Cartland and Cartland

[2014] FCCA 1369

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARTLAND & CARTLAND [2014] FCCA 1369

Catchwords:
FAMILY LAW – Parenting – contravention – where the mother has made no reasonable attempt to comply with orders for children aged 11 and 12 to spend time with the father – where driving the children to the changeover point and sitting mute in the car while the children refuse to get out does not constitute a reasonable attempt to comply with the orders.

Legislation:

Family Law Act 1975 (Cth) ss.70NAC, 70NAE, 70NAF, 70NBA, 70NFB

Fooks & Clark [2004] FamCA 212
Matthews & Millar & Anor (1988) 12 FamLR 205
Mitty & Mitty [2012] FamCA 329
Stevensen & Hughes [1993] FLC92-363

Applicant: MR CARTLAND

Respondent: MS CARTLAND

File Number: NCC 2245 of 2013

Judgment of: Judge Terry

Hearing date: 19 June 2014

Date of Last Submission: 19 June 2014

Delivered at: Newcastle

Delivered on: 1 July 2014

REPRESENTATION

Counsel for the Applicant: Mr Duane

Solicitors for the Applicant: NLS Law

Counsel for the Respondent: Mr Rugendyke

Solicitors for the Respondent: Mark Graham Solicitor

ORDERS

1. Upon finding that the mother without reasonable excuse

   (i)On 1 May 2014, 8 May 2014, 15 May 2014, 22 May 2014 and 29 May 2014 contravened Order 2.1 of the Orders contained in the annexure to orders made on 3 March 2014 and

   (i)On 17 May 2014, 25 May 2014 and 31 May 2014 contravened Order 2.2 of the Orders contained in the annexure to orders made on 3 March 2014.

pursuant to s.70NEC of the Family Law Act the mother is required to enter into a Bond in her own recognisance in the sum of $1000.00 with the following conditions:

(a)to comply with the Orders contained in the annexure to orders made on 3 March 2014; and

(b)to be of good behaviour for a period of 12 months.

1. The matter is adjourned to 4.00pm on Wednesday 2 July 2014 for further consideration of:

   (i)the father’s application for the orders be varied to provide for changeover to occur at [R] Children’s Contact Centre, [B]; and

   (ii)any application for costs.

IT IS NOTED that publication of this judgment under the pseudonym Cartland & Cartland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2245 of 2013

MR CARTLAND

Applicant

And

MS CARTLAND

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 3 March 2014 interim orders were made which provided for the father to spend unsupervised time with his children [X] aged 12 and [Y] aged 11. Prior to that the father had been spending time with the children supervised by a private paid supervisor.

2. From 3 March 2014 to 27 April 2014 time occurred in accordance with the orders but no time has occurred since then.  

3. On 3 June 2014 the father filed a contravention application alleging that the mother contravened the orders on 9 occasions between 1 May 2014 and 31 May 2014.

The orders

1. Order 2 of the 3 March 2014 orders provides for the children to spend time with the father for not less than 17 weeks as follows:

   2.1 Each Thursday from 5.30pm to 8.00pm at a public venue as nominated by the father to the mother not less than 24 hours prior to the commencement of time;

   2.2 For a period of eight (8) weeks from the date of these orders, each alternate Saturday from 2.30pm to 7.30pm commencing 8 March 2014 and each alternate Sunday from 2.30pm to 7.30pm commencing 16 March 2014.   

   2.3 At conclusion of the period pursuant to order in 2.2 herein, the father shall then spend time with the children each alternate Saturday from 9am to 5pm commencing 3 May 2014 and each alternate Sunday from 9am to 5pm commencing 11 May 2014.

2. Order 2.4 provides that changeover is to take place inside [B] McDonalds Family Restaurant.

3. Order 6 provided that the father’s time with the children be suspended on Mother’s Day. Mother’s Day fell on 11 May 2014 so time on Sunday in accordance with Order 2.3 was actually due to commence on 25 May 2014.

The father’s contravention application

1. The father alleged that the mother had:

   ·Contravened order 2.1 on 1, 8, 15, 22 and 29 May 2014;

   ·Contravened order 2.3 on 3, 17, 25 and 31 May 2014.

2. At the commencement of the hearing the contraventions were put to the mother and she was asked in respect of each contravention whether she admitted the contravention, denied the contravention, or admitted the contravention but said that she had a reasonable excuse.

3. The mother’s response on each occasion was that she denied the contravention.

The father’s evidence

1. The orders provided for changeover to occur inside McDonalds but the father’s unchallenged evidence was that at the first changeover on 6 March 2014 the children got out of the mother’s car as soon as she parked at McDonalds and went to the father who was waiting outside McDonalds. Thereafter all changeovers occurred in this way and the parties never exchanged the children inside McDonalds.

2. The father’s evidence was that the children went excitedly to him and had a good time with him on the visits between 6 March 2014 and 27 April 2014.

3. The only complaint the father received from the mother during this period was via a solicitor’s letter to the effect that the children were not being sufficiently fed by the father and were hungry when they came home. He was requested to provide proper and adequate meals for the children when they attended contact with him after 6.00pm at night.

4. The father denied that he had failed to provide proper and adequate meals but said that after receiving the letter he redoubled his efforts in regard to provision of food. He said that the children did not want all the food he had available for them.

5. As of 1 May 2014 the father’s weekend time with the children was due to extend from 2.30pm to 7.30pm each alternate Saturday and Sunday to 9.00am to 5.00pm each alternate Saturday and Sunday.

6. Despite no critical event having occurred between 6 March 2014 and 27 April 2014 which would suggest that unsupervised time should not continue and despite the children having gone freely and without incident to the father at every changeover during this period, on 30 April 2014 the mother’s solicitor wrote a letter to the father’s solicitor saying as follows:

   The children continue to express a view that they feel uncomfortable in the father’s presence and wish to revert to periods being supervised by Mr A or some other suitable person.

   Please advise whether the father is willing to consider the current Interim Orders, having regard to the wishes of the children.[1]

   [1] Father’s affidavit filed 30 April 2014 Annexure C

7. The father’s solicitor replied by facsimile sent on 2 May 2014 that the father did not agree that the children were uncomfortable or unhappy during visits with him and that he would not agree to a return to supervised time.

8. The mother made no application to vary the orders.

9. The first problem with the time arose on Thursday 1 May 2014.

10. The father’s evidence was that on Thursday 1 May 2014 the mother drove into the car park at McDonalds with the children. She parked her car and the father approached the car. [Y]’s window came down and [X] informed the father that the children were sick with a gastro bug and could not see him that night. The father did not protest and “said for the boys to stay warm and rest up”. The mother drove off with boys.

11. On 2 May 2014 the father spoke to [X] on the telephone and [X] informed him that he and [Y] were still sick.

12. On Saturday 3 May 2014 the father received a text message saying “still sick not comin – [X].”  The father accepted that the children were sick and as a result he did not go to McDonalds for the changeover.

13. On Thursday 8 May 2014 the father arrived early at McDonalds. The mother drove into the car park with the children prior to 5.30pm but kept the engine running. [Y]’s window came down and he said “we don’t feel like seeing you tonight Dad.” The mother did not speak to the father or look at him and after [Y] said this the mother drove off.

14. On Thursday 15 May 2014 the father arrived at McDonald’s early. The mother drove into the car park with the children and parked.  The father approached the car and stood waiting for the children to get out. [X]’s window was wound down a small amount and he said something indistinct. The father approached and [X] said “we’re not going.” [Y] was sitting in the car slouched down. The father said to [X] “What about Saturday?” [X] shrugged and his window went up and the mother drove off. The mother stared straight ahead at all times and did not say anything to the father or the boys.

15. On Friday 16 May 2014 the father telephoned the children as he was permitted to do by the court orders. [X] said to him “we’re not coming tomorrow.” The father spoke to [X] about the activities he proposed for the day and said that it would be fun and [X] said “No, we don’t want to”.

16. On Saturday 17 May 2014 the father arrived at McDonalds early. The mother drove in with the children and parked. The children remained in the car. [Y]’s window came down a small amount and he said something which the father could not hear. The father approached and [Y] said “We are not going to come.” The father asked him if they wanted to come for a little while and he could drop them back early and [Y] said no. The father said “What about you little man?” to [X] and [X] shook his head. The mother then drove off.

17. On Thursday 22 May 2014 the father arrived at McDonalds and waited. The mother arrived at 5.25pm and parked. The father waited a couple of minutes for the children to get out of the car and then saw that the back window come down a small amount. He approached and [X] said “We don’t want to come.” The father said “Are you sure? We will have fun like we always did.” [X] did not respond. The father looked at [Y] and said “What about you little man?” [X] then said “Bye” and his window went up. The mother drove off.

18. On Sunday 25 May 2014 the father arrived at McDonalds and found the mother there with the children. He approached her car and [Y]’s window came down a very small amount. [Y] said “We don’t want to go.” The father said “Are you sure? We could go and have some breaky and maybe a movie. If you decide you do want to go home I could text Mum and drop you back early.” [Y] shook his head and said no. [X] said nothing. [Y]’s window went up and the mother drove off. The mother did not say anything or look at the father and stared straight ahead during his conversation with the children.

19. On Wednesday 28 May 2014 the father sent the mother a text message containing proposals for his time with [X] on the following day. [Y] was to the best of the father’s knowledge going to be away on a school camp.

20. On Thursday 29 May 2014 the father, believing that [Y] would be back from the camp prior to 5.30pm, sent the mother a text message saying that he would like [Y] to attend with [X].

21. The father arrived early at McDonalds and the mother arrived about 20 minutes later. She parked her car. The father walked over and the back window went down a small amount. [X] said “We don’t want to come Dad.” The father said “What about [Y]?” and [X] shook his head before the window was wound up and the mother drove away. The mother did not speak.

22. On Saturday 31 May 2014 the father arrived at McDonalds just before 9.00am. The mother arrived shortly after with the children and parked her car. The father approached and the backseat window was wound down a small amount and [Y] said words to the effect of “We don’t want to come.” The window was immediately wound up and the mother drove away before the father could say anything to the children.

23. On 2 June 2014 the father caused his solicitors to write to the mother’s solicitors proposing that weekend changeovers occur at [R] Contact Centre rather than McDonalds.  The mother has not consented to this proposal.

24. On 3 June 2014 the father filed his contravention application.

25. No time has occurred since 31 May 2014.

26. The mother’s evidence was that on Thursday 1 May 2014 she drove the children to McDonalds. She alleged that on the way each of the children said “We don’t want to do this anymore” and that [X] said “I don’t want to spend the whole day with him [on the weekend].”

27. When she arrived at McDonalds the children refused to get out of the car. The mother said to the children “You’ll have to speak to your father about this.” They sat in the car for ten minutes. She still continued to say to the children “You have to go, or at least go and speak to him” but was unable to persuade the children to get out of the vehicle. She then drove to a place adjacent to where the father was standing. The children had the window rolled down and she heard the children each say “I have diarrhoea.”

28. The father said that he would see the children the next weekend when they were better.

29. The mother said that as she drove off she said to the children “You shouldn’t lie to your father. You will have to tell your father the truth about how you feel.”

30. On Saturday 3 May 2014 [X] sent a text message to the father saying “I’m still sick, not going.” The father responded with a text message acknowledging that the children would not be spending time with him and the mother did not take the children to McDonalds.

31. On Thursday 8 May 2014 prior to leaving to drive the children to McDonald’s [Y] said to the mother that he was not going and was going to tell his father he was sick. The mother told him that he must be honest with his father about his feelings. When she arrived at McDonalds the mother drove to a point adjacent to where the father was standing. [Y] wound down his window and said to the father “We don’t want to go with you.” She said that the father asked if [Y] was feeling better and after a brief bit of additional conversation stood back and allowed the mother to drive off.

32. On Thursday 15 May 2014 the mother drove the children to McDonalds. [X] wound down his window and said to the father “We don’t want to go with you.” The father said “What about Saturday” and [X] said “No” and wound up his window. The father stepped back and the mother drove off.

33. On Saturday 17 May 2014 [X] said to the mother before they left for McDonalds that he did not want to spend time with the father. The mother drove the children to McDonalds and parked in her usual place. [Y] wound down the window and said to the father “We are not going today.” Some further conversation took place between the father and [Y] including the father saying “How about for a few hours?” Each of the children said no. The children did not get out of the car and the father stepped back and the mother drove off. The mother returned a short time later and purchased breakfast at McDonalds for the children. The father was still sitting in his car.

34. On Thursday 22 May 2014 [Y] told the mother before the family left home that he did not want to go and [X] asked why they had to keep doing this. The mother drove to McDonalds and parked. [X] wound down the window and said “We are not coming today” The father suggested an activity and [X] shook his head and wound his window up. [Y] said nothing. The father stepped back and the mother drove off.

35. Prior to leaving for McDonalds on Sunday 25 May 2014 [Y] said to the mother “You can’t expect us to start our day seeing someone we don’t like.” The mother responded by saying “Please get ready so I can take you to your father.” The mother arrived at McDonalds prior to the father and parked her car. When the father approached [Y] wound down his window and said “We are not coming” The father said “What about for a little while” [Y] said “no.” [Y] said “Goodbye” and wound up his window. [X] said nothing. The father stepped back and the mother drove off.

36. On Thursday 29 May 2014 the mother drove the children to McDonalds and parked her car. The father approached and [X] said “I’m not coming.” [Y] was not in the car as he was still at camp. There was some further conversation between [X] and the father and then [X] wound up his window. The father stepped back from the car and the mother drove away.

37. On Saturday 31 May 2014 the mother drove the children to McDonalds. The father approached and [Y] said “We are not coming.” The father said “You’re not coming?” and then “Okay mate” and then stepped back from the car. [X] did not say a word. [Y] wound his window up and the mother drove off.

38. During cross-examination the mother admitted that she had not made any effort to speak to the father at changeover on any occasion, had not wound down her own window, had not intervened in the children’s actions in winding their windows up and down even though she could have from the front control panel, had not alighted from her vehicle and had not opened the children’s doors or undone their seatbelts or made any attempt to persuade them to go with the father. 

The applicable law

1. S.70NAC(a) of the Family Law Act provides that:

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)where the person is bound by the order – he or she has:

   (i)intentionally failed to comply with the order; or

   (ii)made no reasonable attempt to comply with the order.

2. If a contravention is established a person may escape a sanction if they establish that they had a reasonable excuse for contravening the order. 

3. Prior to the commencement of the mother’s case her counsel indicated that in the alternative to denying the contraventions the mother also sought to rely on reasonable excuse.

4. S.70NAE deals with the meaning of “reasonable excuse for contravening an order” and s.70NAE(2) provides that:

   A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person bound by it; and

   (b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

5. S.70NAE (5) provides that:

   A person (the respondent) is taken to have had a reasonable excuse for contravening  a  parenting order to the extent to which it deals with whom a child is to  spend time with in a way that resulted in the person and a  child not spending time together as provided for in the order if:     

   (a) the respondent believed on reasonable grounds that not   allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and 

   (b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

6. The matters contained in s.70NAE (2) and (5) are not however the only matters which may constitute a reasonable excuse.

7. The onus is on the person alleging a contravention to prove that the contravention occurred but the onus is on the respondent to establish that they had a reasonable excuse for contravening the order.

8. Section 70NAF (1) provides that subject to sub-section (3) the standard of proof to be applied in determining contravention proceedings is proof on the balance of probabilities. Pursuant to sub-section (3) a court can only impose the penalties provided for more serious contraventions if it makes findings beyond a reasonable doubt.

9. The father’s counsel did not ask me to treat the contraventions as more serious contraventions, on the basis that there had been no previous contravention proceedings between the parties. I therefore intend to consider whether on the balance of probabilities I am satisfied that the orders were contravened and if so whether on the balance of probabilities reasonable excuse has been made out by the mother.

Discussion & Conclusion  

1. After the father presented his case the mother’s counsel made a “no case” submission in respect of all of the counts of contravention.

2. I found that the mother had a case to answer in respect of all of the alleged contraventions save for that which was alleged to have occurred on 3 May 2014. I dismissed that count because of the father’s evidence that he accepted that the children were sick and did not go to McDonalds for changeover that day.  

3. In the light of the mother’s evidence that the children were not sick at all that day and that she knew this and knew that the father did not go to McDonalds because he believed the lie the children had told him I am disturbed that this no case submission was made.  

4. If I had to consider this count again on the totality of the evidence I would be satisfied on the balance of probabilities that the mother contravened the orders on this occasion as well as on all of the other eight occasions. I dismissed that count however and only have eight contraventions before me.

5. The evidence in the mother’s affidavit alone establishes beyond reasonable doubt, let alone on the balance of probabilities, that the mother made no reasonable attempt to comply with the orders on any of the remaining eight occasions between 1 and 31 May 2014. Her answers in cross-examination only served to reinforce that this was the case.

6. The mother drove the children to McDonalds on all occasions but at no time did she speak to the father and except on 1 May 2014 she did not say anything to the children while parked at McDonalds.

7. The only thing they mother said to the children on 1 May 2014 was “You have to go, or at least go and speak to him” which was hardly designed to ensure compliance with the orders.

8. The mother’s behaviour at changeover on each of the eight occasions sent a clear message to the children that it was all right for them to remain in the car and refuse to go with the father. It was the absolute reverse of what was required to ensure compliance with the orders.

9. The mother’s obligations went far beyond just driving the children to the changeover point and sitting passively while the children told their father that they did not want to go with him. I agree wholeheartedly with the following observation by Nygh J in the appeal decision of Stevenson and Hughes. Nygh J said as follows:

   This is what I might call the classical case which the Full Court dealt with in Stavros and Stavros (1984) FLC ¶91-562; 9 Fam LR 1025, namely, that there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.[2]

   [2] Stevensen & Hughes [1993] FLC 92-363

10. The mother could easily by words and actions have promoted the children going with the father and given the children her approval to go and enjoy themselves, but she conspicuously failed to do so.

11. The mother consented to the orders made on 3 March 2014 which provided for the children to spend unsupervised time with the father and for time on weekends to increase from five hours on alternate weekends initially to eight hours after a month.

12. It is necessary to be cautious about how much one reads into a party consenting to interim orders but it is reasonable to infer from the mother’s consent to the orders that she accepted that the children would be safe with the father. On the mother’s own evidence however when the children asked her if they would be safe she avoided directly answering the question and assuring them that they would be, again not conducive to ensuring that they spent time with the father.

13. The mother permitted the children to lie to the father and took advantage of the father’s belief that the children were telling the truth to avoid going to McDonalds on 3 May 2014, which sent an appalling message to the children.

14. In an attempt to persuade me that I should find that the mother had not contravened the order because she was simply acting in accordance with the children’s wishes the mother’s counsel referred me to Fooks & Clark, a case in which a child had not gone with the father on a particular day and the father complained that the mother had made no reasonable attempt to comply with the order.

15. May J dismissed the father’s contravention application in respect of this occasion and the father appealed. The Full Court dismissed the appeal observing as follows:

    In our view, it was clearly open to her Honour to conclude that, at the relevant time, A was so upset that it would not have been reasonable for the mother to have taken further steps to require the child to attend on contact on that day.  This ground of appeal, in our view, has not been established.[3]

    [3] Fooks & Clark [2004] FamCA 212

16. It is obvious from the above passage that this case turned on its own facts, facts which were very different from the facts on any of the days on which a contravention was alleged to have occurred in the case before me. 

17. The mother recounted a number of occasions on which the children said to her prior to changeover that they did not want to go with the father but on not one single occasion did she take on the role of a parent and tell them that there were orders in place and that they would be going and on not one single occasion did she seek to change the children’s views.

18. There was absolutely nothing in the evidence before me to suggest that there was any valid reason for the children to be afraid of their father or to feel unsafe with their father if they continued to spend unsupervised time with him after 1 May 2014. The mother offered no explanation for why, after a period of unsupervised time which even on her evidence was uneventful, the children were suddenly expressing a wish not to go on unsupervised visits.

19. The mother had previously taken the children to a psychologist but she did not attempt to take the children to the psychologist after 1 May 2014 for the purpose of effecting a change in their views nor did she suggest to the father that the parties should jointly consider becoming involved in the children’s attendance on the psychologist.

20. I agree wholeheartedly with the following observation by Hodgson J in Matthews & Millar & Anor about the obligations of a parent when a child expresses a wish not to spend time with the other parent:

    In the absence of authority, my view is that what persons in the position of the defendants are obliged to do is to do whatever is reasonable to bring about compliance with the court order. If in the particular case in all the circumstances it would be reasonable to take positive steps to bring about some change in the attitude and wishes of the child, then I think that persons in the positions of the defendants are obliged by the order to take those steps. [4]

    [4] Matthews & Millar & Anor (1988) 12 FamLR 205

21. It is difficult to imagine a clearer case of a parent making no reasonable attempt to comply with orders. I am comfortably satisfied on the balance of probabilities that the mother contravened the orders on each of the eight occasions alleged by the father.

Reasonable excuse

1. It was unclear from submissions what the mother was relying on as a reasonable excuse. There was nothing to suggest that she did not understand the orders and the highest her evidence went was to assert that the children were expressing a view about spending time with the father.

2. The onus is on the mother to establish a reasonable excuse of some kind on the balance of probabilities and the mother’s evidence did not remotely establish this.

3. It has to be open to question whether the children did in fact suddenly become genuinely opposed to spending unsupervised time with the father as of 1 May 2014. There was no critical incident between 6 March 2014 and 29 April 2014 which would explain the sudden appearance of reluctance and the possibility that the mother is behind what is happening cannot be discounted.

4. I am deeply concerned about the nature of the mother’s responses to the children’s queries about their safety, her condoning the children lying to the father about being ill and her sitting mute while the children spoke briefly to their father and making no effort to behave as an adult and a parent and take control of the situation. This behaviour could be indicative of an underlying passive resistance by the mother to the children spending time with the father.

5. However even if this is not the case and the children did develop a genuine reluctance to spending unsupervised time with the father as a result of spending time with him between 6 March 2014 and 29 April 2014 it would not get the mother across the line in establishing reasonable excuse. The fact that children of 11 and 12 express a wish not to spend time with a parent does not by itself establish that making reasonable efforts to ensure compliance with the orders would be damaging to the children’s health or safety or in any way justify making no reasonable attempt to comply with the orders.  

Penalty

1. My powers upon finding the contraventions established and reasonable excuse not established are contained in s.70NEB of the Family Law Act.

2. One power I have is to require the mother to enter into a bond and the father’s counsel urged me to do this. Such a bond would normally contain a condition that the mothers comply with the orders.

3. The mother’s counsel submitted that I should not make this order but rather should order that the mother attend a post-separation parenting program.[5] I do not consider that this would be an adequate response and am satisfied that it is appropriate to require the mother to enter into a bond. The primary purpose of contravention proceedings is to secure compliance with the orders, and requiring the mother to enter into a bond is exactly designed to meet that purpose.

   [5] In parity with the outcome in Mitty & Mitty [2012] FamCA 329

4. If the mother without reasonable excuse fails to comply with the bond she may among other things be fined. If she fails to enter into the bond as required then she may be fined an amount not exceeding 10 penalty units or $1,700.00.

5. The father’s counsel indicated that the father would for preference like to have some make up time with the children but he did not press this with any great vigour and in the circumstances of this case I consider that it is enough for now if time recommences and continues uneventfully.

6. In order to ensure that time recommences, the father’s counsel asked me to vary the existing order to provide that changeover take place at [R] Children’s Contact Centre rather than McDonalds [B]. If this variation is made the mother will be required to bring the children to the Contact Centre and take them inside and then leave.

7. I have the power pursuant to s.70NBA of the Family Law Act to vary the primary order after dealing with the contravention application. I am required to regard the best interests of the children as the paramount consideration in determining whether to vary the order and I must also take into account a number of listed considerations in s.70NBA(2) if they are relevant.

8. None of the listed considerations are relevant in this case.

9. I am satisfied that it would be in the best interests of the children to vary the order.

10. The variation will increase the likelihood that the time provided for in the orders will occur and I am satisfied in the best interests of the children that it occur.

11. The regime was consented to by the parents and nothing happened on the visits which did take place which would suggest that the regime should be changed. The father gave unchallenged evidence that the children had fun with him in the unsupervised time they spent with him between 3 March 2014 and 27 April 2014 and were often excited to see him. There is no rational explanation for why the children suddenly decided on or about 1 May 2014 that they did not want to see their father and a considerable concern raised in the evidence about the mother’s willingness to foster a relationship between the children and the father.

12. Varying the orders to increase the likelihood of time occurring is in the children’s best interests. 

13. I am gravely concerned for the children’s future. This matter could all too easily become one where the court is forced to consider either a complete change of residence and a suspension of the children’s time with mother while the children adjust to the change or an order that the children spend no time with the father. Either outcome will represent a huge loss for the children and will send them into the future as damaged individuals.

14. The parents still have the chance to pull this matter back from the brink. Varying the order so that changeover occurs at the contact centre gives an opportunity for this to occur.

15. I will need to relist this matter however before making orders about the variation because the contact centre may be unable to do changeovers at the times and on the days currently provided for in the orders. I need the parties’ solicitors to make some inquiries about this before finalising the orders.

16. There may also be applications for costs which need to be dealt with.

17. For all the above reasons the orders of the court are as set out at the beginning of this judgment.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:   

Date:               1 July 2014