Coburn and Garner (No. 2)

[2017] FamCA 691

FAMILY COURT OF AUSTRALIA

COBURN & GARNER (NO. 2) [2017] FamCA 691

FAMILY LAW – ORDERS – Contravention – no reasonable excuse  – bond and post separation parenting course.

APPLICANT: Mr Garner

RESPONDENT: Ms Coburn

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr D Piekarski

FILE NUMBER: MLC 2553 of 2014

DATE DELIVERED: 25 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 25 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Garner in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Swan

SOLICITOR FOR THE RESPONDENT: Swan Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

IT IS DIRECTED:

1.That the mother and the father each attend a post-separation parenting program as recommended by the independent children’s lawyer, such recommendation to be provided to the parties by 1 November 2017.

2.Each parent provide evidence of his or her enrolment in such post-separation parenting program to the independent children’s lawyer by not later than 1 January 2018; and

3.Each parent provide proof of completion to the independent children’s lawyer and the other party.

IT IS ORDERED THAT:

4.I find Count 1 of the father’s Contravention Application filed 28 April 2017 proved in that the mother without reasonable excuse contravened paragraph 10 of the final order made on 30 January 2017 in that she did not do all acts and things necessary to ensure that the child B born … 2010 be referred to as “B D” at her school.

5.Pursuant to s 70NEB(1)(d) of the Family Law Act 1975 the mother enter into a bond for a period of two years without surety or security and on the following conditions;

a)      to be of good behaviour for that period;

b)      to attend the post separation parenting program provided for herein.

6.The independent children’s lawyer provide a copy of the Order made on 30 January 2017 to the Proper Officer of the school (notwithstanding that the school may already have a copy) together with confirmation of the outcome of today’s hearing was amongst other things that the child B born … 2010 must be referred appropriately in accordance with paragraph 10 of the said Order.

7.To facilitate the forthcoming trip of the children B born … 2010 and C born … 2013 with their mother to Israel, the mother be at liberty to collect the passports of the children held pursuant to paragraph 14 of the Order made on 30 January 2017 from the Proper Officer of this Registry of the Court and do so on or after Monday 28 August 2017.

8.Within 5 days of the mother and children arriving back in Australia from Israel the mother deposit with the Registry Manager of this Registry of the Court any passports of B born … 2010 and C born … 2013 and the Registry manager shall hold any Australian passport so deposited in safe custody until further order.

9.The independent children’s lawyer remain appointed in this matter until 1 June 2018.

10.The hearing in the Judicial Duty List on 6 September 2017 be vacated.

11.All extant applications be and are hereby dismissed and this matter removed from the list of cases maintained by the Court.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Coburn & Garner (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2553 of 2014

Mr Garner

Applicant

And

Ms Coburn

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as the contravention application of the father against the mother, filed on 28 April 2017.  The father appears in person.  The respondent mother is now represented by Swan Lawyers and Ms Swan appears on her behalf. 

2. I am indebted to the independent children’s lawyer for being represented at this and previous hearings of the father’s contravention application.  It’s a complex matter and, whilst the issue of contravention is not particularly difficult, the issue of what to do post the contravention application was always going to be difficult and that’s regardless of whether or not the contravention was found to be proved.

3. It is alleged that, in contravention of paragraph 10 of the order made on 30 January 2017, the mother without reasonable excuse failed to all acts and things necessary to ensure that the child, B, be referred to as “B D” at her school (“the contravention”). 

4. Paragraph 10 reads as follows:-

   (10)The mother and father do all acts and things necessary to ensure that the child [B] be referred to as “[B D]” at her school. 

   I will refer to this as “the primary order”.  Other orders which are relevant to this case appear at paragraph 12 of the final order and paragraph 30 of the final order which respectively read as follows: 

   (12)The mother and the father comply with the school rules in relation to each of the children while the children are on school premises or in the vicinity of the school and when in school uniform.

   (30)In the operation of paragraphs 10 and 11 of this order, each parent be and is hereby restrained by injunction by causing, permitting or suffering any action contrary to paragraphs 10 and 11.

5. Paragraph 11 of the final order made on 30 January 2017 pertains to the styling of the children’s hair, a matter for which the mother is responsible.  It’s not relevant for this application.

6. The father has affirmed two affidavits in support of the application, one on 28 April 2017 and one on 3 July 2017.  The mother has sworn two affidavits in respect of this particular application, one being sworn on 25 June 2017 and the other on 15 August 2017.  Both parents were cross-examined. 

7. The mother denies the contravention.  After hearing evidence in support of the application, it was submitted that the mother has a reasonable excuse for contravening the order.  The reasonable excuse was, as best I can discern from Ms Swan’s submission, that there was ambiguity between paragraphs 10 and 12 of the final order which ambiguity led to a genuine mistake on the part of the mother. The mother says she became aware that her belief was mistaken and the primary order required the child to be referred to as “B D”, she acted promptly to rectify any misconception. Further, whereas the final order was made in January 2017, it was not until March or April that there was any controversy about the name of the child at the school by which time the mother was immersed and completely distracted by endeavouring to obtain mirror orders in Israel which would facilitate her being able to travel to Israel for the forthcoming wedding of her sister and that she was too distracted to look at the issue of the child’s name.

8. I will deal with the evidence in a chronological manner.

9. Annexed to the father’s affidavit in support of the contravention application (document 50) there is annexure 2 which is an email from the head of E School addressed to the father, dated 8 March 2017, and it reads as follows:

   Hi [Mr Garner], [Mr F] has copied me into the correspondence with you regarding how we refer to [B D] at school.  Is it possible for you to email your request to [Ms Coburn] so it is absolutely clear as [Ms Coburn] prefers [B D] to be called [D] only during Jewish studies and Hebrew language classes.  We hope this is agreeable to you.  Regards, [Ms G].

10. That correspondence was sent in response to an email from the father sent on 31 January 2017 in which he made clear, by paragraph 3 thereof, that B D was to be referred to as “B D” in all classes, including general and Jewish studies. 

11. On 17 March 2017, Mr H, the Principal of E School, wrote to the father as follows:

    Hi [Mr Garner], we are more than happy to take instructions from you in relation to whatever you want us to call [B D].  Once again, we are in a difficult situation as a school until we received clarity and a joint instruction from both parents.  We aren’t trying to be difficult but we are trying to do what both parents want us to do.  Have a wonderful weekend.  [Mr H].

    (Annexure 3 to the father’s affidavit, affirmed 28 April 2017.)

12. Each of the above emails was known to the mother at the very latest when she received the father’s affidavit in support of the contravention application, which was filed on 28 April 2017. 

13. The parties approached the independent children’s lawyer in this matter, Mr Piekarski. Attached to the father’s affidavit sworn on 3 July 2017 is correspondence from the independent children’s lawyer to the wife’s solicitor, Ms Swan, and copied to the father. 

14. The correspondence commences with a letter from the independent children’s lawyer dated 21 March 2017 in which he says, “In my view, paragraph 10 of the orders of 30 January 2017 is clear with respect to this issue”.  The issue was the reference to the child as B D.  A reply was then sent by Ms Swan to Mr Piekarski that:

    my client understands this.  She would like your opinion in light of order 12 where it may conflict with order 10. 

15. By letter dated 23 March 2017 to Ms Swan and copied to the father, the independent children’s lawyer wrote,

    “I have not been aware of a specific written formal rule requiring that B be referred to by any name other than [B D] as provided in paragraph 10.”  Accordingly, my view is that paragraph 10 would be presumed to take precedence. 

    If the school required that [B] be known as something other than “[B D]” and could provide cogent reasons for why such a position was required, especially in circumstances where there are Family Court orders with respect to this issue, I would be amenable to reconsidering my position. 

16. On 6 June 2017 a letter was sent by Mr H to the mother and to the father.  Relevantly, it reads as follows: 

    Dear [Ms Coburn] and [Mr Garner], I know there has been a lot of correspondence in relation to [B D’s] name and how she is referred to at school.  As principal of the college is responsible for policy and practice at the school, please allow me to clarify the school’s position and practice in relation to [B D] and all our students. 

    Generally, a child at [E School] will be referred to by their preferred name as indicated by their parents, that is their Hebrew/English name or both.  Generally, in all Judaic studies and Hebrew classes, which are predominantly language and Hebrew text based, all children in the Colleges are referred to by their Hebrew names (only) as is common practice in religious schools of our ilk in Australia and around the world.  We find there is no confusion or counter-educational/developmental outcome for children being referred by to an English or alternative Hebrew name in different settings in school.

    This is our general practice as it is employed across the colleges.  We do not have any formal written policy in this area. 

    We are always happy to comply with any specific/extraordinary parenting/legal instructions in relation to the name we call a child, however please do be aware that we should - that should we call [B D] simply by her English name only in Judaic studies and Hebrew studies, we will be making a marked difference between her and her peers. 

    Once again, we are always happy to comply with your mutual wishes as are communicated to us.

17. On 25 June 2017, the mother swore an affidavit which was filed on 26 June 2017 in these proceedings.  In paragraph 2 and 3 of that affidavit, the mother deposes: 

    (2)The applicant is refusing to follow the school rules as per the use of the children’s ‘Hebrew names’ during Jewish studies and Hebrew lessons.

    (3)The applicant addressed school teachers and the principal on many occasions.  On all occasions the applicant was told by school staff that using the Hebrew name of a student during Jewish studies or Hebrew lessons is the school rule and custom.

18. Later, the respondent mother deposed:

    (5)There has been no occasion on which I have been - which I have asked the school to contravene the consent orders of 30 January 2017.  My daughter is called [B D] in every other situation outside of her Hebrew and Jewish studies classes.  That she is referred to by her Hebrew name [D] during Jewish studies and Hebrew lessons is in keeping with the long-accepted custom and practice of the school.  I believe that it will not be in the best interests of my daughter to be treated differently to her peers, a point which [Mr H] reiterated in his email dated 6 June 2017 […]

    (6)…  I see no reason to allow my daughter to be different in this case regardless of how many hours a day she spends learning these subjects.

19. I am fortified in my view that the school was awaiting a direction from the mother to call the child ‘B D’ in Jewish and Hebrew studies by an email which the mother sent to the father and to Mr H on 28 July 2017.  That email read as follows: -

    Dear all, I have read his Honour’s judgment.  I agree that our daughter should be referred to as [B D] at all studies at [E School].  I have included [Mr H] in this email. 

    I will tender this email to the Court if you persist in your contravention application.

20. Today the mother’s practitioner tendered an email from the principal of B D’s school, dated 22 August 2017 (three days ago) and it reads as follows:

    I refer to your request to [Mr H] to contact you.  It is not the school’s policy to write affidavits on behalf of any parent in relation to school - Family Court disputes.  In answer to your question in relation to [B D’s] name.  It is the school’s practice to call students by their Hebrew names during Jewish studies and Hebrew language classes.  [Mr Garner] sent us Court orders.  When we reviewed them, order 10 and 12 appeared contradictory. 

    My understanding was that if it is school practice to call a child by those Hebrew name in those above-mentioned classes, we would not be in contravention of the Court orders.  However, [Ms Coburn] subsequently instructed us to always call the child [B D] in all school lessons.  This instruction was relayed to her teachers, and this is what we have done and continue to do in order to comply.

21. The mother gave evidence to the effect that she understood paragraph 12 would override paragraph 10.  I do not find that convincing on the issue of the mother’s denial of the contravention or reasonable excuse.  Neither do I find that paragraph 12 does overrule the primary order in this instance.  The mother confirmed today that she did not adduce any evidence at the final hearing that in spite of any order in the terms of the primary order the child would be referred to by her Jewish name pursuant to a rule or practice or custom of E School. 

22. It is clear from the evidence upon which both parties rely in the form of emails from E School that the school is content to comply with any directions given by the parents as to what the child will be called within and outside Jewish or religious studies at this campus.  Having regard to the above evidence, I find, therefore, that the mother did contravene the primary order. 

23. Reasonable excuse is defined in section 70NAE of the Act as:

    A person is taken to have a reasonable excuse for contravening an order under this Act if (a) the respondent contravened the orders 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. 

24. Here it is submitted on behalf of the mother that she did not understand the obligations under the primary order.  However, her evidence was quite to the contrary.  Her evidence was that notwithstanding she was prepared to consent to the primary order, she was relying on paragraph 12 of the final order to supersede or override her obligations under the primary order in relation to Jewish and Hebrew studies. 

25. The mother also confirmed that she did this in the context of not having adduced any evidence at the final hearing that there would be a special rule or custom in the school which would have this effect. If there was any lack of ability for her to have committed that evidence to affidavit, she had the opportunity to give it in the viva voce evidence which she gave.  When the mother drew her affidavit, which was sworn on 25 June 2017, it outlined what had been her experience of the previous 12 years of teaching in Jewish schools, matters upon which she seeks to rely now but did not make clear at the time that the primary order was made. 

26. In any event, I find that paragraph 12 does not override the primary order because the school is ready and available, and has now, taken the joint direction of the parents to refer to the child as “B D”. 

27. I find that there is no reasonable excuse upon which the mother can rely. 

28. For the avoidance of doubt, I do not consider that the distraction of the mother obtaining orders in Israel is an adequate excuse for not complying with the primary order. 

29. Finally, the construction of the orders, which I find to be reasonable, was notified to the mother by the independent party, being the independent children’s lawyer, as early as 23 March 2017 as I have detailed above.

30. This is not, as the wife’s practitioner has characterised, a silly application.  However, I certainly hope that it is not an application the likes of which I will need to entertain in the future. 

31. Turning to penalty, this matter comes under section 70NEA€ which is contravention where the person doesn’t have a reasonable excuse and there are no previous findings of contravention. I’m not at this point minded to characterise this as a serious disregard by the mother of her obligations under the primary order. The mother’s solicitor suggested a bond is appropriate but then appeared to seek just an order for a post-separation parenting course.

32. The mother understands a bond. I am satisfied that a bond is most appropriate because it ensures some ongoing compliance.

33. Otherwise, both parties should go to parenting courses chosen by the independent children’s lawyer. They should be serious courses with a focus on high parental conflict and the corrosive impact upon children of covert hostility between parents.

    RECORDED: NOT TRANSCRIBED.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 25 August 2017.

Associate: 

Date:  8 September 2017