Cousins and Peake - [2018] FamCA 671

FAMILY COURT OF AUSTRALIA

COUSINS & PEAKE

[2018] FamCA 671

FAMILY LAW – CHILDREN – Orders – Contravention – Injunction against either parent changing schools of the children without the other’s consent – Equal shared parental responsibility – Mother found to have contravened order – Other incompetent charges dismissed – Consequences of contravention – Post separation parenting program – Injunction restraining mother from denigrating father to school or other such organisation – Looming controversy over arrangements for the children – Variation of interim parenting order – Father to have sole parental responsibility for education for period of mother’s absence from Australia.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Cousins

RESPONDENT:

Ms Peake

FILE NUMBER:

MLC

4941

2014

DATE DELIVERED:

31 July 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

31 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

(1)The applicant father have leave to amend his Contravention Application filed 9 May 2018 by the addition to it of copies of the following orders:-
a)      the Order made on 13 October 2015 (“the Primary Order”);
b)      the Order made on 26 June 2014 (“the Order of June 2014”);
c)      the Order made on 10 November 2017 (“the November 2017 Order”).
(2)The pages of allegations contained in the father’s application which have been photocopied and to which has been added the orders alleged to have been contravened be referred to as Counts 1 to 11 in accordance with Exhibit “C1”.
(3)Counts 4 to 11 inclusive of the father’s contravention application be and are hereby dismissed.
(4)Count 2 of the contravention application be and is hereby dismissed NOTING THAT this Order does not in any way prejudice the entitlement of the father to seek that the monies paid by him to P School be treated as a non-agency payment in relation to the father’s liability for periodic child support in respect of the children X born … 2008 and Y born … 2010 (“the children”).
(5)Count 3 of the contravention application be and is hereby dismissed, it not being an order in respect of which contravention can be alleged using this procedure.
(6)As to Count 1 of the contravention application, I find that the mother has contravened paragraph 16(b) of the Primary Order in that she did without reasonable excuse:-
a)      in April 2016 the mother did change the children’s school from P School, E Town to S School, E Town;
b)      in October 2016 the mother did change the children’s school from S School, E Town to Suburb K Primary School;
– without the written consent of the father.
(7)Pursuant to s 70 NEB (1) (a) (i) by way of penalty for the mother’s contravention of the Primary Order the mother attend a post-separation parenting program at an advanced level and be in a position to prove compliance with this Order.
(8)The mother be and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cousins and Peake

Details

AGLC: Cousins and Peake [2018] FamCA 671
Case: [2018] FamCA 671
Decision Date: 31 July 2018

CaseChat Overview and Summary

This matter came before Bennett J concerning a contravention application filed by the father against the mother. The dispute centred on allegations that the mother had contravened court orders relating to the children's schooling and other matters. The father sought leave to amend his application to include specific orders he alleged had been breached.

The court was required to determine whether the mother had contravened the orders, and if so, what penalty or other orders should be made. Specifically, the court had to consider the allegations relating to the children's school changes, the father's liability for child support payments, and the mother's communication with schools. The court also had to address applications for injunctions, the children's living arrangements during the mother's absence, and the involvement of family consultants and independent children's lawyers.

Bennett J granted the father leave to amend his contravention application. The court dismissed several counts of the application, finding that some did not constitute contraventions that could be pursued through that procedure, and that others were not substantiated. However, the court found that the mother had contravened the primary order by changing the children's school on two occasions without the father's written consent. As a penalty, the mother was ordered to attend an advanced post-separation parenting program. The court also issued an injunction restraining the mother from communicating with schools in a denigrating manner towards the father and ordered that such communications be removed from school records. Further orders were made regarding the children's living arrangements during the mother's absence, the management of medical appointments, and the involvement of a family consultant and an independent children's lawyer to assess the children's issues and provide recommendations. The father's contravention application was otherwise dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

(1) The applicant father have leave to amend his Contravention Application filed 9 May 2018 by the addition to it of copies of the following orders:-

a) the Order made on 13 October 2015 (“the Primary Order”);

b) the Order made on 26 June 2014 (“the Order of June 2014”);

c) the Order made on 10 November 2017 (“the November 2017 Order”).

(2) The pages of allegations contained in the father’s application which have been photocopied and to which has been added the orders alleged to have been contravened be referred to as Counts 1 to 11 in accordance with Exhibit “C1”.

(3) Counts 4 to 11 inclusive of the father’s contravention application be and are hereby dismissed.

(4) Count 2 of the contravention application be and is hereby dismissed NOTING THAT this Order does not in any way prejudice the entitlement of the father to seek that the monies paid by him to P School be treated as a non-agency payment in relation to the father’s liability for periodic child support in respect of the children X born … 2008 and Y born … 2010 (“the children”).

(5) Count 3 of the contravention application be and is hereby dismissed, it not being an order in respect of which contravention can be alleged using this procedure.

(6) As to Count 1 of the contravention application, I find that the mother has contravened paragraph 16(b) of the Primary Order in that she did without reasonable excuse:-

a) in April 2016 the mother did change the children’s school from P School, E Town to S School, E Town;

b) in October 2016 the mother did change the children’s school from S School, E Town to Suburb K Primary School;

– without the written consent of the father.

(7) Pursuant to s 70 NEB (1) (a) (i) by way of penalty for the mother’s contravention of the Primary Order the mother attend a post-separation parenting program at an advanced level and be in a position to prove compliance with this Order.

(8) The mother be and is hereby restrained by injunction from writing or in any way communicating with the Proper Officer of any school, organisation or activity in which the children X born … 2008 and Y born … 2010 are, or have been enrolled, in terms which are denigrating, belittling or insulting of the father or any member of the father’s household.

(9) This Order be sent by a Registrar of this Court to the Proper Officer of the following schools;

a. P School, E Town;

b. S School, E Town;

c. The children’s current school, Suburb K Primary School.

(10) IT IS REQUESTED that the Proper Officer of each of the schools referred to in the preceding paragraph of this Order peruse the files of the children and remove therefrom communications which in the view of the Proper Officer are denigrating, belittling or insulting of the father and place same in a sealed envelope or, alternatively, redact the offensive comments.

(11) The mother’s application to make an oral application against the father in the same terms as the non-denigration order contained herein be and is hereby dismissed NOTING THAT this does not prejudice the mother from making an application in proper form.

(12) For the period of the mother’s absence from Australia, being 16 August 2018 to 16 September 2018, the children live with the father.

(13) During the period of the children’s residence with the father (16 August 2018 to 16 September 2018), the father be solely responsible for matters concerning the children’s education inclusive of what school they attend and whether they should attend school each day or complete work at home.

(14) Within 7 days the mother re-schedule or postpone such medical, orthodontic appointments for the children (or either of them) which fall during the period of her absence from Australia and which the medical or like practitioners concerned have not objected to being postponed.

(15) Within 7 days the mother provide to the father a schedule of medical appointments, orthodontic appointments and like appointments which the children, or either of them, have during the period of her absence from Australia (16 August to 16 September 2018) and which the doctor or like professional says cannot be re-scheduled until the mother is in Australia.

(16) Within 7 days of compliance by the mother with paragraph 15 of this Order, the father respond in writing to the mother informing her of what non-movable appointments he is able to keep and what appointments he is not able to keep.

(17) Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court:-

a) The father is to attend at Level 5 of this Registry of the Court at 9.00 am on 26 September 2018;

b) The mother attend at 11.00 am on 26 September 2018;

c) The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant;

d) The Family Consultant may appoint further interviews for the parties and the children; and

e) It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court by not later 12 October 2018 and that such assessment include:-

i) any recommendations for care of the children during future absences of the mother from Australia;

ii) what parenting program the mother should attend pursuant to s 70NEB(1)(a)(i);

iii) how the children can be protected from the impact of high parental conflict; and

iv) any recommendations for a variation to current parenting arrangements.

(18) The Family Consultant be available be required for cross-examination on the adjourned date and the parties be in a position to cross-examine the family consultant at 10.00 am.

(19) For the avoidance of doubt the family consultant, Ms H, be and is hereby authorised to have reference to:-

a) all documents filed in these proceedings;

b) any documents produced on subpoenae and released for inspection by all parties;

c) any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

d) any documents or things referred to in this Order.

(20) The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings.

(21) That pursuant to Section 68L(2) of the Family Law Act 1975 the children X born … 2008 and Y born … 2010 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

(22) That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

(23) That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

(24) IT IS FURTHER REQUESTED that the family consultant who conducts the s 11F assessment facilitate a meeting between the independent children’s lawyer and the children at the time of the assessment.

(25) The mother be in a position to inform the family consultant at the time of the s 11F assessment and the independent children’s lawyer when she is asked as to the parenting program in which she proposes to participate in pursuant to paragraph 7 of this Order.

(26) The father’s contravention application filed 9 May 2018 be and is hereby otherwise dismissed.

(27) That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

(28) My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

(29) That all extant applications be adjourned to 26 November 2018 before me in a Judicial Duty List at 10.00 am (“the adjourned date”).

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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