Casey and Sanderson
[2010] FMCAfam 963
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASEY & SANDERSON | [2010] FMCAfam 963 |
| FAMILY LAW – Contravention application – father alleging mother in breach of parenting orders – children aged 13 and 11 – mother in breach without reasonable excuse. |
| Family Law Act 1975, ss.65DA(2), 70NAC, 70NAE, 70NAF, Subdivision F of Division 13A, Part VII, 70NFA(2), 70NFB(1), 70NFB(2) |
| Applicant: | MR CASEY |
| Respondent: | MS SANDERSON |
| File Number: | MLC 9895 of 2008 |
| Judgment of: | Riley FM |
| Hearing date: | 20 August 2010 |
| Date of Last Submission: | 20 August 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 17 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weil |
| Solicitors for the Applicant: | Vernon Da Gama & Associates |
| Counsel for the Respondent: | Mr Lethlean |
| Solicitors for the Respondent: | CCS Lawyers |
FINDINGS
THE COURT FINDS THAT:
On the contravention application filed by the father on 25 March 2010 and amended on 12 August 2010, the mother contravened without reasonable excuse the orders made on 26 March 2009 on:
(a)5 February 2010
(b)19 February 2010;
(c)5 March 2010;
(d)3 April 2010;
(e)18 June 2010;
(f)3 July 2010;
(g)23 July 2010; and
(h)6 August 2010.
The contraventions were more serious contraventions under Subdivision F of Division 13A of Part VII of the Family Law Act 1975.
A court has not previously made an order of the type referred to in s.70NFA(2) of the Family Law Act 1975 imposing a sanction on the mother in respect of a contravention by her of the order of 26 March 2009 or adjourning previous contravention proceedings in respect of that order.
IT IS NOTED that publication of this judgment under the pseudonym Casey & Sanderson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9895 of 2010
| MR CASEY |
Applicant
And
| MS SANDERSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a contravention application in respect of [X], who was born in 1997, and who is now 13, and [Y], who was born in 1998, and who is now almost 12. The father alleged that the mother had breached orders made on 26 March 2009 by Federal Magistrate Phipps. Those orders appear to have been made following a contested hearing. They provide for [X] and [Y] to live with their mother and spend with their father half school holidays, alternate extended weekends, from after school Friday to before school on Tuesday, and special occasions.
Paragraph 9 of the orders of 26 March 2009 also provides:
THAT in accordance with the recommendations contained in the Family Report of Mr S, that the parties forthwith;
a)Make all arrangements and do all acts and things necessary to attend for child focused parent counselling with the Clinical Child Psychologist;
b)Make all arrangements and do all things necessary for the children to attend upon and engage in counselling with the psychologist, concurrently and in collaboration with the child focused parent counselling (referred to in 9(a) above;
c)That the attendance of the parties and the children upon the Psychologist pursuant to paragraph 9(a) & (b) of these orders be jointly and/or individually, as between the children and /or the parties, as the Psychologist may reasonably direct, and with such frequency and at such dates and times as the Psychologist may recommend and for such a period not exceeding 12 months and not exceeding a total per individual of twelve appointments in that 12 months, with each party to be liable for payment of one half of the cost of all attendances of the parties and the children whether jointly or individually.
The application as initially formulated was filed on 25 March 2010. It alleged that the mother had breached the orders made on 26 March 2009 on four successive alternate weekends, namely, 5 February 2010, 19 February 2010, 5 March 2010 and 19 March 2010. It was said that the mother had failed to do all things necessary for [X] and [Y] to spend the specified time with their father, and, on the third and fourth occasions, had removed [X] and [Y] from school to prevent their father from collecting them.
The matter came before the court in the duty list on 13 April 2010. On that date, it was ordered that the mother ensure that [X] and [Y] spend the weekend beginning 23 April 2010 with their father, that he permit [X] and [Y] to do various things during their time with him, and that the matter otherwise be adjourned to 7 May 2010.
On 7 May 2010, orders were made by consent:
a)for the parents and [X] and [Y] to attend therapeutic counselling;
b)for the father to attend a course on parenting adolescent boys;
c)for the mother to ensure until further order that [X] and [Y] spent time with their father in accordance with the orders made on 26 March 2009;
d)restraining the mother from telling [X] and [Y] that they were only required to spend time with their father in accordance with their wishes; and
e)adjourning the matter to 20 August 2010.
On 12 August 2010, the father filed an amended contravention application. In addition to the four alleged contraventions in the original application, the father now alleged that:
a)on [omitted], the mother failed to make [X] available to spend time with his father on [X]’s birthday;
b)on 3 April 2010, the mother failed to make [X] and [Y] available to spend time with their father on the school holidays;
c)on 18 June 2010, the mother failed to make [X] and [Y] available to spend time with their father for an extended weekend;
d)on 3 July 2010, the mother failed to make [X] and [Y] available to spend time with their father on the school holidays;
e)on 23 July 2010, the mother failed to make [X] and [Y] available to spend time with their father for an extended weekend;
f)on 6 August 2010, the mother failed to make [X] and [Y] available to spend time with their father for an extended weekend.
The father filed an initiating application seeking new parenting orders on 13 August 2010. That application was held in abeyance pending the determination of the contravention application.
The contravention application was heard on 20 August 2010. Both parents were represented by counsel. The mother denied each of the allegations. She did not claim to have had a reasonable excuse for breaching the orders. Her case was that she did not breach them.
The father relied on his affidavits sworn on 25 March 2010, 3 May 2010 and 12 August 2010. The mother relied on her affidavit affirmed on 12 April 2010. The mother expressly chose not to rely on her affidavit affirmed on 30 April 2010. Both parents were cross examined.
The father [works in sales] The mother is [a legal professional]. They both work more or less full time.
In his affidavit sworn on 25 March 2010, the father gave unchallenged evidence, which, for present purposes, I accept, as follows:
a)on 19 September 2009, [Y] told him that the mother and her boyfriend, Mr J, had been in a physical fight which left Mr J with a blood nose and the mother with a bruised neck;
b)the fights had happened many times before;
c)Mr J and the mother had split up;
d)on 5 November 2009, the mother telephoned the father and said that her car had been stolen along with the cricket gear that the father had just given to [Y];
e)[X] and [Y] spent time with their father from 19 December 2009 to 10 January 2010;
f)on 5 January 2010, the mother telephoned [X] and [Y] and told them that Mr J had broken into their house, had stolen or smashed all of the property that Mr J and the mother had bought together, had knifed the mother’s bed and had stolen the children’s games and [Y]’s cricket gear again; and
g)[Y] told his father, “I hope we are there when [Mr J] comes again, we’ll get him.”
The mother conceded in cross examination that [X] had wagged school on 23 July 2010 and 6 August 2010. The mother said that he was struggling with his school work and his first year of high school. She accepted that he was a year or two behind in numerous areas of study. The mother accepted that [X] was absent from school on 18 August 2010, without her providing any explanation to the school. She accepted that [X] had been required by the school to attend study hall on that day, to catch up on missed homework.
Legislative provisions
Section 70NAC of the Family Law Act 1975 (“the Act”) deals with the question of when a person is taken to have contravened an order. It 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; or
(b) otherwise–he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
Section 70NAE of the Act specifies the meaning of reasonable excuse for contravening an order. Relevantly, it provides that:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
…
(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Section 70NAF of the Act provides that the balance of probabilities is the standard of proof to be applied when determining whether a person has contravened an order or whether he or she had a reasonable excuse for doing so.
Subsection 65DA(2) of the Act provides that, when a court makes a parenting order:
It is the duty of the court to include in the order particulars of:
(a) the obligations which the order creates; and
(b)the consequences that may follow if a person contravenes an order.
Those particulars were included with the order made on 26 March 2009. They included the following:
Your legal obligations
■ You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. There are agencies in the community that can help you and your family adjust to and comply with the order (see details above). (emphasis added)
■ The order remains in force until a new parenting order or parenting plan changes it in some way.
■ Even if the needs or circumstances of you, the child or the other party change, the court order applies until it is formally changed by a court or, in some situations, you enter into a parenting plan with the other party.
■ Sometimes people talk to each other about changing arrangements set out in a parenting order. These talks do not change the order.
Count 1: 5 February 2010
Count 1 in the amended application is that, on 5 February 2010:
The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the children to spend time with me from the conclusion of school or 3.30PM on Friday 5 February 2010 until the commencement of school on Tuesday 9 February 2010.
The father said at paragraph 10 on page 5 of his affidavit sworn on 25 March 2010 that:
On 5 February 2010 … I attempted to collect the children from their respective schools. Both children refused to come with me. Whilst [Y] yelled at me and said that he did not want to come with me, [X] was crying. … The Respondent did not in any way encourage the children to come and reside with me during that weekend nor did she support me in making the children come and reside with me in accordance with the orders.
The father, without objection, exhibited to his affidavit a letter dated 12 March 2010 from the principal of [Y]’s school. It said, among other things, in relation to the afternoon of 5 February 2010:
I contacted [the mother] to explain the situation and was taken aback by the tone of the conversation and the manner in which I was spoken to. [The mother] indicated the boys did not have to go with their father and these directions were clearly spelt out in the orders. She further directed [Y] was to ride his bike home from school. [The father] reluctantly agreed to this request and he then left the school. His conduct at all times was calm and respectful.
The father responded in his affidavit sworn on 4 May 2010 to the mother’s claim made in her affidavit affirmed on 12 April 2010 that [X] and [Y] had arranged with the father to stay with their mother for the weekend beginning 5 February 2010. The father said that he had not entered into any such agreement with [X] and [Y] and had told them both that he would be picking them up from their schools.
In cross examination, the father said that he had not seen [X] or [Y] since 8 June 2010. He agreed that [X] and [Y] had said to him on the telephone episodically that they did not wish to come with him or spend time with him. He denied that he had agreed with [X] and [Y] on 3 or 4 February 2010 that they could stay with their mother on the weekend beginning 5 February 2010.
The father agreed that he collected [X] from his school and then they went together to collect [Y] from his school. He agreed that the mother was not present at either school when he was attempting to collect [X] and [Y]. The father said that, as a result of a meeting with the principal of [Y]’s school, the father agreed that [X] and [Y] would not go home with him.
The mother said in her affidavit affirmed on 12 April 2010 that [X] and [Y] had told her that they had made an agreement with their father to spend the weekend with her as they had friends visiting from Tasmania. The mother said that she received a telephone call from the principal of [School M] on the afternoon of Friday 5 February 2010. She said the principal told her the father was there to collect [Y].
The mother said in her affidavit that she was “naturally very angry” as the father had told the children that “they did not have to go”. The mother also said in her affidavit that she told the principal that “there were new orders in place which stated that the parents would respect the wishes of the children.” The mother said that, while she was looking for the orders, she received a message from the principal saying that the children were on their way home.
The mother’s statement to the principal that there were new orders in place which stated that the parents would respect the wishes of the children was wrong, especially as, in context, her statement would have conveyed to the principal that the orders provided for [X] and [Y] to spend time with their father only if they wished to do so.
In fact, the orders made on 26 March 2009 provided for [X] and [Y] to spend set times with their father, without any reference to their wishes. However, order 10 provided that:
the husband not take the children camping without first discussing his proposals with the children in accordance with the notation to this order.
The notations to the order relevantly stated:
12.THAT the parties both acknowledge the wishes of the children expressed in the Family Report dated 16 March 2009 and filed herein and prepared by Mr S in particular those wishes expressed in paragraphs 22 & 27. Given the children’s expressed wishes in relation to the activities undertaken whilst they spend holiday time with their Father, it is the intention of the parties that the Father, prior to the commencement of school holiday periods, discuss his proposals for the holiday and negotiate and plan his proposed activities with the children.
13.THAT it is the intention of the parties to attend upon a clinical child psychologist forthwith for child focused parent work to create further opportunities for Father Son work around negotiation and planning of holiday time prior to its commencement, and around instilling confidence in the respondent Wife (through the provision of behavioural strategies) regarding the coping resources of the children in managing time with the applicant Father.
Moreover, the school principal’s account of his telephone conversation with the mother went further than the mother’s admission. The principal said the mother had told him that the court orders clearly spelt out that [X] and [Y] did not have to go with their father. I accept the unchallenged evidence of the school principal.
The mother conceded in cross examination that she did not take any steps at any time over the weekend beginning on 5 February 2010 to enable [X] and [Y] to spend time with their father.
In these circumstances, I consider that, on 5 February 2010, the mother did breach the order of 26 March 2009. It is true that the mother was not at the school at or around 3.30 pm on 5 February 2010. However, her obligations under the orders are not confined to the 10 minutes surrounding the scheduled changeover time. The mother has a positive obligation to encourage [X] and [Y] to spend time with their father in accordance with the orders. That obligation requires her to speak positively and encouragingly to [X] and [Y] about spending time with their father at reasonable and appropriate times in the lead up to the scheduled changeover.
There is no indication that the mother did at any time positively encourage [X] and [Y] in any way to go with their father on
5 February 2010. On the contrary, her own evidence is that she told [Y]’s school principal that “there were new orders in place which stated that the parents would respect the wishes of the children.” I infer from that statement that the mother considered that [X] and [Y] did not have to go with their father if they did not want to. I also infer from that statement that the mother did not consider that she had any obligation to, and did not, encourage the children to go with their father.
Moreover, the mother’s own evidence was that she allowed the children to enter into an agreement with their father that “they did not have to go for the weekend”. The manner of expressing that supposed agreement in itself suggests that the mother did not encourage the children to spend time with their father, as a positive and enjoyable experience, but regarded it at best as an onerous obligation.
In any event, the father denied that he had entered into any such agreement with [X] and [Y]. I prefer the father’s evidence on this issue. It was consistent with him attending the schools to collect [X] and [Y], and [X] going with the father to [Y]’s school. The father’s evidence was also consistent with the mother’s claim that that there was no arrangement for make up time. In the context of this case, I find it implausible that the father would have agreed to forgo one of [X] and [Y]’s weekends with him without securing an agreement that the time would be made up.
Moreover, the mother’s statements to the school principal that:
there were new orders in place which stated that the parents would respect the wishes of the children
and/or
the boys did not have to go with their father and these directions were spelt out in court orders
were simply false.
The mother is a [legal professional]. She could be expected to be able to read and properly understand court orders. In view of the mother’s false statement to the principal, one version of which she repeated in her affidavit, I consider that the mother is inclined to twist statements to suit her own perception. I do not consider the mother to be an entirely truthful witness.
Additionally, the mother clearly arranged, or enabled [X] and [Y] to arrange, for their friends to visit from Tasmania during time that [X] and [Y] were to spend with their father pursuant to court order. The mother had no right to make arrangements for [X] and [Y], or permit them to make arrangements, in a period that they were scheduled to spend with their father. It is for the father to make or permit social and other arrangements during [X] and [Y]’s time with him. The mother should have arranged for the friends to visit on another weekend, or, failing that, she should have encouraged [X] and [Y] to arrange for their friends to stay at the father’s house, with the father’s permission. The mother’s conduct in relation to the visit from the Tasmanian friends also indicates that she was not adequately encouraging [X] and [Y] to spend time with their father, but was providing disincentives to [X] and [Y] spending time with their father.
Consequently, I find that, on 5 February 2010, the mother intentionally failed to comply with the orders of 26 March 2009. As the mother did not suggest that she had a reasonable excuse for so doing, I find that the mother breached the orders without a reasonable excuse.
Count 2: 19 February 2010
Count 2 in the amended application is that, on 19 February 2010:
The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the children to spend time with me from the conclusion of school or 3.30PM on 19 February 2010 until the commencement of school on Tuesday 23 February 2010.
The father said in his affidavit sworn on 25 March 2010 that on 18 February 2010 he received a text message from [X]’s mobile telephone number which stated:
Dad I’m not coming this weekend. Please do not ring.
In view of that message, the father said that he did not attend [X] and [Y]’s schools to collect them on 19 February 2010.
The mother said in her affidavit affirmed on 12 April 2010 that both [X] and [Y] were at school on 19 February 2010 and available to be picked up by the father.
The mother said in cross examination that she was aware at the time that [X] had sent the text. She also admitted that she did not admonish him or tell him to retract it. There was no suggestion that the mother took any steps, after [X] and [Y] returned from school to her home, to make sure that they went to their father’s place.
In these circumstances, and in the absence of evidence to the contrary, I find that the mother did nothing to encourage [X] and [Y] to spend time with their father on the weekend beginning on 19 February 2010. Consequently, I find that, on 19 February 2010, the mother made no reasonable attempt to comply with the orders of 26 March 2009. As the mother did not claim that she had a reasonable excuse for so doing, I find that the mother breached the orders without a reasonable excuse.
Count 3: 5 March 2010
Count 3 in the amended application is that, on 5 March 2010:
a) The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the children to spend time with me from the conclusion of school or 3:30PM on 5 March 2010 until the commencement of school on Tuesday 9 March 2010.
b) The Respondent removed the children from their respective schools prior to 3:30PM on 5 March 2010 and prevented me from collecting the children from their respective schools and spending time with them from 3:30PM 5 March 2010 until 9:00AM 9 March 2010.
The father said in his affidavit sworn on 25 March 2010 that he received an anonymous text message from mobile number 0432 803 468 on 4 March 2010 which said “not coming”. The father said that he did not know who it was from as it was anonymous and he did not recognise the number. On 5 March 2010, he received a further text message from the same number saying, “This is [X] I am not coming this weekend.”
The father said in his affidavit that:
a)at 1.47 pm on 5 March 2010, he received a telephone call from the mother;
b)she advised that she had taken [X] and [Y] out of school as they had an appointment;
c)the father asked the mother to return the children to school, so he could collect them;
d)the mother said she would not;
e)the father said he would be at school any way;
f)the mother told the father to save himself the trip;
g)the father asked the mother to return the children to school;
h)the mother started yelling at the father so he ended the call;
i)at 1.59 pm on 5 March 2010 the mother sent the father a garbled voice-to-text message;
j)it said something about [X] going away on camp on Tuesday morning;
k)the father attended both [X] and [Y]’s schools at 3.30pm;
l)neither child was available for collection.
The letter dated 12 March 2010 from [Y]’s school principal said in relation to 5 March 2010 that:
On Friday 5th March a similar situation occurred again where [the father] had arrived to collect his son and [Y] had been removed from school at lunchtime prior to [the father’s] arrival to complete his access arrangements for the day. [The mother indicated she had contacted [the father] and the child would not be available for collection.
As stated above, the mother did not object to this letter going into evidence. I accept what it says.
The father also exhibited to his affidavit sworn on 25 March 2010 a letter dated 5 March 2010 from the principal of [X]’s school. The mother did not object to that letter going into evidence. It said that the mother collected [X] from school at about 1.30 pm on 5 March 2010. I accept that unchallenged evidence.
The father said in his affidavit sworn on 3 May 2010 that the mother had not told him on 5 March 2010 that [X] and [Y] would be available at her home for collection.
In cross examination, the father said that he had not gone to the mother’s home to collect [X] and [Y] on 5 March 2010. His evidence as set out above was not challenged and I accept it.
The mother said in her affidavit affirmed on 12 April 2010 that at about midday on 5 March 2010 she had received messages from both [X] and [Y]’s school principals that the father had notified the schools that he would be collecting the children that day. The mother admitted that she had then taken [X] and [Y] out of school. She said that [Y] had an appointment with an optometrist at 2.30 pm and [X] needed to pack because he had school camp beginning on Tuesday 9 March 2010. The mother said that [X] actually went to the optometrist with [Y].
The mother said in her affidavit that [X] and [Y] were at home and available for collection by their father at 3.30pm. The mother said that she had tried to convey this to the father but he was angry and insisted that she return them to school.
The mother said in evidence in chief that on 5 March 2010, she rang the father to say that the boys would not be at school so he did not need to go there to pick them up. She did not mention the option of collecting them from her house.
The mother agreed in cross examination that she could have made an optometrist’s appointment for [Y] at another time. The mother also agreed that she did not telephone the father after she had arrived home on the Friday afternoon to say that [X] and [Y] were available there to be picked up, and that she did not call the father at any time over the weekend to say that they were available to be picked up.
The mother maintained in cross examination that the orders provided for the father to collect [X] and [Y] from her home if they were not at school, and she thought it was obvious that the father would collect them from her house.
Paragraph 6 of the orders of 26 March 2009 provided that:
a)The husband collects the children from and return (sic) them to school (or the wife’s home in the event one or both of the children are not in attendance at school that day);
b)That in respect of all other time spent with the children, the husband collect the children from the wife’s residence at the commencement of such spend time and the wife collect the children from the husband’s residence at the conclusion of such spend time.
Strictly speaking, the orders provided for the father to collect [X] and [Y] from school unless one or both of them was not at school “that day”. In this case, [X] and [Y] were both at school on
5 March 2010, at least until the mother received messages from the two schools to say that the father would be collecting [X] and [Y] at 3.30pm on that day. Consequently, strictly construed, the orders provided for the father to collect [X] and [Y] from school that day, and the mother was required to facilitate that outcome by ensuring that [X] and [Y] were at school and available to be collected.
Having said that, when making the orders, the court does not seem to have envisaged that [X] and [Y] might attend school for only part of a day. It would have been sensible, if either child had an urgent medical appointment necessitating a school absence for the latter part of the school day, for the parents to agree between themselves for the collection point to be the mother’s home. However, that course requires goodwill and a reasonable level of communication between the parents. Both of those requirements are sadly lacking in this case.
As a result, strict compliance with the orders was necessary. In other words, the mother was required to return the children to school to enable them to be collected in the manner specified in the orders. She did not do so, and, to that extent the mother did not ensure that the children were available at the required place and thus breached the orders.
Moreover, the mother was at fault in arranging an optometrist’s appointment for [Y] at a time that would impact on [Y]’s time with his father. The mother was also at fault in removing [X] from school, supposedly to enable him to pack for camp four days later, but then taking him to [Y]’s optometrist’s appointment instead. (The mother did not explain why he could not have packed the night before.) The mother was also at fault in not telephoning the father on the Friday afternoon, or at any time over the weekend, to say that [X] and [Y] were available to be collected.
I do not accept the mother’s claim that she tried to tell the father that [X] and [Y] would be available to be collected from her house at 3.30 pm. It is not consistent with the mother telling [Y]’s school principal that [Y] “would not be available for collection”. It is not consistent with the mother arranging an optometrist’s appointment for [Y] on a Friday afternoon when he was scheduled to spend time with his father. It is not consistent with removing [X] from school to pack for camp but then taking him to [Y]’s optometrist’s appointment. It is not consistent with the mother making no attempts over the weekend to enable [X] and [Y] to spend time with their father.
For these reasons, I am satisfied that, on 5 March 2010, the mother intentionally failed to comply with the orders of the court. As she did not claim to have a reasonable excuse, I find that there was no reasonable excuse for the mother’s breach of the orders.
Count 4: 19 March 2010
Count 4 in the amended application is that, on 19 March 2010:
a)The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the children to spend time with me from the conclusion of school or 3:30PM on 19 March 2010 until the commencement of school on Tuesday 23 March 2010.
b)The Respondent removed the children from their respective schools prior to 3:30PM on 19 March 2010 and prevented me from collecting the children from their respective schools and spending time with them from 3:30PM 19 March 2010 until 9:00AM 23 March 2010
The father said in his affidavit sworn on 25 March 2010 that the mother did not send [X] and [Y] to school on 19 March 2010 and hence he was unable to collect them from school. He exhibited to his affidavit letters from the principals of [X] and [Y]’s schools that he had attended their schools to collect the children on 19 March 2010. The mother did not object to those letters. I accept the contents of them.
The father said in cross examination that he did not go to the mother’s house on that day. He accepted that he might have received a text at about 8.46 am on that day saying that the boys would not be at school.
The mother conceded in her affidavit affirmed 12 April 2010 that [X] and [Y] did not attend school on 19 March 2010. She said:
I admit that the children’s non-attendance at school was in part due to my own concerns about the Applicant turning up there and the stress it might again cause the children, however both children were also suffering from a mild cold.
The mother said in examination in chief that she had sent the father a text in the morning saying that [X] and [Y] would not be at school. That evidence was not disputed. I accept it.
Consequently, under the orders, the father should have collected [X] and [Y] from the mother’s house. He made no attempt to do so.
It may be that the mother did not have a good reason for not ensuring [X] and [Y] attended school that day. It may be that, if the father had attended the mother’s house to collect [X] and [Y] that day, she would not have facilitated them going with their father. However, I consider that to be speculative.
In all of the circumstances, I am not satisfied on the balance of probabilities that, on 19 March 2010, the mother intentionally failed to comply with the orders of 26 March 2009 or took no reasonable steps to comply with the orders.
I also note that the mother at this point annexed to her affidavit affirmed on 12 April 2010 a report dated 12 April 2010 from a psychologist. The father objected to that report going into evidence on the basis that the report was not sworn and on the basis that the psychologist was not going to be called by the mother to be cross examined. The report was struck out on that basis. It would be unsafe to give any weight at all to an unsworn expert opinion that could not be tested. The mother did not seek an adjournment to enable the psychologist’s report to be put before the court in a proper manner.
Nevertheless, the father referred in detail to the report in his affidavit sworn on 3 May 2010, which he relied on. In that affidavit, the father indicated that:
a)Ms A had been appointed as [X] and [Y]’s counsellor under the orders of 26 March 2009;
b)she had given them counselling from 20 April 2009;
c)it was unclear how many times Ms A had counselled them;
d)Ms A saw [X] and [Y] on about 2 March 2010;
e)Ms A had not arranged for [X] and [Y] to have joint counselling with their father until on or after 24 March 2010, almost a year after the order was made;
f)Ms A asked the father in a telephone conversation on 16 August 2010 to attend joint counselling with [X] and [Y];
g)Ms A told the father in that conversation that [X] and [Y] were scared of him;
h)he replied that they had no valid reason to be scared of him;
i)Ms A said that the father’s parenting style was traditional, protective and firm, while the mother’s was more easy going and in line with the children’s preferences.
As Ms A’s report was not put before the court in a proper form, and she was not available for cross examination, it is difficult to sensibly deal with the father’s admissions about that report. However, they do hint at some of the issues that have arisen in this family, but have not yet been resolved by counselling.
Count 5: [X’s birthday]
Count 5 in the amended application is that, on [X’s birthday]:
The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the child [X] to spend time with me from 10:00am to 2:00pm, on [X’s birthday], being [X]’s 13th birthday.
The father in relation to this count relied on paragraph 21 of his affidavit sworn on 3 May 2010, which relevantly states that:
…the Respondent prevented me from spending time with the children on [X]’s 13th birthday ie on [omitted]…
In cross examination, the father said that he attended the mother’s home to collect the boys on [X’s birthday]. He said the mother remained at the door. She sent [X] and [Y] to the gate, which is about four metres from the door. The father said to [X] and [Y], “Are you coming?” and they both said, “No”. The father said that when [X] and [Y] said that, he saw the pain on their faces and he felt sad for them and himself.
The mother said in evidence in chief that she stood at the front door while [X] and [Y] went to the gate. She said she heard them tell him that they did not want to go, and they did not want to go the next day either, so the father should not bother coming to collect them.
In cross examination, the mother was asked whether she had done anything to ensure that [X] and [Y] spent four hours with their father on [X]’s birthday. She said she had attended the psychologist on [the day prior to X’s birthday] with [X] and [Y]. She said that the entire session had been devoted to working out a way that they would go with their father and encouraging them to go. She said that when they had left the psychologist, they had worked out an agreement with [X] and [Y] that they would go with their father. The mother said that, on the morning of [X’s birthday], she had the children up and dressed and ready to go with their father.
The father in his affidavit said that the mother “prevented” [X] and [Y] from spending time with their father on [X’s birthday], but did not set out the facts on which that conclusion was based. I am therefore unable to accept that the mother “prevented” [X] and [Y] from spending time with their father.
I accept the mother’s unchallenged evidence that she worked with the psychologist on [the day prior to X’s birthday] to encourage [X] and [Y] to go with their father on [X’s birthday], and in fact secured their agreement that they would. I also accept that the mother had [X] up and ready to go at 10 am on [X’s birthday].
The mother did not suggest that she did anything to encourage [X] and [Y] at or around 10 am on [X’s birthday] to spend time with their father.
However, on balance, I consider that the mother’s work with [X] and [Y] and the psychologist on [the day prior to X’s birthday] sufficiently encouraged [X] and [Y] to go with their father on [X’s birthday]. Accordingly, I do not consider that, on [X’s birthday], the mother breached the orders of 26 March 2009.
Count 6: 3 April 2010
Count 6 in the amended application is that, on 3 April 2010:
The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the children to spend time with me from 10:00am 3 April 2010, to 10:00am 11 April 2010, being half of the school term holidays.
The father in relation to this count relied on paragraph 21 of his affidavit sworn on 3 May 2010, which relevantly states that:
The Respondent prevented me from spending time with the children … [during] the holiday week from 3 April 2010 to 11 April 2010 being half the school holidays.
The father said in cross examination that he attended the mother’s home on 3 April 2010 but did not see [X] or [Y] at all.
The mother said in evidence in chief that [X] and [Y] did not see their father on 3 April 2010. She said that they did not see their father on that day:
Because the children were not at home. They had stayed at a friend’s place overnight. They had told their father when he came to pick them up the day earlier for [X]’s birthday not to bother coming the next day, because they weren’t going to come either.
The mother said that, on 3 April 2010, she was not at home as she was busy moving her mother into a nursing home. She said that she did that knowing that the orders were in place.
On the mother’s own evidence, she permitted [X] and [Y] to stay at a friend’s place rather than be at their mother’s home available for collection at 10 am on 3 April 2010. Also on the mother’s own evidence, she was not available herself at that time to facilitate and encourage [X] and [Y] to spend time with their father in accordance with the court orders.
The mother’s evidence in relation to [X’s birthday] indicated that she worked with the psychologist on [the day prior to X’s birthday] to persuade [X] and [Y] to spend time with their father on [X’s birthday] . However, that evidence did not extend to a claim that the mother attempted with the psychologist to persuade [X] and [Y] to spend time over the school holidays with [X] and [Y]. Moreover, there was no suggestion that the mother took any steps during the week beginning
3 April 2010 to ensure that [X] and [Y] spent any time at all with their father. The fact that [X] and [Y] told their father [X’s birthday] not to bother coming on 3 April 2010 did not override the mother’s obligation under the orders.
In these circumstances, I am satisfied that the mother did not encourage [X] and [Y] to spend time with their father commencing on
3 April 2010. I accept that she intentionally failed to comply with the orders on that day. As the mother did not suggest that she had a reasonable excuse, I find that she breached the orders without a reasonable excuse.
Count 7: 18 June 2010
Count 7 in the amended application is that, on 18 June 2010:
The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the children to spend time with me from the conclusion of school or 3:30PM on 18 June 2010 until the commencement of school on Tuesday 22 June 2010.
The father said in his affidavit sworn on 12 August 2010 that he received a text message from the mother at 1.30 pm on 18 June 2010 to say that [X] and [Y] would not be at school at 3.30 pm that day. The father said that he telephoned the mother three times but the calls went to voicemail. He said that he went to the schools at 3.30 pm and discovered that [X] had not been at school all day and [Y] had been collected at 11.30 am.
The father said that he received a call from the mother at 3.37 pm. She said that [X] and [Y] were at her house to be collected. The father said that he knocked on her door at 3.40 pm but there was no answer. He said he waited in his car.
The father said that a short time later, the mother lined up [X] and [Y] at the front gate. The father got out of his car. He said that the mother then said to the boys, “You understand the court orders mean that you have to go with him. Are you going to go?” The father said that [X] and [Y] stood in a sullen, crestfallen and dejected manner and said, “No.” The father said that the mother put her arms around the boys and ushered them back into the house. The father said he waited in the car for a few minutes but [X] and [Y] did not come out and he then left.
The father accepted in cross examination that [X] and [Y] were at [omitted] LifeWorks on 18 June 2010. He said that he had received an unintelligible message from [Y] at about 3.39 pm on that day and then received a call from the mother at about 3.39 pm.
The mother said in evidence in chief that she had an appointment to take [X] and [Y] to court ordered counselling at LifeWorks on 18 June 2010. She said she told the father by telephone that she and the boys were not at home because they were at counselling. She said the father said that she was not allowed to make appointments on the days that he was due to collect the children from school. The mother said that she replied, “Well, it’s court-ordered counselling, I had to go.” The mother said that she did not see the father at all on 18 June 2010.
In cross examination, the mother said that she did not get home with [X] and [Y] until 4.30 pm. She said that counselling was not available on another day. She said the counsellor, Mr H, was going on leave that day and she had got his last appointment.
I do not accept that the mother could not have made an appointment with LifeWorks on another day. The counsellor may have had only one appointment left when she contacted him. However, obviously, the mother was obliged to make appointments far enough in advance to ensure that they did not conflict with [X] and [Y]’s time with their father.
Moreover, even if [X] and [Y] were delayed for an hour, that does not excuse the mother not ensuring that they spent the remainder of the stipulated time with their father.
Consequently, even if the mother’s version of events is true and the father’s is not, I consider that the mother intentionally failed to comply with the orders on 18 June 2010. She did not claim that she had a reasonable excuse for doing so. Accordingly, I consider that the mother breached the orders without a reasonable excuse.
Count 8: 3 July 2010
Count 8 in the amended application is that, on 3 July 2010:
The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the children to spend time with me from 10:00am 3 July 2010 to 10:00am 11 July 2010 being half of the school term holidays.
The father said in his affidavit sworn on 12 August 2010 that he went to the mother’s house at 10 am on 3 July 2010. He said that he telephoned her mobile but she did not answer. He said that he left a message that he was outside. The father said that he then knocked on the front door but there was no answer. He said he left a while later. He said that [X] and [Y] did not spend any time with him on the July school holidays.
In cross examination, the father implicitly acknowledged that he had been confused about the events of 18 June 2010 and the events of
3 July 2010. He said that on 3 July 2010, he asked [X] and [Y] if they were coming and they said no. He said that he asked them if they wanted a hug. He said that they looked at their mother and then said no.
The mother said in her evidence in chief that the father attended her house on 3 July 2010 to collect [X] and [Y]. She said she took them to the front gate and said:
You know the court orders say that you have to go with your father.
The mother said the father asked [X] and [Y] whether they were coming and they replied:
No, we’re not coming. We don’t want to come.
The mother said that the father then asked [X] and [Y] if they wanted a hug and they declined. She said that she followed [X] and [Y] back into the house.
The mother repeated these answers in cross examination.
I do not consider that telling children that court orders require them to go with a parent constitutes positive encouragement to go. There was no suggestion that the mother did anything else on or before 3 July 2010 to encourage [X] and [Y] to go with their father.
Consequently, I consider that the mother intentionally failed to comply with the orders on 3 July 2010. As she did not suggest that she had a reasonable excuse, I consider that the mother breached the orders without a reasonable excuse.
Count 9: 23 July 2010
Count 9 in the amended application is that, on 23 July 2010:
The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the children to spend time with me from the conclusion of school or 3:30PM on 23 July 2010 until the commencement of school on Tuesday 27 July 2010.
The father said in his affidavit sworn on 12 August 2010 that he attended [X] and [Y]’s schools at 3.30 pm on 23 July 2010. He learned that they had not been at school all day. The father said he telephoned the mother and asked where the children were. He said that the mother told him that she was in the city.
The father said that he then went to the mother’s home. He said that he knocked on the front door but there was no answer. He said he waited in his car and saw the mother arrive home about 20 minutes later. The father said that she came out of the house a little later, saw the father and went back inside. The father said that he knocked on the door again but there was no reply.
The father said that he went to the street at the side of the mother’s house and saw her and [X] and [Y] leaving by the side gate. The father said that he went to them and asked if they were ready to come. He said that they said that they were not coming. The father said that he asked, “Why not?” and [X] and [Y] did not answer. The father said that they kept on walking behind their mother and he left.
The father said in cross examination that he attended the schools and the mother’s home on 23 July 2010. It was put to him that he did not see the mother face to face on that day, but he reiterated that he did.
The mother said in evidence in chief that she sent [X] and [Y] to school with their bags and on their scooters, rather than their bikes, so they could go home with their father. She said the father telephoned her in the afternoon to say that he was at school but the boys were not. The mother said that she was visiting her mother in a nursing home in Parkdale at the time.
The mother said that she then returned home, arriving at about 4 pm, and found [X] and [Y] there. The mother said that she saw the father outside, told the children to get their things and go to their father’s. She said she was talking on the telephone in a professional capacity while these events were occurring.
The mother said that she then saw that [X] and [Y] were not in the house and noticed that the back gate was open. She said that she assumed that [X] and [Y] had gone to their father’s and she shut the back gate. The mother said that she did not have any further interaction with the children or the father that day.
However, the mother then said that [X] and [Y] turned back to the house. They returned at about 4.30 pm. She said that she said to them, “Where have you been, what are you doing here?” The mother’s counsel interrupted her before she was able to say what [X] and [Y] said in reply. She said that she did not telephone the father or hear from him later that day.
In cross examination, the mother said that [X] was not at school on 23 July 2010 because he wagged. She said that she did not write a note for his absence that day.
I accept the father’s version of events on 23 July 2010 rather than the mother’s. That is, I accept that the mother went out the side gate with [X] and [Y] and the mother was complicit in their actions. I do not accept that [X] and [Y] went by themselves. One reason for this is that the mother changed her evidence from saying that she had no further interaction with [X] and [Y] on 23 July 2010, to saying that they returned to the house at 4.30 pm on that day. Additionally, I found the father to be a more convincing witness than the mother. He gave his evidence more calmly and cogently than the mother. And, as stated previously, it seems to me that the mother was inclined to twist things to suit her perception.
However, even if the mother’s version of events were true, she said nothing to indicate that she positively encouraged [X] and [Y] to go with their father on 23 July 2010. On the contrary, she condoned their actions, by, at the very least, not ensuring that they went to their father’s once they had returned home at about 4.30 pm.
I find that the mother intentionally failed to comply with the orders on 23 July 2010. She did not claim to have had a reasonable excuse for doing so. Accordingly, I find that the mother had no reasonable excuse for breaching the orders.
Count 10: 6 August 2010
Count 10 in the amended application is that, on 6 August 2010:
The Respondent failed to comply with the orders made by the Court in as much as she failed to do all things necessary for the children to spend time with me from the conclusion of school or 3:30PM on 06 August 2010 until the commencement of school on Tuesday 10 August 2010.
The father said in his affidavit sworn on 12 August 2010 that he attended [X] and [Y]’s schools at 3.30 pm on 6 August 2010 to collect them. He said he learned that [X] had not been at school all day, although the mother texted the school at 11.30 am to say that she had sent him to school. The father said that [Y] left school at 3.23 pm, when his normal finishing time is 3.30 pm.
The father said that he then went to the mother’s house at 3.45 pm. As he was about to knock on the front door, the mother opened the door and said, “Get off my property.” The father said that he then went to the front gate. The father said the mother brought [X] and [Y] to the gate and asked them, “Are you going to your father’s?” The father said that both children looked at their mother and then said, “No.” The father said the mother then ushered the children inside and he left the property. He said that the mother made no attempt to deliver [X] and [Y] to him at any time over the weekend.
In cross examination, the father denied that he had not seen the mother face to face on 6 August 2010.
In examination in chief, the mother said that she sent [X] and [Y] to school on 6 August 2010 with their bags to stay at their father’s and on their scooters. The mother said that, as they had missed school two weeks earlier, she did not leave for work until after the boys had left for school. She said she then attended to her usual business and returned home at about 3.45 pm.
The mother said that she received a telephone call from the father just after 3.30 pm saying that the children were not at school. She told him that they were at home with her. The mother said that when the father arrived, she took [X] and [Y] to the front gate. She said the father asked them whether they were coming with him and they said no. She said the father asked if they wanted a hug and they said no.
The mother said that the father then asked how the mother would ensure that [X] and [Y] went with him. The mother said that she grabbed [X] by the arm and said to the father:
Yes, here, [Mr Casey], I will physically remove them, or do you want to physically remove them?
The mother said that [X] would not be budged, he resisted, and then he and [Y] went back inside.
I accept the father’s evidence that the mother asked [X] and [Y] if they were going to go to their father’s. That evidence was not challenged.
Obviously, parents should not physically manhandle their children. Generally, parents are able to manage the behaviour of their children with authoritative parenting, and firm and clear directions. The evidence shows that the mother did not give [X] and [Y] firm and clear directions about going with their father. She asked them if they were going to go with their father, when she had consented to orders on 7 May 2010:
a)for her to ensure until further order that [X] and [Y] spend time with their father in accordance with the orders made on 26 March 2009;
b)restraining her from telling [X] and [Y] that they were only required to spend time with their father in accordance with their wishes.
In view of those orders, as well as the orders of 26 March 2009 and the obligations under them, the mother had to do a good deal more than ask [X] and [Y] if they were going. She was in fact complicit in them not going with their father.
In the circumstances, I find that the mother intentionally failed to comply with the orders of 26 March 2009 on 6 August 2010.
Conclusion
The father urged the court to find the contraventions proved beyond reasonable doubt, with the consequential ramifications for penalty. I consider that the evidence comfortably supports the findings that I have made on the balance of probabilities, bearing in mind the Briginshaw principles that apply where findings have serious consequences. However, I do not consider that the evidence goes to the level of beyond reasonable doubt.
I consider that, in all the cases in which I have found that the mother contravened the orders of 26 March 2009, the contraventions were in the more serious category under Subdivision F of Division 13A of Part VII of the Act. I consider that the mother showed a serious disregard for her obligations under the orders.
It was not suggested that a court had previously made an order of the type referred to in s.70NFA(2) of the Act imposing a sanction on the mother in respect of a contravention by her of the order of
26 March 2009 or adjourning previous contravention proceedings in respect of that order.
Subsections 70NFB(1) and (2) of the Act provide that:
(1)If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
(a)make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and
(b)if the court makes an order under paragraph (2)(g)–consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and
(c)if the court does not make an order under paragraph (2)(g)–make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
(2) The orders that are available to be made by the court are:
(a)if the court is empowered under section 70NFC to make a community service order–to make such an order; or
(b)to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c)if the current contravention is a contravention of a parenting order in relation to a child–to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d) to fine the person not more than 60 penalty units; or
(e)subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g)to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h)to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
Note: The court may also vary the primary order under Subdivision B.
The parties did not address the issue under s.70NFB(1)(a) of the Act. I will hear the parties’ submissions on that matter after these reasons are delivered. As the legislation appears to contemplate the issue in s.70NFB(1)(a) being considered first, I will not make any orders until the parties have made their submissions on that issue.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 17 September 2010
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