BOWEN & SAWER

[2018] FamCA 367

FAMILY COURT OF AUSTRALIA

BOWEN & SAWER [2018] FamCA 367

FAMILY LAW – ORDERS – Contravention – Where the Court found the father contravened orders without reasonable excuse on three occasions – Where the father has previously contravened orders – Where the court found the contraventions should be dealt with under Sub-division F of Division 13A of Part VII of the Family Law Act – Ordered that the father enter into concurrent good behaviour bonds with an overall duration of six months – Ordered the father’s time with the child be suspended until the latter of the father’s entry into the good behaviour bonds or a set time the following day – Ordered the father shall pay the mother’s costs assessed in the sum of $1,500.

FAMILY LAW – ORDERS – Variation – Where the parties sought variations to the July 2017 final orders – Concluded the mother’s proposal to suspend the child’s visit with the father under the orders for the coming weekend was thwarted by the lack of any change in circumstances – Concluded the father failed to make out his case for the proposed changes to the July 2017 final orders, which included reversal of the child’s residence, provision for the child to spend time with the mother, and for restraint of the mother from allowing the child any personal contact with her partner.

Family Law Act 1975 (Cth) ss 60CC, 70NBA, 70NFB, Sub-div F, Div 13A, Part VII
Family Law Rules 2004 (Cth) r 21.08

Banks & Banks [2015] FamCAFC 36
Langmeil & Grange [2013] FamCAFC 41
Marsden & Winch (2009) 42 Fam LR 1
Poisat & Poisat [2014] FamCAFC 128
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363

APPLICANT: Ms Bowen

RESPONDENT: Mr Sawer

FILE NUMBER: LNC 198 of 2016

DATE DELIVERED: 27 April 2018

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Austin J

HEARING DATE: 26 & 27 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Mooney

SOLICITOR FOR THE APPLICANT: Legal Solutions Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. For the contravention of orders made on 31 July 2017 without reasonable excuse by the father on 12 January 2018, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into a Good Behaviour Bond upon the following conditions:

   a.The bond shall be without surety and without security;

   b.The father must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and

   c.The bond shall be for a period of two months commencing on the date the father enters into the bond.

2. For the contravention of orders made on 31 July 2017 without reasonable excuse by the father on 22 January 2018, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into a Good Behaviour Bond upon the following conditions:

   a.The bond shall be without surety and without security;

   b.The father must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and

   c.The bond shall be for a period of six months commencing on the date the father enters into the bond.

1. For the contravention of orders made on 31 July 2017 without reasonable excuse by the father on 21 March 2018, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into a Good Behaviour Bond upon the following conditions:

   a.The bond shall be without surety and without security;

   b.The father must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and

   c.The bond shall be for a period of six months commencing on the date the father enters into the bond.

2. By consent, Order 1.8 made on 31 July 2017 is discharged.

3. Orders 1.6, 1.7(a) and 1.7(d) made on 31 July 2017 are suspended until the latter occurrence of:

a.The father’s entry into the good behaviour bonds pursuant to Orders 1 to 3 inclusive hereof; or

b.9.00am on Saturday 28 April 2018.

1. Otherwise, save as to costs:

   a.The Initiating Application filed on 24 January 2018 is dismissed;

   b.The Initiating Application filed on 23 March 2018 is dismissed;

   c.The Further Amended Application in a Case filed on 24 April 2018 is dismissed;

d.The Application-Contravention filed on 24 January 2018 is dismissed;

e.The Application-Contravention filed on 29 March 2018 is dismissed; and

f.Any and all other outstanding applications are dismissed.

1. The father shall pay the mother’s costs of and incidental to the enforcement hearing on 26 April 2018, such costs assessed in the sum of $1,500.00, within six months of the date of these orders.

2. The parties shall otherwise bear his and her own costs of these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Sawer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 198 of 2016

Ms Bowen

Applicant

And

Mr Sawer

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings concern more agitation between the applicant mother and respondent father over their only child who is now 11 years of age. 

2. The parties separated several years ago and prior litigation was commenced in April 2016. After a multitude of interim disputes, the litigation was listed for final trial before me in the Melbourne registry in July 2017. On the cusp of the trial the parties signed a Memorandum of Consent dated 28 July 2017, encapsulating their agreement over the child’s future. Three days later, on 31 July 2017, the parties and the Independent Children’s Lawyer appeared by telephone at the trial and asked for final parenting orders to be made endorsing their agreement. Those orders were duly made and the proceedings were finalised.

3. Those orders only successfully regulated the family’s affairs for about six months. These proceedings were commenced by the mother in January 2018 as a consequence of the father’s alleged contravention of the orders on several occasions. Since then, the litigation has proliferated at an alarming pace. 

4. Presently, I have listed before me for determination:

   (a)two contravention applications filed by the mother on 24 January 2018 and 29 March 2018;

   (b)one contempt application filed by the mother on 17 April 2018; and

   (c)an interim dispute over alteration of the final parenting orders made on 31 July 2017, arising from:

   (i)the mother’s Further Amended Application in a Case filed on 24 April 2018 (which she orally amended during the hearing);  and

   (ii)the father’s Response to an Application in a Case filed on 24 April 2018.

5. The contempt application was consensually dismissed with no order as to costs, so only the contravention applications and the interim parenting dispute had to be heard and determined. 

6. The contravention applications were heard together, but separately from the interim parenting dispute. That was necessary because of the different procedure prescribed for hearing contravention applications (rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”)) and because the findings in the enforcement hearing might influence the outcome of the interim parenting dispute. Although heard separately, the two hearings proceeded sequentially and these reasons relate to both hearings and the consequent orders.

CONTRAVENTION HEARING

Applications and evidence

1. The mother prosecuted her contravention applications filed on 24 January 2018 and 29 March 2018. 

2. The two applications collectively averred six contraventions but, before the hearing started, the mother withdrew her allegation of the father’s contravention on 4 March 2018, which left five allegations to be considered. 

3. The mother relied upon her three affidavits filed on 24 January 2018, 29 January 2018, and 23 March 2018 (excluding paragraphs 5-7 inclusive) as the evidentiary foundation for her applications.

4. The father cross-examined the mother, but only in respect of the two counts of contravention alleged in the contravention application filed on 24 January 2018. In response to quite reasonable objections by the mother’s counsel and interjections by me, the father decided to cease his cross‑examination of the mother. That was his choice, even if unwise.

5. The father then eventually decided to give oral evidence-in-chief in his defence, but he elected to only address the second count. His evidence actually vindicated the mother’s case, which he seemed not to appreciate, so he was not cross-examined by the mother’s counsel. The father also called some brief oral evidence from his adult son, but it was irrelevant to the enforcement hearing.

Count 1 (12 January 2018)

1. The mother alleged that, at 5.00 pm on 12 January 2018, the father contravened the parenting orders without reasonable excuse by failing to return the child to her at her professional offices. 

2. The father initially denied the contravention, but during the hearing changed his position by admitting the contravention and instead contending he had a reasonable excuse for it.

3. The mother deposed that, pursuant to Order 1.6(c) of the orders made in July 2017, the father was due to have the child with him for the week commencing on 5 January 2018 and concluding at 5.00 pm on Friday 12 January 2018.

4. During that period, the mother received a text message from the father informing her the child would not be returned to her until 8.25 pm on Friday 12 January 2018, notwithstanding that the child was due back to her by 5.00 pm that day. (The record should reflect that Mr Sawer voluntarily left the Court at this point)

5. The mother consequently checked on the available flights from the location where the father was on holiday with the child in Queensland and found there were multiple flights available that day which would enable him to return the child to her by the due time. Notwithstanding the availability of such alternate flights, he did not return the child to the mother until 8.30 that night at the airport.

6. The father conceded he could have left Queensland one day early to have the child back to the mother on time. It was not a reasonable excuse for him to choose to delay his flight home with the child until the day of her due return to the mother when he knew she would then be returned late in contravention of the orders. 

7. Count 1 is therefore proven.

Count 2 (22 January 2018)

1. The mother alleged the father breached the orders made in July 2017 without reasonable excuse at 5.00 pm on 22 January 2018 when he failed to return the child to her at her professional offices. 

2. The father denied the contravention occurred, but it obviously did.

3. The mother deposed that, pursuant to Order 1.6(a) of the orders made in July 2017, the child was due to be returned to her by 5.00 pm on Monday 22 January 2018. She was initially mistaken in thinking the child was due to return to her at 4.00 pm, but once she consulted the orders she realised her mistake and understood the child’s return was due at 5.00 pm. When she realised her mistake, she sent a text message to the father in which she said:

   It is now clearly after 5 pm and you are again in clear contravention of the orders. If [the child] is not at [the relevant address] by 5.30 pm today, expect a contravention order for this incident ... this is entirely unacceptable.

4. The mother waited at her office until 5.30 pm that day and the child was not returned. She then attempted to contact the child’s adult half-siblings and engaged in some text message correspondence with them which was fruitless. 

5. The mother sent the father another text message early the following morning (Tuesday 23 January 2018) demanding the child’s return, but she received no response from the father. She waited at her office again that day until 5.30 pm, but the child was still not returned. 

6. When the mother prepared her contravention application and the affidavit in support of it on the morning of Wednesday 24 January 2018, the child had still not been returned to her.

7. The evidence adduced at this hearing revealed the child was apparently staying with the father’s adult children – the child’s older half-siblings – during that weekend visit. The father said he believed the mother bullied his adult children about the child’s return to her. He admitted he told his adult children they could deal with the problem themselves and he expressly instructed them to “do as you see fit”. The father admitted his adult children then decided to retain the child and he failed to ensure the child’s timely return, or indeed at all. 

8. The child was detained by the father or by members of the paternal family until a recovery order was made on 1 February 2018 by the Federal Circuit Court of Australia. Contemporaneously, the Federal Circuit Court suspended the orders made in July 2017 for the child to spend time with the father and transferred the proceedings to this Court.

9. The father contended the actions of his adult children could not be attributed to him, because he was not responsible for their actions, but he was wrong. If, when the orders provided for the child to spend time with him, he allowed her to spend time with her adult half-siblings that was a matter for him. But they were his delegates. He was still bound by the orders made in July 2017. He breached the orders on that occasion and had no reasonable excuse to do so. 

10. Count 2 is therefore proven.

Counts 3 and 4 (7 March 2018 and 20 March 2018)

1. These counts relate to alleged contraventions on 7 and 20 March 2018. In final submissions the mother’s counsel conceded the evidence was insufficient to prove the father’s contraventions, which concessions were properly made.  Those counts are therefore dismissed and need not be discussed further.

Count 5 (21 March 2018)

1. The mother alleged that at 4.35 pm on 21 March 2018 the father breached the parenting orders of July 2017 without reasonable excuse when he collected the child and took her away from the aquatic centre in D Town where she attended swimming training. 

2. The father denied the contravention occurred, though it clearly did. 

3. The mother deposed that on the previous day, being Monday 20 March 2018, she dropped the child to school as usual. She was due to collect the child from her swimming activities at the aquatic centre about a half a kilometre away later that afternoon, but when she later attended the aquatic centre the child was not present. Before contacting the police, the mother contacted the father by text message and he replied by text message informing her the child was in his care. There was no evidence before the Court as to how the child came to be in the father’s care at that time. The child was not then due to be with the father under the existing orders. Notwithstanding, it appears the child was taken to school the following day, being Tuesday 21 March 2018, and the mother attended the school to ensure she was there. 

4. The mother consulted with the school headmistress that day and both she and the mother discussed with the child what had happened the preceding day. The child was visibly upset and made it clear to the mother she wanted to “stay with her dad”. The mother admits the child told her she hated her and she was a terrible mother. The mother found such statements completely out of character for the child. In any event, arrangements were made for the child to attend her swimming activities at the aquatic centre after school again that day. When the mother went to the pool to collect the child she found the child distant and uncommunicative. She saw the child leave the aquatic centre and she followed her. She observed the child to sprint away from her up a hill and she followed her. The mother observed the father parked outside the grounds of the aquatic centre and she approached him and instructed him to leave, given the child was not then due to spend any time with him. The mother deposed the father told her the only way she would get the child back was “over his dead body”. The mother then tried to find the child but could not locate her. When she returned to where the father had been parked, she saw the child in the front passenger seat of the father’s car and, although she demanded the father return the child to her, he refused. The father then drove away with the child in the car. 

5. The father retained the child in his care from that time until a recovery order was made in the Melbourne registry of the Court by Registrar Field on 27 March 2018.

6. The child was not due to see the father on Wednesday 21 March 2018. The fact the father was waiting for the child at the aquatic centre and the child knew where to find him suggests he arranged with her in advance to collect her from that location in breach of the orders. As the father correctly said in these proceedings, the child did indeed run away from the mother, but it is unlikely she did so without his influence and encouragement in breach of the orders. Alternatively, if the child was not acting under his influence, he breached the orders in any event by driving her away and retaining her when the orders provided for her to be in the mother’s care, not his. The father had no reasonable excuse for his breach of the orders on that occasion. 

7. Count 5 is therefore proven.

Sanctions

1. The mother correctly contended Sub-division F of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) should apply rather than Sub-division E for two reasons. First, the father was previously found by Cronin J to have contravened parenting orders made between the parties in April 2017 (see orders made on 10 April 2017) and, secondly, in this instance, at least Counts 2 and 5 were serious examples of the father’s disregard of his parental obligations.

2. The mother disavowed the need for the imposition of imprisonment or community service orders. She argued for the father’s enforced submission to good behaviour bonds. The father did not suggest that fines were more appropriate remedies, which I impute was because he feels his financial circumstances would not easily enable his payment. Perhaps he would have preferred no sanctions at all be imposed upon him, but he was not opposed to the imposition of good behaviour bonds.

3. Count 1 represented a less serious contravention of the parenting orders than did Counts 2 or 5. The mother accepted a good behaviour bond of two months duration was proportionate with the gravity of the Count 1 breach and the father did not disagree. A good behaviour bond of that duration is therefore imposed upon the father in respect of Count 1.

4. As for Counts 2 and 5, which were more serious, they warrant sterner sanction.  The mother argued for concurrent good behaviour bonds of 12 months duration or, alternatively, good behaviour bonds of six months duration served cumulatively. Either way, she wanted the father bound by bonds for 12 months hence. The father asserted the same sanction should apply to each of his three breaches, but that submission was rejected. They were of different seriousness and the penalties should reflect the difference. I am satisfied good behaviour bonds of six months duration are commensurate with the seriousness of the two later contraventions and that the bonds can be served concurrently. The father’s future conduct is likely to be as well (or as poorly) regulated by bonds of an overall duration of six months as by bonds of 12 months duration.

1. The orders made on 31 July 2017 which provide for the child to spend time with the father will be suspended until the latter of:

   (a)the father’s entry into the good behaviour bonds in the Court registry;  or

   (b)9.00 am tomorrow. 

2. The child is due to see the father this weekend (commencing at 10 am this morning, Friday 27 April 2018) under the orders made in July 2017. However, this hearing is in Hobart and the parties live in the D Town district, several hours drive away. Even if the father enters into the bonds in the Hobart registry today, the commencement of the child’s visit with the father this weekend should be delayed until tomorrow morning to allow the mother’s timely return to her home and to prepare the child for resumption of her visits with the father after the month-long hiatus. Of course, if the father does not enter into the bonds today, the orders will remain suspended until he does so.

3. The parties agree that Order 1.8 made on 31 July 2017 should be discharged to reduce the scope for further disagreement between them. That order will be discharged pursuant to the power under s 70NBA of the Act.

4. The mother sought that, despite her continuing status as the residential parent, an order should be made under s 70NFB(2)(c) of the Act compensating her for the time she lost with the child as a result of the father’s contraventions on 22 January 2018 and 21 March 2018. No such order is made. The child’s residence with her was restored by the recovery order made on 27 March 2018 and since then the child’s time with the father has been suspended by interim orders made by Registrar Field on 27 March 2018 and by Senior Registrar FitzGibbon on 17 April 2018.

5. The mother sought that extra injunctions be made against the father to supplement the orders made on 31 July 2017. She wanted him restrained from attending the child’s school and the aquatic centre. Such orders are not made because they would tend to conflict with other existing orders that enable the father to attend the child’s school and other venues of her extra-curricular activities, subject to certain conditions. The decision not to make such extra injunctions was vindicated because, in the subsequent interim parenting hearing, the mother abandoned her application for such interim injunctions after recognising they were inapposite. 

6. Finally, the mother sought costs against the father in the amount of nearly $3,000. Instead, an order for costs is made in her favour against the father in the assessed sum of $1,500 pursuant to ss 70NFB(2)(f) and 70NFB(2)(h) of the Act. The father shall have six months to pay the costs, as he requested.

7. The mother was entitled to a portion of her costs because the father’s defence of the three proven counts of contravention was deceitful at worst and foolish at best. He denied contraventions that he truthfully should have conceded and he pointlessly cross-examined the mother about irrelevant detail. 

8. The costs were assessed at $1,500 because:

   (a)The contravention hearing was essentially confined to one half of one day;

   (b)The mother’s counsel attended court to also prosecute the separate contempt application (which was withdrawn) and an interim parenting application (which proceeded afterwards);

   (c)The mother’s costs, previously reserved on 27 March 2018 and 17 April 2018, did not specifically relate to the two contravention applications; and

   (d)The mother succeeded on only three of the six contraventions she set out to prosecute.

PARENTING DISPUTE

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA) though that presumption may be rendered either inapplicable (s 61DA(2)) or be rebutted by the evidence (s 61DA(4)).

4. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

5. Acknowledging the applicability of those principles, in both interim and substantive parenting disputes, it should be noted the parties agreed the mother should have sole parental responsibility for the child when they agreed upon final parenting orders in July 2017. No submission directed to the allocation of parental responsibility for the child was made by either the mother or father. In the mother’s case, she sought a much more restricted amendment of the orders made in July 2017, confined to their temporary suspension. Although the father sought a much wider restructure of the parenting regime, he did not advert to the presumption of equal shared parental responsibility or what should be done about it. 

6. In Banks & Banks [2015] FamCAFC 36 at [47]-[50], the Full Court noted that a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act in determining what orders will meet the child’s best interests. Interim proceedings should be confined to only those issues which, in the best interest of the child, require determination prior to a proper determination at trial. Not every s 60CC factor need to be discussed in that process. There was very little uncontroversial evidence placed before the Court by the parties in this instance and very few submissions directed to the factors prescribed by s 60CC. As a consequence, these reasons only tangentially touch upon those considerations.

7. Of significance to the outcome of this interim dispute is the principle which falls from Rice v Asplund (1979) FLC 90-725. In order to thwart the prospect of endless litigation over children, principles have evolved to permit the Court to dismiss subsequent parenting proceedings if there are no material changes in circumstances and no revelation of some previously unknown material feature since litigation was last finalised in respect of such children. That principle has been repeatedly endorsed (see SPS v PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1 at [48]; Langmeil & Grange [2013] FamCAFC 41 at [43]-[48]; Poisat & Poisat [2014] FamCAFC 128).

Applications and Evidence

1. The mother relied upon her Further Amended Application in a Case filed on 24 April 2018, but she orally amended her application in a substantial way. She no longer sought recovery orders, because the child is back in her care (Orders 1 and 2). She abandoned her application for supplementary injunctions (Orders 4 and 5). She varied her application for indefinite suspension of the child’s visits with the father (Order 3) and instead only sought that the child’s visit with the father this coming weekend be suspended, so the July 2017 orders would resume their ordinary operation from next week upon the child’s return to school in the new school term. 

2. In support of her proposal, the mother relied upon:

   (a)Her three affidavits filed on 10, 12 and 16 April 2016;

   (b)The affidavit of her partner, Mr N, filed on 12 April 2018; and

   (c)A transcript of the proceedings between the parties on 17 April 2018 before Senior Registrar Fitzgibbon (Exhibit M1).

3. The father relied upon his Response to an Application in a Case and his affidavit, both of which were filed on 24 April 2018. He was ordered to file those documents by 13 April 2018 (Order 8 made on 27 March 2018) but he did not do so. The mother took no issue with the lateness of the documents. The father also tendered an email written by the mother some 10 years ago about both him and Mr N (Exhibit F1). 

4. The father’s proposal was difficult to understand from the face of his Response but, in effect, he sought to change the July 2017 orders by reversing the child’s residence. He wanted the child to live with him instead of with the mother and for the child to only spend time with the mother. Additionally, he wanted an injunction made restraining the mother from allowing the child any personal contact with her partner, Mr N.

5. The father sought to additionally rely upon affidavits he filed in May and September 2016 in the former proceedings between the parties, before the final orders were made between them in July 2017, but he was disallowed, much to his chagrin. The last proceedings were listed for trial before me in July 2017. The trial was averted by the parties bringing in consent orders. The father was a willing signatory to the Memorandum of Consent, which became an exhibit. In all probability, the father would not have agreed to those orders unless he thought they promoted the child’s best interests and were reasonably practicable to implement. In this hearing, the father disavowed he gave his consent to the orders and said he had no choice but to agree to the orders drafted by the mother, but I reject that as nonsense. He had the choice to either reach agreement with the mother or to proceed to trial. He chose agreement with the mother and he must live with his choice.

6. His affidavits from 2016 apparently sought to impugn the mother’s credibility and demonstrate Mr N’s obliquity, but the affidavits could not logically do that, despite the father’s belief to the contrary. First, the mother’s credibility was not open to assessment in this interim hearing because the evidence would not be tested, so the father’s contention of her lack of veracity could be nothing more than a bare assertion. Second, the father admitted he sought an injunction restraining the child’s interaction with Mr N in the prior proceedings but, when the orders were made in 2017, no such injunction was made. Implicitly, his application for the injunction was abandoned as part of the parties’ agreement upon the suite of parenting orders then made. Consequently, any injunction now sought by the father in respect of Mr N should stand or fall on the evidence of events since the orders were made in July 2017. It is not reasonably open to the father to resurrect old allegations previously abandoned.

Discussion

1. In essence, the mother’s ultimate proposal for minimal adjustment of the July 2017 orders (by suspension of the child’s visit with the father this weekend) was premised on two things: first, the father’s three proven contraventions of the parenting orders in January and March 2018, and secondly, his irascibility which is either actually affecting or is at least liable to affect the child deleteriously. Neither was a sufficient argument, either individually or in aggregation, to warrant the suspension of orders as she proposed. The father will be subject to good behaviour bonds for his infractions. He should now understand he is on a short leash and serious implications will result from any further breach of the Court’s orders by him, particularly during the currency of the bonds. The bonds are, or at least should reasonably be, a real deterrent to any further disobedience of Court orders by the father.

2. The father’s inability to regulate his emotions has been amply demonstrated.  His profane explosions directed towards a Senior Registrar on 17 April 2018 (Exhibit M1) and his uncontained behaviour during these hearings should cause him grave embarrassment – even shame. The fact he brought his adult children along to witness his behaviour reflects adversely upon his level of insight as a parent. I accept the mother’s submission the child is likely to be disturbed if she witnesses the father’s labile emotions, but I do not accept her submission that the problem for the child will be satisfactorily averted by suspending her visit with the father for only this weekend and her resumption of ordinary visits with him from next week. The mother knew the father’s character when she agreed to the orders in July 2017 providing for the child to spend substantial amounts of time with him. On the evidence adduced, nothing has changed. The mother’s proposal for minimal alteration to the July 2017 orders is hamstrung by the Rice & Asplund principle.

3. As for the father’s proposal, the evidence he adduced was hopelessly inadequate to justify reversal of the child’s residence on either an interim or final basis. He contends the child is now running away from the mother because she wants to live with him, but that overlooks the fact she has not run away from the mother since her residence with the mother was restored and her visits with him were suspended. 

4. The father brought his three adult children to these hearings as observers. He submitted to the Court that their obvious support of him and their rejection of their own mother was testament to his parental prowess. That could be so, but it is also feasibly due to them understanding it is impossible for them to enjoy meaningful relationships with both of their parents because the loyalty he demands of them forecloses the prospect of them simultaneously maintaining relationships with their mother. The same fate might befall the child in this case. This is an interim hearing so no findings in that regard are made. Rather, the observation is simply offered to demonstrate that the father’s perception may not be the only available explanation for why allegiance is shown to him by both the child and his older children. The child has indeed run away from the mother but she has not done so recently. The child may indeed be “going through emotional trauma” as the father submitted, but its cause may not correlate with his belief. He may be its cause.

5. As for the injunction concerning Mr N, the email written by the mother some 10 years ago might be interesting to the father, but is not really probative of any important fact (Exhibit F1). In the email, the mother spoke glowingly of the father and was highly critical of Mr N. Now, in these proceedings, she is conversely defensive of Mr N and highly critical of the father. But the email does not prove the mother is a liar, as the father seemed to assume. Ten years have elapsed since the email was written and things change. Mr N and/or the father may have changed. Even if they have not, the mother’s opinion of them might have changed for some honest reasons. At most, the email calls into question the mother’s professional judgment as a legal practitioner by her vigorous entry into a fray in which she had no business or, alternatively, she intervened in a voluble and partisan way which was unbecoming of her professional duties. 

6. Regardless, the mother’s adverse views of Mr N some 10 years ago do not justify the injunction proposed by the father about Mr N now, particularly when the father abandoned his application for a similar injunction in the last proceedings. The father and Mr N obviously loathe each other. Mr N deposed the father assaulted him in 2016, for which offence the father was convicted. On the other hand, the father deposed that Mr N recently tried to run him down with a motor vehicle and he expects Mr N to be shortly charged with criminal offense in respect of that incident. The personal animosity between the father and Mr N cannot be allowed to disturb the parenting arrangements for the child.

7. The father failed to make out his case for the proposed fundamental changes to the July 2017 orders.

8. This hearing was conducted on an interim basis, but there is now no pending substantive application under Part VII of the Act made by either party. The Initiating Applications filed by the mother on 24 January 2018 and 23 March 2018 sought only recovery orders. The necessary recovery orders were made on 1 February 2018 and 27 March 2018, so there is now no pending application for substantive relief filed by the mother. The father filed only a Response to an Application in a Case on 24 April 2018 responding to the mother’s application for interim relief. He has not filed any Response to either Initiating Application. Consequently, the proceedings are resolved because there is no outstanding dispute, in which case I shall also formally dismiss the mother’s Initiating Applications. She submitted to an order to that effect.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 April 2018.

Associate: 

Date:  24 May 2018