COLLINS & RICARDO
[2017] FamCA 882
•29 September 2017
FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO | [2017] FamCA 882 |
| FAMILY LAW – CHILDREN – FINAL – Where previous final orders provided for the child to live with the mother and have supervised recognition time with the father – Where such previous final orders established that the father presented an unacceptable risk of harm to the child – Where there is a failure of evidence to establish that the father no longer poses an unacceptable risk of harm – Where there is an ongoing high degree of conflict between the parties – Where the father has not spent time with the child since March 2015 – Where there is an absence of a relationship between the father and the child – Where the child has a close relationship with the mother – Where there is a likelihood of continued conflict if any provision is made for communication between the child and the father – Where the previous final orders are varied to provide for the father to spend no time and have no communication with the child. FAMILY LAW – PRACTICE AND PROCEDURE – Where there are several outstanding applications – Where there is no utility in the continuation of the outstanding applications – Where all outstanding applications are dismissed – Where it is found that the father has frequently conducted vexatious proceedings – Where a vexatious proceedings order against the father is made. |
| Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Bennett & Bennett (1991) FLC 92-191 Chranley & Smart (2012) 47 Fam LR 581 Goode & Goode (2006) FLC 93-286 Kettle & Baker [2014] FamCAFC 85 M & M (1988) 166 CLR 69 Mankiewicz & Swallow (2016) FLC 93-725 SCVG & KLD (2014) FLC 93-582 SPS and PLS (2008) FLC 93-363 |
| APPLICANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
| FILE NUMBER: | SYC | 4959 | of | 2009 |
| DATE DELIVERED: | 29 September 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 4, 5, 6 September 2017 |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Trevino |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
Orders
The order made by the Honourable Justice Watts on 12 January 2012 be discharged save for paragraphs 2 and 4 which are in the following terms:
(2) The mother shall have sole parental responsibility for the child S born … 2008.
(4) the child shall live with the mother.
The father shall spend no time with the child.
Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) the father be prohibited from instituting proceedings against Ms Ricardo under this Act in a court having jurisdiction under this Act and all outstanding applications filed by the father be dismissed.
All outstanding applications filed by the mother be dismissed.
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 Collins & Ricardo 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 BRISBANE |
FILE NUMBER: SYC 4959 of 2009
| Mr Collins |
Applicant
And
| Ms Ricardo |
Respondent
REASONS FOR JUDGMENT
The parties to this litigation are the parents of S born 2008.
S (the child) has been the subject of continuous litigation between her parents since shortly after her birth.
A final parenting order was made by Justice Watts after a nine day hearing in 2011 with judgment delivered on 12 January 2012 (“the 2012 order”). The 2012 order limited the father’s time with the child to ‘recognition time’ on four occasions each year for two hours on two consecutive days supervised at a Contact Centre. The father’s appeal against that order was dismissed on 7 May 2015.
This is the hearing of the father’s further Initiating Application filed 21 January 2014 (amended on 28 July 2014) and further amended by leave on 5 September 2017. The order now sought by him is in the following terms (set out in the precise terms as sought):
1. Relocation order to relocate the Mother to [City 2] for 50/50 shared care
2. Joint custody with [the child] residing with the Father.
First half of Christmas holidays with the Mother for 3 weeks in [Cairns]. Father pays air fairs.
2 Weeks after Easter in City 2 for 9 days Saturday-Sunday in [City 2]. [The child] stays over night with the mother whilee at school. Mother pays air fares
Mid June school holidays in [Cairns] for 2 weeks, Father pays air fairs.
Mid October in [City 2] for 9 days Saturday-Sunday in [City 2]. [The child] stays over night with the Mother while at school. Mother pays air fares.3. Joint Custody with [the child] residing with the Mother.
First half of Christmas holidays with the Father for 3 weeks in [City 2]. Mother pays air fairs.
2 weeks after Easter in [Cairns] for 9 days Saturday-Sunday in [Cairns]. [The child] stays over night with the father while at school. Father pays air fares.
Mid June school holidays in City 2 for 2 weeks, Mother pays air fairs.
Mid October in Cairns for 9 days Saturday-Sunday in Cairns. [The child] stays over night with the father while at school. Father pays air fares4. [S] can call when ever she wants on her own phone parents to pay half the costs each in purchase and running.
5. Skype to skype Birthdays, Christmas and fathers day and the first Sunday of each month at 9am EST for minimum of 20 mins
6. [S] to have regular monthly contact with her Paternal grandmother by way of Skype after reunification the second Sunday of each month at 9am EST.
This will be a minimum at birthdays and Christmas and once a month
7. Ms Ricardo to send bimonthly photo and report on the child
8. [S] to have pictures of the Fathers family at her bed.
9. $30,000 bond to be paid by the Mother before [the child] goes out of the country.
10. [S] to stay on the Airport watch list.
11. Mother not to alienate the child from any of the family.
12. Mother not denigrate the Father.
13. Contact dates and times can be altered with agreement in writing.
14. Major penalty involved for no compliance.
(errors in original)
The father clarified that he intended the first three paragraphs listed above to be alternatives, and that by ‘joint custody’ he meant equal shared parental responsibility.
The mother opposes the father’s further Initiating Application (as amended) and is seeking a discharge of the 2012 order save for paragraphs 2 (sole parental responsibility to mother) and 4 (live with mother) and is seeking an order that the father spend no time with the child.
history of proceedings
A chronology of the relevant history of proceedings in this Court was tendered by consent and is included as Appendix 1 to these Reasons.
The father’s further Initiating Application was first set down for trial before Rees J in Sydney on 5 December 2014 but was unable to proceed because the father’s appeal against the 2012 order had not been finalised. As noted above the appeal was dismissed on 5 May 2015.
On 17 September 2015 the proceedings were transferred to the Cairns Registry.
On 27 October 2016 an order was made to, among other things, set down the substantive proceedings for hearing for three days commencing 21 December 2016.
The trial was unable to proceed on those dates due to a pending appeal instituted by the father against the order made on 27 October 2016.
The father’s appeal was dismissed on 10 March 2017 and on 20 March 2017 the substantive proceedings were again set down for final hearing for three days commencing 4 September 2017.
matters relevant to the conduct of the hearing
Trial directions
Trial directions were made on 27 October 2016 including the following:
10. By 4.00pm on Friday 25 November 2016 the mother file and serve an affidavit by her treating psychiatrist annexing a detailed curriculum vitae including professional qualifications and a report addressing the following matters in particular:
(a)The dates of any consultations the mother has had with the psychiatrist;
(b)Does the mother suffer from a mental illness;
(c)If the mother suffers from a mental illness what treatment has been provided and/or recommended;
(d)If the mother suffers from a mental illness what is her prognosis;
(e)If the mother does not suffer from a mental illness what has been the purpose of the consultations;
(f)If the mother suffers from a mental illness does her illness have a negative impact on her parenting ability and if so, how;
(g)If the mother does not suffer from a mental illness have any observations of the mother been made that cause the psychiatrist to opine that the child is at risk in the mother’s care;
(h)Any other relevant matter;
(i)The factual basis for any opinion expressed is to be made clear in the report.
11. By 4.00pm on Friday 25 November 2016 the mother file and serve an affidavit from the child’s treating psychologist annexing a detailed curriculum vitae including professional qualifications and a report addressing the following matters in particular:
(a)The dates of any consultations the child has had with the psychologist;
(b)The purposes of such consultations;
(c)Any diagnosis;
(d)Any prognosis;
(e)Any other relevant matter;
(f)The factual basis for any opinion expressed is to be made clear in the report.
12. By 4.00pm on Friday 25 November 2016 the father shall file and serve a list of affidavits to be relied upon at the hearing of the substantive proceedings.
19. By 4.00pm on Friday 4 November 2016 the father file and serve a list of material that he has filed in the Family Court of Australia and which he contends may be relevant for the family consultant to peruse for the purposes of preparing the family report.
23. The family report will be prepared in two (or more) stages (at the discretion of the family consultant) with the family consultant to interview and observe the mother and the child in Cairns and then conduct an interview with the father via video link from the Cairns Registry to Wollongong and in that regard, the Case Coordinator in Cairns will contact the parties and notify them of dates and times for such interviews to occur.
25. The father shall attend all such appointments via video link from the Cairns Registry to Wollongong as are reasonably necessary for the preparation of the family report.
26. In the event the family consultant considers it would be of assistance to have the child and father communicate via video link the mother shall make the child available for that purpose.
Notation
36. The father stated that he will not attend at the Cairns Registry for the purposes of the preparation of the family report and will not attend at the Cairns Registry for the purposes of the trial.
On 2 December 2016 the hearing dates were vacated and the trial directions were suspended pending determination of the father’s appeal.
On 20 March 2017 further trial directions were made including the following:
1. The trial of the substantive proceedings in this matter (being the father’s amended Initiating Application filed 28 July 2014 and the mother’s Amended Response filed 26 August 2016) is listed before the Honourable Justice Carew at 10:00am on 4 September 2017 for a period of 3 days at the Family Court of Australia Cairns Registry in Queensland (“the Cairns Registry”).
4. The issues to be determined at the trial of the substantive proceedings are as follows:
(a)Whether the final parenting order made 12 January 2012 has been discharged pursuant to paragraph 8 of the order.
(b)Whether there has been a change in circumstances sufficient to warrant a re-hearing of where the child, [S] born … 2008, (“the child”) should live and what time the child should spend with the other parent.
(c)Whether there should be any variation to the order made 12 January 2012 as sought by each party.
(d)Whether any interim order should be made in the event that judgment is reserved.
7. By 4.00pm on 14 August 2017 the father shall file and serve a list of affidavits to be relied upon at the hearing of the substantive proceedings.
14. The family consultant has leave to read any document that he/she considers necessary for the purposes of preparing the family report and to review any material produced to the Court pursuant to subpoena and in that event, the family consultant should list the documents/material to which he/she has had regard.
15. The family report will be prepared in two (or more) stages (at the discretion of the family consultant) with the family consultant to interview and observe the mother and the child in Cairns and then conduct an interview with the father via video link from the Cairns Registry to Wollongong and in that regard, the Case Coordinator in Cairns will contact the parties and notify them of dates and times for such interviews to occur.
17. The father shall attend all such appointments via video link from the Cairns Registry to Wollongong as are reasonably necessary for the preparation of the family report.
18. In the event the family consultant considers it would be of assistance to have the child and father communicate via video link the mother shall make the child available for that purpose.
21. By 4.00pm on 18 August 2017, the father file and serve a list of all Applications filed by him (including any Applications – Contravention) that have not been finalised and for which he requests a determination.
23. By 4.00pm on 18 August 2017 the father file and serve a list of affidavits relied on in support of each Application.
25. All outstanding Applications (including any Applications – Contravention) are adjourned to the first day of trial.
Notation
28. The father advised the Court that he would not attend the Cairns Registry for the purposes of preparing the family report and will not attend the Cairns Registry for the purposes of the trial.
On 28 August 2017 the father was again ordered to file and serve a list of affidavits he intended to rely upon at the hearing of the substantive proceedings requiring in particular that he name the deponent of each affidavit and the date the affidavit was filed.
The material relied upon
Despite orders requiring the father to file and serve a list of affidavits (naming the deponent and date of filing) that he intended to rely upon at trial the father did not do so. He maintained that he had emailed the court stating that he wanted to rely on all affidavits filed by him since 2009. This is in circumstances where, as noted, the first round of child-related proceedings had been finalised in January 2012 and importantly there had been tens of other applications filed since that time, some of which had been finalised. The father’s position was most unhelpful and his attitude belligerent.
Doing the best the Court could, particular affidavits were identified as perhaps being relevant to the hearing of the substantive proceedings as follows:
a)Affidavit of the father filed 16 April 2014;
b)Affidavit of the father filed 6 December 2016 (comprising four lever arch folders although three were not stamped as having been filed and were found in a box with subpoenaed material. A lime green folder, a dark green folder, a large white folder and a small white folder)
c)Affidavit of Ms I Collins filed 30 August 2017.
In addition the father was granted leave to rely upon all of his affidavits filed in support of his sixteen outstanding contravention applications and a contravention application and affidavit filed 5 February 2015 which despite the Court record indicating its finalisation the father maintained had not been.
The mother did file a list of affidavits but ultimately relied upon only particular paragraphs of her affidavits filed 17 February 2014, 11 September 2015 and 25 November 2016 and an affidavit by her treating psychiatrist Dr ZZ filed 29 November 2016 and the child’s psychologist Ms BC filed 29 November 2016. In addition she relied upon the Family Report dated 12 June 2017; Reasons for Judgment of Watts J date 12 January 2012; Reasons for Judgment of the Full Court dated 7 May 2015; Reasons for Judgment of Loughnan J dated 7 April 2016.
With the consent of the parties, the following further documents were received into evidence:
a)Child Responsive Program Memorandum dated 30 July 2014;
b)A list prepared by the court of the forty-four orders made since the 2012 order (a copy of the list is included as Appendix 2 to these Reasons);
c)A list prepared by the court of the twenty applications yet to be heard by the court plus one further application said to be outstanding by the father (a copy of the list is included as Appendix 3 to these Reasons).
Finally, there were various documents tendered during the hearing.
Management of the trial
In deciding to actively manage and direct the trial process I have had particular regard to the principles for conducting child-related proceedings set out in Division 12A of the Act. They are as follows:
a)The court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
b)The court is to actively direct, control and manage the conduct of the proceedings;
c)The proceedings are to be conducted in a way that will safeguard:
i)The child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
ii)The parties to the proceedings against family violence;
d)The proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties;
e)The proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The general duties of the court in child-related proceedings include deciding which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; decide the order in which issues are to be decided and deal with as many aspects of the matter as it can on a single occasion.
Of course the overriding duty of a court is to afford parties procedural fairness and I have been mindful at all times of the need to do so while still applying the principles and duties required by Division 12A.
The father was permitted to cross-examine the mother for four hours and six minutes; Dr ZZ for thirty-five minutes; Ms BC for forty-five minutes and Mr CD for two hours. As the father claimed to have not had the opportunity to read the family report prior to the commencement of the trial he was afforded an opportunity to do so and was also afforded the opportunity to give further oral evidence in response to the report.
The mother’s counsel cross-examined the father for one hour and seventeen minutes and did not require Mr CD or Ms I Collins for cross-examination.
The father’s submissions were made over two hours and twenty-five minutes.
Issues considered at trial
Despite paragraph 4(b) of the order made 20 March 2017 indicating that the issue of whether or not there was a significant change in circumstances might be heard as a threshold issue the parties conducted their cases and presented evidence to support their competing parenting applications as envisaged by paragraph 4(c) of the order. The mother complied with the directions requiring that she file an affidavit from her treating psychiatrist and the child’s treating psychologist. The father did not take the opportunity to file an updated affidavit of evidence in chief as permitted under the trial directions. Various subpoenas were issued at the behest of the father. A family report was prepared.
Limitations were placed on the topics about which the father could cross-examine the mother. In particular the father contended that he wanted to prove seventy-nine counts of perjury against the mother upon which Watts J decision was based. The father was not permitted to do so. The reason for this can most readily be understood having regard to the findings made by Watts J in relation to the mother’s credit at that trial:
48. I also have difficulty accepting some of the things the mother said. It is probable that she was exaggerating some of the claims that she had made against the father. …
49. Some of what I have said about the mother’s evidence, particularly the inappropriate sexual abuse allegation, raises serious doubt about the ability to rely on the mother’s evidence in an uncritical way.
50. … Where the parties disagree, the weight I place on either party’s evidence … is limited unless I have formed the view that the parent’s evidence on a particular matter was inherently more likely or that there was some other evidence that might support what they were saying.
Perhaps even more important than issues going to the mother’s credit are the conclusions reached by Watts J as to why the father presented an unacceptable risk of harm to the child. His Honour’s conclusions were not based on the mother’s evidence but on the evidence (independent of the mother) relating to the father’s treatment of three of his older children, L, V and Ms J.
The following findings by Watts J are apposite:
267. As I have discussed above, the father’s personality traits led him over a long period of time to behave in a way which has made both his partners and his children feel controlled by him in the manner they found oppressive and ultimately overwhelming. I find there is a need in this case to protect [the child] from the psychological harm that might be caused to her from being subjected to or exposed to the types of behaviour by the father which has, in the past, led to a child feeling frightened, oppressed and claustrophobic. There is also a need to protect [the child] from the physical excesses of the father’s aggressive and violent physical behaviour. This behaviour has normally exhibited itself in circumstances where a child has not been prepared to comply with the father’s will. The father sees this as reasonable discipline but I have found it has, on various occasions, exceeded what could in any circumstance be considered reasonable. The slap to [Ms J’s] face, which the father denies and I found happened, is the most obvious example. The father also, as I have found has little insight into the apprehension the mother has for [the child’s] physical safety in the father’s care. The father is strongly of the view that all risk taking in physical activities in which he involves the children are within reasonable bounds. I have little confidence in the father’s judgment in that regard. I find the father’s attitude to [Ms J] falling out of the back of the utility and being taken unconscious to hospital, disturbingly blasé. The potential for the father to behave in a way which gives rise to the risk of harm to [the child], arises both from the father’s personality traits and the fact that I find in this case, notwithstanding the father’s protestations, that his behaviour is a prediction of future behaviour.
The father maintained throughout this hearing that the only reason Watts J imposed supervision on his time with the child was because he had not spent time with her since she was eight months old and needed time to reconnect. The father’s understanding is misconceived as demonstrated by the passage quoted above.
Family report
The father did not comply with the order requiring him to participate in the Family Report by video link which had been arranged to occur at the Wollongong Registry. The father sought to justify his breach of the order by accusing the court of withholding his affidavits from the family report writer.
This unfounded accusation was made in circumstances where the father had failed to comply with paragraph 19 of the order made on 27 October 2016 requiring him to file by 4 November 2016 a list of material which he contended may be relevant for the family consultant to peruse for the purposes of preparing the family report. In any event the family report writer was granted leave by paragraph 14 of the order made 20 March 2017 to peruse any material on the court file.
As Mr CD, family report writer, pointed out to the father during cross-examination the court file comprised ten boxes of documents. He nevertheless read a number of documents identified in the body of his report. Notwithstanding the father’s failure to attend for the video link interview, Mr CD telephoned the father to seek his input. The father conveyed the following to Mr CD:
a)He did not feel he would be afforded a fair evaluation;
b)A family report would be unhelpful to his situation;
c)The mother had committed 79 counts of perjury;
d)Family report writers are biased against fathers;
e)The family consultant would be unable to make a proper evaluation without meeting him in person, conducting direct observations of his interactions with the child, observing his current family and said he would have to bring everyone to Cairns or the family consultant would have to attend his home;
f)He expressed concerns about the mother suffering from Post-Traumatic Stress Disorder and the child attending a child psychiatrist, psychologist and counsellor;
g)He was able to provide a more stable living environment for the child;
h)The mother “is now on her eighth partner”;
i)The mother had participated in property settlement matters with previous partners and had moved house often;
j)He has only moved house on two occasions in the past 50 years, he volunteers, participates in disaster relief assistance, lives in a stable community and is well respected in the community;
k)He runs his own business/farm;
l)He brought to the attention of the family report writer a blue and green folder with some sixty different character references which he said needed to be viewed;
m)He asked rhetorically why he would participate in something that would not help him.
I note that the father had every opportunity to attend in person with his family at either the Cairns Registry or the Wollongong Registry but refused to do so. In this context I note the evidence of Ms I Coloquhoun:[1]
41. Most holidays are spent at the Snow (sic) or in Cairns. … We have also been overseas on holiday.
[1] Affidavit dated 4 December 2015 annexed to father’s affidavit filed 6 December 2016
The father’s participation in the hearing
The father participated on the first two days via video link from the Wollongong Registry and on the third day he was granted leave to participate via telephone from his home at City 2. On the first day of trial the father requested a late start on the second day of trial so that he could attend to his livestock. He indicated that he might be up to thirty minutes late. His application was granted on the basis that the time would have to be made up by adjusting normal court sitting times. As it happened the father was fifty minutes late and then complained about being exhausted and indicated that he may need an adjournment to get a medical certificate. The father was informed that he could attend upon a doctor during the luncheon adjournment if he so chose and that an adjournment was not going to be granted for him to do so.
On the third day of trial the matter was scheduled to resume at 9.30am. The father initially made himself available when called by the Court but terminated the call shortly thereafter. After twenty minutes the father was contactable and he informed the Court that his wife had called the police because she was so worried that he might harm himself. He said that the police had departed. The trial continued.
Outstanding contravention and other applications
The trial directions made on 27 October 2016 and 20 March 2017 each required the parties to file a Notice of Discontinuance of any Application (including any Contravention Applications) they no longer wished to pursue. In addition, each party was required to file a list of all Applications filed by them (including any Contravention Applications) that have not been finalised and for which a determination is required. Neither party discontinued any Application nor filed a list of Applications outstanding.
Accordingly the Court prepared the list which was ultimately received into evidence by consent. Mr Trevino, counsel for the mother, indicated that his client would consent to an order dismissing her four outstanding applications on the basis that there be no order as to costs.
Neither party took objection to the determination of the substantive proceedings prior to the hearing of the outstanding contravention applications.[2] All outstanding applications were initially adjourned to the first day of trial. It was intended to at least mention the outstanding applications at the conclusion of the trial but there was insufficient time. Accordingly, without objection, the outstanding applications were stayed pending delivery of this Judgment.
[2] For a discussion about the power to do so see: Chranley & Smart (2012) 47 Fam LR 581; Kettle & Baker [2014] FamCAFC 85; Kovacs & Graham [2015] FamCAFC 98
Vexatious proceedings order
On the second day of the hearing the Court brought to the attention of the parties the provisions of s 102QB (vexatious proceedings order)[3] and invited the parties to make submissions at the end of the trial as to why such an order should not be made against either or both of the parties.
the ‘rule’ in Rice & Asplund[4]
[3] Copies of the relevant sections were provided to the father
[4] (1979) FLC 90-725
While a parenting order is never final in the true sense of that word and as the provisions of Part VII of the Act themselves make clear, in particular s65D(2), there are restrictions placed on a party wishing to vary substantive parenting orders. The Court will need to be satisfied that there is a change of circumstances sufficient to warrant a re-consideration of the order or that some matter of sufficient gravity was not disclosed at the first trial.
There has been some discussion over the years about whether the principles espoused in Rice & Asplund are properly called a ‘guiding principle’ or ‘binding rule’[5]. However it might properly be described, it is fair to say that the ‘rule’ has been universally applied for well over thirty-five years.
[5] Poisat & Poisat(2014) FLC 93-597 for a recent discussion
Whether it is applied at a preliminary stage or after a full hearing the best interests of the child remains paramount and the Court is not relieved of its obligation to consider the relevant legislative provisions set out in Part VII.[6] The stage of the proceedings at which the rule is applied is a matter within the discretion of the presiding judicial officer[7] although its significance is likely to be greater when applied at a preliminary stage[8]. An application of the rule is directed to the substantive order and does not prevent all variation to the primary order.[9] When applied after a full hearing two particular public policy matters remain of some significance, firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing[10].
[6] Miller & Harrington(2008) FLC 93-383
[7] Bennett & Bennett (1991) FLC 92-191
[8] SPS and PLS (2008) FLC 93-363
[9] SPS and PLS (2008) FLC 93-363; Doherty & Doherty [2016] FamCAFC 182
[10] SPS and PLS (2008) FLC 93-363
In this case both parents want to vary substantive parenting orders and the matter has proceeded to a full hearing.
The father contends that the circumstances that warrant a change in the living arrangements of the child include the following:
a)The mother’s relocation from Western Australia to Queensland;
b)The end of the mother’s relationship with Mr W;
c)The mother’s alleged perjury during the trial before Watts J in 2011;
d)The failure of the mother to comply with the 2012 order;
e)The existence of alleged ‘parental alienation syndrome’;
f)The father has learnt valuable information from undertaking a PPP parenting course on DVD and has improved his parenting style;
g)He has undergone psychiatric and psychological testing and has a clean bill of health;
h)His step-son, Mr DE, his wife, mother, mother-in-law, friends and acquaintances all attest to his fine character and nature.
The mother contends that the circumstances that warrant a change in the ‘time with’ arrangements include the following:
a)The high conflict between the parties;
b)The complete failure of the of the 2012 order with respect to ‘time with’ the father;
c)The mother’s mental health;
d)The child’s exposure to the conflict.
how parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer and of course the Court.[11]
[11] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[12]
[12] Baghti & Baghti [2015] FamCAFC 71
The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d) parents should agree about the future parenting of their children;
e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.
‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.
Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[13]
[13] Banks & Banks (2015) FLC 93-637
In cases where it is suggested that a child will be exposed to an unacceptable risk of harm, the Court is required to identify the nature of the harm and assess its magnitude and the extent to which the risk can be ameliorated by an order such as supervision.[14]
[14] M & M (1988) 166 CLR 69
factual matters that will inform the decision in relation to the substantive proceedings
The parties agree about four things:
a)This is a ‘high conflict case’;
b)The 2012 order for ‘recognition time’ has been a complete failure;
c)S has no relationship with the father;
d)S has not seen the father since March 2015.
At the time of the 2011 child-related proceedings the child had not spent time with the father since she was eight months old. The mother had relocated from New South Wales to City 1, Western Australia in or about August 2009. The child saw her father once in 2011 under supervision.
Since the 2012 order the father has spent time with the child pursuant to that order on at most three occasions (November 2013, April 2014 and March 2015) and has not spent any time with her since March 2015.
The reasons for this include:
a)The father thought that his appeal against the 2012 order had the effect of staying the order so he did not pursue time with the child until later that year;
b)The mother relocated from Western Australia to Cairns, Queensland and did not make the child available for the visits on 6 and 7 October 2012 in Western Australia (the mother was found to have contravened the 2012 order without reasonable excuse);
c)The B Contact Centre at which the father was to spend supervised time for two periods each year refused to provide their services due to certain actions taken by the father involving that Centre;
d)The Cairns Contact Centre was unable to accommodate the time on occasions or notified the father of their availability on too short a notice for the father to attend;
e)The mother formed the view that the ‘recognition time’ provisions of the 2012 order had been discharged pursuant to paragraph 8 of the 2012 order.
I note that the 2012 order contemplated that a party might move from their residence and made provision in paragraph 11 for an alternate contact centre to be nominated that is nearest geographically to the person moving. The mother did move in or about November 2012 to Cairns and nominated the Cairns Contact Centre. The father conceded during cross-examination that Cairns was in fact closer to him than City 1 and that it was easier to visit Cairns than City 1.
The mother contends that the father refused an offer to spend time with the child in Cairns in term four 2012 (this was not a time under the 2012 order that would have occurred in Cairns).
In term one 2013 the Cairns Contact Centre was initially unable to offer its services but dates became available on 16 and 17 March 2013 and the father was notified on 5 March 2017 but he did not attend. The father contends that he was provided with insufficient notice.
Pursuant to the 2012 order the mother was not obliged to take the child to Wollongong for term two 2013 time and in any event the Contact Centre had refused its services.
In her affidavit material the mother relies on the failure of the father to attend time on these three occasions to support her position that the 2012 order was automatically discharged pursuant to paragraph 8 of the 2012 order and she sought an order to that effect on 17 February 2014.
Paragraph 8 of the 2012 order provides:
In the event the father indicates that he does not intend to come to [City 1] [Cairns] (or otherwise does not come to [City 1] [Cairns]) on any occasion, then the mother is not obliged to take the child to Wollongong on the next scheduled occasion and in the event that the father indicates that he does not intend to come to [City 1] [Cairns] (or otherwise does not come to [City 1] [Cairns] on three consecutive alternate Western Australian [Queensland] school holidays when the child would be entitled to see him pursuant to these orders), then orders 5, 6 and 7 shall be discharged.
Pursuant to the 2012 order the time the father was to spend with the child in proximity to the mother’s residence was in terms one and three of each year.
Counsel for the mother did not press the mother’s interpretation of paragraph 8 of the 2012 order in the hearing before me.
The mother contends that she is in regular contact with her adult children Mr E and Ms Z who live in Sydney; that the child’s godparents who live in EF Town are in regular contact and share special occasions; that her sister Ms FG who lives in GH Town is in regular contact and visits Cairns regularly. The father was at pains to portray the mother as isolated and estranged from family in Australia. Whatever the true situation it is apparent that the mother has no family in Cairns.
S has attended HI School since prep and is now in grade three. Mr CD spoke to the principal and the child’s class teacher as part of the family report process. The child is an average student who, while not having a particular friendship group, plays happily with other children and seems to get along well with them. She has been absent from school a lot this year however all absences have been explained. The school counsellor worked with the child in the past on building her confidence, exploring her feelings and particularly to support her social interactions and to help her build friendships. Her teacher described her as being “pretty good” at school but expressed some concern about the child appearing to be unmotivated and disengaged.
During her interview with Mr CD, the child described finding school boring, particularly her Maths, language and English studies. However she said she enjoyed art and technology subjects and excelled at persuasive writing. The child described having a brother and sister in Sydney and the remainder of her family in South America. Initially she said she did not have a father but with some assistance she appeared to recall having spent some time with the father at a contact centre in Cairns. She described feeling angry and anxious if she had to spend time with her father during the interview or at all or even communicating with him via the computer. She said she would feel angry and would just shut the computer off. She said she wished her father was nice. The child said she knew that the father does not share any money with the mother. She talked about remembering time on the farm but that could not have been with the father as she was only eight months old when she left the father’s farm. She may have been referring to the mother’s former partner, Mr W, whom the child regarded as her father for the three years she lived with him on his farm in City 1 during 2009 to 2012. The child said that if her mother wanted her to spend time with the father she “may be okay with it.”
S described the mother in happy and positive terms and when observed together, Mr CD concluded that the mother and the child had a “close, warm and loving relationship”. The child commented that she worries when her mother does not get enough sleep and gives her a hug.
The mother has obtained counselling for the child on occasions. Ms BC is a psychologist with over twenty years’ experience in working with children and she saw the child on nine occasions between 20 July 2015 and November 2016. A general medical practitioner had referred the child because she had recently started to bite her nails and wet her pants. Ms BC was cross-examined by the father and stated that the child was difficult to engage with as she did not seem to want to talk about her feelings. In her view being exposed to reams of court material would cause any child to be anxious and noted that the child has been the subject of court proceedings since shortly after her birth. In her report she said that the child had mentioned that she was experiencing nightmares at times but would not say anything more about them. She described the child as a polite child with age appropriate behaviour. In 2016 Ms BC had been in touch with the school counsellor who reported an overall improvement in the child’s learning and social behaviour.
Pursuant to an enforcement summons issued on the application of the father to recover $4,005 from the mother pursuant to an order made on 7 April 2016 the mother’s car was seized by a bailiff in front of the child and since then the mother has had no means of transport. The father asserts that the mother has the money to buy a new car. This is one of many examples of the child being exposed to the conflict between her parents.
Each party claims financial hardship. The father contends that the mother had assets to the value of $1.2m at the commencement of their relationship in 2008 but also contends that she has spent about $800,000 on litigation and that she has ongoing financial litigation with Mr W. The mother is in receipt of legal aid in the current proceedings before me. I note that the father contends that if an order is made for the mother and the child to relocate to City 2 he would pay her removal costs. In the alternative, if the child lives with him he contends he would pay her return air fares twice a year to Cairns. Further in the alternative, he contends that if the child remains with the mother he would fund himself and his family going to Cairns twice a year for nine days to spend unsupervised time with the child.
The father maintains that if his application is unsuccessful and the current ‘spend time with’ order remains in place he will “walk away” and not spend time with the child.
Mother’s mental health
The mother describes not sleeping well and not eating well due to the oppressive nature of the proceedings. She claims to have suffered a number of physical ailments.
The mother has undergone counselling with psychologists in the past and is currently taking two prescribed anti-depressants (a second having been prescribed in May 2017) and another medication for anxiety when needed. She has a history of treatment by psychiatrists in both Sydney and Cairns. Dr ZZ has been the mother’s treating psychiatrist since June 2015 and sees the mother regularly. She gave evidence that the mother identified the ongoing protracted nature of these proceedings as a source of stress. That is unsurprising. The father similarly described suffering significant stress relating to the proceedings and described how it had impacted on his sleep and memory. His wife was so concerned that he might harm himself that she called the police for assistance on the last day of the hearing before me.
Despite the mother’s condition Dr ZZ did not believe that the mother was a risk to herself or the child and believes the mother’s prognosis is good. In particular she opined:
If the current issues regarding the court case and custody were resolved, I anticipate that she would make a return to normal function. Even though she is depressed and anxious currently, she is still able to meet the demands of daily living for the most part. She is finding it difficult to manage the court and legal issues and university as well as her depression and anxiety. However, generally she is reasonably functional.
During cross-examination the mother stated that she is not currently undertaking any study and has not sat any exams in her law degree studies since 2013. She is not currently employed and has not been in employment since 2007.
In his interview with the mother, Mr CD notes the mother’s statements that if there were a continuation of the 2012 order she did not think she would be able to cope as a mother. She voiced the strong opinion that any opportunity to have the doors of communication remain open with the father would allow their ongoing problems and conflict to continue. I note with concern the mother’s statement that the child is “acutely aware of the difficulties due to her father because she has observed the flood of paperwork strewn around the home, her mother’s mental health issues, various Court deadlines, accumulating debt and all of these issues causing significant problems in their lives.” In this context I note a photograph annexed to the father’s material showing the child sitting on a lounge chair surrounded by paperwork and the home in which they live being cluttered with paperwork.
The father sought to deflect concern about this issue by firstly stating that there is no evidence that it was paperwork relating to this case as the mother is allegedly involved in other court cases. As the court file comprises at least ten boxes (according to the evidence elicited by the father from Mr CD during cross-examination) I have no difficulty accepting that the documents (or at least a significant proportion of them) are likely to relate to this case. Secondly, the father contended that it was the mother’s fault that she leaves the paperwork strewn about and exposes the child to it. He pointed out that he does not do so in his home. It is true that the mother has left the material where the child can see it but this is likely to be an indication in my view of the mother not coping. She is being treated by Dr ZZ for an Adjustment Disorder with Depressed and Anxious Mood and has a history of Peri-Natal and Post-Natal Depression. As the father was at pains to point out the mother has no real support in the Cairns area. Her mother and other family members live in South America and she is unable to travel there unless she can put up a bond of $25,000 pursuant to the 2012 order. By contrast, the father has the support of an apparently devoted wife and, according to him, hundreds of friends.
Parental alienation
This was a topic of considerable focus for the father in these proceedings. The father during cross-examination of various witnesses appeared to quote from unidentified sources seeking confirmation that ‘parental alienation syndrome’ (or as the father referred to - ‘PAS’ or ‘PA’) was a mental illness of which the mother and/or the child suffered. Dr ZZ, a psychiatrist currently treating the mother, eschewed the father’s suggestion that it was a mental illness, stating that it is not recognised as such in any mainstream psychiatric field of medicine nor was it mentioned in the DSM V. The father gained no support for his theory from Dr ZZ, Mr CD or Ms BC.
The point of the questioning seemed to be that if this condition was present then the only way to ‘cure’ it was the removal of the child from her mother and placement with the father, although whether that was something that should happen immediately or over time was uncertain according to the father.
The fact that the child has no relationship with the father is due at least in part to the priority that the parties have given to maintaining the dispute rather than to ensuring that the 2012 order worked. Other factors that complicated their ability to fulfil their obligations included distance, finances and third party (supervisor) unavailability.
Even if the child has been alienated from the father it does not necessarily follow that there should be a change in the child’s living arrangements. In interview with Mr CD, the child was not totally opposed to having a relationship with the father which is contraindicative of alienation, in my view.
Relevant conduct of each party
I have come to the conclusion that these parties have absolutely no ability to co-operate in even the simplest of tasks. Some examples of this are:
a)The 2012 order required the mother to email the father not less than once in every two months to inform him about the child’s health, progress and well-being, and any notable events for the child and provide him with a current photograph of the child. The mother’s continued compliance with this simple task appears to have been a dismal failure. One example of her purported compliance is a communication sent to the father in or about November 2015. While the mother took issue with whether the document relied upon by the father was in fact her document she nevertheless conceded that she had sent numerous photos of paperwork strewn around her home and showing the child sitting in the midst of it. Included in that email is this statement:
The father’s attitude toward these negative conditions created by him on her life is disregard amounts to intentional infliction of psychiatric harm, as found in definition of Family abuse.
(errors in original)
By no stretch of the imagination could this email be considered to be of the type intended by the 2012 order. The mother must have realised that its effect would be to inflame the already toxic relationship she had with the father. It does her no credit at all.
b)At one of the many attendances at court in Sydney the parties reached agreement and an order was made on 27 August 2013 in the following terms:
... it is ordered … the parties do all things and sign all documents necessary to facilitate time between the father and the child …:
…
(b) at the [City 2 Contact Centre] on 18 and 19 January 2014 for two hours on each day commencing at a time fixed by the Centre and if those dates are not convenient to the Centre on such other dates in January 2014 being a Saturday and Sunday of one weekend as are convenient to the Centre and the parties agree on in writing.
Email communication passed between the parties on 31 December 2013 and 16 January 2014. The mother’s email dated 31 December 2013 commences with a request to change the supervised visit dates from 16 and 17 (sic) January to 15 and 16 February due to financial difficulty. The mother explains in some detail in her email that she proposed the change because she could not afford two trips to Sydney within a month (the parties were required to attend a contested hearing in Sydney for three days commencing 18 February 2014). The mother informed the father that the Contact Centre could accommodate her proposed alternate dates and asked the father to reconsider his rejection. If he would not agree she asked him to pay the costs of her and the child travelling to City 2 so the visit could go ahead.
The father’s response is dated 16 January 2014 and includes the following:
You will be aware that you are in breach of order 7 of Justice Loughnan’s orders. You failed to do all things necessary to facilitate the … visit on 18-19th of January 2014.
Because of your refusal to commit to a attendance on the 18-19th of January with [the Contact Centre] and to comply with court orders and in your email attached, you were willing to badger the center for alternative dates 1 month later, you are now in breach of order 7.
You are also aware [the Contact Centre] have with drawn there services permanently.
For you to comply with Justice Watts orders and Justice Loughnans orders you will now need to do the changeover at my residence for both days at 10am and pick up at 12pm on the 18 and 19th.
It would be a brave girl that would ignore such orders and have contempt for them, especially when there are already 12 current contravention orders against her.
I have checked with Qantas on line and see there is still available vacancy on flights for tomorrow.
However I will also accept a visit the following weekend with some notice but the it would need to be the 24-25th of January.
…
If you do not comply with court orders I will have no choice and ask for a custodial sentence for you with the child placed into my full time care.
…
As always the choice is yours.
How many thousands of dollars do you wish to waist on legal representation?
Your bill to date would have to be over half a million in total and with your decision making could go up to 1 million.
Your money your call.
…(errors in original)
What appeared to be a perfectly reasonable and understandable request by the mother was ignored by the father until 16 January 2014 and his response was menacing and unreasonable.
c)Each party had obligations under the 2012 order to communicate and agree on arrangements for the child to spend time with and communicate with the father. Each party has failed to meet their obligations on many occasions e.g. the father failed to nominate dates on which he could spend time with the child until the third term in 2012 and the mother failed to make the child available for time with the father in the third term 2012;
d)Paragraph 12.3 of the 2012 order also required the mother to facilitate communication between the father and the child on the child’s birthday, Christmas Day, Father’s Day and the father’s birthday, by telephone or by Skype and required the parties to communicate with each other in emails or text messages not less than four days before each of those days, to arrange the time for that communication between the child and the father. It seems the required communication eluded the parties. The impact on the child is that on at least one occasion she was left sitting in front of a computer waiting for the father to call her on Skype. The mother actually took a photograph of her daughter doing so. This is another example of the child being caught in the middle of the conflict. While criticism might be made of both parties, on balance, it seems to me that the mother could have made this work if she chose to do so.
e)The capacity of the parties to ‘maintain the rage’ was evident during an unedifying exchange between them during the father’s cross-examination of the mother. The father’s questions related to the mother’s alleged conduct in evading police while her other children, Ms Z and Mr E, were with her at the father’s farm. Despite this alleged incident having occurred nearly ten years ago the parties descended into a verbal brawl, each maintaining that their version of events was the correct one. It was of no relevance to the issues about the child.
Other material relied upon by the father in support of his case
As noted above, the father stated many times during the hearing that the only reason his time with the child was supervised was because of the limited time he had spent with her up to the time of the 2011 trial and she needed support to reconnect with him. As also noted the father’s understanding is misconceived. Very specific findings were made against him by Watts J as to why he presented an unacceptable risk of harm to the child. The evidence relied upon by Watts J came from his older children (to a significant extent), none of whom are witnesses in the case before me.
Appendix 2
List of Orders made since making of final orders by Watts J - Collins & Ricardo:
12/01/2012 final orders by Watts J
19/10/2012 by Deputy Registrar George
5/12/2012 by Coleman J, Appellate Jurisdiction
19/12/2012 by Loughnan J
25/03/2013 by Loughnan J
19/07/2013 by Deputy Registrar George
27/08/2013 by Loughnan J
30/08/2013 by Loughnan J
20/02/2014 by Loughnan J
10.13/03/2014 by Loughnan J
11.20/03/2014 by Finn, Strickland and Ryan JJ
12.31/03/2014 by Deputy Registrar George
13.11/04/2014 by Loughnan J
14.21/05/2014 by Ryan J
15.18/06/2014 by Deputy Registrar George
16.19/06/2014 by Deputy Registrar George
17.08/07/2014 by Loughnan J
18.30/07/2014 by Deputy Registrar Crawford
19.08/08/2014 by Deputy Registrar George
20.04/09/2014 by Loughnan J
21.16/09/2014 by Deputy Registrar George
22.05/11/2014 by Loughnan J
23.19/11/2014 by Loughnan J
24.24/11/2014 by Deputy Registrar George
25.05/12/2014 by Rees J
26.19/12/2014 by Loughnan J
27.15/01/2015 by Stevenson J
28.27/03/2015 by Ainslie-Wallace J
29.7/05/2015 by Strickland, Murphy and Tree JJ (Full Court)
30.29/05/2015 by Rees J
31.22/07/2015 by Loughnan J
32.19/08/2015 by Loughnan J
33.17/09/2015 by Rees J
34.15/01/2016 by Loughnan J
35.07/04/2016 by Loughnan J
36.01/06/2016 by Registrar Boyd
37.20/6/2016 by Murphy, Kent and Austin JJ
38.21/06/2016 by Loughnan J
39.01/09/2016 by Carew J
40.27/10/2016 by Carew J
41.02/12/2016 by Carew J
42.10/03/2017 by Thackray, Strickland and Murphy JJ
43.20/03/2017 by Carew J
44.14/08/2017 by Registrar Boyd
45.28/8/2017 by Carew J
Appendix 3
| Application | Filed by | Date | Matters that are outstanding | |
| 1. | Application – Contravention | Mother | 05.08.2013 (amended 17.11.14) | That the Father breached paragraphs 5 – 15 of the Order of Watts J dated 12.01.2012 –list of alleged breaches from 2012 to date of filing, including: - That the Father missed several scheduled visits with the child - That the Father failed to nominate his availability - That the Father brought along a person to contact time who had not been nominated on the orders - That the Father failed to pay fees for the contact centre - That the Father contravened orders relating to communicating with the Mother. |
| 2. | Initiating Application | Father | 21.01.2014 (amended 28.07.14) | By way of final orders, the Father seeks that he have sole parental responsibility; that the child live with him and spend holiday time with the Mother. |
| 3. | Application – Contravention | Father | 05.02.2014 | The Father alleges the following: - That the Mother without excuse failed to facilitate the child’s Christmas contact on 18-19 January 2014 - That the Mother hindered/hampered the Contact visit planned for Contact Centre for 18-19 January 2014 to a level that services were withdrawn - That the mother failed to deliver the child at her cost to City 2 for contact. Note: The Court’s Casetrack system notes that this application was dismissed by Loughnan J on 17.11.2014. However, during the trial on 5.9.2017, the Father alleged that this application remains outstanding. |
| 4. | Application in a Case | Mother | 01.12.2014 | The Mother seeks that the Father not be allowed to file any further interlocutory applications. |
| 5. | Application in a Case | Father | 15.09.2015 | The Father seeks: · $25,000 be paid for security for costs re: Mother’s contravention applications |
| 6. | Application in a Case | Father | 15.09.2015 | The Father seeks review of Registrar Cameron’s decision not to file 2 x Applications – Contraventions by the Father. |
| 7. | Application – Contravention | Father | 14.03.2016 | That the Mother breached paragraph 12.3 of the Order of Watts J dated 12.01.2012 by failing to facilitate Skype contact between Father and the child on 25.12.2015. |
| 8. | Application – Contravention | Father | 14.03.2016 | That the Mother breached paragraph 12.1 of the Order of Watts J dated 12.01.2012 by failing to email the Father by February 2016 to inform him of the child’s health and progress. |
| 9. | Application – Contravention | Father | 14.03.2016 | That the Mother breached paragraph 12.3 of the Order of Watts J dated 12.01.2012 by failing to facilitate Skype contact between the Father and the child on the child’s birthday (01.11.2015). |
| 10. | Application – Contravention | Father | 14.03.2016 | 1. That the Mother breached paragraph 6.1.1 of the Order of Watts J dated 12.01.2012 by failing to notify the Father of two periods of two consecutive days during term 3 holiday of 2015 where the father and child could spend time together 2. That the Mother breached paragraph 7.1.1 of the Order of Watts J dated 12.01.2012 by failing to notify the Father of two periods of two consecutive days during the Christmas holiday period in 2015 when the Father and child could spend time together 3. That the Mother breached paragraph 7.1.1 of the Order of Watts J dated 12.01.2012 by failing to notify the Father of two periods of two consecutive days during the term 2 holidays in 2015 when the Father and child could spend time together. |
| 11. | Application – Contravention | Father | 14.03.2016 | That the Mother breached paragraph 12.3 of the Order of Watts J dated 12.01.2012 by failing to facilitate Skype contact between the Father and the child on the child’s birthday (01.11.2014). |
| 12. | Application – Contravention | Father | 02.06.2016 | That the Mother breached paragraph 12.1 of the Order of Watts J dated 12.01.2012 by failing to provide the Father with a report of the child’s health and welfare by 31 December 2015. |
| 13. | Application – Contravention | Father | 02.06.2016 | That the Mother breached paragraph 12.1 of the Order of Watts J dated 12.01.2012 by failing to provide the Father with a report of the child’s health and welfare by 28 February 2016. |
| 14. | Application – Contravention | Father | 02.06.2016 | That the Mother breached paragraph 12.1 of the Order of Watts J dated 12.01.2012 by failing to provide the Father with a report of the child’s health and welfare by 30 April 2016. |
| 15. | Application in a Case | Mother | 26.08.2016 | The Mother seeks: · Immediate suspension of all contact between the Father and the child · Discharge of paragraphs 5, 6 & 7 of Watts J’s final orders, pursuant to paragraphs 8 and 11 of the final orders · Dismiss all of the Father’s outstanding applications · Refer the Father to the AFP for investigation for deliberately misleading the judiciary on several occasions · Declare the Father a vexatious litigant · Security for costs |
| 16. | Application – Contravention | Mother | 26.08.2016 | The Mother outlines several alleged contraventions from 2013 – 2015 where the Father has allegedly contravened the final Order of Watts J: - The Father missed several scheduled visits with the child. - The Father failed on a number of occasions to nominate his availability within 14 days of being advised by the mother of the child’s available dates to attend supervised time. - The Father failed to indicate whether he intended to attend supervised visits on numerous occasions. - The Father brought along a person to contact time with the child, who has not been nominated on the orders as being allowed to attend supervised time. - The Father failed to pay fees for the contact centre. - The Father failed to complete intake requirements for the contact centres. - That the Father contravened orders relating to communicating with the Mother. |
| 17. | Application – Contravention | Father | 20.01.2017 | The Father alleges that the Mother contravened paragraph 12.3 of Watt’s J’s final orders, and failed to facilitate Christmas phone/Skype contact on 25 December 2016. |
| 18. | Application – Contravention | Father | 27.02.2017 | The Father alleges that the Mother contravened paragraphs 6.1.1 and 7.1.1 of Watts J’s final orders by failing to give him notice by 1/2/16 of two periods of two consecutive days that the child was available for contact in the following periods for 2016: a. Term 3 school holidays b. Christmas school holidays c. Term 2 school holidays. |
| 19. | Application – Contravention | Father | 27.02.2017 | The Father alleges that the Mother contravened paragraphs 6.1.1 and 7.1.1 of Watts J’s final orders by failing to give him notice by 1/2/17 of two periods of two consecutive days that the child was available for contact in the following periods in 2017: a. Term 3 school holidays b. Christmas school holidays c. Term 2 school holidays. |
| 20. | Application in a Case | Father | 08.08.2017 | The Father seeks the following: - That all Applications – Contravention be heard in Sydney; - That this application be heard by telephone; - Costs associated with this application. |
| 21. | Application in a case | Father | 08.08.2017 | The Father seeks the following: - A review of a Registrar’s decision made on 29/2/16 not to grant an application for telephone hearing; - A review of a Registrar’s decision on 29/2/16, placing the Father’s Applications – Contravention in the Cairns Registry. |
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