DRENNAN & DRENNAN

Case •

[2019] FCCA 2799

•

9 October 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRENNAN & DRENNAN [2019] FCCA 2799
Catchwords:
FAMILY LAW – Parenting – contravention application – nine alleged contraventions – one contravention proven – penalty imposed.

Legislation:

Family Law Act 1975 (Cth), ss.70NAA, 70NAC, 70NAE, 70NAF, 70NEB
Applicant: MR DRENNAN
Respondent: MS DRENNAN
File Number: DGC 413 of 2013
Judgment of: Judge Mercuri
Hearing date: 15 April 2019
Date of Last Submission: 15 April 2019
Delivered at: Dandenong
Delivered on: 9 October 2019

REPRESENTATION

Advocate for the applicant: In person
Solicitors for the applicant: None
Advocate for the respondent: Mr Hosking
Solicitors for the respondent: Hosking Lawyers

ORDERS

THE COURT DECLARES THAT:

  1. Upon hearing the father’s contravention application filed 17 January 2019 and:

    (a)the Court being satisfied the mother has committed a contravention of the orders under the Family Law Act 1975 (Cth) (“the Act”) affecting the children (being contraventions of the orders made in the Federal Circuit Court of Australia by consent of the parties on 4 September 2014);

    (b)the mother not having proved that she had a reasonable excuse for the contravention referred to in (a) above;

    (c)no Court with jurisdiction under the Act having previously determined that the mother has, without reasonable excuse, contravened the orders referred to in (a) above; and

    (d)the Court being satisfied that subdivision E of Division 13A of Part VII of the Act apply to the contraventions referred to in (a) above.

IT IS ORDERED THAT:

  1. Pursuant to section 70NEB(1)(a) of the Act, both parties:

    (a)attend and complete a Parenting Orders Program (“the program”) as soon as practicable, as follows:

    (i)the father to complete the program as nominated by the Registry Manager of the Townsville Registry of the Federal Circuit Court of Australia;

    (ii)the mother to complete the program as nominated by the Registry Manager of the Dandenong Registry of the Federal Circuit Court of Australia;

    (b)sign all such documents, follow all recommendations of the program and complete all aspects of the program assessed to be required by each provider for the completion of the program;

    (c)pay and otherwise be responsible for all costs associated with the program; and

    (d)provide the other party with an appropriate certificate of completion of the program.

  2. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A.The purpose of order (2) is to assist the parents to address their long-standing conflicted relationship, to better communicate with each other and to gradually develop insights into how their conflicted relationship and the exposure of their children to this conflict, is having long term effects on their children’s emotional wellbeing and development.

B.Pursuant to section 62B of the Act, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

C.Section 121 of the Act provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Drennan & Drennan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 413 of 2013

MR DRENNAN

Applicant

And

MS DRENNAN

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The court has before it a contravention application filed by the father on 17 January 2019. The application was listed for hearing on 15 April 2019. The father appeared on his own behalf and the mother was represented by counsel.

  2. The father alleged that the mother contravened the final parenting orders made by this court on 4 September 2014 (“the Orders”) on the following occasions:

    a)On 14 September 2018 at 2:33pm, the mother contravened order 4(a) and order 8 of the Orders (“First Alleged Contravention”);

    b)On 26 June 2017 at 9:34am, the mother contravened order 4(a) of the Orders (“Second Alleged Contravention”);

    c)On 25 September 2015 at 9:10am, the mother contravened order 4(a) of the Orders (“Third Alleged Contravention”);

    d)On 15 May 2015 at 6:58pm the mother contravened order 4(a) of the Orders (“Fourth Alleged Contravention”);

    e)On 23 October 2018 at 6:00pm the mother contravened order 4(m) of the Orders (“Fifth Alleged Contravention”);

    f)On 4 September 2016 at 12:05pm, the mother contravened order 4(o) of the Orders (“Sixth Alleged Contravention”);

    g)On 20 September 2014 at 4:44pm the mother contravened order 4(m) of the Orders (“Seventh Alleged Contravention”); and

    h)On 11 July 2015 at 8:42am, the mother contravened order 6(d) of the Orders (“Eighth Alleged Contravention”).

  3. The father also alleges that the mother “has not consulted with [him] whatsoever on schooling/education choices”,[1] “has not allowed [him] any parental responsibility whatsoever” [2], and “has never informed [him] of where the children live” [3]  (“Ninth Alleged Contravention”).

    [1] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at paragraph 23.

    [2] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at paragraph 23.

    [3] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at paragraph 23.

  4. The Ninth Alleged Contravention was struck out on the basis that it failed to adequately particularise the alleged breach, in that it did not identify the date, time or place at which the alleged contravention occurred. 

  5. At the commencement of the proceedings, the mother, through her representative, pleaded not guilty of each of the First to the Seventh Alleged Contraventions.  The mother pleased pleaded guilty to the Eighth Alleged Contravention but indicated that she had a reason for doing so.

Factual background

  1. Before addressing each of the alleged contraventions, I set out a brief background to these proceedings.

  2. The parties began living together in approximately 2001 and were married in 2002.  The parties separated in 2011 and divorce proceedings were finalised in or about 2013.

  3. There are two children of the relationship, X born … 2003 and Y born … 2005. 

  4. In 2013, the mother initiated proceedings in this court seeking parenting and property orders. Final parenting orders were made by consent on 4 September 2014 providing that the mother and father were to have equal shared parental responsibility and that the children were to live with the mother and spend time with the father pursuant to order 4.

  5. Order 4 relevantly provides:

    4.That the children spend time and communicate with the respondent father as follows:

    (a) on any weekend that the respondent father is able to visit the children in Melbourne from 9.00am Saturday to 4.00 pm Sunday;

    (b) on Saturday 29 November 2014 at 9.00 am until Sunday 30 November 2014 at 4.00pm;

    (c) on Saturday 17 January 2015 at 9.00 am until Sunday 18 January 2015 at 4.00pm;

    (d)on 28 March 2015 at 9.00am until 2 April 2015 at 4.00pm;

    (e)that the times spent pursuant to subparagraphs (a), (b), (c) and (d) hereof are to be spent in Victoria;

    (f)that the first two periods of time spent pursuant to (a) and (b) hereof be spent with the respondent father and not in the presence of his partner;

    (g)that for the purposes of time spent in the preceding subparagraphs, changeover will occur at the Suburb A Park;

    (h)that any time spent pursuant to subparagraph (a) hereof is subject to the provision by the respondent father of four weeks written notice (including email);

    (i)that the respondent father shall confirm all periods of time spent pursuant to subparagraphs (a), (b), (c) and (d) hereof seven days prior to attending Victoria;

    (j)that subject to the respondent father spending two weekend periods with the children in Victoria and the March term holiday in Victoria in accordance with subparagraph (a) and (d) the children will thereafter spend one week in each term holiday with the respondent father to be spent alternatively in Queensland and then Victoria;

    (k)that the total costs of the children’s travel to Queensland pursuant to subparagraph (h) is to be borne by the respondent father;

    (l)…

    (m)by telephone each Tuesday between 6.00 pm and 7.00pm and each Saturday between 4.00pm and 5.00pm with the respondent father to telephone the children on a telephone number to be provided by the applicant mother and the applicant mother to ensure the children are available to take the call;

    (n)that the respondent father shall be responsible for ensuring that credit is maintained on the children’s phone; and

    (o)such other times as agreed.

    on any weekend that the respondent father is able to visit the children in Melbourne from 9.00am Saturday to 4.00pm Sunday.

  6. Order 6(d) relevantly provides:

    6.That the applicant mother shall authorise and does so authorise for the respondent father to receive at his cost:

    …

    (d)advice from any medical practitioner who treats the children as to such treatment.

  7. Order 8 of the Orders relevantly provides:

    That the parties shall communicate by email in respect of all matters relevant to the children and such messages shall relate solely to issues in respect of the children.

Father’s evidence

  1. The father deposed to the following in support of his contravention application:[4]

    a)the mother complied with her obligations under the Orders until April 2015;

    b)since the Orders were made, he has spent approximately two days with the children and has spoken to them twice on the telephone;

    c)the mother has threatened to keep the children away from the father until such time as he signs their applications for a passport;

    d)the mother has failed to facilitate time with the father pursuant to the Orders on various occasions;

    e)the mother has failed to facilitate telephone time with the father pursuant to the Orders on various occasions; and

    f)the mother has refused to provide details of the children’s psychologist pursuant to the Orders.

    [4] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019.

  2. The father also annexed various communications in support of the alleged contraventions, relevantly:

    a)In an email on 17 September 2014, the mother said:

    As to visit in November I will confirm 7 days prior to visit as per court orders, I can see no reason why this would be a problem as long as you observe the orders and your family and Ms B are not present.[5]

    [5] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure L.

    b)The father replied on 20 September 2014 including:

    Trying to ring our children after weeks of delay, could you please facilitate this today?  You requested $10 even though your legal team stated you would connect the mobile to initiate things.  I’ve now spent another $20 in weeks without any outcome or assistance from you to call our children.[6]

    [6] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure L.

    c)On 13 May 2015, the father sent an email to the mother stating:

    We are looking to come down to visit the children on the weekend of the 15th/16th August or 29th/30th August.

    Please confirm which of these dates are more suitable for you.  Given the large amount of notice, I trust that this won’t be an issue.[7]

    [7] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure G.

    d)The father then followed up with a further email on 15 May 2015 in which he said under cover of a ‘without prejudice’ notation:

    I’m requesting that I collect our children at 0900 from the light house.  If I feel that the children only want to stay for two hours then I will drop them off at what ever time they wish.  I feel this is only fair to all of us instead of being constrained with times as they wouldn’t be able to relax properly.  If they want longer then I feel it is up to them at the time.  I am their father and I’m more than capable to acknowledge their feelings, wants and needs.

    The first date I proposed would be great so please book it in.[8]

    [8] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure G.

    e)On 15 May 2015 the mother sent an email to the father in which she said, among other things:

    Your have shown no interest in following the agreed and still valid court orders which were specifically designed to allow the children to reconnect with you.

    Your actions during your last visit has left the children with no trust in you or your promises and they not do not feel reconnected with you at all.

    …

    If it does not suit I suggest you apply for a variance to the standing orders.

    The previous offer still stands but will only occur upon the passports being passed and issued as agreed to by you at court. (sic)[9]

    [9] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure H.

    f)The father requested time with the children by email dated 24 September 2015 for the weekend of 24-25 October 2015.  He stated:

    Please advised if this date suits our children’s plans as I will need to book accom, flights ect before COB tomorrow 25 Sept 2015 (sic).[10]

    [10] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure F.

    g)The mother replied by email the next morning at 9:10am in the following terms:

    No visits will occur until you agree to abide by the conditions set by the Family Court custody hearing on 4/9/2014.  These were agreed to on the basis that you signed and allowed the children’s passports to be issued.

    I am more than happy to discuss this issue only with you over the phone at a time suitable to both of us.[11]

    [11] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure F.

    h)On 4 September 2016, the father sent a further email to the mother in which he asked her to facilitate a call with the children.[12]

    [12] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure K.

    i)The father sent a further email on 16 May 2016 requesting to spend time with the children on 22-23 July 2017 or 29-30 July 2017. He asked that the mother indicate which weekend she preferred by close of business Friday 19 May 2017 so he could book flights and accommodation.[13]

    [13] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure D.

    j)The father followed up by email on 23 May 2017 as follows:

    Are you available this week to have a phone discussion with me about how we can move forward so I can have a relationship with my children?

    If so, please let me know a convenient time.

    I am just a father that wants to see and have a relationship with his children.[14]

    [14] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure D.

    k)The mother’s lawyer responded by email dated 26 June 2017 as follows:

    Our client has agreed to you seeing the children on 22 July 2017 between 10.00 and 1.00pm on the basis that the children want to see you.  Our client has encouraged the children to see you on this day and will continue to do so.  Whether the children choose to see you on this day is however a matter for them and not something our client can ‘guarantee’ you.

    The children are aged 11 and 13, are mature for their age and our client does not intend to force them to spend time with you if they are particularly distressed about the prospect or adamant they do not want to spend time with you.  We are instructed the children are very hurt and confused by your absence and our client is focussed solely on what is in their best interest. 

    …

    One issue you may wish to consider prior to this time is that the children are very distressed at not being able to confirm their attendance on a trip to Country C in early August.

    They are disparately awaiting the return of their passport application which our client has sent you and we are instructed it would be a huge relief for the children if that were return signed by you immediately so that arrangements for the trip can be finalised forthwith.[15]

    l)The father sent an email on 9 September 2018 seeking time with the children on the weekend of their birthday, namely the weekend of … 2018.  He also indicated that he wanted to spend two weeks with the children over the 2018 Christmas holidays.[16]  The father indicated that this time was requested by the children.

    m)The mother replied by email the following morning saying that the children had not mentioned this to her and she would be in touch when they did.[17]

    n)On 14 September 2018, the mother sent the father a detailed email in which she said, among other things:

    What you have proposed are your wishes and do not align at all with anything the children want.

    Both children have talked to me and independent parties and have stated that they felt like you are a complete stranger to them.

    The visit indicated that you are not at all interested in being part of their lives.  In fact it’s about you, and making them fit in to your lives which are two completely different things. 

    …

    They don’t feel comfortable with the thought of spending any more than a few hours at a time with you in the foreseeable future.

    Hopefully by adopting structured and regular visits, you will rebuild the trust and fractured relationship you caused by your choices in the last 7 years.

    [15] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure E.

    [16] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure B.

    [17] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure B.

    …

    In light of this any visits going forward will be done in the following manner and will only occur after their passports are issued:

    ·For periods of no longer than 4 hours at a time

    ·Within 20 min of their home in Suburb A

    ·The visits will occur with you alone

    ·The children can end the visit without explanation any time they chose and you will drop them back immediately without complaint. 

    If you are unhappy with this, I suggest you address it through the appropriate legal channels remembering they are soon 13 & 15 and the rulings will be based on their opinions only.

    Please advise me of the dates going forward you intend to see the children (emphasis added).[18]

    [18] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure C.

  3. The father relied upon this correspondence in support of his contravention applications.

Mother’s evidence

  1. The mother filed an affidavit in these proceedings in which she stated:

    a)shortly after separation, the father moved to Queensland and showed very little interest in seeing the children from 2011 to 2013 when court proceedings were commenced;[19] 

    [19] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 5.

    b)the father showed some interest in spending time with the children immediately after the 2014 Orders were made but then he lost interest for extended periods of time;[20]

    c)the father has only seen the children on 2 occasions in the past 5 years;[21]

    d)in January 2015, the father had arranged to spend time with the children but failed to turn up.  The mother states that the children waited for over an hour and were very disappointed at the father’s failure to attend;[22]

    e)the children have also been very upset at the father’s continued failure to sign their passport applications which has prevented them from attending an overseas family holiday and also has put at risk their ability to attend overseas school and sporting camps;[23]

    f)the children have expressed concern about spending extended periods of time with the father and that they become scared when he yells at them over the telephone;[24]

    g)the culmination of the father’s lack of effort with the children has resulted in them not wanting speak to him or see him;[25]

    h)the children spent time with the father in September 2018 and they said that he did not show interest in their lives, but rather asked about the mother and spoke about his life in Queensland and why they should go there;[26]

    i)the mother encourages the children to speak to and spend time with the father however, it is becoming increasingly hard to force an almost 14 and almost 16 year old to do so;[27]

    j)the children have told her that they do not want her to pass on their mobile numbers to the father;[28] and

    k)the father has taken no interest in the children’s education or sporting activities even though he is able to speak with the school and attend parent teacher interviews or school or sporting functions.[29]

    [20] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 5.

    [21] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 5.

    [22] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 6.

    [23] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 6.

    [24] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 7.

    [25] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 8.

    [26] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 9.

    [27] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 9.

    [28] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 10.

    [29] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 11.

Legislative provisions

  1. Section 70NAA of the Family Law Act 1975 (Cth) relevantly provides:

    (1)This division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.

    (2)…

    (3)The other orders that the court can make depend on whether:

    (a)a contravention is alleged to have occurred but is not established (Subdivision C); or

    (b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or

    (c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).

  2. Section 70NAC of the Act further provides:

    A person is taken for the purpose of this Division to have contravened an order under this Act affecting children, if and only if:

    (a)where the person is bound by the order – he or she has:

    (i)intentionally failed to comply with the order; or

    (ii)made no reasonable attempt to comply with the order…

  3. Section 70NAE of the Act sets out the circumstances in which a person is taken to have had, for the purposes of Division 13A, a “reasonable excuse for contravening” an order. 

  4. Section 70NAF of the Act provides that the standard of proof in contravention proceedings is on the balance of probabilities. That includes the standard of proof to determine whether a person who contravened an order had a reasonable excuse for the contravention.

Consideration

First Alleged Contravention

  1. It was alleged by the father that on 14 September 2018 at 2:33pm, the mother contravened orders 4(a) and 8 of the Orders in that the mother, without reasonable excuse:

    a)refused to allow the applicant to have weekend contact with the children;

    b)put conditions on the contact not in the Orders; and

    c)communicated with the father by email regarding matters not relating to issues with respect to the children.

  2. In response to this allegation, the mother stated that after the children had spent some time with the father on 9 September 2018 from 10:30am to 1:00pm, the father sent the email at Annexure B to his affidavit.[30]  She further stated that the children had told her that they did not want to spend their birthday weekend with the father and indeed did not want to spend more than a few hours with him.[31]

    [30] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure B.

    [31] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 12.

  3. The mother’s evidence was that the father had only spent two visits with the children since the Orders were made, namely:

    a)one visit in November 2014 as outlined in the Orders; and

    b)one visit in September 2018.[32]

    [32] Transcript page 30 at lines 8 and 9.

  4. The mother’s evidence was that, as a result of the minimal time spent by the father with the children, the children feel that the father is like a stranger to them.[33]

    [33] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 9.

  5. The mother further stated that she found the tone of the father’s email communications to be aggressive.  Her response is at Annexure C to the father’s affidavit.[34]  The mother’s evidence, which I accept, is that the father did not respond to this email.[35]

    [34] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure C.

    [35] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 13.

  6. To the extent that the father alleged that the mother’s email of 14 September 2018 was in breach of order 8, I find this contravention not proven.  The email communication relates to the children’s time with the father and concerns the children have raised with the mother about spending time with the father.

  7. The father pointed to the fact that the mother also made reference to the circumstances which, from her perspective, led to the breakdown of the family relationship.  When read in context, this is clearly related to some of the issues which the mother asserts have contributed to the state of the children’s relationship with the father being as it is.  Whilst the father may disagree with these matters, in my view they are still matters which are relevant to whether time with the children should progress pursuant to the current orders.

  8. The mother simply raised her concerns based on what she alleged the children have told her. In doing so, I am not satisfied that she has contravened order 8 as alleged.

  9. As to the allegation that the mother contravened order 4(a) by refusing to allow weekend time or by imposing conditions not in the Orders, whilst it could be said that by her email of 14 September 2018 the mother was seeking to alter the time spend arrangements provided for in order 4, the father conceded that he did not respond to that email.  He did not proceed to exercise his time with the children. 

  10. I accept the mother’s evidence that since the Orders were made, the father only spent time with the children on two occasions, the first of which was in 2014 and the second, in September 2018.  The mother’s email of 14 September 2018 must be viewed in those circumstances.

  11. In those circumstances, I am not satisfied that the father has established to the requisite standard that the mother contravened order 4(a) by sending the email of 14 September 2018.  She would have contravened order 4(a) had the father attended for his time with the children after giving the requisite notice and the mother not made the children available.

  12. For each of these reasons, I find the First Alleged Contravention is not proven.

Second Alleged Contravention

  1. It was alleged by the father that on 26 June 2017 at 9:34am the mother contravened order 4(a) of the Orders in that, without reasonable excuse, the mother put conditions on the father’s request for weekend contact with the children that were not in the Orders.

  2. The mother plead not guilty to this contravention.

  3. The email correspondence between the parties in relation to this issue is set out above.  The father conceded in cross examination that given the ages of the children, it was not unreasonable for the mother to say that whilst she would encourage them to spend time with him, she would not force them to do so.[36]

    [36] Transcript page 10 at line 40.

  4. The mother states that she agreed to the weekend time proposed by the father but that he did not turn up for that time.  The correspondence from the mother’s lawyer is not entirely consistent with this.  Correspondence from the mother’s lawyer indicates that she agreed to time on 22 July 2018 but imposed some time limitation on that and was silent on any time on 23 July 2018.[37]

    [37] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure E.

  5. Again, in relation to this allegation, on receipt of the mother’s correspondence, the father did not attend for the time with the children.  In cross examination, he stated that the reason for this was that there was a history of “parental alienation from the start”[38] by the mother. Additionally, as a result of the poor communication between the parents and the costs involved in travelling to Victoria if the children were then not made available, he conceded that he did not attend.

    [38] Transcript page 11 at line 12.

  6. In those circumstances, and for the reasons set out at paragraph 31 above, I conclude that the father has not established the second alleged contravention to the requisite standard.

  7. I therefore find the Second Alleged Contravention not proven.

Third Alleged Contravention

  1. It was alleged that on 25 September 2015 at 9:10am the mother contravened order 4(a) of the Orders in that without reasonable excuse, the mother refused to allow the applicant to have weekend contact with the children and put conditions on the contact not in the Orders.

  2. The father conceded in cross examination that he has not signed the children’s passport applications and explained that the applications which were provided to him were incomplete. 

  3. In her affidavit in response, the mother stated that she advised the father that the dates that he had proposed were unsuitable and suggested alternative dates.[39]  That is not what Exhibit F to the father’s affidavit says, nor has the mother produced any evidence of correspondence in support of her assertions.  Exhibit F clearly indicates that the mother was not proposing to facilitate any time until the father signed the children’s passport application. 

    [39] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 16.

  4. The issue of the father’s refusal to sign the children’s passport application is clearly a significant dispute between the parties.  It is the mother’s evidence that she agreed to the Orders on the understanding that the father would sign the passport applications.  The father says that he has not signed the passport applications because they were incomplete.[40]

    [40] Transcript page 14 at lines 9 and 10.

  5. The mother’s evidence is that as a result of the father’s failure to sign the passport applications for the children, they have missed out on an overseas family holiday and are at risk of missing out on various school and sporting camps which involve overseas travel.  The mother consistently raised this as a concern for the children.  The father denied that he has refused to sign the passport applications, but rather gave reasons as to why this has not occurred.  He conceded that he initially did sign the application form at court when the parties reached agreement on the Orders, but said that he felt pressured to do so.[41]

    [41] Transcript page 36 at lines 41 and 43.

  6. Both parties stated that they had a telephone conversation about this issue on 25 September 2015.  The father’s version of this telephone conversation is consistent with the mother’s email referred to above; that is, he says that she maintained, among other things, that she would not allow the children to see him until they have their passports.

  7. It is also evident from the father’s own evidence that he refused to sign the children’s passport applications until his relationship with them had been re-established and they start flying up to Queensland to spend time with him.

  8. The mother denied this version of what happened and says that she was scared and fearful of the father’s mental state after this conversation.

  9. I accept the father’s evidence of the substance of this discussion.  It is clear from the email from the mother dated 25 September 2015 that she was not going to facilitate time until such time as the father signed the passport application.  Unfortunately for the mother, the Orders did not require the father to sign such an application.  In those circumstances, by refusing to make the children available at any time requested by the father unless and until he signed the passport applications, the mother acted in contravention of order 4(a).  She had no reasonable excuse for doing so.

  10. For these reasons, I find the Third Alleged Contravention proven.

Fourth Alleged Contravention

  1. It was alleged that on 15 May 2015 at 6:58pm the mother contravened order 4(a) of the Orders in that she, without reasonable excuse, refused to allow the father to have weekend contact with the children and put conditions on the contact not in the Orders.

  2. The email exchange annexed to the father’s affidavit does not establish to the requisite standard that the mother was not going to make the children available as required by order 4(a).  The mother’s email of 15 May 2015 ends with the statement:

    The previous offer still stands but will only occur upon the passports being passed and issued as agreed to by you at court.[42]

    [42] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure H.

  3. It is not clear what the “previous offer” was nor is it clear what the offer was that the mother refers to in the substance of her email.

  4. The mother states in her affidavit[43] that when she received the father’s email of 13 May 2015 requesting time, it appeared that he would be accompanied by someone at that time because he said “we are looking to come down to visit the children… (emphasis added)”.[44]  The mother deposed that she responded by telling the father that any time spent with the children should be just with him as the children did not want to spend time with his partner.[45]  The mother also deposed that she told the father that the children were refusing to see him and had become very distressed at the prospect of spending overnight time with him.[46]

    [43] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 19.

    [44] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure H.

    [45] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 20.

    [46] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 20.

  5. The mother conceded that she again raised the issue of the children’s passport in her email response to the father; however, she deposed that she was under pressure and constant questioning about the passport issue from the children because it was of significance for them.[47]

    [47] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 21.

  6. I also note that in the father’s email of 15 May 2015, the father appeared to concede that the children may not wish to spend the whole weekend with him, although he sought the ability to determine whether this is the case rather than have it dictated by the mother.[48]

    [48] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure G.

  7. On the basis of the totality of the evidence, I find the fourth alleged contravention not proven. 

Fifth Alleged Contravention

  1. It was alleged that on 23 October 2018 at 6:00pm the mother contravened order 4(m) of the Orders in that she did not make the children available for telephone contact as required by order 4(m).

  2. The father stated in his affidavit that since the Orders were made he had spoken to the children twice on the telephone.[49]

    [49] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at paragraph 11.

  3. The father annexed an email dated 21 October 2018 in which he requested that the children be available for his call the following Tuesday.[50]  He said that upon trying to call the following Tuesday, he first received a text message saying that the children did not want to speak to him and then a further text message ostensibly from the children saying they did not want to speak to him.[51]

    [50] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at Annexure I.

    [51] Affidavit of Mr Drennan affirmed 17 December 2018 and filed 17 January 2019 at paragraph 19.

  4. The mother stated that the Orders specified the manner and times at which the father could contact the children by telephone.  In particular, the father was required to pay for a mobile telephone for the children and that it had credit.  The mother’s evidence is that the father failed to maintain the credit on the children’s mobile telephone and therefore the number which the mother had obtained for them was cancelled by the telecommunications provider in about 2015.[52]

    [52] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 22.

  5. The father says that he had difficulty in making payments for the telephone credit because of the mother’s failure to cooperate in respect of this issue.

  6. The mother stated that the telephone call made by the father on 23 October 2018 was made to her mobile telephone and was made outside of the hours prescribed in the Orders.  The father called at about 7:10pm which the mother said she assumed was 6:10pm in Queensland.[53]  The father conceded in cross examination that Queensland does not have daylight savings time in summer and therefore there may have been some confusion about the timing of the telephone call given that he was making the telephone call in Queensland while the children were in Victoria.

    [53] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 23.

  7. In the circumstances, the father has failed to establish a contravention of order 4(m) as there is insufficient evidence that the father made the telephone call to the children within the time specified in the Orders.   Moreover, I note that order 4(m) requires the mother to ensure that the children are available to take the call.  It appears from the evidence that the children were available to take the call but did not wish to speak to their father.  In those circumstances, the father has not established to the required standard that the mother has contravened the Orders. 

  8. For these reasons, I find the Fifth Alleged Contravention not proven.

Sixth Alleged Contravention

  1. It was alleged that on 4 September 2016 at 12:05pm, the mother contravened order 4(o) of the Orders in that she did not make the children available for telephone contact with the father.

  2. As noted above, order 4(o) provides for the children to spend time and communicate with the father at such other times as agreed.  The father stated that he requested to speak with the children by telephone in an email dated 4 September 2016 and received no response. 

  3. In the absence of an agreement having been reached, I find the Sixth Alleged Contravention not proven.

Seventh Alleged Contravention

  1. It was alleged that on 20 September 2014 at 4:44pm, the mother contravened order 4(m) of the Orders by failing to make the children available to the father for telephone contact.

  2. The father sent an email to the mother on 20 September 2014 asking her to facilitate a telephone call with the children.  The father did not provide any evidence as to whether there was a response to this email.

  3. The mother could not recall the incident.[54]

    [54] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 27.

  4. I note that this alleged contravention occurred some five years ago.

  5. Whilst the father has established that he requested a telephone call, he has not established to the requisite standard that the mother failed to make the children available for the telephone call. The mother was not required to ensure that the father spoke to the children, which goes beyond what order 4(m) requires.

  6. I therefore find the Seventh Alleged Contravention not proven.

Eighth Alleged Contravention

  1. It was alleged that on 11 July 2015 at 8:42am, the mother contravened order 6(d) of the Orders in that, without reasonable excuse, she refused to disclose the children’s psychologist’s details.

  2. The mother conceded that she did not provide the father with the children’s psychologist.  She explained however, that she had arranged for the children to see a psychologist, Ms D, in around 2014 or 2015 to help deal with some issues which had arisen following the parent’s separation.

  3. When requested by the father, the mother told Ms D that the father wanted to speak to her about the children.  Ms D told her that she was not comfortable speaking to the father and would not be doing so.[55]

    [55] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 30.

  4. The mother said that she attended the first session with the children and thereafter the children attended on their own with Ms D.  Ms D ultimately advised the mother that the children responded very well and were no longer required to attend.[56]

    [56] Affidavit of Ms Drennan affirmed and filed 12 April 2019 at paragraph 31.

  5. There is a question as to whether the mother’s conduct could properly be said to have been in breach of order 6(d) in that she did authorise the father to obtain information from Ms D and passed on the father’s request. It was ultimately Ms D who refused to speak to the father. 

  6. I am mindful that there is no evidence directly from Ms D in relation to this. Therefore, together with the concession made by the mother that she did not pass on Ms D’s details to the father, I am prepared to accept that whilst the mother has not complied with order 6(d), she did make a reasonable attempt to do so.  I accept the mother’s evidence that she raised the father’s request with Ms D and relied upon Ms D’s assessment about whether speaking to the father would be in the children’s best interests.

  1. For these reasons, I find the Eighth Alleged Contravention not proven on the basis that the mother made a reasonable attempt to comply with order 6(d).

Penalty

  1. Having found one of the alleged contraventions proven, I now turn to consider what, if any, orders ought to be made. 

  2. For this purpose, Subdivision E of Division 13A of the Act applies to less serious contraventions. I am satisfied that the contravention in this case is a less serious contravention. Section 70NEB sets out the court’s powers where there has been a less serious contravention.

  3. In the course of submissions, the father said that if the court were to find a contravention had occurred, it would be appropriate for the parties to attend a post separation parenting program.

  4. I note that the father has subsequently filed an application seeking to amend the current parenting orders.  In those circumstances, and having regard to the background to this matter, the distance between the parties residences and the age of the children, I am satisfied that it is appropriate to direct the mother to attend a post-separation parenting program and I so order.

  5. It is apparent from the tone and tenor of correspondence between these parties that they have difficulty communicating with each other in a manner which puts the interests of their children first.  It is also evident that they each have difficulty in accepting the part they both play in the dysfunctional manner in which they communicate. 

  6. What is evident is that this method of communication has not achieved what either of them say they seek.  Namely, in the case of the father, a relationship with his children, and in the case of the mother, the ability to progress the children’s passport applications so that they can access the opportunities available to them.

  7. It is hoped that in participating in a post-separation parenting program these parties may gain insight into how they can communicate more effectively and reduce the conflict between them for the benefit of their children.  Given that the father lives in Queensland and the mother lives in Victoria, it is suitable that the parties attend different programs in locations convenient to each of them.

  8. I therefore make orders that both parties attend a Parenting Orders Program to assist them to better communicate and understand how the ongoing dispute between them impacts on their children’s wellbeing and the relationship that they each wish to have with their children into the future.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:       9 October 2019


Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Penalty

  • Remedies

  • Jurisdiction

  • Procedural Fairness

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