to the girls to tell him that they are available to speak to him on the phone. The father’s evidence was that on 10 August 2010 the mother sent him a text saying “wheres my money” and that on 13 August 2010 the mother sent him two texts after he had called to attempt to speak with the children which said “Fuck off [H] is sick” and “All you fucking worry about is swimming. Piss off you despicable man.”
The mother, in her affidavit, responded that she had sent the text on 10 August 2010 as asserted by the father. She said that she had no money in the bank to purchase the children food and was in need of funds urgently as the father had not paid money to her when he was supposed to have done so. It was, therefore, submitted on behalf of the mother that the said text communication on 10 August, 2010 was of “an urgent nature” about “matters relating to the children”. If it was, it was submitted, it was not in contravention of sub-paragraph 22(a) of the orders.
It is unclear to me what obligations, if any, the father actually had to pay money to the mother. There are no obligations imposed upon him in the final orders of 8 June 2010 for him to pay money to the mother save for the obligation to provide the mother with $20 each month for the purpose of providing credit to the mother’s mobile phone so that she could text him if she missed any of his telephone calls to the children. In his affidavit, he said that he had paid $80 to the mother in June 2010 to cover that obligation for four months. That was never denied by the mother or challenged by her counsel in cross-examination of the father. It cannot then have been that money the mother was talking of.
I do not know then whether the mother was speaking of money that the father might have been obliged to pay for spousal maintenance or for child support or for some combination of both and I do not know what the actual nature of any such obligation was in so far as quantum and frequency of payment are concerned. I can not and do not find, therefore, that the said text was about “matters relating to the children” or truly of “an urgent nature”. The text, on its face, related simply to money and was not about the children. The question to be determined then is whether the mother by sending it contravened sub-paragraph 22(a) of the orders? I find that she did not.
Paragraph 22 provides:-
That for the purposes of communicating information between the parties about matters relating to the children only the mother and father shall .. [emphasis added]
and then it goes on to prescribe how and when they are to communicate in respect of such matters. There is no prohibition in paragraph 22 or in the rest of the orders of 8 June 2010 against the mother sending texts to the father that are not about matters relating to the children only. It is, I find, when the parties are communicating about matters relating to the children only that they must comply with the restrictions prescribed by paragraph 22.
I must next consider the text messages the father deposed to receiving from the mother on 13 August, 2010, after he had been calling to speak to the girls. On its face, the first one is about H, so is clearly “about matters relating to the children”. The second one talks of the father worrying about swimming. That, I find, in the absence of any evidence to the contrary or challenge to the father’s evidence, is about the children’s swimming lessons and, therefore, is also “about matters relating to the children.”
As such, to determine whether the clearly intentional text messaging was a contravention of the order requires a determination as to whether there was any urgency about the communication of the subject matter of the messages. The content of the two text messages was rude and offensive. The mother did not seek to establish that there was any need at all for either of the two messages to be sent, probably because she recognised, albeit with hindsight, there was absolutely no need for such messages. There being no need to send them, I cannot find that they dealt with “matters of an urgent nature only” which were the only such matters about which text messages relating to the children only were permitted to be sent. The deliberate sending of these two text messages by the mother did, I find, contravene the restrictive prohibition imposed by sub-paragraph 22(a) of the orders. The mother had no reasonable excuse, as that term is defined, for sending them.
Allegation 5 - That the mother had contravened sub-paragraph 22(c) of the final orders by refusing to communicate with the father through the means of a communications book.
In his affidavit, the father deposed to having suggested many times to the mother that they use a communication book and cease emailing each other. Exhibit G to his affidavit is a copy of an email he sent on 22 November 2010 to the mother suggesting that “a communication book would be a better option.” He deposed to the mother ignoring his requests and continuing to send emails and text messages to him. Of course, the sending of emails and text messages by the mother, in the circumstances prescribed by paragraph 22, is sanctioned by the orders and will not be a contravention.
The father asserted that he had bought a book to be used as a communication book by them but conceded that he never wrote in it himself and never sent it to the mother with the children on any occasion. The question for determination then is whether the mother has contravened the obligation cast by sub-paragraph 22(c) of the orders by not notifying the father that she agreed to the proposal to use a communications book or by not getting such a book herself and writing in it and sending it to the father with the children.
Answering that question, in my view, begins with a consideration of the actual obligation cast upon the mother by that sub-paragraph. It prescribes the communication of information about matters relating to the children to telephone in respect of matters of an urgent nature only, to personal email in respect to day to day matters and to writing in a communication book in respect of matters including but not limited to details of extra-curricular sporting/recreational activities, birthday parties and school functions in which the children are involved.
The sub-paragraph does not, I find, cast an obligation on the mother to be the parent who provides the communication book. It does though, in my view at least, cast an obligation on her (and, of course, I hasten to add, also on the father) to communicate about matters that are not “urgent” or “day to day matters” in a communication book. Although not expressly defined, those remaining matters are said to at least include “extra-curricular sporting/recreational activities, birthday parties and school functions in which the children are involved.”
There was no dispute between the parties, on the evidence, that they had both written to each other by email about the children’s extra-curricular sporting/recreational activities (see paragraph 34 of the father’s affidavit, see also exhibit 1 in the proceedings). It is that action by the mother which I consider to be a contravention by her of the order rather than her ignoring of the father’s suggestions that they start to use a communications book. The excuse or justification that the mother was merely responding to the father in the same medium as he had communicated with her does not amount to a reasonable excuse for her contravention having regard to section 70NAE of the Act, although, of course, it will be a matter to consider in mitigation in respect of the penalty imposed for the contravention I have found. The father may very well have been able to establish a more serious contravention by the mother if he had actually complied with the terms of the order himself and communicated, for his part, with the mother by way of a communications book that the mother then refused to use for communications in response. That did not happen though, the mother giving evidence, effectively accepted by the father, although with some apparent disagreement as to actual numbers, that the father would send her many emails on an almost daily basis.
Allegation 6 - That the mother had contravened paragraph 25 of the final orders by contacting the father on his work email address on 6 September 2010 and 18 September 2010.
In his affidavit, the father deposed that the mother regularly contacts him on his work email in contravention of the express restraint against doing so in paragraph 25 of the orders. He specifically only referred to emails sent to him at his work email address by the mother on 6 September, 2010 in relation to the showing of the property in the UK of the parties that is listed for sale and, again, on 18 September 2010, also in relation to the sale of the property in the UK.
There can be no doubt that paragraph 25 restrained both of the parties from contacting the other on their work phone, work mobile or work email other than in the case of an emergency relating to the children.
In her affidavit in response, the mother accepted that she had sent emails to the father’s email address and that the content of those emails was about the sale of the parties’ property in the UK and communication with the parties’ UK real estate agent and not about matters relating to the children. She asserted that sending these emails to the father’s work address was “an inadvertent error” in circumstances where she received emails from the UK agent, that were also sent to the father at his work email address, to which she simply responded by clicking on the “reply all” button on her email software.
In cross-examination, the father’s counsel put to the mother a copy of an email that was sent by the mother to the father on 18 September, 2010. He put it to her that it was one the mother sent to the father at his work email address. The mother said that she had sent it to the father but did not know whether it had been sent to his work email address. The copy of the email was admitted into evidence as Exhibit 6. There is nothing on that document that actually shows that it went to the father at his work email address though. It records on its face that it was sent at 9:21 am on that date
In re-examination of the mother, counsel for the mother tendered into evidence another email from the mother to the father. That became Exhibit 7. On that document, which is described as a copy of an email to the applicant father’s workplace dated 18 September 2010, there is another email from the father, recording that it was sent from his work email address to the mother at 9:40 am on 18 September 2010. The content of that email shows it is a response to the mother’s email that is Exhibit 6, which I therefore find, on the balance of probabilities, was sent to the father’s work email address.
Exhibit 7 also includes a copy of an email that was sent by the mother to the father at 10:30 am on 18 September, 2010, the content of which appears to respond to the email from the father, sent about 50 minutes previously from the father’s work email address. The copy of that email, too, does not actually record the actual email address the mother sent it too. However, in all the circumstances, it is, in my mind at least, safe to find that it went to the father at the address that he had sent the earlier one from, namely, his work email address.
In circumstances where the father was clearly sending the mother emails from his work email address and the mother was receiving emails from the parties’ UK real estate agents that are copied to the father at his work email address, it seems extraordinary that the father complains that the mother is contravening paragraph 25 of the orders by sending him emails back to that address. However that may be, that is what she did and I find, as Exhibits 6 and 7 demonstrate, that it was not simply a case of inadvertently clicking on the “reply all” button. Those emails to the father appear to go solely to the father and do not appear to be copied to any other person. As I do not accept the mother’s assertion that it was inadvertence that explains the fact that she sent emails to the father’s work email address that were nothing to do with the children, I find that such action was intentional and, as such, in contravention of paragraph 25 of the final orders.
Allegation 7 - That the mother had contravened paragraph 23 of the final orders by failing to ensure that the children attended their commitments as follows:-
·Friday 18 June 2010 O was not taken to gymnastics;
·Saturday, 19 June 2010 both children were not taken to their swimming lessons;
·Tuesday, 22 June 2010 H was not taken to her gymnastics class;
·Tuesday, 20 June 2010 H was not taken to her gymnastics class;
·Wednesday, 30 June 2010 O was not taken to her ballet class;
·Friday, 2 July 2010 O was not taken to her gymnastics class;
·Monday, 19 July 2010 O was not taken tot her kindergarten;
·Friday, 23 July 2010 O was not taken to gymnastics;
·Thursday, 29 July 2010 H was not taken to school;
·Friday, 30 July 2010 H was not taken to school;
·Wednesday, 4 August 2010 O was not taken to ballet;
·Tuesday, 14 September 2010 H was not taken to gymnastics;
·Wednesday, 15 September 2010 O was not taken to ballet;
·Tuesday, 21 September 2010 H was not taken to gymnastics;
·Wednesday, 22 September 2010 O was not taken to ballet;
·Friday, 24 September 2010 O was not taken to gymnastics;
·Saturday, 2 October 2010 the children were not taken to their swimming lesson;
·Tuesday, 19 October 2010 H was not taken to school;
·Wednesday, 15 December 2010 H was not taken to school;
·Saturday, 18 December 2010 the children were not taken to their swimming lessons; and
and by not contacting the father at least 48 hours in advance to ascertain if he could take the children when she was not able to.
In his affidavit, the father deposed to his interpretation of paragraph 23 of the final orders. He considered it to mean that the mother and he shall ensure that the children attend their commitments and that in the event either of them was unable to do so, they were to contact the other parent to see if they are able to. He then said that the mother had failed to take the children to a number of their commitments since the orders were made and listed all those that are particularised above.
As can be seen, paragraph 23 of the orders actually provides:-
That the mother and father shall ensure where possible that the children shall attend the children’s commitments when the children are in their care and in the event that a parent is unable to do this they shall contact the other parent at least 48 hours in advance to see if that parent is able to facilitate the children’s attendance at the children’s commitments. [emphasis added]
Clearly, there may be circumstances, such as illness that first emerges within 48 hours before a particular commitment, where the parent in whose care the children are is unable to ensure that the children attend a particular commitment and clearly cannot contact the other parent, as required by the order, at least 48 hours in advance. Similarly, there may be circumstances, such as, but not limited to, illness to the child or children that prevents the child from being able to attend commitments, regardless of whether the other parent was available to take her or not.
In her affidavit, the mother made a general denial of the assertion of the father. She said that she takes the children to their commitments unless there is some good reason that they cannot attend. Of all the dates particularised by the father, the mother specifically addressed six of them.
As to 29 and 30 June, the mother admitted that the children did not go to their usual, after-school activities on those days. She said that was because she was ill with the flu and could not take them. She said that she was so sick that at 11:30 am on 30 July - which I take to be a typographical error and should have read 30 June - she sent the father a text message asking him to collect the girls from her home at 3:30 pm that day. If he had been able to do that, the father could have taken O to her ballet class that afternoon. She said he collected them at about 5:00 pm. The entry in the father’s diary (Exhibit 2 in the proceedings) confirmed that the mother was ill and that the father collected the girls from her on 30 June.
I accept the mother’s evidence about those days. I find that it was not possible for the mother, due to her illness, to ensure that the children attended their extra-curricular commitments on those days. Further, there was no evidence from which I could safely find that the mother knew at least 48 hours before those two days that it was not going to be possible to get the children to their commitments on those days. I do not find that the mother contravened paragraph 23 of the orders in respect of those two days.
As to 2 July, the mother admitted that O missed her gym class that morning. The girls were in the father’s care over the night of 1-2 July and at 8:05 am the mother texted the father and asked him if he was planning to take O to the gym or going to hand her back over to the mother at 9:30 am (See annexure SB4 to her affidavit). The mother said that the father did not respond to her text and was late for the changeover such that, consequently, O missed her gym class that morning. That evidence was not challenged. The father gave no contrary version of the facts surrounding that day. I accept the mother’s evidence and I do not find that the mother contravened paragraph 23 of the orders in respect of that day.
As to 29 July, a day on which the father said H was not taken to school, the mother said she believes that H did attend school on that day. She said that it was a Thursday when the girls were to spend time with the father, pursuant to the orders, from after school Thursday until before school Friday. She said that the father was unable to collect them from school so she collected them from school and the father collected them from her later that evening.
The father said nothing more specific in his affidavit. There is no entry in his diary for those days. His diary shows that school term began the week before. Accordingly, pursuant to paragraph 4(b)(ii) of the orders, the mother’s assertion about that being a Thursday when the girls were to spend time with the father overnight appears correct. I therefore accept the mother’s evidence about these days and I do not find that the mother contravened paragraph 23 of the orders in respect of those days, 29 and 30 July, 2010.
As to 2 October, the mother said that she did not take the children to swimming that day as swimming classes were not on. She said she told the father this by text message. There was indeed an exchange of text messages between the mother and the father about the issue on 2 October 2010. The text messages between them are shown on annexure SB4 to the mother’s affidavit. I will not set them all out here. Suffice to say that the father insisted that swimming lessons for the girls were on that morning and the mother insisted that the girls’ lessons were during term and had finished the weekend before. Without more than the exchange of views about the matter between the father and the mother, I cannot determine, on the balance of probabilities, that the mother contravened paragraph 23 of the orders in respect of 2 October 2010. I do not prefer, in respect of this date, one party’s evidence over the other.
As to 19 October, the mother said that H was sick and that is the reason why she did not go to school that day. The mother said that the father had told her, when he returned the children to the mother the evening before, that H had a temperature and had not been well. She said that when her health had not improved the following morning she kept her home from school to recover.
The father’s diary (Exhibit 2) has entries that indicated he had the girls for the weekend of 16 and 17 October. There is nothing entered for Monday 18 to indicate that he had the girls after school that day. For Tuesday 19 October there is an entry that says “[The mother] did not take H to school nor tell me about it.”
However, I do not accept, without more, that the mother just simply did not take H to school for no good reason at all. The evidence that I saw and heard in the case did not cause me to form an impression of the mother that she would do that, at least in so far as the schooling of the children is concerned. Accordingly, I accept that H was unwell on Tuesday 19 October and do not find that the mother contravened paragraph 23 in respect of that day.
In respect of all of the other dates set out in the father’s affidavit, at the conclusion of the hearing, the state of the evidence is as follows:-
(i)Friday 18 June 2010 - the father says O was not taken to gymnastics. There is an entry in his diary (Exhibit 2) for that day saying “[The mother] DID NOT take [O] to gym. Breach”. There is no evidence directly in response to that by the mother.
(ii)Saturday 19 June 2010 - the father says both children were not taken to their swimming lessons. There is an entry in his diary for that day saying “[The mother] DID NOT take children swimming. Breach”. There is no evidence directly in response to that by the mother.
(iii)Tuesday 22 June 2010 – the father says H was not taken to her gymnastics class. There is no entry in his diary for that day about the matter. There is no evidence directly in response by the mother.
(iv)Monday 19 July 2010 – the father says O was not taken to kindergarten. There is an entry in his diary for that day saying “[The mother] did not take [O] to kindy – Breach.” There is no evidence directly in response by the mother.
(v)Friday 23 July 2010 – the father says O was not taken to gymnastics. There is an entry in his diary for that day saying “[The mother] didn’t take [O] to gym [illegible] of a coldsore.” There is no evidence directly in response by the mother.
(vi)Wednesday 4 August 2010 – the father says O was not taken to ballet. There is an entry in his diary for that day saying “[The mother] removed girls to city on bus Breach. No ballet for [O]”. There is no evidence directly in response by the mother.
(vii)Tuesday 14 September 2010 – the father says H was not taken to gymnastics. There is an entry in his diary for that day saying “H said she didn’t do gym”. There is no evidence directly in response by the mother.
(viii)Wednesday 15 September 2010 – the father says O was not taken to ballet. There is no entry in his diary for that day. There is no evidence directly in response by the mother.
(ix)Tuesday 21 September 2010 – the father says H was not taken to gymnastics. There is an entry in his diary for that day saying “[H] said she didn’t do gym.” There is no evidence directly in response by the mother.
(x)Wednesday 22 September 2010 – the father says O was not taken to ballet. There is an entry in his diary for that day saying “[O] told me she didn’t do ballet – nor last wk either.” There is no evidence directly in response by the mother.
(xi)Friday 24 September 2010 – the father says O was not taken to gymnastics. There is an entry in his diary for that day saying “[The mother] did not take [O] to gym (her last gym). – sent me an email at 11:30 claiming car problems.” There is no evidence directly in response by the mother.
(xii)Wednesday 15 December 2010 – the father says H was not taken to school. There is an entry in his diary for that day saying “H did not go to school – [the mother] did not take her. [The mother] did not tell me – breach.” There is no evidence directly in response by the mother.
(xiii) Saturday 18 December 2010 – the father says the children were not taken to their swimming lessons. There is no entry in his diary for that day about the matter. There is no evidence directly in response by the mother.
As I have said earlier, the mother did make a general assertion in her affidavit that “I take the children to their commitments unless there is some reason they cannot attend.” Under cross-examination, when asked about the children missing gymnastics classes in a general way, the mother said that she could not recall specific dates but that “in many of those cases they went.” When she was asked specifically about the 18th June and the 22 June, the mother said that she could not recall but that the dates may have coincided with dates that she was sick or the children were sick.
Notwithstanding that the state of the evidence, on these matters particularly, can be described as a classic case of “he said – she said”, and also the reality that in a case where, given the extraordinary amount of mistrust between the parties and the dysfunctional nature of their relationship, determining exactly where the truth lies in respect of each particular factual allegation is a difficult task, I nevertheless must determine each such allegation on the balance of probabilities.
The father’s application was filed on 14 January 2011. The matter was heard by me on 14 February 2011. There was no suggestion on behalf of the mother that she had been unable to prepare her defence properly for the hearing. Whilst I have already said that I did not form an impression that the mother was such a person that she would not send her children to school for no good reason, I cannot say the same in respect of the children’s extra-curricular activities. I formed an impression of the mother, from the evidence I read and heard and from observing her considering and answering questions in the witness box, that there probably were times when it would have been “possible” for her to take the children to their extra-curricular activities but where she simply decided not to on a particular day, those activities not ranking as highly in her mind as the need to ensure that H at least attended school on a daily basis, save for days when there was good reason for her not to attend. I found her general assertion that she takes them to their commitments “unless there is some reason they cannot attend” to be a little glib in all the circumstances. I found her failure to put any evidence before me, such as records of attendance kept by the organisations or entities responsible for running the gymnastics, ballet and swimming activities of the girls, in circumstances where she asserted that they had not missed all the dates as asserted by the father, rather surprising.
Of course, the mother might very well consider that it is her prerogative to keep these young girls at home from any of their extra-curricular activities for any reason she chooses, whatever that might be. In normal circumstances, that would be a parental right. However, she consented to these final parenting orders being made in the form that they were, and, in particular, in so far as this issue is concerned, she consented to paragraph 23 in its specific wording. As such, she is required to comply with it and, as the father has alleged she has contravened it, which she denies, I must determine whether she has.
In respect of Friday 18 June 2010, having regard to the matters I have already touched upon and, more specifically, to the fact that the father made the entry in the diary and the mother did not make a specific response to that day, I accept that the mother did not take O to gymnastics on that day. I do not find that it was “not possible” to take her that day and I do not find that the mother had reasonable excuse for not taking her. Accordingly, I find, on the balance of probabilities, that the mother contravened paragraph 23 of the orders on that day.
In respect of Saturday 19 June 2010, for exactly the same reasons as just outlined, I accept that the mother did not take the children to their swimming lessons that day. I do not find that it was “not possible” to take them that day and I do not find that the mother had reasonable excuse for not taking them. Accordingly, I find, on the balance of probabilities, that the mother contravened paragraph 23 of the orders on that day.
In respect of Tuesday 22 June 2010, as there is no entry in the father’s diary for that day about the matter, I do not simply accept, without more evidence being provided by the father, such as the attendance records I mentioned before, that H was not taken to gymnastics that day. I do not find that the mother contravened paragraph 23 of the orders on that day.
In respect of Monday 19 July 2010, for the reasons already referred to, I do not accept that the mother would have kept O from kindergarten for no good reason. Whilst I accept, on the balance of probabilities that O did not attend kindergarten that day, I do not find that the mother contravened paragraph 23 by not ensuring that O attended that day.
In respect of Friday 23 July 2010, because of the father’s entry in his diary, I accept that O was not taken to gymnastics that day. The entry supports a finding that the child was kept from gymnastics by the mother because she had a cold-sore. The mother was not cross-examined about that day or, more specifically, about whether or not that was a good enough reason to keep O home from gymnastics. In the circumstances, I accept that the mother kept the child home for health reasons and, accordingly, I do not find that she contravened paragraph 23 that day.
In respect of Wednesday 4 August 2010, the father’s entry in his diary and the mother’s failure to respond in respect of that particular day cause me to accept that O missed ballet that day. I do not find that it was “not possible” to take her that day and I do not find that the mother had reasonable excuse for not taking her. Accordingly, I find, on the balance of probabilities, that the mother contravened paragraph 23 of the orders on that day.
In respect of Tuesday 14 September 2010, again the father’s entry in his diary and the mother’s failure to respond in respect of that particular day cause me to accept that H missed gymnastics that day. I do not find that it was “not possible” to take her that day and I do not find that the mother had reasonable excuse for not taking her. Accordingly, I find, on the balance of probabilities, that the mother contravened paragraph 23 of the orders on that day.
In respect of Wednesday 15 September 2010, as there is no entry in the father’s diary that day about the matter and the only evidence supporting a finding that O did not attend ballet that day is an entry in the father’s diary on 22 September that O reported to him that she did not do ballet “last wk either” I am not prepared to accept, without more, that she did not attend ballet this day. The child was only five years old at the time. I consider it would be unsafe to make a finding based solely on the reported assertion of the child as to what happened the week before.
In respect of Tuesday 21 September 2010, because of the entry in the diary that day referring to the child, H, telling the father, that day that she did not go to gymnastics and the mother not specifically responding in respect of that day, I do accept that the child did not go to gymnastics that day. I do not find that it was “not possible” to take her that day and I do not find that the mother had reasonable excuse for not taking her. Accordingly, I find, on the balance of probabilities, that the mother contravened paragraph 23 of the orders on that day.
In respect of Wednesday 22 September 2010, because the entry in the diary for that day says that O told him she was not taken to ballet that day and the mother did not specifically respond in respect of that day, I accept that O was not taken that day. Again, I do not find that it was “not possible” to take her that day and I do not find that the mother had reasonable excuse for not taking her. Accordingly, I find, on the balance of probabilities, that the mother contravened paragraph 23 of the orders on that day.
In respect of Friday 24 September 2010, because of the father’s entry in his diary, I accept that O was not taken to gymnastics that day. However, as with the entry about the cold-sore, this particular entry supports a finding that the child was kept from gymnastics by the mother because the mother had “car problems”. The mother was not cross-examined about that day or, more specifically, about whether or not the “car problems” were a good enough reason to keep O home from gymnastics. In the circumstances, I accept that the mother kept the child home because it was “not possible” to get her there and I do not find that she contravened paragraph 23 that day.
In respect of Wednesday 15 December 2010, because of what I have said about the mother and H’s schooling before, whilst I am prepared to accept, because of the diary entry, that the child missed school that day, I am not prepared to find that the mother did not have sufficient grounds to keep the child from school that day or that she contravened paragraph 23 that day.
In respect of Saturday 18 December 2010, again, because there is no entry in the father’s diary for that day dealing with this matter, I am not prepared, without more, to find that the children were not taken to their swimming lessons that day. Accordingly, I do not find that the mother contravened paragraph 23 that day.
In short then, I find that the mother contravened paragraph 23 in respect of six only of the twenty days specified by the father as days on which she contravened that paragraph of the orders.
Allegation 8 - That the mother had contravened paragraph 26 of the final orders by refusing to allow the father to watch O at her gymnastics class on 13 August 2010.
In his affidavit, the father deposed that he wrote to the mother on a date in August enquiring as to the time of O’s gym class so he could attend and watch her on 13 August, 2010. He sets out the mother’s response, which he asserts amounts to a contravention of paragraph 26 of the orders. That response was:-
[The father’s first name], as you are aware, I have care of our children on aug 13. There is no special gymnastic event scheduled on this day that would warrant you attending gymnastics class during [O’s] time in my care.
Paragraph 26 of the orders is clear in its meaning. The father was not precluded from attending O’s gym class on 13 August just because O was in the mother’s care on that date. However, whilst the email from the mother to the father was not one that welcomed his attendance at the gym class, it can not be said that it is one that somehow precludes the father from attending. It does not tell him that he can not attend. It does not tell him that he would be prevented somehow from attending if he turned up. Whilst in ideal circumstances, the mother would have told him the time of the class and welcomed his attendance there to watch their child’s participation, I read and heard enough evidence in this case to realise that is, at least at this point in time, a little too much to expect in the interaction of these parents. I am immediately tasked with determining whether the mother contravened the order as the father asserts. I find that the sending of the quoted email response, as unfortunate as it was, was not a contravention of paragraph 26 of the orders as it does not amount to evidence that the father was actually precluded by the mother from attending the gym class.
Further, there is no evidence from the father that he did not otherwise know where the child attended gym class, or that he could not have otherwise found out, other than from the mother, what time the child’s gym class was so that he could, as permitted by paragraph 26 of the orders, attend the child’s class as he wanted. If there was evidence of that nature and also evidence that the mother was aware of that, therefore establishing that the mother knew that the father would not be able to attend without the provision of the information by her to him, there may have been room for a finding, in accordance with the principle established in Stevenson and Hughes (1993) FLC 363, that paragraph 26 imposed a positive obligation on the mother to provide the information to the father so that he could attend which might have been contravened by not giving the father that information. Absent such evidence, I do not find that the mother contravened paragraph 26 of the orders.
Allegation 9 - That the mother had contravened paragraph 27 of the final orders by refusing to provide the father with reimbursement for her half of the cost of the child’s passport.
Relevantly, the second sentence of paragraph 27 of the orders says:-
The cost of obtaining or renewing the passport shall be shared equally between the parties.
The father’s case against the mother in respect of this alleged contravention was that the mother refused to provide reimbursement for half of the cost of the children’s passports. He deposed to having requested reimbursement on a number of occasions and the mother failing to provide him with the reimbursement. There was evidence given during the hearing that the father had then simply deducted the required amount from money he was paying to the mother. As such, it was ultimately accepted by the father that he is not left out of pocket in respect of the passports and that the mother has actually shared equally the cost of obtaining the passports as was required by paragraph 27 of the orders.
It was then appropriately conceded by counsel for the father that the Court could not find that the mother had actually contravened paragraph 27 of the orders. I accept that concession and find that she did not.
Conclusions
I have found that the mother did contravene paragraph 11 of the orders on two specific dates, being 28 July and 15 December 2010. I have found that she did contravene sub-paragraph 22(a) of the orders on two specific dates, being 10 and 13 August, 2010. I have found that she did contravene sub-paragraph 22(c) and I have found that she did contravene paragraph 25 on two specific dates, being 6 and 18 September, 2010. Finally, I have found that she did also contravene paragraph 23 of the orders on six of the twenty days alleged by the father. I have also found, with respect to all of those contraventions, that the mother did not have reasonable excuse for the contraventions.
I shall, of course, upon delivery of my findings and reasons for those findings, hear submissions on behalf of both of the parties as to:-
(a)whether I should determine the mother’s contraventions to be of a less serious nature and, therefore, to be considered pursuant to subdivision E of Division 13A of Part VII of the Act, or, rather, to be contraventions of a more serious nature, such as to attract the operation of subdivision F of that same division; and
(b)the penalty that should be imposed upon the mother by me, whichever subdivision applies.
I conclude by noting that although it did not form part of the father’s case against the mother at all, it was conceded by both the mother and the father that neither of them had complied with paragraph 32 of the final orders. That paragraph required both parties to complete a post-separation parenting course within six months of the date of the orders and to provide the other parent with evidence of completion of such course. I observe that the evidence I read and heard in this matter caused me to consider that to be an order that most definitely should have been complied with. Clearly, these parties need assistance to reach a better understanding of what co-parenting in the best interests of their two young children actually requires of them.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 March 2011.
Associate:
Date: 17 March 2011
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Breach
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Penalty
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Jurisdiction
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Statutory Construction
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