Darley and Darley

[2017] FamCA 827

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY [2017] FamCA 827

FAMILY LAW – ORDERS – Contravention

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Darley

RESPONDENT: Mr Darley

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

FILE NUMBER: BRC 2317 of 2013

DATE DELIVERED: 13 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 12 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kingston, Norman & Kingston (excused)

Orders

IT IS ORDERED THAT

1. Counts 6 and 7 on the 3^rd page of the Application – Contravention filed 5 May 2016 are dismissed.

2. Counts 8 and 9 on the 4^th page of the Application – Contravention filed 5 May 2016 are dismissed.

3. Counts 10 and 11 on the 5^th page of the Application – Contravention filed 5 May 2016 are dismissed.

4. Counts 12 and 13 on the 6^th page of the Application – Contravention filed 5 May 2016 are dismissed.

5. Counts 14 and 15 on the 7^th page of the Application – Contravention filed 5 May 2016 are dismissed.

6. Counts 16 and 17 on the 8^th page of the Application – Contravention filed 5 May 2016 are dismissed.

7. Counts 18 and 19 on the 9^th page of the Application – Contravention filed 5 May 2016 are dismissed.

8. Counts 20 and 21 on the 10^th page of the Application – Contravention filed 5 May 2016 are dismissed.

9. Counts 22 and 23 on the 11^th page of the Application – Contravention filed 5 May 2016 are dismissed.

10. Counts 24 and 25 on the 12^th page of the Application – Contravention filed 5 May 2016 are dismissed.

11. Counts 26 and 27 on the 13^th page of the Application – Contravention filed 5 May 2016 are dismissed.

12. Counts 28 and 29 on the 14^th page of the Application – Contravention filed 5 May 2016 are dismissed.

13. Counts 30 and 31 on the 15^th page of the Application – Contravention filed 5 May 2016 are dismissed.

14. Counts 32 and 33 on the 16^th page of the Application – Contravention filed 5 May 2016 are dismissed.

15. Counts 34 and 35 on the 17^th page of the Application – Contravention filed 5 May 2016 are dismissed.

16. Counts 48 and 49 on the 24^th page of the Application – Contravention filed 5 May 2016 are dismissed.

17. Counts 50 and 51 on the 25^th page of the Application – Contravention filed 5 May 2016 are dismissed.

18. Counts 54 and 55 on the 27^th page of the Application – Contravention filed 5 May 2016 are dismissed.

19. No sanction is imposed for the Respondent’s contravention, without reasonable excuse, of Clause 4 of the Order made on 12 September 2013, being Counts 52 and 53 on the 26^th page of the Application – Contravention filed 5 May 2016.

NOTATION

(A)Counts 54 and 55 on the 27^th page of the Application – Contravention filed 5 May 2016 were dismissed consequent upon findings that the Respondent contravened Clause 10 of the Order made on 3 June 2013 with reasonable excuse. 

(B)The Court found that the Respondent, with reasonable excuse, contravened Clause 4 of the Order made on 12 September 2013, being Counts 52 and 53 on the 26^th page of the Application – Contravention filed 5 May 2016, by failing to return the keys to the Applicant.

(C)The Court found that the Respondent, without reasonable excuse, contravened Clause 4 of the Order made on 12 September 2013, being Counts 52 and 53 on the 26^th page of the Application – Contravention filed 5 May 2016, by failing to return the gate opener to the Applicant.

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 Darley & Darley (No 3) 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: BRC 2317 of 2013

Ms Darley

Applicant

And

Mr Darley

Respondent

REASONS FOR JUDGMENT

1. Yesterday I heard Ms Darley’s Application for Contravention, filed 5 May 2016.  This Application contains allegations that Mr Darley contravened Orders made by Judge Howard of the Federal Circuit Court on 12 December 2014, 12 September 2013 and 3 June 2013. 

2. It is clear that Mr Darley was bound by these Orders. 

3. The hearing of the Application for Contravention and its resolution by the delivery of these Reasons and the Orders I will soon make occurs in circumstances where the final property and parenting proceedings between the parties are listed for trial before me for four days next week. 

4. It is clear, in relation to the Application for Contravention, that, as the Applicant, Ms Darley bears the onus of proof to establish in respect of each and every alleged contravention that Mr Darley intentionally failed to comply, or made no reasonable attempt to comply, with the relevant particularised Order. 

5. Insofar as there are any occasions on which it is asserted by Mr Darley that he had a reasonable excuse for any contravention of a particular Order, he is the person who bears the onus of proof in establishing a reasonable excuse. 

6. Some of the allegations of contravention which originally were contained within the Application for Contravention filed 5 May 2016 were dismissed or struck out by me yesterday. 

7. So that the record is clear, and there is contained within one document a summary, the allegations of contravention which were dismissed yesterday by me were as follows: 

   a)the allegation found at numbers 36 and 37 on the 18^th page of the Application for Contravention filed 5 May 2016;  and

   b)the allegation of contravention found at numbers 38 and 39 on the 29^th page of the Application for Contravention filed 5 May 2016;   and

   c)the allegations found at numbers 40 and 41 on the 20^th page of the Application for Contravention filed 5 May 2016;  and

   d)the allegations found at numbers 42 and 43 on the 21st page of the Application for Contravention filed 5 May 2016;  and

   e)the allegation found at number 44 and 45 on the 22^nd page of the Application for Contravention filed 5 May 2016;  and

   f)the allegations found at numbers 46 and 47 on the 23rd page of the Application for Contravention filed 5 May 2016. 

8. I also struck out, with Ms Darley’s consent, the allegations at numbers 56 and 57 on the 28^th page of the Application for Contravention filed 5 May 2016. 

9. I turn now, then, to consider the remaining counts of alleged contravention. 

10. In doing so, I note that all but one of the allegations of contravention involved an alleged contravention of a parenting Order.  One of the counts, namely that which alleges a contravention in – by way of broad summary – failure to produce or provide keys and/or a door opener does not in my view constitute an allegation of a contravention of a parenting Order but, rather, of an Order other than a parenting Order. 

11. Consequently, I intend to consider that count at the conclusion of my consideration of all of the other counts which remain in the Application for Contravention, each of which constitutes an allegation of an alleged contravention of a parenting Order. 

12. First, it is alleged that, in contravention of Clause 13 of the Order of Judge Howard made on 12 December 2014 (being a final Order made by consent) which relevantly required that the parents shall use email to communicate with each other about any issues regarding the children, Mr Darley spoke to Ms Darley, about changing the pickup times for an upcoming weekend of the children’s time with him, on 11 February 2015 outside the Courtroom door at the Federal Circuit Court in Brisbane. 

13. Ms Darley’s evidence is to effect that Mr Darley approached her.  She says he was verbally aggressive and attempted to coerce her into agreeing to do what he wanted. 

14. Mr Darley’s evidence is to the effect that he cannot recall specifically the event spoken of by Ms Darley.  He says further that, if he did in fact approach her on that day, that would have occurred in the presence of another person and would have occurred in the precincts of the Court building itself:  the latter is accepted by Ms Darley. 

15. Mr Darley also says that, in the event that he approached Ms Darley, he did so within the context of what he says were comments made by Judge Howard (at some stage during the parties’ appearances before his Honour) to the effect that the parties should use email, but that there was no issue with communications, provided that Mr Darley was of good behaviour.  Mr Darley also said, in his evidence as I understood it, that Judge Howard had made some comments in relation to the parties using text communication also. 

16. Ms Darley’s evidence is to the effect that she sent a written communication to Mr Darley at 6.09 am on 13 February 2015:  that is, the very next morning after the event which is the first count of alleged contravention.  In that communication, she, in essence, asked whether she could confirm Mr Darley’s verbal advice that he was not having the children spend time with him that weekend and she asked him to let the school know. 

17. It appears from her evidence that Mr Darley replied to her in writing at 7.03 am that morning.  In essence, it seems his response involved an assertion that he had agreed to a variation of the Orders so that the children were with their mother the previous weekend and then asserted that he would stick to the Orders and he would now let the school know. 

18. Nothing in the written communication between the parties – which commenced as early as 6.09 am on 13 February 2015 – contains any suggestion that there was, at that time, any particular issue taken by the Applicant in relation to Mr Darley’s approach to her to discuss a variation of the parenting Order. 

19. It seems, therefore, that the parties engaged together in a verbal discussion in the Court building.  There is nothing to suggest, given the absence of reference to the event other than by seeking to confirm a change and asking that Mr Darley inform the school of the same, that there was anything other than a mutual engagement in a discussion which was later confirmed in writing. 

20. Mr Darley was not challenged in the course of cross-examination about his assertion to the effect that, if the conversation took place, it was in the presence of another person. 

21. I note that the formulation of Clause 13 of the Order does not prohibit the parties from communicating.  For example, it does not say that the parties will “only” communicate by email or “only” use email to communicate.  Rather, it says that they shall use email to communicate with each other about any issues regarding the children. 

22. It seems to me that, the likely purposes underpinning the Clause of the Order was to ensure that the parties had available to them a record, in writing, of their communications;  and, I suspect, decrease the number of in-person interactions between them. 

23. In the circumstances I have recounted and on the evidence before me, I am not persuaded that Mr Darley intentionally failed to comply with the Clause in the manner asserted or that he made no reasonable attempt to comply with the Clause.  Accordingly, I dismiss the allegation at numbers 6 and 7 on the third page of the Application for Contravention filed 5 May 2016. 

24. I turn now to the second allegation of contravention.  It is alleged that, in contravention of Clause 13 of the Order made by Judge Howard on 12 December 2014 (relevantly, that the parents shall use email to communicate with each other about any issues regarding the children) Mr Darley sent a text to Ms Darley at 3.18 pm on 26 August 2015.

25. Ms Darley’s evidence, as contained in her affidavit filed 8 April 2016, is that Mr Darley sent her a text message which says:

    Is there a reason why you have not picked up the girls from school.  Do you need me to get them?

26. Her evidence is to the effect – and I summarise – that she had contacted the school to tell them she was running late;  she is unaware as to how Mr Darley knew that, because of conversations she had with the principal and receptionist;  and, she also said that, at that time, Mr Darley lived about 50 minutes away from where the school was located.

27. On Ms Darley’s own evidence then, the query contained within the text communication is one relating to the children, relating to whether they had been picked up from school and whether arrangements were in place for them – in terms of their well-being and the ability to be collected after the end of school for that day. 

28. Mr Darley’s evidence is to the effect that he did send the text message to Ms Darley.  He says he did so because he was unable to send an email as he was not at a computer; he says he did so because he was concerned about the children and about, in essence, their well-being and safety, concerned about the arrangements, about whether they would be collected or not and whether there was some issue associated with that. 

29. In a way that is understandable, I think, he was not really challenged about this because, it seems to me, it would be difficult for Ms Darley to adduce any evidence really to contradict that. 

30. In the circumstances, I accept Mr Darley’s evidence about the reason he sent a text message, rather than an email. 

31. I repeat that the Orders made by Judge Howard do not limit the method of communication only to email communication.  There is no restriction as to text communication being a method of written communication, because the Clause does not contain a word of limitation, such as the word, “only”. 

32. I accept Mr Darley’s evidence to the effect that he sent the text message to Ms Darley at that time on that day because he was worried and concerned about the children. 

33. I am not persuaded that he sent the text message in the circumstances in which the evidence establishes it was sent with the intention of failing to comply with the Order.  For those reasons then, I dismiss the allegation, that is, numbers 8 and 9 on the fourth page of the Application for Contravention. 

34. I note, in passing, that if I am wrong in my conclusion about the interpretation of Clause 13 of the 12 December 2014 Order and if it were found that such Clause should properly be interpreted to restrict the parents to only use email to communicate with each other about any issues regarding the children, then I would, in the circumstances and on Mr Darley’s evidence, be persuaded that he has established a reasonable excuse for any contravention in this circumstance, given his evidence and my acceptance of it about the rationale which underpinned his decision to send to Ms Darley, a text message at that time on that day. 

35. I turn now to consider the third allegation of contravention. 

36. It relates to the same day.  It is alleged that in contravention of the same Clause, namely, Clause 13 of the Order made Judge Howard on 12 December 2014, which relevantly required that the parents shall use email to communicate with each other about any issues regarding the children, that it is alleged that in contravention of that, at 3.23 pm on 26 August 2015, that is, the same day on which he had sent the text message to Ms Darley, Mr Darley called her mobile phone. 

37. Mr Darley’s evidence is that he accepts that he called Ms Darley on her mobile phone at that time on that day.  He says he did so to see if she was okay to collect the children;  that he had sent an SMS message to which there was no response and, in such circumstances, he was concerned about the children’s well-being and safety and so determined to call Ms Darley. 

38. He was not challenged in cross-examination in relation to this evidence. 

39. I accept Mr Darley’s evidence.  Again, I repeat and rely upon the comments and findings I have already expressed in relation to my interpretation of the phraseology contained within Clause 13 of the Order made on 12 December 2014. 

40. I am not persuaded that Mr Darley intentionally failed to comply with the Clause, or made no reasonable attempt to comply with it.  Consequently, I dismiss the allegations that are at numbers 10 and 11 on the fifth page of the Application for Contravention filed 5 May 2015. 

41. Again, if I am wrong in my interpretation of the Clause and if, consequently, it was concluded that, in telephoning Ms Darley on this occasion in the circumstances I have outlined, Mr Darley contravened the Order, I record that, on his evidence, I would have been persuaded (and am persuaded) that he acted as he did with reasonable excuse:  that being a concern about the children’s well-being at the end of the school day in circumstances where he was unsure as to whether or not they were being collected from school.

42. I turn now to consider the next allegation of contravention. 

43. It is an allegation that, in contravention of Clause 21 of the Order made by Judge Howard on 12 December 2014 (which required that, should the children suffer any serious illness or injury, the parent with whom the children are spending time or living shall inform the other as soon as reasonably practicable), Mr Darley failed to inform the mother, during the weekend of 4 to 6 February 2016 – the contact period the children had with him on that weekend – that the child Y had second degree burns from sunburn and a heat illness.

44. Mr Darley’s evidence was to the effect that, when he returned the children to their mother’s care on the Sunday evening, he was not aware of the extent of the sunburn that had been suffered: that is, I understood his evidence to be to the effect that, whilst he knew that Y was red, he was not aware of the extent of her sunburn and therefore, on that basis, did not inform or notify Ms Darley of it because he did not appreciate that she had suffered any serious illness or injury at that time. 

45. He was not challenged in his contention really during the course of cross-examination. 

46. I accept his evidence in this respect and I am not persuaded that he intentionally failed to comply with the requirement to inform Ms Darley as soon as reasonably practicable of any serious illness or injury that either child had suffered during their time with him on that particular weekend.

47. For these reasons then, I dismiss the allegation that is numbers 12 and 13 on the sixth page of the Application for Contravention filed 5 May 2016.

48. I turn now to consider in a group, as it were, a number of allegations of contravention.  They number six in total.  They relate to 18 to 20 March 2016, 4 to 6 March 2016, 5 to 7 February 2016, 30 October 2015 to 1 November 2015, 13 November 2015 to 15 November 2015, and 21 August 2015 to 23 August 2015.  All of these particularised allegations of contravention relate to asserted contraventions of Clause 14 of the Order made by Judge Howard on 12 December 2014, which was in these terms:

    That the mother shall within two working days hereof forward to the father a copy of a nationally-recognised skin cancer bodies brochure that outlines their current recommendations for the protection of children in the sun, and the father shall adhere to such recommendation.

49. The alleged contraventions really relate to the requirement imposed upon Mr  Darley to adhere to the recommendations contained within the brochure of a nationally-recognised skin cancer body provided to him by Ms Darley. 

50. I do not know what those recommendations were in detail, because I do not have before me the specific brochure provided by Ms Darley to Mr Darley. 

51. In essence, the allegation of contravention on each of the dates I have specified may be summarised as being that, in contravention of an obligation to adhere to the recommendations contained within the brochure, Mr Darley returned the children to their mother in what Ms Darley describes as an extremely sunburnt state, and that, on 7 February 2016, Y had had symptoms of heat illness and blisters on changeover, and her sister was also really sunburnt.

1. Ms Darley relies upon her sworn evidence and also the photographs which constitute Exhibit 1 in the proceedings.  Reference to them seems to me to establish that, save for dates which appear to be 23 November 2014 and a date in February 2014, and I think a further date in 2014 some time (the latter relating to the photo bearing number 112) there are no particular dates upon the photographs to establish the dates upon which they are taken. 

2. It is obvious that the photographs in 2014 do not relate to the particularised allegations of contravention the subject of application contained within the 5 May 2016 Application for Contravention.

3. Mr Darley’s evidence contained a challenge to the accuracy, as it were, of photos numbered 10 and 11 of Exhibit 1.  He certainly questioned whether they accurately represented the state of the children upon their return to Ms Darley’s care, and he certainly raised the issue of whether there had been a filter of some sort used in the production or, perhaps more accurately, development of the photographic images.

4. Mr Darley accepts that there was an occasion on which the children were badly sunburnt.  He says that on other occasions they were returned a “little pink”, but not as badly sunburnt as on the first occasion.  He says that the children are provided with 50 plus sunblock and 50 plus rashies and hats and zinc cream, and that the cream and sunblock are reapplied after two hours.  His evidence was also to the effect that he only permits the children to swim after 3 pm and, therefore, follows the recommendations in relation to their exposure to sun.

5. His evidence was to the effect that, since they had been very sunburnt on the one occasion he speaks of, he has acted to limit their time in the sun and, as I have said, does not permit them to swim before 3.00 pm, as per the recommendations. 

6. He was not really challenged in relation to his use of 50 plus sunblock and 50 plus rashies, etcetera.

7. I note also that Ms Darley relies upon a number of medical reports which may be found attached to her affidavit filed 8 April 2016.  Each of those records seem to relate only to Y; there does not seem to be any specific reference (by reference to the medical consultation notes) to her sister. 

8. It seems that, on 7 February 2016, Y attended at the Emergency Department of the K Town Hospital.  The records suggest that she presented with sunburn to her shoulders and upper back.  On examination, it was noted that there was a burn on her upper back and upper arm.  There were no signs of full-thickness burn.  The plan is said to be aloe vera and simple analgesia.

9. On 10 February 2016, according to the notes of Dr L, it seems that Y attended upon him – his notes suggest that she then still had what he described as redness and pain.  The next notes seem to relate to an occasion on 2 November 2016 at which time Y attended upon Dr M with the background information of exposure to prolonged sun yesterday in the pool and with a flushed face.  A sunburn to the face is recorded as being the reason for her contact:  the plan, it seems, was fluid, analgesia, and rest.

10. According to the notes of Dr L, it seems Y attended upon that medical practitioner on 16 November 2016.  The notes record that both cheeks were red, probably due to sun.  There was a question mark raised in relation to a skin rash (it being questioned whether that was due to an allergy), but it is unclear to me whether the rash is something separate to the red cheeks thought probably to be due to the sun.

11. On the basis of the material before me, I am not persuaded that, on the occasions particularised, it could be thought other than that, as Mr Darley accepts, the children were badly sunburnt on an occasion – as I have said, the photos do not establish the dates or whether what is recorded in them occurred on particular dates.

12. Further, the fact of a sunburn does not necessarily, it seems to me, establish a failure to adhere to particular recommendations of a nationally-recognised skin cancer bodies brochure, particularly in circumstances where there is no evidence before me as to what, in fact, those recommendations are – or were – at the time of the alleged contravention. 

13. I am not persuaded, therefore, on the evidence before me that the Applicant has discharged the onus of establishing, on the balance of probabilities, that Mr Darley intentionally failed to adhere to whatever recommendations were contained within the brochure of the national recognised skin cancer body that she had provided to him, or that he had made no reasonable attempt to do so.  For those reasons then, I dismiss the counts that deal with the allegations in relation to alleged contravention of Clause 14 of the Order made 12 December 2014:  the Order will reflect, with particularity, the counts which are dismissed, being those at numbers 12 and 13 on the sixth page of the Application for Contravention;  those at numbers 14 and 15 on the seventh page of the Application for Contravention;  those at 16 and 17 on the eighth page;  at 18 and 19 on the ninth page; at 20 and 21 (noting that the date for item 21 was amended to 30 October 2015 rather than 30 November 2015), those items 20 and 21 on the 10^th page at 22 and 23 on the 11^th page and 24 and 25 on the 12^th page of the Application – Contravention. 

14. I turn now to consider the next count of alleged contravention.

15. This count relates to an alleged contravention of Clause 15 of the Order of Howard J made 12 December 2014 which, in its terms, required that the parents shall each follow the recommendations of the children’s medical practitioners.  It is alleged that, during each contact weekend the children spent with their father between 12 December 2014 and 29 May 2015, Mr Darley failed to obtain and have a nebuliser available for administration of the children’s asthma medication and in so doing, contravened that Clause of the Order.

16. Ms Darley’s evidence, as contained at page 47 of 69 of her affidavit filed 8 April 2016, is that, on 29 May 2015, she sent Mr Darley an email to inform him that Y had severe asthma and that it was “…essential for him to obtain a nebuliser and administer the medications.”

17. She also noted that he already had the nebules for it. 

18. It is clear, as a consequence of the contents of that email communication, that Ms Darley knew at that time that Mr Darley did not have a nebuliser in his possession.

19. His evidence is that, as soon as Ms Darley informed him of the necessity to obtain a nebuliser, he obtained one.  As I understood it, he says, in effect, that he has a nebuliser and that the children have utilised it when in his care and that he has had a nebuliser, on hand when Ms Darley has told him of the necessity to do so.

20. In the circumstances of the evidence before me, particularly, as I say, in relation to Ms Darley’s own evidence in her email advising of the necessity to obtain a nebuliser for use at that particular time, I am not persuaded that she has discharged the onus of establishing the contravention as alleged.  I am not persuaded that she has established that Mr Darley intentionally failed to comply, or made no reasonable attempt to comply, with recommendations of the children’s medical practitioners on each weekend during the timeframe covered by this particular allegation of contravention because there is not before me, necessarily, any particular evidence outlining the recommendations of the medical practitioners vis-à-vis the administration of the asthma medication utilising the nebuliser.

21. That is, for example, I do not know whether the medical advice and/or recommendation provided to the parents was that such medication should be applied as and when needed, or whether there was a requirement that it be applied and made available to the children (one or either of them) each day, or on a regular basis.  So I do not know, on the evidence, in my view, whether there has in fact been a failure to comply with a recommendation. 

22. For those reasons then, I am not persuaded that the Applicant has discharged the onus of establishing contravention and, consequently, I dismiss the counts at numbers 26 and 27 on page 13 of the Application for Contravention filed 5 May 2016.

23. I turn now to consider the next count of contravention:  that is, it is alleged that, in contravention of Clause 15 of the Order made by Howard J (namely, that the parents shall each follow the recommendations of the children’s medical practitioners), during the period from 1 April 2015 to 12 June 2015, during each contact weekend that the children spent with their father, Mr Darley failed to obtain and administer the Omnaris medication to the child X. 

24. Ms Darley’s evidence is that she emailed Mr Darley on 1 April 2015 to advise him of a change to X’s medication to the Omnaris medication. She says, in her evidence, that two and a half months after this, she discovered that a script she had arranged to be available for collection at the C Town chemist had not been filled by Mr Darley. 

25. Reference to, in particular, page 48 of 59 of Ms Darley’s affidavit of 8 April 2016, seems to me to establish the following. 

26. It is clear that Ms Darley sent a follow-up email to Mr Darley on 12 June 2015:  again, referring to her email of 1 April and noting that he had not filled the script/s, and informing that they were still waiting for him at the C Town Chemist. There is also the evidence contained in Exhibit 2, namely, correspondence from the N Pharmacy at C Town in relation to scripts for the children, although I note that, save for specific reference to Avamys nasal spray and Kenacomb ointment, there is no particularity as to what script/s were left.

27. But in any event, it’s clear that scripts were made available. 

28. I note also that, on 12 June 2015, Mr Darley responded to Ms Darley to inform her that, if she needed him to medicate the girls, that weekend, he was happy to do so, but she would have to tell him what, where and when and who.

29. I note, in particular – when regard is had to the contents of Ms Darley’s 1 April 2015 email whereby she advised Mr Darley that there had been a change to the mediation to Omnaris – she advised that it was two sprays per nostril per day; that the medication replaces Nasonex (point 2) and the rest of the instructions remain the same.  She advised she had attached the previous information from the specialist again for Mr Darley’s attention, and that she would leave the script at the C Town chemist. 

30. Reference to the previous information from the specialist seems to me to establish, in relation to the Nasonex spray, that it was recommended that: there be one spray daily for at least six weeks until symptoms resolve and then stop; if symptoms recur, re-start sprays for at least three to four days, or until symptoms are controlled.

31. So it seems to me that the medical recommendations were to utilise the Nasonex spray to respond to symptoms for at least six weeks until symptoms resolved and then to stop and to re-start for a period of time if symptoms recurred. 

32. It is clear on Ms Darley’s information to Mr Darley that Omnaris was to replace Nasonex but on the same application and with the rest of the information or instructions remaining the same. 

33. There is nothing in the evidence before me to establish or to persuade me that, at the time the children were in their father’s care between 1 April 2015 and 12 June 2015, X was symptomatic, such that implementation of the medical recommendations to use the Omnaris spray was enlivened.

34. Therefore, for those reasons, I am not persuaded that Ms Darley has discharged the onus of establishing that, during the period particularised, Mr Darley intentionally failed to comply with a requirement to follow the recommendations of the children’s medical practitioners, or made no reasonable attempt to comply with the same. 

35. The requirement under the Orders was not to collect the Omnaris spray.  Rather, it was to follow the recommendations which, on the evidence before me, (as I have said) seemed to amount to a recommendation to use the prescribed medication symptomatically and for periods of time.

36. For those reasons then, I dismiss numbers 28 and 29 on the 14^th page of the Application for Contravention. 

37. I turn to consider the next allegation of contravention:  that is by which it is alleged that, in contravention of Clause 15 of the Orders made by Judge Howard on 12 December 2014 (by which it was Ordered that the parents shall each follow the recommendations of the children’s medical practitioners) during the period of 21 August 2015 to 5 May 2016, during the weekends the children spent time with their father in that period, he failed to obtain and administer the Avamys medication to X.

38. I note that Mr Darley’s evidence was to the effect that, if he was told by Ms Darley to administer medication to the children during their time with him, he followed her instructions, in essence. 

39. Ms Darley’s evidence in this respect may be found, in particular, at page 49 of 69 of her affidavit filed 8 April 2016.  It is clear that, in an email sent to Mr Darley on 21 August 2015 (by which she referred to an earlier email sent 1 April 2016), she advised that X’s allergy medication had changed to Avamys, with the rest of the instructions remaining the same.  She also advised that a script was available for him at C Town. 

40. The only email of 1 April 2015 that I could see attached to Ms Darley’s affidavit was the email to which I have already referred (which is at page 48 of 69 of the affidavit) and which makes specific reference (wherein there is specific reference made) to the change from Nasonex to Omnaris.  I do note, however, that Exhibit 2 (namely, correspondence from N Pharmacy at C Town) contains reference to the script for X for Avamys dated 23 March 2015, which was said to have expired on 23 March 2016 and had been disposed of.  Thus, it seems to me to be clearly established that Mr Darley didn’t collect or have it filled at that particular pharmacy.

41. Again though, the obligation imposed upon him by the Order is not to collect a particular script from a particular pharmacy but, rather, to follow the recommendations of the children’s medical practitioners. 

42. It seems that following, as it did, upon a recommendation from an immunologist and allergist, Avamys seems likely to relate to issues associated with seasonable allergies or rhinitis or that type of thing, allergic rhinitis, and, perhaps, asthma also. 

43. If the email of 1 April 2015 (to which I have referred already) contains the rest of the instructions and that they remained the same (as was conveyed by Ms Darley to Mr Darley in her email on 21 August 2015), it seems then that the evidence suggests that the administering of the drug was to occur in a manner responsive to symptoms. 

44. Again, there is not, it seems to me, evidence before me to persuade, at the relevant time and on the relevant occasions X was in the care of her father, that she, in fact, needed the medication to be administered so as to follow whatever recommendations had been made by the medical practitioners that related to it. 

45. Whilst Exhibit 2 certainly establishes that Mr Darley did not collect the script, that, as I have said, is not the point. 

46. I am not persuaded, therefore, that the Applicant has established that the Respondent intentionally failed to comply with the obligation to follow the recommendations of the children’s medical practitioners, or that he made no reasonable attempt to do so during the particularised period.  For these reasons, then, I dismiss numbers 30 and 31 on the 15^th page of the Application for Contravention.

47. I turn now to consider the next count of contravention. 

48. It is alleged in this  count that, in contravention of Clause 15 of the Order made by Judge Howard on 12 December 2014 (which was in the terms that the parents shall each follow the recommendations of the children’s medical practitioners) in the period between 4 September 2015 (during each contact weekend the children spent with their father) and 30 October 2015, the Respondent failed to obtain and administer the Cicacare patch or equivalent and Fixomull as recommended by Dr O, the plastics specialist.

49. As I understood the evidence given by Ms Darley, it was to the effect that the children spent time with their father on the weekend of 16 to 18 October 2015, 4 to 6 September 2015, and on the weekend of 30 October 2015 to 1 November 2015. 

50. Clearly, two entire weekends are covered by the particularised timeframe during which it is alleged Mr Darley contravened the Order. 

51. His evidence was to the effect that, on 4 September, he collected the children from school; that by the time he at least checked the notification or information provided to him by Ms Darley, he had travelled from C Town to K Town;  given that, he attended at a chemist in K Town to seek medical advice and, whilst he was not able to obtain the Cicacare patch, the chemist made a recommendation to him of an equivalent and he followed the recommendations and applied it.

52. Ms Darley’s evidence may be found at page 50 of 69 of her affidavit of 8 April 2016. 

53. In an email she sent to Mr Darley on 26 October 2015, she referred to her email of 4 and 18 September 2015;  she informed him that the children had told her that the patch had not been applied and she asked that he obtain a patch or an equivalent. 

54. Mr Darley’s response (on 30 October 2015) was to the effect that, if Ms Darley told him about medicines or medical needs the children had before he collected them for the start of their time with him, he would comply.  He asked that she not inform him of these needs in three or four days time.  He noted that he would happily comply with all medications, but he could not administer them if he did not know about them.

55. It is, I think, pertinent in particular to note (as can be found at page 51 of 69 of Ms Darley’s 8 April 2016 affidavit) that the email of 4 September 2015 (to which she referred in her email of 26 October 2015) contained the following information:  that the specialist had said that the Cicacare patch or equivalent should be fixed in place with Fixomull to be used on X’s scar on her heel overnight each night. 

56. That is, it seems to me that the medical recommendation to the parents at that time was to cause a Cicacare patch or its equivalent to be fixed in placed with Fixomull on X’s scar on her heel each night overnight.

57. In an email sent on 18 September 2015 to Mr Darley, Ms Darley informed him that the children had told her that, during their time with him, he had asked them what Fixomull was and that he had not applied the patch to X’s heel; in the email she asked him to get a patch or its equivalent and to apply the same. 

58. Mr Darley’s evidence was to the effect that he had, in fact, applied the patch and had done what he was told to do.  In an email of 15 September 2015, he said words to the effect of, “Yes, no problems.” In his oral evidence he explained that by which he meant there was no issue for him in applying the medical treatment; and he had done so.

59. I accept Mr Darley’s evidence about obtaining the equivalent of a Cicacare patch from the chemist at K Town.  That it is an equivalent seems to be covered by the doctor’s recommendations to the parents.  I accept his evidence that he did apply the patch, notwithstanding what Ms Darley says the children told her on 18 September 2015.

60. I am comforted in my conclusions that it is more likely than not that Mr Darley addressed the issue of X’s heel because of the emails from him on 27 July 2015 (which may be found at page 51 of 69 of Ms Darley’s April 2016 affidavit) wherein he makes clear his concern about X’s heel issue and followed up about the treatment for that difficulty. 

61. For those reasons, then, I am not persuaded that the Applicant has discharged the onus of establishing that Mr Darley intentionally failed to comply with the Order to follow the recommendations of the medical practitioner, or that he made no reasonable attempt to follow the same during the timeframe particularised for this account.  Accordingly, I dismiss numbers 32 and 33 on the 16^th page of the Application for Contravention filed 5 May 2016.

1. I turn now to consider the next Application for Contravention. 

2. It is alleged that, in contravention of Clause 16 of the Order made by Judge Howard on 12 December 2014 (which was that neither party is to discuss adult matters, including the parenting arrangements and the Court dispute with or in the presence of the children) during the children’s time with their father on the contact weekend of 4 to 6 December 2015, he had discussions with X in relation to an operation. 

3. Ms Darley asserts that in doing so, he contravened the Order because, I conclude, she asserts that such amounted to a discussion of “adult matters” – since it could not constitute a discussion of parenting arrangements or the Court dispute. 

4. Ms Darley’s evidence at page 56 of 69 of her 8 April 2016 affidavit refers to a letter from Dr O which is not on the affidavit.  In an email sent to Mr Darley, there is reference to a letter from Dr O which is, not of itself, on the affidavit.  The email contains Ms Darley’s information to Mr Darley that she proposes to follow the recommendations; she asked him whether he consented to X having the operation. 

5. Mr Darley replied saying that he would have a chat with X over the weekend and see what she wanted to do and then would give Ms Darley his decision.  He goes on to say, relevantly, that if X was to be operated on, then he would be there. 

6. During his oral evidence, Mr Darley said that what was the subject of the discussion was a medical procedure to X’s heel.  He said, in essence, that Ms Darley had told him that it needed to be done – that seems consistent with Ms Darley’s evidence.  He says he spoke or chatted with X, that the operation was subsequently done and he thought, to the best of his recollection, that that was the reason which underpinned the necessity to apply the Cicacare patch, or its equivalent, to her heel.

7. His evidence was also that he did not think he was contravening the terms of a parenting order in speaking to his daughter about her prospective operation. 

8. He also said during his evidence that she (X) knew that the operation was coming and what planned and that he had spoken to her because he was concerned about her well-being. 

9. He was not really challenged during cross-examination about his contentions in that respect. 

10. I am not persuaded that, in speaking with X about her prospective operation to her heel, Mr Darley was speaking to her about “adult matters”.  Rather, I think it is clear that he was simply speaking with his daughter out of concern for her well-being and in order to ascertain her position vis-à-vis the operation. 

11. I am not persuaded that a discussion with a child who was to be the subject of an operation constitutes an “adult matter” in the manner likely to be intended by Clause 16 of the Order made on 12 December 2014.  I am not, therefore, satisfied that Mr Darley contravened the parenting Order in the manner alleged.

12. I am not persuaded that the Applicant has discharged the onus of establishing that Mr Darley intentionally failed to comply with the Order. I accept his evidence to the effect that, in speaking with his daughter, he did not think he was contravening a parenting Order but, rather, was acting out of concern for her. 

13. For those reasons, then, I dismiss numbers 34 and 35 on the 17^th page of the Application for Contravention.

14. I turn now to the next allegation of contravention.

15. It is alleged that, in contravention of Clause 17 of the Order made by Judge Howard on 12 December 2014 (namely, that neither party is to denigrate the other, the other parent’s religion or the other parent’s family to or in the presence of the children) on the weekend of 21 and 23 August 2015, Mr Darley said, in front of the children after a meal, that he was “as full as [Ms P’s] bike pants” – being a reference of a denigratory nature to the children’s grandmother, Ms P. 

16. Ms Darley’s evidence is that this is the effect of what the children told her their father had said when she collected them after their time with him on that weekend. 

17. Mr Darley’s evidence is that he did not make that comment to the children.  He said he did not teach the children that phrase and he did not say that to them when they were with him. 

18. The evidence relied upon – namely, an account by the children to their mother – does not necessarily persuade me of an appropriate reason to disbelieve Mr Darley in his refutation of the allegation that he made the comment to the children.  Implicit in his evidence was that some person, other than himself, had taught the children that phrase or expressed it in their presence.

19. I am not persuaded in the circumstances that the Applicant has discharged the onus of establishing that Mr Darley intentionally failed to comply with Clause 17 of the Order made 12 December 2014 or that he made no reasonable attempt to comply with it and accordingly, I dismiss numbers 48 and 49 on the 24^th page of the Application for Contravention filed 5 May 2016.

20. I turn now to consider the next allegation of contravention. 

21. It is alleged that, in contravention of Clause 22 of the Order made by Judge Howard on 22 December 2014 (which was that the parents shall each keep the other informed of their contact details including postal address and any changes thereto immediately) in the period between 18 May 2015 and 7 June 2015, Mr Darley failed to provide Ms Darley with notice of, or failed to keep her informed of, any changes to his contact details immediately. 

22. Immediately has a connation and a meaning which includes “in very close relation” to. 

23. Ms Darley’s evidence is to the effect that Mr Darley only advised her of the change to his address some weeks after he had moved.  She says he moved some time between 18 May 2015 and 7 June 2015 and that the children told her on 31 May 2015 that their father had moved and they were in the new house. 

24. Mr Darley’s evidence was to the effect that he gave Ms Darley appropriate notice of his change of details.  He says, in essence, that as he was the first person to live in the home (in which he continues to reside) because it was constructed just before he moved into it, there were occasions on which he and the children visited at the construction during the course of it being built;  he wondered whether the children were in some state of confusion in relation to when he moved or as a consequence of visiting.

25. In any event, his evidence was clearly to the effect that, when he moved to live in the residence, he notified Mr Darley of the change of the details. 

26. There is no evidence before me to establish when, in fact, Mr Darley moved: therefore, there is no way for me to know whether he “immediately” advised Ms Darley of the change of address and provided the information required. 

27. I accept his evidence to the effect that he provided details after he had moved. 

28. I am not persuaded in the circumstances that the Applicant has discharged the onus of establishing that Mr Darley intentionally failed to comply with the requirement to keep her informed of contact details and any changes thereto immediately or that he made no reasonable attempt to comply with such requirement.  Consequently, I dismiss numbers 50 and 51 on page 25 of the Application for Contravention filed 5 May 2016.

29. I turn now to the next allegation of contravention. 

30. This allegation is that Mr Darley contravened Clause 10 of the Order made by Judge Howard during the period 3 June 2013 to 10 December 2013:  that being the date on which a further interim Order was made affording to the children the opportunity to spend unsupervised time with their father. 

31. It was alleged that Mr Darley contravened the Order which required that, within 14 days of the date of the Order, the parties register at the Q Town Contact Centre and take part in the intake programs at the Contact Centre, with the Q Town Contact Centre to be used if the supervisors are unavailable to supervise the father’s time with the children.

32. Ms Darley’s evidence is that she registered with the Q Town Contact Centre on 5 June 2013.  She says (and is supported in her contention by correspondence from the Contact Centre) that, as at 4 December 2013, her registration was not considered complete because for that to be the case, both parties had to have been registered with the Centre.

33. Mr Darley accepts that he did not register with the Q Town Contact Centre and that he did not take part in their intake process or programs.  He says he made inquiries of the supervisors and that, because they said they were available, he did not register with the Centre.  He gave further evidence about doing courses with Relationships Australia but that seemed to me to be irrelevant to this particular allegation of contravention.

34. It is clear, therefore, on Mr Darley’s evidence that he did not register with the Q Town Contact Centre and he did not take part in the program as Ordered.

35. Therefore, I am persuaded that he intentionally failed to comply with the Order and/or that he made no reasonable attempt to comply with the requirement to register and take part in the intake program at the Contact Centre. 

36. The question then becomes whether Mr Darley (who bares the onus in this respect) has persuaded that he had a reasonable excuse for failing to comply with the requirement to register at the Centre and take part in the intake program. 

37. He says, in essence, that he did have a reasonable excuse: that is, he had not registered because his inquiries with the supervisors revealed that they would be available to supervise the children’s time with him. 

38. I am persuaded that Mr Darley has established a reasonable excuse for his failure to register at the Q Town Contact Centre and to take part in the intake program there because I accept his evidence that he had made those inquiries of the supervisors and that they had informed him that they were available to supervise the time. 

39. In such a circumstance, I consider it reasonable not to register and not to take part in an intake program at a Centre, given that he had been assured he would not be needing to call upon that Centre’s services because of the information provided to him by the supervisors referred to in the relevant Clause of the Order. 

40. In the circumstances, then, I consider that, whilst Mr Darley contravened Clause 10 of the Order made by Judge Howard on 3 June 2013 in the manner to which I have adverted he did so with reasonable excuse. 

41. I turn now to consider the next allegation of contravention. 

42. This is the remaining allegation of contravention. It is an allegation of contravention of an Order that is not, from my view, a parenting order, given the definition to that phrase provided by s 64B of the Family Law Act 1975 (Cth).

43. The allegation of contravention is at items 52 and 53 of the Application for Contravention, and may be found the 26^th page of that document.  The allegation of contravention is an allegation of contravention of an Order that does not affect children.  It is, therefore, governed by the provisions contained with Part XIIIA of the Family Law Act 1975 (Cth), the relevant sections being s 112AB and s 112 AC of the Act.

44. It is alleged that, in contravention of Clause 4 of the Order made by Judge Howard on 12 September 2013 (which was that the husband is to return the keys and the gate opener to the wife within 14 days from the date of this Order) in the period from 12 September 2013 to date, Mr Darley failed to return the keys and the gate opener. 

45. It seems to me that, according to the terms of the Order, it is certainly arguable that Mr Darley had until 26 September 2013 to provide the keys and the gate opener to Mr Darley; therefore, the period during which any asserted contravention has occurred should be regarded as starting from 26 September 2013 until the present. 

46. In any event, it is clear, when regard is had to s 112AB(1)(a) of the Act, that a party will contravene an Order if and only if that party intentionally failed to comply or made no reasonable attempt to comply with the Order. 

47. It is immediately apparent that those terms mirror the provisions applicable to circumstances involving allegations of contravention of parenting Orders. Section 112AC of the Family Law Act 1975 (Cth) outlines the meaning of “reasonable excuse”; that meaning differs to the meaning of “reasonable excuse” afforded for circumstances involving allegations of contravention of parenting orders. Section 112AC of the Family Law Act 1975 (Cth) provides that the meaning of “reasonable excuse” is an inclusive one. It is not limited to the circumstances set out in subsection (2) of that section.

48. Section 112AC(2) provides that a party is taken to have a reasonable excuse for contravening an Order under the Act if because, or substantially because, that party did not at the time of the contravention understand the obligation imposed upon him or her by the Order and the Court is satisfied that a Respondent ought be excused in respect of the contravention.

49. I am not remotely persuaded that, at the time of the alleged contravention, Mr Darley did not understand the obligation imposed upon him by the Order. 

50. The allegation is that, in breach of the requirement to return the keys and the gate opener to Ms Darley by 26 September 2013, he has failed to do so.  Her evidence is that that failure remains ongoing. 

51. Mr Darley accepts that he has not provided the keys or the gate opener to Ms Darley.  He says he did not provide her with the keys because she had changed the locks and, thus, the keys he retains are ineffective. 

52. He also says that he did not provide the gate opener because the parties reached some sort of agreement in relation to Contravention Applications which were at some stage outstanding, such that each would withdraw their Applications for Contravention and he thought, subsequent to that, he did not have to comply with the requirement to give, or to return, to Ms Darley the gate opener.  Ms Darley did not challenge, really, during cross-examination, Mr Darley’s evidence, but she certainly did not accept his contentions in this respect. 

53. It is clear, I think, that Mr Darley contravened the Order made on 12 September 2013 by failing to return the keys and the gate opener to Ms Darley. 

54. The question is whether he had a reasonable excuse for doing so. 

55. Insofar as the keys are concerned, I accept his evidence in relation to the changing of locks and therefore that the keys he retains are of no utility.  Therefore, I am satisfied that he has discharged the onus of establishing a reasonable excuse for failing to return them.   I am satisfied that he ought to be excused in relation to that aspect of the contravention alleged against him,

56. However, I do not accept his evidence vis-à-vis his understanding of the end of his obligation to return the gate opener to Ms Darley. I am not persuaded that he has established on the evidence provided by him, that he had a reasonable excuse pursuant to s 112AC of the Family Law Act1975 (Cth) in relation to his failure to return the gate opener to Ms Darley. I find, therefore, that he contravened the Order without reasonable excuse.

57. Section 112AD of the Act provides that the Court may order the imposition of a sanction considered to be most appropriate in the circumstances.  The terminology of the section makes it clear that the decision about whether to impose a sanction is, of itself, discretionary.  I am not persuaded in the circumstances of this case that it is appropriate to impose a sanction upon Mr Darley for his contravention of the Order by failing to provide the gate opener to Ms Darley. 

58. I have arrived at this conclusion because none of the options provided for by way of sanction in s 112AD(2) of the Act, are, in my view, appropriate in the circumstances of this case.  Secondly, the parties are about to embark upon a final hearing before me next week, during which any issues in relation to any asserted costs or difficulties associated with Mr Darley’s failure to provide the gate opener can be aired. 

59. I note, also, that it is a matter of Court record that Orders have previously been made by Forrest J in relation to the sale of the property (to which the gate opener relates) by way of the appointment of a trustee for sale.  I also have taken into account my view that, if Orders are sought of an injunctive nature in relation to the production of the gate opener so as to facilitate the sale by the trustee of the property, then it is, of course, open to the trustee for sale to approach the Court for such Order;  it is also, of course, open to the parties to seek that such an Order be made during the course of the final hearing next week. 

60. For those reasons, then, I have exercised the discretion not to impose sanction upon Mr Darley for his contravention of Clause 4 of the Order made by Judge Howard on 12 September 2013, where that was constituted by his failure to return the gate opener to Ms Darley by no later than 26 September 2013. 

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 October 2017.

Associate:

Date:    13 October 2017