CDH and RH - [2004] FMCAfam 325

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CDH & RH

[2004] FMCAfam 325

FAMILY LAW – Contravention of parenting orders – nature of reasonable excuse considered – contravention proved – stage 2 and 3 considered – parties ordered to attend post separation parenting program – compensatory contact ordered – respondent ordered to enter bond.

Applicant:

C D H

Respondent:

R H

File No:

PAM820 of 2004

Delivered on:

16 June 2004

Delivered at:

Parramatta

Hearing dates:

8 & 16 June 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr P. Campton

Solicitors for the Applicant:

Dignan & Hanrahan

Solicitor Advocate for the Respondent:

Mr G Watts

Solicitors for the Respondent:

Watts McCray

ORDERS:

That the respondent did contravene Order 14(a)(i) made 23 October 2003 on 3 December 2003, 10 December 2003, 24 December 2003,
14 January 2004, 21 January 2004 and on 28 January 2004 without reasonable excuse as alleged in the application filed 16 February 2004.
That the respondent did contravene Order 14(a)(ii) made 23 October 2003 on 30 November 2003, 14 December 2003, 11 January 2004 and on 25 January 2004 without reasonable excuse as alleged in the application filed 16 February 2004.
That the respondent did contravene Order 14(iv) made 23 October 2003 on 26 December 2003 without reasonable excuse as alleged in the application filed 16 February 2004.
That the respondent did contravene Order 14(a)(vi) made 23 October 2003 on 18 January 2004 without reasonable excuse as alleged in the application filed 16 February 2004.
Pursuant to section 70NG(1)(b) the applicant shall have compensatory contact as follows:
(a)On Thursday 17 June 2004 from 10 am until 2 pm.
(b)On Sunday 20 June 2004 from 10 am until 2 pm.
(c)On Sunday 4 July 2004 10 am until 6 pm.
(d)Contact pursuant to the orders of 23 October 2003 on 30 June 2004 10 am until 2 pm and extended by way of compensatory contact until 6 pm.
(e)Contact pursuant to the orders of 23 October 2003 on Wednesday 7 July 2004 from 10 am until 2 pm extended by way of compensatory contact until 6 pm.
(f)On Wednesday 14 July 2004 pursuant to the orders of 23 October 2003 from 10 am until 2 pm and compensatory contact from 2 pm until 6 pm.
(g)On Saturday 17 July 2004 from 10 am until 6 pm.
(h)On Sunday 18 July 2004 from 10 am until 6 pm
That Order 14(b)(i) of the Orders made 23 October 2003 is suspended on the weekend of 10 –11 July 2004. The applicant shall have contact on 10 and 11 July 2004 from 10 am until 6 pm each day.

THE COURT NOTES THAT IN ADDITION TO THE ABOVE CONTACT THE OPERATIVE ORDERS PROVIDE THAT CONTACT WILL OCCUR:

On Wednesday 23 June 2004 from 10 am until 2 pm.
On Sunday 27 June 2004 from 10 am until 6 pm.
Following the weekend of 10 –11 July 2004 contact shall continue pursuant to the orders made 23 October 2003.

THE COURT FURTHER ORDERS:

That pursuant to section 70NM that the respondent enter into a bond for twelve (12) months without security self in the sum of one thousand dollars $1,000 upon the following conditions:
(a)Strictly adhere to the obligations in respect of all operative parenting orders.
(b)For a period of twelve (12) months be of good behaviour.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That the respondent pays the applicants costs of the contravention in the order of $2840.00.
The costs payable pursuant to the above order shall be paid within six (6) months of today’s date. The respondent shall make equal monthly payments with the first payment due four (4) weeks from today. In the event that the respondent defaults in making any periodic payment the balance outstanding is immediately due and payable. Interest calculated in accordance with the Federal Magistrates Court Rules is payable on the sum outstanding two (2) months from today’s date.
C D H and R H must within two working days:
(a)Contact the program provider Unifam (telephone number 9891 1628) and arrange an appointment within 28 days for an initial assessment as to suitability for a post-separation parenting program.
(b)Attend the appointment at any reasonable location nominated by the provider and complete the assessment.
(c)If assessed as suitable for a program or part of a program and the program provider nominates a particular program to attend, they must attend that program or part of the program (as the provider directs) as soon as practicable.
The program provider is requested to notify the court in writing as soon as practicable if either party has failed to attend the initial assessment and the Registry Manager must re-list these proceedings to determine what further appropriate orders should be made in relation to the non-attendance.
At the assessment appointment the program provider must complete the assessment within 28 days.
Upon completion of the initial assessment the program provider must notify the court of the results.
The program provider must inform the court in writing as soon as possible if:
(a)A party to this order has failed to attend the program;
(b)The program provider considers a party a subject of the order is unsuitable to take any further part in the program or part of the program.
Upon receipt of such notification from the program provider, the Registry Manager is to re-list the proceedings for further orders.
That all outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM820 of 2004

C D H

Applicant

And

R H

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Introduction

This is an application by C D H “the applicant” that the respondent contravened parenting orders brought pursuant to Division 13A of Part VII of the Family Law Act 1975. The applicant started the proceedings when he filed a form 49 Contravention of Child Order Application on 16 February 2004. He claims that the respondent contravened orders 14(a)(i),(ii),(iv) and (vi) made in the Family Court of Australia on

23 October 2003.
When the orders were made the parties were scheduled to start a hearing of an earlier contravention application brought by the applicant. Both parties were legally represented when the orders were made. In the respondent's case, by a solicitor and counsel, both of who are experienced family law practitioners. The orders have been registered in this court and thus the court has jurisdiction to determine this application.
Orders 14(a)(i),(ii),(iv) and (vi) made 23 October 2003 are set out below:
14. That the husband have contact with the said child as follows:
(a)until 1 July 2004;
(i)
each Wednesday commencing 29/10/2003 from 10 am to

2 pm;
(ii)each alternate Sunday commencing 2/11/2003 from 10 am to 6 pm;
(iv) 26 December 2003 from 9 am to 6 pm;
(vi) Sunday 18 January 2004 from 9 am to 6 pm.
Order 15 provides that contact changeover shall take place at McDonald's, Mount Annan. As well as addressing the contact arrangements, the orders provide for the adjustment of property and that the child, L H, reside with the respondent.
The applicant contends that within about one month of the orders being made the respondent stopped all contact, which denial of contact he says has continued. At the respondent's behest the applicant agreed that the court would determine her recent application to vary the contact orders at the same time as hearing this contravention application. This appears to be a pragmatic approach necessitated by the parties' modest financial circumstances. Although the applicant's solicitor and the court expressed misgivings about the approach, eventually the court acceded to the application. The effect of this has been that the evidence taken in the contravention application will also be evidence in the variation application.

Did the respondent contravene an order?

The first part of these reasons address whether the contravention application has been proved.
Annexed to the October 2003 orders is a summary of the obligations that the respondent had as a person bound by a contact order. Hence the orders comply with s.65DA(2). The explanation is in the usual form. This addresses stage 1 of the parenting compliance regime. In addition to the specific obligations set out under the orders the respondent has obligations imposed by s.65N.
At the start of the hearing the applicant abandoned counts 1 to 10 of his application. The court put the particulars of counts 11 – 13 inclusive to the respondent, which allegations the respondent denied. Through her solicitor the respondent agreed that in relation to counts 14 to 22 inclusive contact did not take place on the dates set out in the contravention application. The respondent said that she had a reasonable excuse for non-compliance with the orders. She claimed that on 10 December 2003 she was assaulted by the applicant and thereafter denied contact in order to avoid further assaults and to protect the child from exposure to the applicant's aggressive behaviour.
Although the respondent claimed during the hearing that she did not understand that the orders required her to give contact, no claim was made during closing submissions that the respondent should be excused pursuant to s.70NE(1)(a) because she did not understand her obligations under the orders. Although she may not have liked the effect of the orders, the court has no doubt that the respondent knew that she was required to make the child, L H, available at the times and places specified in the orders. The language used in the orders is simple and the structure of the contact orders straightforward. The respondent was legally represented and no doubt her legal representatives discussed the orders with her before she agreed to them, including explaining her obligations pursuant to them. Prior to 30 November 2003 the respondent made the child available for contact in accordance with the orders or at times agreed in lieu thereof. In the circumstances, I agree with the approach taken by the respondent’s solicitor to abandon his client's purported lack of understanding of the orders.

Did the respondent fail to comply with any orders?

I will deal with the allegations in sequence.
Count 11. The parties agree that the orders entitled the applicant to have contact on Sunday 30 November 2003 between 10 am and 6 pm and that contact did not occur. Almost immediately after the October 2003 orders were made, the respondent accepted a full time job managing a hairdressing salon. Other than days when the child is on contact or the respondent at home, her maternal grandmother, K T, cares her for. Most weeks this means that the maternal grandmother cares for the child on Tuesday and Wednesday afternoons, Thursday, Friday and Saturday. Since contact stopped also some Sundays.
In early November 2003 the respondent's parents booked a holiday to the Gold Coast. The maternal grandmother said that they departed on 15 November 2003, a date both parties agreed was erroneous. The court has received the child and grandparents' boarding pass, which makes it clear that travel commenced on 29 November 2003. The respondent's dilemma concerned the arrangements she should make for the child’s care while her parents were away. She considered other family members but did not ask them to mind the child either because she knew they worked and could not do it or she thought the child would not settle with them. Because she had only just started her new job the respondent believed that her employer would not give the time off while her parents were away. Thus by 26 November 2003 the respondent decided that she had no option other than to ask her parents to take the child with them to Queensland. When she asked they agreed.
On 29 November 2003 the respondent telephoned the applicant and said “L H is in Queensland with my parents. You can’t have her”. The applicant telephoned the respondent back at her place of employment at approximately 3.00 pm. He said, “Why is L H in Queensland?”. The respondent said, “I was stuck for a babysitter. My parents were going away. I didn’t know what to do. I'll make it up to you next week. She’ll be home at the end of the week”.
The respondent sent the child to Queensland before she discussed the issue with the applicant. When she rang him on 29 November 2003 the respondent presented the applicant with a fait accompli. The respondent told him that he could have an additional two hours make-up contact on 6 December 2003. The respondent contends that the applicant acquiesced to a suspension of his contact during the period the child was in Queensland. I do not agree. The applicant did no more than react politely when told contact was cancelled. In this case, the respondent needed to obtain the applicant's agreement before she sent the child to Queensland. The terms of the conversation indicate that the applicant did no more than accept the offer of make-up contact. The order therefore is breached as contended.
I must then consider whether the respondent had a reasonable excuse. The onus is on her to satisfy me of her excuse on the balance of probabilities. Section 70NEA. The child was 22 months old at this time. There is no evidence that the respondent could have found a childcare placement for one week on such short notice. Nor given her age, would it have been reasonable to expect the child to go through the upset usually associated with young children being cared for by strangers in a strange place for the first time unless that placement was likely to endure. However, the respondent should have asked the applicant whether he was able to mind the child while she was unavailable. It appears this possibility was not even contemplated by the respondent. It should have been. The child knows her father and the problems associated with being cared for by a stranger in a strange place would not have arisen. If having asked him to help her out the applicant said that he could not, then it would have been reasonable for the respondent to send the child to Queensland and to suspend contact while she was away. The respondent’s failure to seek the applicant's consent or inquire about his availability before doing so means that her contention that she should be excused because she had a reasonable excuse fails. The application in relation to count 11 is proved.
For the same reasons, the count relating to the failure to give contact on 3 December 2003 is also proved.
Count 13. This concerns 10 December 2003. The parties agree that the orders provide that on that day contact should have started at 10 am at McDonald's, Mount Annan. During November 2003 the parties discussed changing contact arrangements so that contact started at 8 am on Camden Valley Way. It seems likely that it was the applicant who promoted the discussion. The respondent's mother confirmed the applicant's evidence that the parties also agreed that Wednesday contact would end later than ordered.
The applicant's oral testimony concerning 10 December 2003 was consistent with his written evidence. By comparison the respondent gave numerous different versions about that day. In her affidavit she said that she went to Camden Valley Way to deliver the child for contact changeover at 8 am, essentially that this was a pre-arranged meeting. In her oral testimony she said there was no agreement to start contact at 8 am or to meet at Camden Valley Way. Asked to explain her presence with the child the respondent gave a series of explanations. These include:
·She was on her way to drop the child to S Avenue.
·
She was taking The child to work intending to deliver her at

10 am at McDonald's Mount Annan for contact changeover.
·She saw the applicant and he pulled her over.
·She stopped to have a conversation with the applicant.
In relation to any agreement regarding changeover, the respondent said in her affidavit “I reluctantly agreed.” In her oral testimony the respondent denied any agreement and said “I just happen to see him on those other occasions and so gave him contact.” This related to the two earlier occasions when the respondent delivered the child for contact changeover on Camden Valley Way.
The applicant gives an account of what occurred on the morning of

10 December in his affidavit of 9 February 2004[1] as follows:
“Upon my arrival the respondent mother said, “She’s sick. You can’t have her”. I said, “I’ll take her to the doctor”. She said, “No, no, it’s right. I’ll just take the day off work”. I said, “Ring me up in the afternoon and contact did not occur”
[1] Paragraph 34
Although in her affidavit the respondent denied telling the applicant that the child was sick, in her oral testimony having originally denied it, the respondent agreed that she did so. It appears likely that the parties then started to argue during which the respondent insisted upon the applicant agreeing to return the child at 2 pm in accordance with the orders. The applicant wanted to keep her until 6 pm. There appears to have been further argument about the start time for future contact.
During the argument the applicant probably did turn red in the face as the respondent claims. The issue is whether he also grabbed her by the right arm and pushed her up against her car screaming “I'm going to teach you a lesson. You will be punished.” The respondent says that the applicant then released her. She got into her car and left. The respondent said she left at 9:10 am and later said that she had left by 8.30 am. She said that she telephoned her mother from the car. Her mother said that she received a call placed by the respondent after the respondent had arrived at the salon. The respondent said she had a black bruise under her right wrist. The respondent's mother said she had a yellow bruise, which I accept means it is an aging bruise, near the same spot.
Although the applicant denied it, it seems likely that the parties did argue about contact arrangements particularly the return time. It appears both parties were angry and there were accusations and counter accusations being thrown about. At some time, the respondent probably did say that the applicant could not have contact, which only escalated the disagreement. I am not satisfied that the applicant grabbed the respondent. There are too many inconsistencies in her testimony and in the evidence concerning the colouring to the bruise to persuade me that I should accept the respondent's evidence on this important issue. After the argument at the changeover point the respondent was upset when she left and she did not give contact. At that stage, there was no breach. All that had occurred was that the parties had agreed that provided the respondent made the child available at 8 am she was not required to attend McDonald's, Mount Annan at 10 am. Her earlier attendance and changeover excused later compliance. Thus when she departed Camden Valley Way the respondent was obliged to attend at McDonald's, Mount Annan at 10 am or have somebody else do so and deliver the child for contact.
The applicant correctly interpreted the respondent's conduct as being an indication that she would refuse further contact that day. Therefore, the lack of evidence concerning his attendance at McDonald's, Mount Annan is of no consequence. After the incident, the respondent correctly interpreted that the applicant was likely to be angry with her. However, she does not appear to have contemplated changeover or asked anyone else to deliver the child to Mount Annan at 10 o'clock in her stead. When she failed to deliver the child or arrange for the child's delivery at 10 am that day she contravened the orders.

The respondent claims a reasonable excuse for non-compliance because she said she believed on reasonable grounds that the contravention was necessary to protect the health or safety of a person, that is, for her protection and also the child's safety. Section 70NE(3). In order to understand the basis for the respondent's actions, the court needs to consider her claim about an incident on 17 January 2003. In her affidavit the respondent deposes:
“Later that day, possibly between 10am and 11am I went with the child to C D H’s shop. I had a conversation with C D H outside the back of the shop. I remember saying to him words to the effect, “C D H, I want to know what’s going on. I’m really worried about out relationship. I feel in the dark and very confused.” I remember C D H saying to me words to the effect, “I’m not dealing with L H very well”. I said to him, “This is not good. We need help.” He said to me, “I don’t want to talk about it here.”
Although she does not say so, at some stage during the incident the respondent called her mother who immediately came to the house. In the maternal grandmother’s (K T’s) affidavit of 28 May 2004[2] she deposed:
[2] Paragraphs 5-12
“On the day in question, R H telephoned me. As a result of our conversation I immediately left my home and went to the home of R H & C D H. I remember that for a period of about three weeks before the day that the events referred to below took place, I had received a number of telephone calls from R H as a result of which I came to their home. During this period, [the parties] had been fighting a lot.
On this particular day I entered the house through the front door, walked down the hallway towards the kitchen and heard a voice that I immediately recognised to be that of my son in law. He was screaming out, “The three of us can’t live in this house”. He said these words before I had entered the kitchen, which is only about 10 or 15 steps from the front door. On entering the kitchen the first thing I noticed was that C D H was holding a knife in his right hand. It was a butcher’s knife, with a dark handle, maybe black and a steel blade. The knife blade was quite long, possibly as long as 12 inches, and was at least 1 inch wide. R H said something. By the look on her face, I could tell that she was afraid and even in shock. I pushed her to the other side of the breakfast bar, so that the breakfast bar was separating her from C D H.
Immediately before I pushed R H out of the way, C D H was holding the knife pointed towards R H , who had the child in her arms. He was about three steps away from her. I remember that after pushing R H out of the way, I was very close to C D H – possibly only a step or two away from him.
There was a lot of yelling going on. C D H was very red in the face and was screaming out. Both R H and the child were crying. R H was hysterical. When R H saw me I think she said words to the effect, “He’s carrying on”. When C D H saw me he said to the effects, “The three of us just can’t live here”.
I said to C D H words to the effect, “Let me have the knife”, C D H took a step back and then, whilst still holding the knife, turned both of his hands over so that his wrists were pointing up. He screamed out words to the effect, “I’m going to do it. I’m going to do it”. The knife was still in his right hand. I formed the impression that he was going to cut his wrists. He was very, very red in the face and head.
I said to C D H words to the effect, “Don’t be ridiculous”. He said something to me, but I don’t remember what it was. I said to him, “Give me the knife”. I took the knife off C D H. I then immediately threw it up on top of the kitchen cupboards. C D H seemed to become even angrier. He continued screaming out. He started running around like he didn’t know where to go or what to do. He was banging on the wall and punching the wall.

I grabbed him by his wrists. He kept yelling and screaming in my face, “let me go, let me go” or words to that effect. He punched at least one, and maybe two holes in the wall.
I said to R H , “Get out, get out”. C D H then punched the wall again and then he left through the front door. The event left me very shaken.”
Asked about the incident, the applicant instructed his solicitors to deny any such occurrence. During his cross-examination the applicant agreed that his answers reflected in a letter 29 April 2004[3] were false denials. He conceded that there was an incident during which he grabbed a butcher's knife and that the respondent, the child and maternal grandmother were present when he did so. The applicant's counsel submitted the court would accept his client's version concerning this event and highlighted that the respondent had not previously complained in AVO proceedings or in earlier affidavits that the applicant had a knife. That is not to the point as even the applicant concedes that he was holding a knife. I accept the respondent's evidence that she was holding the child. The applicant used words like, "No-one is listening. I gotta do what I gotta do". This is consistent with the respondent's claim that during this incident the applicant was threatening to kill himself. I accept the respondent and the maternal grandmother’s version of what took place that evening.
[3] Exhibit A
However, since then there are matters that cannot be ignored. Firstly, the respondent agreed that contact with the child would start on an unsupervised basis. I do not accept the respondent's claim that she was coerced into giving her agreement to unsupervised contact. Her consent although perhaps given with some misgiving was an informed consent. The applicant reacted appropriately when he was told that he would be denied contact whilst the child was in Queensland. The applicant obtained an apprehended violence order against the respondent to stop her harassing him at his workplace. Eleven months have passed since the kitchen event. During that time there were no threats to the child, there has been no harm caused to the child during contact and no threats or harm caused to the respondent.
While the respondent’s concern about the incident of 17 January 2003 is reasonable it does not have sufficient proximity to events on

10 December 2003 to excuse her failure to comply with the orders. The excuse that she claims requires both a subjective and objective basis. There was no threat to the child on 10 December 2003 in the period after 17 January 2003. The respondent agreed that changeover would take place early at a place her solicitor described as remote. Her agreement and giving effect to it persuades me that by mid-November 2003 at the latest, the respondent was no longer fearful of the applicant in the sense that she was concerned he may harm her or the child.
The argument on 10 December 2003 may well have made the respondent anxious and upset but there is no reasonable basis for her to fear for her or the child's safety. Any concerns for her safety were adequately addressed by asking another person to deliver the child to the contact changeover point, something she made no attempt to do. Alternatively, giving effect to changeover in accordance with the orders. McDonald's is a public place and one would have expected that there would be other people present during contact changeover, making any angry outbursts even less likely. For these reasons, I am satisfied that the respondent should not be excused for her failure to comply with the orders on 10 December 2003.
Counts 14 and following. After the events on the morning of

10 December 2003 the respondent says that she received telephone calls at the salon between about 11 am and 12 noon. A work colleague who put them through to her, she says, received these calls. The respondent says that the applicant and possibly also another person threatened her. The applicant denies the respondent's allegations. The respondent did not call the person who she says took the call and who presumably witnessed the conversations that the applicant denies. I am satisfied that the rule in Jones v Dunkel is applicable. I do not accept that the evidence of this person would have assisted the respondent. Given all the difficulties with the respondent's evidence I am not satisfied that the applicant made the telephone calls.
Therefore in relation to all further counts, my findings concerning

10 December 2003 are applicable. After the incident that day the respondent said she did not believe the applicant wanted contact. This is notwithstanding that on 15 December 2003[4] the applicant's solicitor wrote to the respondent's former solicitors, who continued to act on her behalf, that he wished to have contact. She also sought advice from the Family Court of Australia in Sydney about changing the orders. Having received that advice, she took no action. Section 70NE(3)(b) makes it clear that a person is only entitled to deprive the other party of contact for no longer than is actually necessary. What is necessary may vary from case to case. Here the respondent had solicitors advising her in relation to family law matters. Her parents also approached other solicitors on her behalf. She was advised by the Family Court of Australia of the steps she needed to take. The respondent lives in a metropolitan region and does not have the logistical difficulties associated with being in a remote location. She is in full time employment and has been able to arrange representation in these proceedings. In circumstances where the orders were recently made and the respondent was aware the applicant sought contact, she was obliged to act quickly to seek to be relieved of her obligations pursuant to them.
[4] Exhibit D
The respondent’s solicitor submitted that the court would accept that the respondent would have experienced difficulties finding a solicitor to initiate action on her behalf over the Christmas/New Year period.

I accept his submission. However, the telling fact is that the respondent makes no claim that she instructed or attempted to instruct any solicitor to take action on her behalf. So while it may have been difficult, this practical difficulty is irrelevant, as the respondent did not even try to initiate any action. Even if the respondent had been excused because of the events of 10 December 2003, within two weeks of that event the respondent was required to have initiated action in relation to being relieved from her obligations pursuant to the orders. Thus from 24 December 2003 the putative s.70NEA(3)(a) suspension of contact was no longer available. She needed the imprimatur of a court in order to refuse contact. Hence the balance of the contravention applications are proved.
From at least after 10 December 2003 I am satisfied that the respondent acted in a deliberate and considered way in her denial of contact on each and every occasion that contact was due and she refused to give it.

Consequences for contravening an order

Having found the application proved, the court took further submissions. Stage 3 of the parenting compliance regime applies where:
a)There are second or subsequent breaches of the same order
b)Or a court is satisfied that the person behaved in a way that showed a serious disregard for his or her obligations under the primary order
c)Unless the court is satisfied that it is more appropriate for the contravention to be dealt with under stage 2. See ss.70NG(1) and (2).
I have already made findings about the events that provide the factual substratum to this part of the exercise and do not repeat them. I accept counsel for the applicant’s submission that contraventions numbered 11 through to 16 and 17 through to 22 should treated differently. The former, that is 11 through to 16, whilst considered do not have the same degree of deliberateness about them that 17 through to 22 have. The remedies available for the breaches in 11 through to 16 under stage 2 are appropriate to the nature and style of breach proved against the respondent. I do not consider the stage 2 remedies appropriate for counts 17 through to 22. The essential difference is the degree of deliberation involved in the respondent's continued denial of contact and the duration of that denial. The appropriate penalty for counts 17 through to 22 is available under stage 3.
As to those matters dealt with pursuant to stage 2 the respondent will be ordered to attend a post-separation parenting program. The rationale for these programs is usually to enhance a party's understanding of their obligation pursuant to orders and also to enable the parties to work to improve communication between them. Rarely can it be said to be the case that there is a break down in communication between former partners purely as a consequence of the attitude or conduct of one. Effective communication requires effort and commitment by both parties. Programs of this type have their best outcome if both parties participate. My general view is that when one party attends a post-separation parenting program both should. The applicant indicates that he is willing to attend a post-separation parenting program at the same time as the respondent does. I will order accordingly.
I will deal the issue of compensatory contact separately. The child's age is an important factor when determining compensatory contact. The court must also determine the respondent’s application to vary the orders. I accept the respondent’s solicitor’s submission that the pivotal element in this case is the child’s age. Compensatory contact requires more consideration that merely calculating the missed hours then adding them on to the contact orders. One has to stand back and examine the situation from the child’s perspective. In this case that means considering how after a gap of approximately seven months without contact the child would manage contact with her father. It is important that the applicant understands that is not an issue of justice between the parties. The court must look at the situation from the child’s perspective and not emphasise adult interests where they conflict with the child's.
This is the first time that the respondent has been found to contravene these orders. I accept her solicitor’s submission that his client needs every cent that she has in order to provide for herself and the child.

A fine is thus inappropriate. The appropriate penalty is that the respondent enters into a bond for a period of 12 months without security or surety. The bond will require her to be of good behaviour, comply with the orders and forfeit the sum of $1000 if she is called up on for non-compliance with the bond. In one respect it could be said that this is no penalty at all. That is because if the respondent complies with the court's orders for the next 12 months and is of good behaviour there will be no further consequences of her failure to comply on this occasion. However, if there were further breaches proved, the respondent would be in a very difficult position. That is because any court would take into account that there has already been a stage 3 finding and that she has already been placed on a bond. Generally, sentencing principles proceed along the lines that repeated breaches result in increasingly severe consequences. The respondent will appreciate that she is not a free agent concerning the child. The applicant’s rights and role set out in the orders and by law must be respected.
In terms of the application to vary the existing orders, I agree with the approach taken by both parties that it is necessary to build the child’s contact with her father at a reasonable pace before overnight contact takes place. Overnight contact is due to commence shortly. I take into account the detailed description given by the respondent in her affidavit of the child's routine. The child has difficulty separating from the respondent and a recent attempt to enrol her in day care proved to upsetting for the child to continue. It has been seven months since the child has seen her father. Two-year-olds can have a difficult time separating from their primary carer. It is a notoriously difficult time in terms of their dealings with people other than their prime carer. The pace of compensatory contact, when married with the current orders, contended for by the applicant’s counsel is a little ambitious given the gap in contact.
The appropriate outcome is to ensure that contact takes place every weekend, eventually both days on each weekend, until the time is reached when the child will be ready for overnight contact. Regular and frequent contact will prepare the child for overnight contact at about the time the parties originally agreed she would be ready for it. Compensatory contact will increase the pace and volume of contact so that the child will be more settled when overnight contact starts.
To the extent necessary the current orders will be adjusted to build a reasonable pace of day contact before overnight contact starts. There was really only a small difference between the two outcomes proposed by the parties. The court has struck a balance that focused on the child’s age and stage of development and her relationships with her parents. Other than the minor variation apparent in the orders, the respondent’s variation application is dismissed.

Costs

This is an application by the applicant in the contravention proceedings that the respondent pays his costs. The amount sought is $2840, which is the applicable amount by reference to Schedule 1 of the Federal Magistrates Court Rules 2001.
The Act provides that ordinarily parties pay their own costs. It also provides that when the court is considering an application for costs, it determines the matter by reference to the factors set out in s.117(2)(a). It must be said, in a general sense, that costs are generally regarded as being a discretionary matter for the court within the context of the primary rules set out in s.117(2).
Dealing with the relevant matter seriatim. Both parties have limited financial circumstances. I accept the respondent’s solicitor's contention that his client uses all of her income to support herself and the child and that there is little, if anything, available for her after she has met her necessary expenses. The same is probably the case for the applicant but as the child does not live with him, the draw on his income for her support is not as heavy as it is on the respondent. The application of subsection (a) favours the respondent.
Neither party is in receipt of a grant of legal aid.
The applicant's counsel contends that these proceedings have been necessitated solely as a consequence of the respondent's failure to comply with orders. Obviously this is so. I agree with his submission that subsection (c) favours the applicant.
The applicant's counsel also contends that his client has been wholly successful in relation to the proceedings. That is true as far as it goes but it cannot be lost sight of that the applicant withdrew 10 counts at the start of these proceedings. The relevant matter though is that these were withdrawn before costs were incurred of the actual hearing. The application of the subsection favours the applicant.
It is always difficult deciding an application for costs when the parties have limited financial circumstances. The respondent should have thought very carefully before she decided to resist this contravention application. She had the opportunity to contemplate voluntarily giving some form of compensatory contact or re-establishing contact before the matter was heard. She had notice by the letter of 15 December 2003 that the applicant was keen to re-establish contact. It seems she dug her heels in and determined that she would re-establish contact on her terms or pursuant to a further order of the court.
The financial consequences of the order I will make will be harsh to the respondent. However, there is no reason in these circumstances why the applicant who has recently obtained orders and has needed to return the matter to court in order to force compliance, should carry the cost of doing so. There should be an order for costs made against the respondent in the sum sought. The respondent does not appear to have incurred additional costs herself as a consequence of those abandoned by the applicant. The respondent will have six months within which to pay the amount due. She will have the opportunity to pay the amount due by equal monthly payments. If she fails to make any of the payments due by way of instalment, the balance will immediately become due and payable. Interest on the balance outstanding at the end of two months will be payable in accordance with the Family Law Rules.

For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 12 July 2004