Bolton & Verrender
[2022] FedCFamC1F 550
•22 March 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bolton & Verrender [2022] FedCFamC1F 550
File number(s): MLC 1288 of 2016 Judgment of: BENNETT J Date of judgment: 22 March 2022 Catchwords: FAMILY LAW- PARENTING- Application to vary child orders in accordance with s 70NBA of the Family Law Act 1975 (Cth)- revision of the school term time regime.
FAMILY LAW- PARENTING- contempt application- high parental conflict- application withdrawn by father.
Legislation: Family Law Act 1975 (Cth) ss 70NBA, 112AP Cases cited: Ibbotson & Wincen (1994) FLC 91-496
Oakely & Millar [2019] FamCAFC 12
Division: Division 1 First Instance Number of paragraphs: 39 Date of hearing: 22 March 2022 Place: Melbourne (heard via MS Teams) Counsel for the Applicant: Litigant in person Counsel for the Respondent: Mr Metaxas Solicitor for the Respondent: Bayside Solicitors Counsel for the Independent Children’s Lawyer: Mr Kiernan Solicitor for the Independent Children’s Lawyer: Robert Halliday and Associates ORDERS
MLC 1288 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOLTON
Applicant
AND: MS VERRENDER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
22 March 2022
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.The Mother and Father have equal shared parental responsibility for X born in 2014.
3.X live with the Mother.
4.X spend time and communicate with the Father as follows:
(a)In week 1 of a 2-week cycle from the conclusion of school on Thursday 28 April 2022 (or 3.30pm if a non-school day) to the commencement of school on Friday (or 3.30pm if a non-school day), and each alternate week thereafter;
(b)In week 2 of a 2-week cycle from the conclusion of school on Thursday 5 May 2022 (or 3.30pm if a non-school day) to the commencement of school on Monday (or 3.30pm if a non-school day), and each alternate week thereafter;
(c)The normal week 1 and week 2 cycle time would be suspended during the holiday period and recommence:
(i)After each holiday period in term 1, 2 and 3 as if week 1 and 2 had not stopped;
(ii)After the long school holiday period, the week 1 cycle would start in odd years and the week 2 cycle would start in even years.
(d)During the Victorian school term holidays in terms 1, 2 and 3, for one half of the school holidays, commencing the first half in all odd numbered years and the second half in all even numbered years, with the first half commencing at the conclusion of school on the last day of school term and concluding at 3.30pm on the middle Saturday and the second half commencing at 3.30pm on the middle Saturday and concluding at 3.30pm on the last Sunday of these school term holiday periods;
(e)For one half of the long summer school holidays as follows:
(i)Commencing the second half in 2022/2023 and each alternate year thereafter, with time to commence at 3.30pm on 10 January and concluding at the commencement of the first day of the school term.
(ii)Commencing the first half in 2023/2024 and each alternate year thereafter, with time to commence at the conclusion of school on the last day of the school term and concluding at 3.30pm on 10 January.
(f)On Father’s Day weekend from 3.30pm on Saturday to 3.30pm on Sunday.
(g)The Easter period to be incorporated into the holiday period and rotating year about.
(h)For Christmas in 2022 and each alternate year thereafter, from 11:00am Christmas Day to 11:00am Boxing Day.
(i)For Christmas in 2023 and each alternate year thereafter, from 11:00am Christmas Eve to 11:00am Christmas Day.
(j)At other times as agreed in writing, with the parties to give reasonable consideration to any request for additional time for X to attend family functions and/or events.
5.Notwithstanding paragraph 4d of this Order X spend time with the father during the first school term holidays in 2022, 2023 and 2023 as follows:-
(a)from 3:30pm or after school on 8 April 2022 to 3:30pm on 14 April 2022;
(b)from 3:30pm or after school on 6 April 2023 to 3:30pm on 15 April 2023; and
(c)from 3:30pm or after school on 7 April 2024 to 3:30pm on 15 April 2024.
6.The Father’s time with X be suspended as follows:
(a)During the Victorian school term holidays in terms 1, 2 and 3, for one half of the school holidays, commencing the first half in all even numbered years and the second half in all odd numbered years, with the first half commencing at the conclusion of school on the last day of school term and concluding at 3.30pm on the middle Saturday and the second half commencing at 3.30pm on the middle Saturday and concluding at 5:00pm on the last Sunday of these school term holiday periods.
(b)For approximately one half of the summer school holidays as follows:
(i)Commencing the first half in 2022/2023 and each alternate year thereafter, with time to commence at the conclusion of school on the last day of the school term and concluding at 3.30pm on 10 January.
(ii)Commencing the second half in 2023/2024 and each alternate year thereafter, with time to commence at 3.30pm on 10 January and concluding at the commencement of the first day of the school term.
(c)On Mother’s Day weekend from 3:30pm on Saturday to 3.30pm on Sunday.
(d)For Christmas in 2022 and each alternate year thereafter, from 11:00am Christmas Eve to 11:00am Christmas Day.
(e)For Christmas in 2023 and each alternate year thereafter, from 11:00am Christmas Day to 11:00am Boxing Day.
7.The parents do all acts and things necessary to ensure that X’s medication and prescriptions for medication travel with X and that there is a reasonable quantity of medication for X at handover.
8.In the event that either parent would be unable to care for X and would require him to be placed in day care, they offer the other parent the first right of care during such time with no requirement to afford make-up time.
9.For the purpose of time spent the changeover be effected as follows:
(a)If the changeover occurs on a school day, the changeover be at school.
(b)If the changeover does not occur on a school day:
(i)The Mother deliver X to the Father at the Father’s residence at the commencement of time spent; and
(ii)The Father deliver X to the residence of the Mother at the conclusion of time spent.
(c)when changeover is to effected at a parents’ home that parent ensure that he/she is present at the appointed changeover time and the parent delivering X park as close to the driveway of the other party’s residence as possible but not leave the motor vehicle. For the avoidance of doubt, it is expected that X will be able to remove his belongings or bag from the motor vehicle and make his own way to the house with the parent with whom he is returned.
10.In the event that either parent has not spent time with or communicated with X for the six consecutive days, the parent with the care of X do all acts and things necessary to ensure that X has telephone communication or audio visual communication with the other parent at 5.00pm on the seventh day unless, on the seventh day, X has moved into the care of the other parent.
11.The Mother and the Father are each hereby mutually restrained by injunction from contacting the other by telephone or by text or email save that:
(a)In the event that the party is unavoidably delayed and cannot effect changeover at the required time and/or location, a text may be sent by that party to the other party informing of how late that party will be in which case the Mother make elect to remain at the changeover point or nominate an alternative point for return by return text;
(b)In the event of an emergency the parent for whom the emergency has arisen may initiate contact with the other parent;
(c)The parties use a phone application to discuss all matters related to X and ensure that they provide regular updates;
(d)The parents may correspond by email in relation to matters of parental responsibility including medical and educational matters.
12.Both the Mother and the Father do all acts and things and sign all documents necessary so as to cause a passport to be issued for X and update said passport at any time that a current passport expires or is due to expire and where one party fails or refuses to do so within 14 days of the written request for same, the requirement for that party’s consent will be dispensed with. X’s passport shall be retained by the Father for safekeeping whilst X is not travelling overseas.
13.For the purposes of travel, the travelling parent will notify the other parent in writing of any proposed overseas travel at least 30 days prior to the commencement of travel (and the other parent not unreasonably refuse said proposed travel) with each parent being permitted to travel with X for a total of 21 days per year, conditional upon the travelling parent providing to the non-travelling parent an itinerary of proposed travel, an address as to where they will be staying, a telephone number on which they may be contacted and evidence of return airline ticket of X at least 2 weeks prior to departure.
14.Both the Mother and the Father ensure X receives his vaccinations and ongoing booster vaccinations at the appropriate times, as directed by the relevant medical authorities, in relation to the COVID-19 virus.
15.Within 48 hours of any change to either of the Mother or the Father’s phone numbers and/or residential address, they provide the other parent with updated details of the same.
16.The Mother and the Father keep each other informed about significant medical appointments scheduled for X.
17.The Mother and the Father immediately inform the other of any serious illness or injury sustained by X, and provide particulars of any treatment received by him and the name and address of the treatment provider/s and/or location at which he is a patient.
18.The Mother and the Father each authorise and direct all current and future medical and health practitioners treating X to provide both parties with all information as to his attendances and/or treatment at their own request and cost.
19.The Mother and the Father each authorise and direct all schools, educational facility and extracurricular provider of X to provide both parties with all information reasonably provided regarding his attendance, including but not limited to notices, information, newsletters, reports and/or photographs.
20.The Mother and the Father be permitted to attend extra-curricular and like activities routinely attended by parents, including but not limited to parent-teacher interviews, functions, concerts and sporting events.
20. Without admitting the necessity for the same:
(a)the Mother and the Father, their servants and/or agents are hereby restrained from abusing, insulting or otherwise denigrating the other parent, their family, partner and or partner’s family in the presence of X or in circumstances where that attitude could come to his attention;
(b)the Mother and the Father are each hereby restrained from discussing these proceedings or any part of them with X and/or involving him in any dispute between them; and
(c)the Mother and the Father are each hereby restrained from committing family violence against the other and/or X.[1]
[1]This replicates the error I found in the original order.
21.The parties attend upon Organisation N to see a Senior Family Dispute Resolution Practitioner with a social science background in relation to any disagreement they may have in relation to equal shared parental responsibility. The Father be responsible for the costs for the attendance upon the family therapist.
22.The Mother and the Father do all acts and things necessary to engage X with Ms O, Psychologist, for non-reportable child counselling, and the costs of same be borne equally between the Mother and the Father.
23.The Father complete a parenting program and provide a certificate of completion of same to the Mother.
24.Each of the parents and their servants and/or agents be and is hereby restrained from:
(a)Denigrating the other party or any member of their family in the hearing or presence of X;
(b)Discussing these family law proceedings in the presence or hearing of X;
(c)Disseminating or publishing any information related to these family law proceedings save for the purpose of obtaining legal advice or medical treatment;
(d)Committing family violence in the presence or hearing of X or against any member of X’s family.
25.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure attached herewith and these particulars are included in these orders.
26.I will deliver my reasons subsequently.
27.All applications including the contempt application filed on 12 January 2022, all contraventions application and all applications whether in writing or oral for a variation of parenting orders be and are hereby dismissed.
NOTATION:
A.The Father has advised that he has almost completed the requisite parenting program.
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 the pseudonym Bolton & Verrender has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
introduction
These proceedings concern X who is 6 years old having been born in 2014. This is a case of enduring high parental conflict. The parents have made many applications and have been engaged in proceedings more or less since 2016. The parents knew each other and their respective families for a long time prior to becoming a couple for a brief time and producing X.
My impression of the parents, from the many times that they have been before me, is that they fall into dispute about a matter (which need not be significant) then one party over reacts by non-compliance with an order or resorting to proceedings in the state magistrates’ courts for a family violence intervention order (FVIO) or a contravention (or contempt) application in this Court.
My experience of the parties is that:
(a)Their actions and reactions tend to the extreme end of the spectrum and are disproportionate to the matter at hand;
(b)Each parent appears to think that the end justifies the means;
(c)The parents do not pay due regard to X’s interest or the emotional impact on him of his/her actions;
(d)The parents are consumed with his/her own emotional needs which, for the mother, is to exclude the father from her life and, for the father, to insert himself into the mother family life including her siblings;
(e)The parents are inconsiderate of the drain of resources that they cause to agencies such as Victoria Police, State Magistrates’ Courts within the FVIO jurisdiction and this Court;
(f)Their actions and reactions warrant firm censure but it is only a matter of time before the victim of poor behaviour in one dispute becomes the perpetrator in the next dispute.
In this tranche of the proceedings, and with the considerable assistance of an independent children’s lawyer, the parties reached an accommodation of matters save for the issues of a continuation of the six out of 14 day term time regime, the changeover point at the conclusion of time and the configuration of the school term holiday which includes Easter.
Some History
On 29 August 2018 Carew J made final parenting orders. Some aspects of the orders were agreed between the mother and father and others were determined by the Court. The Order was later varied to provide that X live with the mother and spend time with the father as follows:
4.The Applicant spend time with [X] as follows:
a. until 1 October 2018, pursuant to the Interim Orders dated 3 August 2017;
b. from 1 October 2018:
i.In week one:
A.9:00am to 4:00pm Tuesday; and
B.9:00am Thursday to the commencement of [B Child Care] Friday;
ii.In week two:
A.9:00am to 4:00pm Tuesday; and
B.from the conclusion of [B Child Care] Friday (being 2:00pm) to 4:00pm Sunday;
iii.During the September 2018 school term holiday period, the week two weekend (during whichever week it falls) be extended by two nights so that the Applicant spends a total of four nights with [X], with changeover at 5:00pm on the day after the fourth night; and
iv.For a five day period in the second or third week of January 2019 to be nominated by the Applicant by no later than 20 December 2018;
c. From 4 February 2019;
i.In week one:
A.9:00am to 4:00pm Tuesday; and
B.9:00am on Thursday to the commencement of [B Child Care] on Friday;
ii.In week two:
A.9:00am to 4:00pm Tuesday; and
B.from the conclusion of [B Child Care] Friday (being 2:00pm) to 5:00pm Monday;
iii.During the school term holiday periods, the Applicant’s week two weekend (during whichever week it falls) be extended by two nights so that he spends a total of five nights with [X], with changeover at 5:00pm on the day after the fifth night;
iv.From noon on 31 December 2019 to noon on 6 January 2020;
v.From noon on 16 January 2020 to noon on 23 January 2020;
d. From the first day of the school year in 2020:
i.In week one, from the conclusion of school Thursday to the commencement of school on Friday (or 3:30pm on those days if a non-school day);
ii.In week two, from the conclusion of school Thursday to the commencement of school on Monday (or 3:30pm on those days if a non-school day);
iii.For one half of the school term and long summer school holiday periods as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years, noting that his usual time in weeks one and two would be suspended;
e. Otherwise:
i.On the Applicant’s birthday, from 3:30pm the day prior to 6pm on his birthday;
ii.During the Easter period in 2019 and each alternate year thereafter, from the conclusion of school on Thursday (or 2:00pm if a non-school day) to the commencement of school the following Tuesday (or 9:00am if a non-school day);
iii.On the Father’s Day weekend, from 3:30pm on Saturday until 4:00pm on Sunday;
iv.During the Christmas period:
A.in 2018 and each alternate year thereafter, from 11:00am on Christmas Day to 11:00am on Boxing Day;
B.in 2019 and each alternate year thereafter from 11:00am on Christmas Eve to 11:00am on Christmas Day;
v.For [X’s] birthday:
A.in 2018 and each alternate year thereafter, from 12:00pm noon on [the day before X’s birthday] to 12:00pm noon on [X’s birthday]; and
B.in 2019 and each alternate year thereafter, from 12:00pm noon on [X’s birthday] to 12:00pm noon on [the day after X’s birthday]; and
vi.As agreed in writing, with the parties to give reasonable consideration to any request for additional time for [X] to attend family functions and/or events.
5.Notwithstanding the above, the Respondent spend time with [X]:
a. On her birthday, from 3:30pm the day prior to 6:00pm on her birthday; and
b. During the Easter period in 2020 and each alternate year thereafter, from the conclusion of school on Thursday (or 2:00pm if a non-school day) to the commencement of school the following Monday (or 9:00am if a non-school day);
c. On Mother’s Day weekend, from 3:30pm on Saturday until 4:00pm on Friday;
d. During the Christmas period:
i.in 2018 and each alternate year thereafter, from 11:00am on Christmas Eve to 11:00am on Christmas Day;
ii.in 2019 and each alternate year thereafter from 11:00am on Christmas Day to 11:00am on Boxing Day;
e. For [X’s] birthday:
i.in 2018 and each alternate year thereafter, from 12:00pm noon on [the day before X’s birthday] to 12:00pm noon on [X’s birthday]; and
ii.In 2019 and each alternate year thereafter, from 12:00pm noon on [X’s birthday] to 12:00pm noon on [the day after X’s birthday]; and
f. As agreed in writing, with the parties to give reasonable consideration to any request for additional time for [X] to attend family functions and/or events.
On 29 August 2018, Carew J further ordered:
6. In the event that either party would be unable to care for [X] and would require him to be placed in long-day care, they offer the other party the first right of care during such time.
7. The parties be at liberty to speak with [X] via telephone, Skype and/or any like communication once per week when he is not in their respective care, with the parties to facilitate it and afford [X] reasonable privacy.
8. Changeover not occurring at kindergarten or school shall be at the café at [B Child Care] and if not open, the Respondent shall deliver [X] to the Applicant at the commencement of his time and the Applicant shall return [X] to the Respondent at [C Café] or her home at the Respondent’s election.
9. Until he commences school, in the event that [X] is not enrolled in the [D Town] Kindergarten, [X] continue to attend [B Child Care] each Thursday and Friday from 9:00am to 2:00pm, save in the school holiday periods during which it is at the discretion of the party with whom he is spending time.
10. The parties do all acts and things and sign such documentation to enrol [X] at [E Town] Primary School or any other such school as agreed.
11. The parties use the MyMob phone application to discuss all matters related to [X] and ensure that they provide regular updates. In the event of an emergency or issue with respective changeover, the parties communicate via phone and/or text message.
12. Within 48 hours of any change to the parties’ phone numbers and/or residential address, they provide the other party with updated details of the same.
13. The parties keep each other informed about medical appointments scheduled for [X].
14. The parties immediately inform the other of any serious illness or injury sustained by [X], and provide particulars of any treatment received by him and the name and address of the treatment provider/s and/or location at which he is a patient.
15. The parties each make available to the other all medication prescribed for [X] to administer during time periods and the other party shall administer it as prescribed or required and shall, at the conclusion of time, return the medication to the other party.
16. The parties each authorise and direct all current and future medical and health practitioners treating [X] to provide both parties with all information as to his attendances and/or treatment at their own request and cost.
17. The parties each authorise and direct all school, educational facility and extra-curricular provider of [X] to provide both parties with all information reasonably provided regarding his attendance, including but not limited to notices, information, newsletters, reports and/or photographs.
18. The parties be permitted to attend extra-curricular and like activities routinely attended by parents, including but not limited to parent-teacher interviews, functions, concerts and sporting events.
19. The parties be restrained from enrolling or committing [X] to any activity during the other party’s time without first obtaining their written consent.
20. Without admitting the necessity for the same:
a.the parties, their servants and/or agents are hereby restrained from abusing, insulting or otherwise denigrating the other party, their family, partner and or partner’s family in the presence of [X] or in circumstances where that attitude could come to his attention;
b.the parties are each hereby restrained from discussing these proceedings or any part of them with [X] and/or involving him in any dispute between them; and
c.the parties are each hereby restrained from committing family violence against the other and/or [X].
21. Without admitting the necessity for the same, the Respondent be restrained from audio and/or video recording the Applicant and/or [X] at changeover.
22. The parties continue to engage [Ms F] for ongoing family therapy and to assist with any disagreement they may have in the exercise of equal shared parental responsibility. The parties follow her reasonable directions and recommendations and the Applicant pay her costs for the first six months.
23. The parties be at liberty to provide to [Ms F] a copy of all reports prepared in these proceedings.
The father filed a contravention application on 3 August 2021 in which he alleged 7 counts against the mother. The Contravention Application is document 110 on the court file and that it is supported by a voluminous affidavit by the father.
The contravention application was listed for mention before me on 5 August 2021 at which point it was agreed the father would not proceed with the contravention application as a means of punishment but rather to use the opportunity to seek a variation or clarification of the parenting arrangements on return date of 13 September 2021.
In the Judicial Duty List on 13 September 2021 I granted leave to the father to bring an oral application in which he sought there be the provision of telephone communication between himself and X each Tuesday and an increase in his time with X from Thursday to Friday in week two to Wednesday to Friday which is an increase from five out of 14 days to six out of 14 days.
I granted the father’s oral application and varied the order of Carew J pursuant to s 70NBA of the Family Law Act 1975 (Cth) to provide for the telephone communication and an increase in X’s time with the father to six days each fortnight during school terms. I did so in view of what I found to be the mother’s disruption of the father’s time with X. In particular, her contravention of the primary order, by making reports to Victoria Police which were exaggerated and/or without foundation and which caused Victoria Police to attend upon X whilst he was in the care of the father to make welfare checks. The mother’s reports were vindictive and opportunistic. As far as X was concerned, I was satisfied that the importance of the father’s time with X required to be reinforced by being expanded. The increase in time was granted on an interim basis only subject to review following an assessment by a Child Court Expert (formerly known as a Family Consultant). That assessment has been published and I refer to it below.
contempt application
Also before me for determination was an application filed by the father on 12 January 2022 alleging eleven counts of contempt by the mother in relation to the Order made on 13 September 2021. In his affidavit filed the same day in support of the contempt application the father particularises the contraventions occurring in a period from 15 September 2021 to 9 January 2022.
Relevantly, the Order made 13 September 2021 provided:
3. Until further order the Order made on 29 August 2018 be varied as to paragraph 4(d)(i) and (ii) so that [X] spend time with the father:-
a. In week One from the conclusion of school on Wednesday to the commencement of school on Friday (or 3:30pm on any of those days which is a non-school day);
b. In Week Two from the conclusion of school on Thursday to the commencement of school on Monday (or 3:30pm on those days which is a non-school day).
…
5.Paragraph 7 of the Order made on 29 August 2018 be discharged and, in lieu thereof, in the event that the father has not spent time with or communicated with [X] for the six consecutive days, the mother do all acts and things necessary to ensure that [X] has telephone communication or audio visual communication with the father at 5pm on the seventh day unless, on the seventh day, [X] has moved into the care of the father.
…
7.The mother and the father are each hereby mutually restrained by injunction from contacting the other by telephone or by text or email save that:-
a.In the event that the party is unavoidably delayed and cannot effect changeover at the required time, a text may be sent by that party to the other party informing of how late that party will be in which case the mother make elect to remain at the changeover point or nominate an alternative point for return by return text;
b.In the event of an emergency the parent for whom the emergency has arisen may initiate contact with the other parent;
c.The parents may correspond by email in relation to matters of parental responsibility including medical and educational matters.
…
24.For the avoidance of doubt and only for the period before the adjourned date:-
a. The fortnightly time spent regime will commence after the conclusion of the September school holidays with the father having [X] for the times provided in Week Two (Thursday to Monday) which will commence on Thursday 2 October 2021;
b. At the commencement of the 2022 school year the first weekend will be for the times provided for week one (Wednesday through to Friday) and will commence on 2 February 2022.
Relevantly, paragraph 4(d)(iii) of the Order made 29 August 2018 provided that:-
4.The Applicant spend time with [X] as follows:
a. From the first day of the school year in 2020:
iii. For one half of the school term and long summer school holiday periods as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years, noting that his usual time in weeks one and two would be suspended;
By the first nine counts of the contempt application, the father seeks to have the mother dealt with because she contacted him by telephone in contempt of paragraph 7 of the Order made on 13 September 2021. All of the mother’s calls were in relation to X’s birthday party. The mother wanted to ask the father to return X to her at a different location than the location provided in the extant order. The mother wanted the father to deliver X back to her at the venue of X’s party. It is alleged:
Count 1
By Count 1 of the contravention application the father alleges that on Wednesday 15 September 2021 at 3:30pm at the father’s residence in Suburb P and in contravention of paragraph 3(a) of the primary order, the mother failed to deliver X to the father. The mother telephoned the father to say X was in the bath and that she would ask if X still wanted to see the father. The father alleges he reluctantly agreed for X to stay with the mother so as not to disrupt X’s routine.
Count 2
By Count 2 the father alleged that on 15 September 2021 at 3:55pm at the father’s residence and in contravention of paragraph 7 of the primary order, the mother telephoned the father. Count 2 relates to the telephone call in Count 1 in which the mother informed the father that X was “in the bath” and that she had “just received the new orders”.
Count 3
By Count 3 the father alleged that on 25 September 2021 at 3:55pm at the father’s residence and in contravention of paragraph 7 of the primary order the mother contacted the father by telephone. The details of the call are not particularised any more in the father’s affidavit material.
Count 4:
By Count 4 the father alleges that on 25 September 2021 at 3:55pm at the father’s residence and in contravention of paragraph 20(a) of the order made 29 August 2018, the mother made an abusive phone call to the father in the presence of X. The only words the father records the mother having said were words to the effect of “where are you?” and “why aren’t you home”[2].
[2] Affidavit of the father filed 12 January 2022, paragraph 29.
Count 5:
By Count 5 the father alleges that on 25 September 2021 at 3:55 at the father’s residence and in contravention of paragraph 20(b) of the order made 29 August 2018, he received a call from the mother in which the mother said to X words to the effect of “Daddy’s not there” and “it’s all daddy’s fault”.
Count 6:
By Count 6 the father alleges that in late 2021 at 12:30pm at the father’s residence and in contravention of paragraph 7 of the primary order the mother sent him a text message saying “can you please drop [X] at [Q Street] tomorrow. Thanks Text Yes or No”.
Count 7:
By Count 7 the father alleges that in late 2021 at 2:42pm at the father’s residence and in contravention of paragraph 7 of the primary order the mother sent the father a text message. The substance of the message was the same as that referred to in Count 6 which was resent when the father failed or otherwise neglected to respond.
Count 8:
By Count 8 the father alleges that in late 2021 at 4:46pm at the father’s residence and in contravention of paragraph 7 of the primary order the mother sent the father a text message. The substance of the message was the same as that referred to in Count 6 and 7 which was resent when the father failed or otherwise neglected to respond.
Count 9:
By Count 9 the father alleges that in early 2022 at 11:59 at the father’s residence and in contravention of paragraph 7 of the primary order, the mother sent the father a text message. The substance of the message was the same as that referred to in Count 6, 7 and 8. The father replied confirming whether this would mean he would have the care of X for an extra night. The mother replied that she had sent 4 messages in regards to dropping X at the location which would be his birthday party.
Count 10:
By Count 10 the father alleges that on 7 January 2022 at 5pm and in contravention of paragraph 5 of the primary order the mother failed to facilitate a telephone or video call with X and the father following 6 consecutive nights of no contact between the father and child. The father does not particularise whether he was provided a reason by the mother as to why contact was suspended on this occasion.
Count 11:
By Count 11 the father alleges that on 9 January 2022 at 3:30pm and in contravention of paragraph 4(d)(iii) of the orders made on 29 August 2018 the mother failed to deliver X to him on the second half of the school long term holidays. On the father’s construction of the orders the changeover was to occur on Sunday 9 January 2022.
The power of the Court to impose a punishment for contempt is found in s 112AP of the Family Law Act 1975 (Cth). In contradistinction to contravention applications, a contempt application does not allow the court to vary existing parenting orders. A contempt application is a method to punish a person for action which would not amount to a contravention of an order or would amount to a contravention and involves a flagrant challenge to the authority of the court.
The meaning of the term “flagrant challenge” was considered by Fogarty, Baker and McGovern JJ in Ibbotson & Wincen (1994) FLC 91-496 and later affirmed by the Full Court comprising Alstergren CJ, Strickland & Macmillan JJ in Oakely & Millar [2019] FamCAFC 12 (at 81,162) as follows:
The use of the term “flagrant challenge”… is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s 112AD… it is a question of fact and degree whether the stringent terms of s112AP(1)(b) are satisfied…
A contempt application is a serious application that must amount to behaviour which one could reasonably consider to be a flagrant disregard for the orders. The matters alleged are not striking or exceptional contraventions. Sensibly, the father does not wish to proceed with the contempt application.
The father has to date filed 5 contravention applications against the mother on 7 January 2018, 6 February 2019, 25 March 2019, 10 December 2019 and 3 August 2021.
There have been proceedings in the State Magistrates’ Courts in the FVIO jurisdiction.
family report
The family was assessed on 22 November 2021 on the Microsoft Teams platform. The Child Court Expert, Ms R found:-
67. [X] is six year old child with a lived experience of family life impacted by parental conflict for a significant period of his life. He presented during interview as a child who loves both of his parents, however, is cognisant of them having a dislike of each other and propensity to argue. [X] described a detailed and conflicted internal narrative of how to understand the differences between his parents and appears to have determined it important that he be neutral. Neutrality in his presentation was also described as a trait he exhibits by the parties. Notwithstanding his current capacity to be neutral and not side with one parent over the other at his young age, there is a likelihood for that to be different as he transitions through childhood and adolescent; choosing to align with one parent over the other and potentially display resist and refusal behaviours, should the parties’ high level of acrimony continue. Such behaviour can occur with children who are unable to self-protect against the emotional pain caused by ongoing parental conflict; choosing one parent to align with to reduce the impact on them. Given his current neutral stance, which is his way of being self-protective, it would be important for the parties to make significant changes to the way the respond to the conflict, rather than focus on the other parties’ behaviour; in an effort to be child focused.
68. It is of significant concern to the writer that at the tender age of six years, [X] has had to develop emotional and behavioural strategies to manage the conflict between his parents. Children living with high levels of parental acrimony and conflict can develop poor self-esteem, poor social skills, have reduced academic achievement and poorer mental health outcomes, which last into adulthood. Rather than feeling supported to have a positive relationship with each of his parents, [X] is having to use mental resources to cope with his parents behaviour, resources which would otherwise be available for learning and developing. Should this continue, there is a likelihood that he will not have opportunity to develop to his full potential.
69. [X] reported being tired by the current parenting arrangements, which recently increased in the number of nights at [Mr Bolton’s] during the current proceedings. Notably [X] also had a narrative of being aware that there are changes of times and different days, detailed to him by [Mr Bolton]. Given his young age, recent change to his care arrangements and regression in his bed wetting, it appears that [X] would benefit from stability in his care arrangements and no further changes until he is older.
70. [X’s] narrative about the parties’ different parenting style, evidenced by him being aware of their different responses to perceived difficult behaviour, appears to have influenced his understanding of them as a parent and has resulted in him ensuring that he navigate his responses differently when in their care. Unlike parental conflict, this is not necessarily of concern, given that many children’s parents have different styles and approaches. However for [X], given his neutrality and wanting to ensure he is not engaged in the dispute, this could become problematic. It would be important for the parties to reflect on [X’s] expressed differences in parenting styles and try to ensure they independently utilise a unified style; save for mirroring behaviour that [X] sees as negative, such as yelling.
71. [Mr Bolton] detailed his role in the current dispute as minimal, responding and actioning the current matter out of a necessity to ensure that [X] has fair arrangements and that due to a concern that [Ms Verrender’s] mental health impacts her parenting capacity. Notwithstanding his co-parenting experience, it appears that [Mr Bolton] struggles to identify his role in the conflict, communicating more than a reasonable amount with [Ms Verrender], seeking evidence to “prove” his parenting capacity over hers, being inflexible to slight changes to the Order and having reduced insight into [Ms Verrender’s] lived experience of family violence and how it impacts her co-parenting capacity. As such, it would be prudent for [Mr Bolton] to refocus his lens and consider how making allegations about [Ms Verrender’s] poor mental health and reduced parenting capacity, in contrast to any assessment made by DFFH, impacts her ability to parent [X] and be an amicable co-parent. Additionally, [Mr Bolton] continually cited [Ms Verrender’s] unwillingness to engage in family therapy with specialist [Ms S] as evidence of her poor co-parenting capacity. Again it would be prudent for [Mr Bolton] to consider how sessions might be difficult for [Ms Verrender] to engage in authentically and without fear, given her lived experience of family violence and experiences of alleged systems abuse, and to support [Ms Verrender] as [X’s] other parent by allowing her to independently manage her own engagement with specialists or mental health professionals.
72. [Ms Verrender] detailed her role in the current dispute as being frustrated and fearful of [Mr Bolton], causing her to make mistakes about the arrangements and be confused; with the previous and current arrangements at times described as confusing. It would be important for [Ms Verrender] to continue to be hyper vigilant about her propensity to have a decline in her mental health as a result of the conflict and maintain engagement independently with professionals. It would also be important for her to seek assistance from professional family therapist, should she have difficulty navigating a parenting Order that is complex, for the benefit of reducing conflict with [Mr Bolton].
73. Given the nature of the dispute presented by the parties during interview and as evidenced in their supporting documents, their capacity to amicably co-parent moving forward is low; therefore increasing the risk of further exposure to [X] and increasing the risk of the Court being used as a parenting tool. To reduce the likelihood of this occurring, it is suggested future parenting arrangements to have reduced capacity for change and make up time, reduced alternating weeks, and clear days for changeovers during school holidays periods. At interview [Mr Bolton] highlighted that it is “not fair” that he is unable to take [X] away to spend time with his paternal family, due to perceived inflexibility. Notwithstanding his view; from a child focused perspective [X] requires stability and structure arrangements and should therefore be afforded care arrangements that are not able to be altered to suit either of the parent’s schedules.
74. Both of the parties have sought sole Parental Responsibility, due to a desire to reduce their need to communicate and seek agreement, rather than seek sole Parental responsibility due to the other parties’ refusal to communicate and agree on matters such as schooling, with them being able to agree that [X] should repeat his prep year. As such, if the future Order deals with all potential factors that they parties have conflict about and outlines an agreed school for Secondary School, they should be able to navigate shared parental responsibility independently or with the assistance of a community based family Dispute Resolution Practitioner in shuttle sessions.
The Child Court Expert recommended that:-
75 (b)Should the Court [determine] that the current arrangements do impact [X’s] emotional wellbeing and that the parties are unable to effectively co-parent, without exposing [X] to instability, parental conflict of parental narratives;
I. [X] live with [Ms Verrender] and spend time with [Mr Bolton].
II. Spend time to occur in large blocks, with reduced changeovers, on a 5/9 basis.
III. [X] to be relieved of have multiple changeovers, which creates parental communication and parental conflict.
IV. Spend time to have more consistency and clear dates, such as having set school holidays spend time as first half and second half with no rotation, and a direction about the number of days in which change over during the end of school year school holidays should occur; e.g. with change over occurring on 15 January each year.
V. It would be of benefit for the spend time to continue as per the 5/9 arrangement at the end of the school year, as directed by the school [X] is enrolled in, until the Christmas period. This would allow [X] to attend any school or social functions, without the potential for parental conflict. Spend time during the end of year summer holidays would therefore commence on the 27th December, with [Mr Bolton] having until 4:00pm on the 15th January each year.
VI. Spend time as per the 5/9, to commence the first week of term one.
VII. Communication of parental responsibility to be restricted to medical emergencies and academic decisions.
VIII. Changes in time and make up time to be restricted.
IX. The parties be permitted to travel with [X] during the directed time arrangements only.
X. [X] not to be removed from school, unless he is unwell or has a medical appointment.
XI. [X] to be enrolled in extracurricular activities, that provides opportunity for consistency, e.g. if an activity that requires training and game days, to occur during his live with arrangements. If an activity that requires a weekly commitment of one session, during the spend time, to be facilitated by [Mr Bolton].
XII. [X] to be relieved of having to have a change in care arrangements for the parities birthdays.
XIII. Consideration be given to [X] being relieved of having a changeover on his birthday, and spend time occur as per the 5/9 care arrangements.
Resolution of remaking disputes
It is abundantly clear from the evidence of the Child Court Expert that high parental conflict has a deleterious effect on X and, to the extent that it is possible for the court to do so, X must be protected from high parental conflict.
In relation to the continuation of the term time care regime whereby the father has X for six out of each 14 nights, the Court Child Expert opined that this was proving too onerous for X and there should be a revision to the 5/14 day arrangement. In particular, her evidence was:
HER HONOUR: [Ms R], did you consider that there were four or five occasions on which he had done it and that that could be still relatively new for him?
CHILD COURT EXPERT: It was relatively new at that time and [X] expressed that he understood it was new and that it was exhausting for change.
HER HONOUR: How was it exhausting?‑‑‑
CHILD COURT EXPERT: He expressed that he finds it tiring. That was his way of explaining it in that ‑ ‑ ‑ Yes?‑‑‑ ‑ ‑ ‑ he’s having to have the different go to dad’s house longer and he just explained that it was tiring to have more time.
HER HONOUR: Did you ask him why? Because he’s at his father’s house. He goes only – it doesn’t mean he goes twice as much to his father’s house. He goes only once. He just stays there for longer?‑‑‑
CHILD COURT EXPERT: He seemed to appear to find that going to dad’s house is different to mum’s house, and that dad’s house is tiring because it’s not his home base, as such.
HER HONOUR: Okay. In terms of childhood development, can you extrapolate on that?‑‑‑
CHILD COURT EXPERT: [X] is a child who is looking for some neutrality in his parenting and he appeared to be wanting some stability, so he has determined that mum’s house is the home, and he talked about mum’s house being home quite frequently, and based on his age and stage of development, and given that he has been involved in parental conflict for some time, it is likely that he has determined that mum’s house is that stable base just for his own benefit.
HOR HONOUR: So that doesn’t mean that the father’s house is not an enjoyable place and an important place, but ‑ ‑ ‑?‑‑‑It’s not.‑ ‑ ‑ he perceives the mother’s place to be where he belongs most of the time?‑‑‑
CHILD COURT EXPERT: Correct. That’s right.
I accept the evidence of the Child Court Expert and the recommendation of the independent children’s lawyer and will order a revision to the 5/14 arrangement.
The current arrangement for change overs for the father’s time with X avoid the father being able to visit the mother’s home or even outside the home. If change overs are not effected at school they are effected either at the father‘s home or at a nearby park. The following extract from the evidence describes the situation in the following terms:
[MR BOLTON]: Yes. So the changeover point. Currently, we do changeover at my home outside of school times. We do changeover at school – during school periods at school and then I drop [X] to [Handover Location T], instead of the respondent’s house. I’m seeking to have that changed to do a pick up at the respondent’s house. Several times over the years we’ve been doing these changeovers in these public places. There’s a lot of traffic, being dangerous. How do you feel about that? If there’s no risk to [X] for doing the changeover at the mother’s house, do you see any issues with doing the changeover at the mother’s house?
HER HONOUR: The changeovers goes back to the point of conflict between the two parties. If the one party experiences the conflict as – the changeover as conflictual or fearful or uncomfortable, then that is going to be a difficulty. A changeover in a public place can also be supported and comfortable for a child. It really comes down to how the parties have the changeover, as opposed to the location of the changeover
[MR BOLTON]: All right. Given that [X] quite often gets anxious at the changeover point, and given New Year’s Eve, [X’s] birthday, as a classic example when the mother didn’t turn up, he gets anxious and very upset, the respondent is quite happy to deliver [X] to me. The respondent is quite happy for me to deliver [X] to her friend’s house. Given that and there’s no reason given by the respondent why there should not be a changeover at her home, do you see any issues with the changeover at her home?
HER HONOUR: That comes, again, back to the experience of [Ms Verrender] and whether or not that’s something she is comfortable with and, therefore, it would not be something that would be good for [X] to be exposed to.
[MR BOLTON]: But if [X] is exposed to having to wait in a car park and gets anxious when his mum doesn’t turn up, wouldn’t it – isn’t that detrimental to [X], as opposed to dropping him off at home?
HER HONOUR: [X’s] exposure to uncomfortable experiences or anything that is going to cause him to feel anxious would be an impact to him. That’s all.
I accept the evidence of the Child Court Expert. I also accept that the father is trying to introduce some normality to the change over time. My impression was:-
HER HONOUR: In relation to the changeovers, I would have to say that I am left with the impression that the mother somewhat tailors her case to achieve and outcome that suits her. I have no doubt that she does have anxieties. I have no doubt the father has anxieties. But this little boy can have a normal sort of a changeover in which I would say that each parent pulls up outside the house. You don’t even really have to go into the driveway. I don’t know exactly what your houses look like, but the parent who is to receive the child, to whom the child is being delivered, should leave the house, go to the car, get the child, get the bag and walk away.
The other party in the ordinary course should not get out of the car. That seems to me to be quite fair. I do think that there’s an element of reinforcing to the child that there’s something wrong with dad that he can’t come near mum’s home, but a changeover point. There should be no other time when the father goes there, and you will need to tell me if there is an intervention order or anything at the moment?
I also adopt the recommendations if Easter should fall in the school holidays. Each parent should have one half of that school holiday without regard to Easter. In acceding to the mothers position on this issue, I am mindful that the father‘s perception is that X will miss out on having any activity which encompasses the whole of Easter such as an Easter camp with family. That is unfortunate casualty of the high parental conflict which characterises the parent’s relationship.
conclusion
I’m satisfied the orders that I have made are in X‘s best interests. I will make the order sought in relation to privilege to counselling. I note that the father still continues to attend upon Ms F, therapist. At one point I thought it would be advantageous to hear evidence from Ms F today. Also to inform Ms F of the actions which the father is taking in court. However she was not available on short notice. Ms F is an experienced therapist and I find it difficult to believe that she endorses the fathers conduct extend the father represents. There should be an end to applications about petty matters.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 1 August 2022