Bodilson & Bodilson
[2022] FedCFamC2F 1511
Federal Circuit and Family Court of Australia
(DIVISION 2)
Bodilson & Bodilson [2022] FedCFamC2F 1511
File number(s): PAC 1787 of 2015 Judgment of: JUDGE GLASS Date of judgment: 25 August 2022 Catchwords: FAMILY LAW – CONTRAVENTION – where contraventions of final orders are established Legislation: Family Law Act 1975 (Cth) Division 13A of Pt VII, Part XIIIA ss 70NAC, 70NAE, 70NBA, 70NEB, 112AB, 112AC, 112AD Cases cited: Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
Stavros & Stavros (1984) FLC 91-562
Stevenson & Hughes (1993) FLC 92-363
Division: Division 2 Family Law Number of paragraphs: 25 Date of last submission/s: 25 August 2022 Date of hearing: 25 August 2022 Place: Melbourne The Applicant: Self Represented Litigant The Respondent: Self Represented Litigant ORDERS
PAC 1787 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BODILSON
Applicant
AND: MS GILBERT
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
25 AUGUST 2022
THE COURT FINDS THAT:
1.The Respondent Mother has without reasonable excuse, contravened the Orders made 9 February 2021 on four occasions.
THE COURT ORDERS THAT:
2.The Respondent Mother forthwith attend upon and complete a Post Separation Parenting Program.
3.The Contravention Application filed on 14 June 2022, is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bodilson & Bodilson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
This is a contravention application filed by Mr Bodilson principally relating to parenting Orders made by the Court on 9 February 2021 relating to the children X, born in 2008; Y, born in 2009; and Z, born in 2012. Mr Bodilson alleges six contraventions of those Orders. A further count relates to an Order made on 21 July 2021 for the respondent, Ms Gilbert, to pay his costs.
Parenting contraventions arise for determination pursuant to Division 13A of Part VII of the 1975 (Cth) (“the Act”). Pursuant to section 70NAC of the Act, Ms Gilbert is taken to have contravened an Order affecting children if she has intentionally failed to comply with the Order or made no reasonable attempts to comply with the Order. Pursuant to section 70NAE of the Act, she is taken to have a reasonable excuse for contravening an Order affecting children for reasons that include if she believed, on reasonable grounds, that it was necessary to contravene the Orders in order to protect the health or safety of a person.
By the first count, Mr Bodilson alleges that on 23 April 2022 at 1.13 pm, Ms Gilbert, without reasonable excuse, contravened paragraph 5(f) of the Orders by failing to return Y and Z to Mr Bodilson at midday on the last Saturday of the school holiday block. Mr Bodilson gives evidence that on that occasion, Ms Gilbert delivered the children to the agreed changeover location and walked the children into the pedestrian area of the car park without their bags.[1] He gives evidence that he:
Approached the children but they were visibly distressed, would not talk to me, and [Z] was outwardly hostile towards me, raising her hand and not allowing me to even hug her.[2]
[1] Applicant’s Affidavit filed 14 June 2022, paragraph 15.
[2] Applicant’s Affidavit filed 14 June 2022, paragraph 16.
He also deposes that:
[Ms Gilbert] then called the children back to her car. Her partner, [Mr E], was with her. Together, they put the children back into their car and drove away.[3]
[3] Applicant’s Affidavit filed 14 June 2022, paragraph 16.
Ms Gilbert gives the following evidence in relation to the episode:
I did not walk the children. They approached [Mr Bodilson] together in the hopes to have a constructive conversation.[4]
[4] Respondent’s Affidavit filed 23 August 2022, paragraph 21.
She also deposes that:
The children were frustrated as they have made continual efforts to discuss their wishes with [Mr Bodilson] for over a year now, to which they are either ignored via text, hung up on during phone calls to [Mr Bodilson] or verbally abused. [Z] expressed to me she was scared [Mr Bodilson] would physically grab her, as he has in the past, so did not want to be approached.[5]
[5] Respondent’s Affidavit filed 23 August 2022, paragraph 22.
Further, she gives evidence that:
I did not call the children back. They ran back. I then sat in the car talking to the children and emailed [Mr Bodilson] about a second attempt at changeover.[6]
[6] Respondent’s Affidavit filed 23 August 2022, paragraph 22.
Her general evidence that she always handed the children over in compliance with the Orders is inconsistent with her own evidence that changeover did not occur at the scheduled time on 23 April this year. She also gives evidence that the children were so distressed about going to Mr Bodilson that she had to remove them. Changeover was effected two days later with the assistance of a member of Queensland Police.
As the Full Court held in its 2007 decision in Elspeth & Peter, Mark & Peter and John & Peter[7], the obligation to ensure compliance with a parenting order carries with it more than merely an obligation to remain passive. It requires a positive application of parental authority. The evidence before me is that on 23 April, Ms Gilbert had remained passive and did not seek to positively apply parental authority to ensure the children’s return to their father as ordered. I am accordingly satisfied that the contravention is established.
[7] Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655at [25]; Stevenson & Hughes (1993) FLC 92-363 at 79,813–79,815; Stavros & Stavros (1984) FLC 91-562 at 79,539.
I am not satisfied that Ms Gilbert’s evidence establishes that it was necessary for the children’s health and safety not to be returned to their father. Her conclusory statement as to their level of distress is insufficient to sustain such a finding. I am also not satisfied that she has otherwise established a reasonable excuse for contravening the Order. Accordingly, count 1 is established.
By the second count, Mr Bodilson alleges that on 20 April this year, in breach of Order 16, Ms Gilbert denigrated him in the presence or hearing of Y and Z. Whilst Mr Bodilson gives general evidence about what he alleges were acts comprising manipulation and alienation by Ms Gilbert and telling the children that they could decide where they want to live, only one part of his evidence relates to conduct on the relevant date and supports the alleged contravention. That evidence comprises Z texting Mr Bodilson on 20 April saying “Me and [Y] want to live up in Brisbane because we always have nits and I found out all your lies and we both want to live here”. [8] When Mr Bodilson inquired what lies she was talking about, Z responded “There are many. I don’t want to go into it. Mum told me”.[9]
[8] Applicant’s Affidavit filed 14 June 2022, paragraph 38, annexure 8.
[9] Applicant’s Affidavit filed 14 June 2022, paragraph 38, annexure 8.
Contrary to Mr Bodilson’s speculation, the evidence does not establish that Ms Gilbert has encouraged the children to believe that he is a negligent father. However, it does establish that Ms Gilbert has told the children of what are alleged to be multiple lies told to them by their father. Ms Gilbert generally denies the allegation, asserting that Mr Bodilson is not a topic of conversation in her household and denying that she has, at any time, villainised him or spoken about him negatively. However, in her evidence she gives no explanation for why Z would say that Mr Bodilson told lies. I conclude, on the balance of probabilities, that Ms Gilbert has told Z that her father has told lies. So much is clearly denigrating to the father. There is no basis upon which to conclude Ms Gilbert had a reasonable excuse for doing so. Accordingly, count 2 is established.
By the third count, Mr Bodilson alleges that on 12 March 2021, Ms Gilbert failed to provide her residential address at least 48 hours prior to spending time with the children, as required by paragraph 5(a) of the Orders. The allegation is admitted and the count is therefore established.
By the fourth count, Mr Bodilson alleges that Ms Gilbert failed on 3 April 2021 to advise him the correct address of where the children would be staying while in her care in breach of Order 9. He relies on emails between the parties on the relevant date when he made the relevant inquiry. Ms Gilbert provided an address in Town F. Mr Bodilson gives evidence that he knew that was not the address where the children would be staying.[10]
[10] Applicant’s Affidavit filed 14 June 2022, paragraph 43.
Ms Gilbert gives unchallenged evidence that that is the address where she and the children were staying.[11] Mr Bodilson gives no evidence of the factual basis for his conclusory evidence to the contrary. In circumstances where Ms Gilbert’s evidence was not challenged, I accept it, and I am satisfied that she stayed at that address. Accordingly, count 4 is not established.
[11] Respondent’s Affidavit filed 23 August 2022, paragraph 41, 43.
By the fifth count, Mr Bodilson alleges that Ms Gilbert, without reasonable excuse, failed to enrol in the Domestic and Family Violence Prevention Course as required by Order 23. Ms Gilbert gives unchallenged evidence that no course as prescribed by the Order was available to her at G Counsellors upon her having made inquiries.[12] She admits that she has not undertaken the course, but I am satisfied that she has demonstrated a reasonable excuse for not complying with the Order. Count 5 is not established.
[12] Respondent’s Affidavit filed 23 August 2022, paragraph 44.
By the sixth count, Mr Bodilson alleges that Ms Gilbert, without reasonable excuse, failed to undertake drug and alcohol counselling as required by Order 24. Ms Gilbert gives unchallenged evidence that such counselling required a referral from a general practitioner. However, her evidence is that she attended upon a general practitioner on 28 July this year, and the general practitioner opined that no such counselling is indicated.[13] That attendance took place nearly 18 months after the Orders were made which required her to engage in drug and alcohol counselling within 28 days. She gives no evidence of having taken the necessary steps within the prescribed timeframe. The evidence does not support a finding that she has a reasonable excuse for the contravention. Accordingly, count 6 is established.
[13] Respondent’s Affidavit filed 23 August 2022, paragraph 45.
Count 7 relates to a Costs Order. It arises for determination pursuant to Part XIIIA of the Act. Section 112AB prescribes that Ms Gilbert is taken to contravene an order, only if she has intentionally failed to comply with it or made no reasonable attempt to do so. Section 11AC prescribes a non-exhaustive definition of what comprises a reasonable excuse. Pursuant to section 112AD of the Act, I have a discretion to impose sanctions if I find Ms Gilbert to have contravened the Order without reasonable excuse. Mr Bodilson alleges that Ms Gilbert without reasonable excuse, has failed to comply with Order 1 made on 21 July 2021, which required Ms Gilbert to pay his costs, fixed in the sum of $9,587.00. On 17 August 2021, Ms Gilbert became bankrupt. She gives uncontradicted evidence that the Costs Order is covered by the bankruptcy.[14] I find that her bankruptcy constitutes a reasonable excuse for her contravention of the Costs Order. Accordingly, count 7 is not established.
[14] Respondent’s Affidavit filed 23 August 2022, paragraph 46.
I will turn now to what consequences should flow from those findings. Pursuant to section 70NBA of the Act, I have a discretion to vary the primary parenting Orders. Mr Bodilson seeks that I do so, restricting the children’s time with their mother to supervise daytime visits in Sydney rather than the extended holiday time currently ordered to occur in Brisbane, pending Ms Gilbert completing a mental health assessment, counselling, drug and alcohol counselling and the family violence course. He also seeks that Ms Gilbert attend a psychiatrist. During his exchanges with the Court, it became clear that Mr Bodilson has not identified any suitable person to undertake the supervision he proposes and considers that it should be a matter that the Court should direct him in relation to.
As I raised with Mr Bodilson, the consequence of no supervisor being identified and available may well be that if I make the order he seeks, the children would spend, in fact, no time with Ms Gilbert. In assessing his proposal, I note that Mr Bodilson’s evidence is that Ms Gilbert had previously failed to comply with Orders to attend upon drug and alcohol counselling and the family violence course prior to the final Orders being made in February 2021. Whilst I have now found a number of the contraventions established, I am not satisfied that the children’s best interests are now met by requiring their time with their mother to be supervised on a daytime basis in Sydney. I am also not satisfied that it is in their best interests to spend overnight supervised time with their mother in Sydney, absent the availability of any supervisor being identified for that purpose. Those orders will deprive the children of having a meaningful relationship which each of their parents.
I am also not satisfied that there is sufficient evidence to support the necessity for Ms Gilbert to attend upon a psychiatrist. For her part, Ms Gilbert seeks that I vary the Orders to provide for the children to relocate to Brisbane at the end of 2022 and consequential orders providing for time with their father, the children be interviewed in order for their wishes to be ascertained and that Mr Bodilson attend a domestic violence course. I consider this application to be an inappropriate vehicle for the relief sought by Ms Gilbert. Contravention proceedings do not afford the Court an appropriate mechanism by which to entertain such wholesale reversal of existing parenting orders, given the quasi-criminal nature of the application. It would be contrary to the children’s best interest for a reversal of their care arrangements to occur without a complete exploration of their best interests.
I am also not satisfied in these proceedings that it would be appropriate for me to order the children to attend upon a new expert in order for their wishes to be ascertained. Whilst Ms Gilbert gives evidence of X not having spent time with her as ordered, I do not have a sufficient evidentiary foundation upon which to conclude that X’s best interests are now met by spending six weeks with her mother over the next six months in addition to the existing ordered time. Given Ms Gilbert’s evidence that she is seeking a Domestic Violence and Protection Order, I am not satisfied that this Court should also entertain her application to restrict contact between the parties and family members. Given Mr Bodilson’s partial success in these proceedings, I am not satisfied that they are vexatious or that there is any basis to find that he has frequently instituted or conducted vexatious proceedings. Such a finding would be required in order to enliven the Court’s discretion pursuant to section 102QB of the Act, to make a vexatious proceedings order as appears to be sought by Ms Gilbert.
Given the contraventions I have found are established without reasonable excuse, I have a discretion to grant a variety of relief as prescribed by section 70NEB of the Act. Given Ms Gilbert’s failure to comply with a number of the Court’s Orders, I consider it appropriate that she be required to complete a post-separation parenting program. However, I am not satisfied that the other contraventions warrant any further consequence being imposed at this time.
Ms Gilbert proposes that Mr Bodilson also attend a post-separation parenting program. I have a discretion to so order. Although Mr Bodilson indicates that he has previously undertaken such a program, which assertion was not disputed by Ms Gilbert, I am not satisfied that his attendance is in the children’s best interests or necessary, even having regard to Ms Gilbert’s unchallenged evidence in relation to the difficulties in the post-separation parenting arrangements caused by Mr Bodilson.
For those reasons, I propose to make the following Orders, upon the Court finding that Ms Gilbert has, without reasonable excuse, contravened the Orders made 9 February 2021 on four occasions.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 23 December 2022
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