CUTLER & CUTLER

[2015] FamCA 857

FAMILY COURT OF AUSTRALIA

CUTLER & CUTLER [2015] FamCA 857

FAMILY LAW – CONTRAVENTION – Both parents apply that the other be dealt with for contempt – Findings made both parents have breached orders – Neither parent seeks any sanction – All applications are dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Cutler

RESPONDENT: Ms Cutler

FILE NUMBER: SYC 1393 of 2013

DATE DELIVERED: 6 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 6 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. The father’s application for contravention filed 19 March 2015 be dismissed.

2. The mother’s application for contravention filed 18 August 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cutler & Cutler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1393  of 2013

Mr Cutler

Applicant

And

Ms Cutler

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties bring competing contravention applications against each other.

2. In relation to the father’s contravention application, the mother has agreed that she breached order 4 made 15 August 2014 on 29 August 2014. Her unchallenged evidence about that occasion in terms of there being a reasonable excuse in relation to B is that on that occasion:

   2.1.B said he did not want to go to his father’s;

   2.2.Had a friend’s birthday party to attend during the course of that weekend.

   2.3.“At the time of the drop off [B] did not get out and attend his father for the weekend”.

3. The mother was not challenged in relation to these statements and I infer that the mother actually put B into a motor vehicle and attempted to drop him off at his father’s on that occasion. The question is whether or not the mother acted reasonably in the circumstances. The mother was not tested in relation to her capacity to control her 11 year old son and his behaviour.

4. Looking at the material overall, she seems to have an ability to generally control B’s behaviour, although I accept that she has given evidence about difficulties that she has had from time to time. There is however an onus cast upon her by the orders to assert her authority as an adult and a parent of B to ensure that what is required by the orders is complied with.

5. In circumstances where both parties have very little ability to negotiate with one another as separated parents about the normal ebbs and flows that happen in the life of an 11 year old, they are both insisting that the letter of the orders are strictly complied with and in my view the mother on her evidence has not established a sufficiently reasonable excuse as to why she could not have imposed her will on B on this occasion. I am prepared on balance to infer that she did not do everything that she could have done to ensure that the order was complied with.

6. According, I find this contravention by the mother established without reasonable excuse.

7. The next contravention relates to what I view as a very technical breach of the order. The mother again relies on B’s behaviour as an excuse which she asserts is reasonable. The mother got the passports out to take to give to the father on Boxing Day. She said that B told her that he did not want to go to Bali with his father. The mother said that when they were leaving to go to the father, she collected the passports from the bench and the children and she got into the car. As she was reversing the car, B noticed that she had the passports. He grabbed his passport, jumped out of the car and ran back inside the house, saying he was not going to Bali and he was not going to take the passport to his dad’s. When B came back to the car, the mother proceeded to the father’s home and dropped the children off without the passport. When the children came back from their father’s home, B came inside the house, ran upstairs and returned carrying his passport and delivered it to his father. The father does not challenge any of the mother’s evidence and the trip to Bali was not jeopardised by this minor breach of the order but still wishes to press the contravention application to impress upon the mother that he requires the mother to exercise better control over the 11 year old boy. I find it was within her ability to simply insist that the passport come in the car with them on the day required by the orders. She could have gone back into the house, retrieved the passport, insisting that B give it to her if that was necessary. I understand that that might have led to a confrontation with an 11 year old boy but as I have said, I am otherwise satisfied by the material the mother has that level of control over B and it is not a reasonable excuse for breaching orders simply to have a quiet life with an 11 year old.

8. According I find this contravention by the mother established without reasonable excuse.

9. There are then a series of weekends where the children did not go to the father on the correct alternate weekend and the mother’s reasonable excuse is she misunderstood what the orders said about when alternate weekends started after the end of the Christmas school holidays. The mother sent or offered to send the children on a number of incorrect alternate weekends. There is an onus on somebody who is ordered by the court to do something to understand what the order said. The mother has a legal qualification. The orders might be thought to be slightly ambiguous in as much as the order talks about “a current cycle” but it more specifically says that the school term order commences on the first Friday of each school term. The mother has offered an excuse as to why she misunderstood the order but again that excuse is not a reasonable one given the clear words in the order as to when the cycle of weekends commenced.

10. Accordingly, I find this contravention by the mother established without reasonable excuse.

11. In relation to the contravention application filed 18 August 2015 brought by the mother against the father, the first contravention relates the father retaining to all of the children but C and D for more time than B in the second part of the term 2 school holidays. The email chain between the parties speaks for itself. It starts with the mother making, what for these two parents would seem to be a reasonably generous offer to allow the boys to be with their father for a couple of more days than the orders provide. There was no response ever provided by the father to the mother in relation to that offer so where she writes “if the boys want to stay until Thursday 2 July or Friday 3 July let me know”, he did not. He might have in his own mind made an assumption than an agreement was in place but there was no written agreement that the orders would be varied because he simply did not respond to the offer by accepting it. Even if the father thought there was an agreement, he retained the children well beyond the time of any possible agreement.

12. Both parents seem very intelligent and would understand that given their inability to behave in a mature way, there needs to be a written agreement between them to change the orders before they are changed.

13. The mother informed the father on Friday evening that in her view the orders were not being complied with. He should have immediately returned the children. He did not do so. By Saturday night he was offering the mother to come and pick them up if she wanted to. That however was not what the order required. The order for school holidays required at the end of the children’s time with the father, he was to return them.

14. The unfortunate consequence, and I have no idea if the father realized it, was the mother’s plans for a trip away with the children for the second half of the school holidays were totally aborted.

15. I find this contravention by the father established without reasonable excuse. This, in my view, is the most serious of the contraventions before me today. I find that what the father did was wilfully breach an order.

16. I note that after several days the father did eventually try and return the boys but again that is another example of unfortunate communication between the two of them.  By Tuesday the father actually drove the boys over and the mother was not at home at the time that he had emailed her to say he was bringing them back.

17. Next there are series of charges against the father which relate to him bringing the boys back late. The father’s excuse for that is contained in paragraph 26 of his affidavit sworn in court today. He says he has never done it deliberately. There have been occasions where the children have been taken to places of interest or he has arranged for them to participate in particular activities and those outings have either taken longer than anticipated to get back from and he has allowed insufficient time to have them back to the mother at the time required by the orders. He also says that sometimes the children take time to pack up and be ready to return to their mother. Those are not reasonable excuses for not complying with orders. Proper planning, absent some major traffic accident or something else which is unable to be predicted, includes allowing sufficient time to get back on time; allowing sufficient time for the boys to pack and ready themselves for the trip, so there is no reasonable excuse offered in my view and those series of charges are made out.

18. I find all these contraventions alleged against the father for lateness established without reasonable excuse.

19. The mother also charged the father with a breach of the order in relation to a failure to comply with the order for equal shared parental responsibility arising out of the fact that when D was returned after being with his father for an extended period in the mid-term holidays (as I have found in contravention of orders), his left arm was heavily infected with a large mass. The photographs of the infection portray a large infected cyst on the boy’s arm near his elbow. The mother sought immediate medical diagnosis and treatment. The father indicated that he had not observed the problem and the boy had not complained about it. It is difficult to accept that the father had not observed the problem on the boy’s arm.

20. The exercise of equal shared parental responsibility goes to major long term medical issues in respect of which parents need to consult and make joint decisions. Although the father’s inattention might lead to adverse comments about his parenting capacity and attitude to parenting, what happened falls short of a breach of the equal shared parental responsibility order and accordingly I dismiss this application for contravention by the mother against the father.

21. The father pressed the contraventions against the mother on the basis that he wanted findings made that she had breached orders, even though those breaches were of a minor nature in the overall scheme of the children spending time with the father. The mother brought a contravention application in response in circumstances where the father had wilfully retained the children knowing that to do so was a breach of the orders.

22. Neither party sought the imposition of any sanction against the other for the breaches.

23. I had explored with these two intelligent adults whether or not they were attempting to improve their ability to work with one another as the children’s parents and whether or not they had any insight at all as to how their current behaviour might affect the psychological wellbeing of the children in the future. Both parties assured me that they had been and were involved in a post separation parenting program. It did not seem to be helping very much yet. In those circumstances, there is no utility in considering a further order under s 70NEB(1)(a) of the Act.

24. No other sanction under s 70NEB of the Act is appropriate and I accordingly dismiss both parties’ applications for contravention.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 6 October 2015.

Associate: 

Date:  13.10.15