DUKE & SMITH

[2014] FamCA 1082

FAMILY COURT OF AUSTRALIA

DUKE & SMITH [2014] FamCA 1082

FAMILY LAW – CHILDREN – with whom a child spends time with – orders – contravention – whether mother under a continuing obligation to comply with order after an unsuccessful handover – to find a continuing obligation would require substantial variation to the provisions of the parenting order - application for contravention dismissed.

Family Law Act 1975 (Cth) s 65N, 70NAC, 70NAE, 70NAF, 70NEA, 70NEB

Family Law Rules 2004 (Cth) r 21.08

Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214
Stavros & Stavros (1984) FLC 91-562
Stevenson & Hughes (1993) FLC 92-623

APPLICANT: Mr Duke

RESPONDENT: Ms Smith

FILE NUMBER: ADC 4833 of 2009

DATE DELIVERED: 5 December 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 12 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Christopher Ganzis & Co

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler Barristers and Solicitors

Orders

1. That the Contravention Application filed 31 July 2014 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: ADC 4833  of 2009

Mr Duke

Applicant

And

Ms Smith

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 31 July 2014, Mr Duke (“the father”) filed an Application for Contravention of orders made 21 January 2014. Ms Smith is the respondent (“the mother”).  The Application for Contravention in its original form alleged nine counts of parenting orders pertaining to the time B Duke, born in 2006 (“the child”), should spend with the father.

2. The father alleges that the mother failed to comply with parenting orders made 21 January 2014 and that she did so without reasonable excuse.

3. The application was supported by affidavits of the father and his partner Ms K both filed on 31 July 2014. The mother elected to rely upon her affidavit filed 14 October 2014 and of her partner Mr W filed on even date.  Whilst it is peripheral to the contravention hearing, it should be noted that the affidavits relied upon by the mother have a dual purpose in that they also were filed in support of an Application in a Case filed 14 October 2014 in which the mother seeks a suspension of the operative orders made 21 January 2014.

4. The proceedings were heard on 12 November 2014 and subject to counsel for each of the parties providing a List of Authorities and short Outline of Argument in relation to a specific topic, judgment was reserved.

5. The parties and their respective partners gave evidence and were cross examined. 

BACKGROUND

1. The father was born in 1958 and the mother in 1971.  The father is a financial services provider and the mother is a health professional.

2. The parties commenced cohabitation in 2004, were married in 2005 and following the birth of the subject child, namely B, born in 2006, the parties separated in October of that year.

3. It is a fair assessment that there has been considerable conflict between the parties as to parenting issues affecting the child.  The original proceedings were initiated by the father on 23 December 2009 and since that date the Court file reflects ongoing and bitter litigation.  Whilst not central to the determination of the current application, it is instructive to note that there have been four family reports prepared by the family consultant seeking to assist the Court in the determination of parenting issues.

ORDERS OF 21 JANUARY 2014

1. Taking into account the long history of disputation over the arrangements in respect of the child, it was unexpected that the parties would reach a consent position.  The consent orders of 21 January 2014 are final orders that resolved to finality the parenting dispute.

2. The orders reflect that the parties were each represented by counsel who helpfully continue to appear.  The order notes that even as at the date of consent there were outstanding applications for contravention of orders that had been filed by the father.

3. The orders are comprehensive and provide for the child to live with the mother but on an ascending basis, to spend significant and substantial time with the father.

4. Notwithstanding what appears to be a comprehensive resolution to the dispute, paragraph 9 provides:-

   That the parties and the said child shall attend upon [X Services] for the purpose of attachment/reunification counselling upon such terms and conditions as either [Ms J] or [Ms C] direct and the mother shall facilitate the child’s attendance thereat.

5. It was noted at the time that the inclusion of such a provision should not be seen pessimistically or indeed as a self-fulfilling prophecy but rather as a safety net (my words) to ensure that the child and the parties are properly supported in their desire to bring finality to the proceedings.

6. Unfortunately there has been an almost total breakdown in the relationship between the father and the child and there have been no occasions when the child has spent time with the father pursuant to the orders.

7. The mother asserts that she has done all that she reasonably can to promote the relationship between the child and his father, is supportive of the relationship and understands her obligations under the orders.  In summary, the mother says that she can do no more to support the child’s relationship with the father.

8. For his part, the father considers that the mother is far from supportive and that unless there is an environment in the mother’s home that promotes the relationship there will be an ongoing problem.

9. It is noted that there is a high level of mistrust between the parties and that their relationship is highly conflictual.  The degree to which the child’s behaviour is adversely affected by the observations of the internecine dispute between his parents whilst unknown is not likely to be beneficial.

APPLICATION FOR CONTRAVENTION

1. At the commencement of the proceedings, counsel for the father sought that Counts 1 to 8 be dismissed leaving only Count 9 to be proceeded with.  The father is to be commended for the approach adopted in that it focussed the proceedings on the real issue namely, whether the order had been breached and if so whether the mother had a reasonable excuse for doing so. Count 9 is generally representative of the other now dismissed counts.

2. The mother pleaded not guilty to the remaining count.

COUNT 9

1. This Count in its original form alleged that the respondent without reasonable excuse refused to allow the applicant to spend time with the child and/or refused, failed or neglected to facilitate the applicant spending time with the child on 4 July 2014 to 6 July 2014 between 3.05pm and 3.30pm at McDonald’s Restaurant, Anzac Highway.

2. The alleged breach is in respect of paragraphs 4 (a) and 8 of the orders made 21 January 2014.  Counsel for the father sought leave to amend the statement of alleged contravention to make it clear that there were two aspects to the particular breach namely, that the child did not stay with his father at the commencement of time on 4 July 2014, but that in any event the mother had a continuing obligation to comply with the order thereafter which continued for the entire period provided for.

3. Paragraph 4 (a) of the consent orders provides:-

   (a)For a period of three days during the June/July 2014 school holidays from the last day of the school term.

4. Paragraph 8 of the consent orders provides:-

   Handover upon the conclusion of the father’s time shall occur at the mother’s home and otherwise those not occurring at school shall occur at the McDonald’s Restaurant.

THE LAW

1. It is Division 13A of Part VII of the Family Law Act1975 (Cth) (“the Act”) that designates the legislative pathway concerning an Application for Contravention for orders made under the Act. The alleged contraventions as set out arise from parenting orders made by consent on 21 January 2014.

2. Subdivisions C to F of Division 13A of Part VII provides the orders available to the Court that can be made in instances where:-

   (a)The contravention has been alleged but not established (subdivision C);

   (b)The contravention is established but reasonable excuse for the contravention is found (subdivision D);

   (c)The contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (subdivision E); and

   (d)The contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (subdivision F).

3. Because of the nature of the argument I ordered that counsel provide written submissions as to whether the mother was subject to a continuing obligation to comply with the order once the initial attempt at handover was unsuccessful.

SECTION 70NAC – MEANING OF “CONTRAVENED”AN ORDER

1. A person is taken for the purposes of this division to have contravened an order under this Act affecting children, if, and only if:-

   (a)Whether a 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.

SECTION 70NAE – MEANING OF “REASONABLE EXCUSE FOR CONTRAVENING” AN ORDER

(1 )The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this Act affecting children include, but not limited to, the circumstances set out in (2), (4), (5), (6) and (7);

(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting the children if:-

(a)The respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b)The Court is satisfied that the respondent ought be excused in respect of the contravention.

(3)If a Court decides that a person had a reasonable excuse for contravening an order under this Act for the reasons referred to in paragraph (2) (a), it is the duty of the Court to explain to the person, in language likely to be readily understood, the obligations imposed by the order and the consequences that may now follow if he or she again contravenes the order.

(4)…

(5)…

(6)…

(7)…

SECTION 70NAF – STANDARD OF PROOF

(1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities. 

(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravenes an order under this Act affecting children has a reasonable excuse for the contravention.

(3)The Court may make an order under:-

(aa)     Paragraph 70NEB (1) (d) (a); or

(ab)     Paragraph 70NECA (3) (a); or

(a)Paragraph 70NFB (2) (a) (d) or (e); or

(b)Paragraph 70NF (3) (a);

if the Court is satisfied beyond reasonable doubt that the grounds for making the order exists.

LESS SERIOUS OR MORE SERIOUS CONTRAVENTIONS

1. Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered “less serious”.

2. Section 70NEB sets out the powers of the Court as follows:-

   (1)If this Division applies, the Court may do any or all of the following:-

   (a)Make an order directing:-

   (i)The person who committed the current contravention; or

   (ii)That person and another specified person ( to attend a post-separation parenting program);

   (b)If the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates the person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

   (c)Adjourn the proceedings to allow either both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VIII, to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revive some or all of an earlier parenting order;

   (d)Make an order requiring the person who committed the current contravention to enter into a bond in accordance with Section 70NEC;

   (da) If the person who commits the current contravention fails, without reasonable excuse to enter into a bond as required by a person under paragraph (d) impose a fine not exceeding ten penalty units on that person;

   (e)If:-

   (i)The current contravention is a contravention of a parenting order in relation to a child; and

   (ii)The current contravention resulted in a person not spending time with a child (or the child not living with a person for a particular period); and

   (iii)The person referred to in subparagraph (ii) reasonably incurs expense as a result of the contravention;

   makes an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

   (f)Make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

   (g)If the Court makes no other order in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

3. Section 70NEC provides for the terms and conditions of a bond if the Court requires a person to enter into a bond under Section 70NEB (1) (d).

4. In respect of a more serious contravention, the provisions are to be found at Section 70NFA.  The orders that are available to be made by the Court in respect of a breach pursuant to Section 70NFB are to be found in subparagraph 2 and in those circumstances a Court is empowered to make a community service order under Section 70NFC, an order requiring a person to enter into a bond under Section 70NFE, to make a parenting order that compensates a person for time not spent with a child, a fine of not more than 60 penalty points or to impose a sentence of imprisonment on a person in accordance with Section 70NFG.

5. Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outline the procedure for hearing of an application for contravention orders.

RULE 21.08 – PROCEDURE FOR HEARING

1. At the hearing of an application mentioned in 1A, 2, 3, 4 or 5 in Table 21.1, the Court must:-

   (a)Inform the respondent of the allegations;

   (b)Ask the respondent whether the respondent wishes to admit or deny the allegations;

   (c)Hear any evidence supporting the allegations;

   (d)Ask the respondent to state the response to the allegations;

   (e)Hear any evidence of the respondent; and

   (f)Determine the case.

EVIDENCE AND SUBMISSIONS – COUNT 9

1. The father relies upon his affidavit filed 31 July 2014, but in particular paragraphs 68 to 87. A preliminary issue arose in that the provisions of paragraph 4 (a) of the order provide for the three day period that is to occur during the June/July 2014 school holidays to commence from the last day of the school term.  It is common ground that ordinarily the last day of the school term would be Friday 4 July 2014.  If that was correct then the father would spend with the child pursuant to the orders from 4 to 6 July 2014 inclusive.  As matters transpired, the last day of school term was a pupil free day.  The mother argues that the last day of school term was therefore 3 July 2014 and given that the father did not commence his time pursuant to the mother’s interpretation of the order, there could not be considered a breach.

2. The father alleges that at 8.25pm on 3 July 2014 he forwarded a message to the mother seeking to confirm that the child would be with him for three days commencing 3pm on Friday 4 July 2014.  The mother responded with a message that the school was shut and that the child would be available for collection from the McDonald’s Restaurant at Suburb M at 3pm.

3. Whilst the order is somewhat imprecise, paragraph 8 provides for handovers upon the conclusion of the father’s time to occur at the mother’s home and otherwise those not occurring at school shall occur at the McDonald’s Restaurant, Anzac Highway.  I assume that the order is intended to convey the use of McDonald’s Restaurant, Anzac Highway for both the commencement and conclusion of the father’s time if school is not involved.  Obviously the McDonald’s restaurant at Anzac Highway is different to the Suburb M restaurant.

4. The father relies upon an email forwarded to the mother on 3 July 2014 which is Annexure BSD8 to his affidavit.  It is an important document in terms of the circumstances that occurred thereafter.

5. The email reminds the mother of the provisions of 4 (a) and confirms the arrangement as the father understood it to be namely, that the child would be handed over to him at his school at 3pm on 4 July 2014.

6. The following extract is repeated:-

   I have asked you to attend every handover since and including 7 March 2014 and you have not yet attended one handover.  I have asked you to have [Mr W] or your mother attend each handover and they have refused to do so.  Once again I ask your mother, [Mr W] or you to attend the handover tomorrow at 3pm and to facilitate [the child] spending the three days with me that the Court has stipulated.

   I have asked you to bring [the child] to our house at [Suburb P] later on each alternate Friday or on the following Saturday of the visits since 7 March and you have refused to comply with every one of my reasonable requests.  In failing to do so you are breaching the Court order.  It is incumbent upon you to do everything in your power to have [the child] spend the time with me that you agreed to and the Court so ordered.

7. Ultimately agreement was reached that handover would occur at the McDonald’s Restaurant, Anzac Highway.  The father and his partner Ms K attended and upon their arrival the mother’s partner Mr W was in attendance with the child.

8. According to the father there was a happy interchange between he and the child and a present was provided.

9. It seems that either in an attempt to put the child at ease, or because the parties who were present did not know how to bring the process to an end, the father and Ms K spent 45 minutes with Mr W and the child.

10. Over the period the father attempted to persuade the child to come to his home.  The father acknowledges that Mr W was polite and civil and the father records that Mr W said “would you like to go with Dad”.  On three occasions the father records Mr W saying to the child “what would you like to do [B]”.  The father reports that the child generally replied “I want to go home with [Mr W]”.

11. The father considered that the body language and demeanour of the child was inconsistent with his denials.  It was the father’s observation that the child appeared to be having fun and was enjoying himself.

12. Nonetheless there was nothing that the father, Ms K or Mr W was able to do to persuade the child to remain with the father at the conclusion of the 45 minutes.  Eventually Mr W considered that enough time had expired and upon a final request to the child as to whether he would like to go with the father, the child responded that he wished to go home with Mr W.  Accordingly, the child did not spend time with his father following the unsuccessful handover.

13. It is argued on behalf of the father that the mother did not comply with the order and she did so without reasonable excuse.

1. The circumstances then become more complex following an email sent to the mother on 5 July 2014.  The email alleged that the mother was in contravention of paragraph 4 (a) of the orders and requested that the mother bring the child to his house at Suburb P.  It is alleged by the father that the mother refused to do so and it is in respect of that decision by the mother that it is argued on behalf of the father that the mother was under a continuing obligation throughout the entirety of the period provided for in the order to comply and in not bringing the child to the father at his home address, the mother was in contravention of the order.

2. I had no difficulty in accepting the evidence of the father.  I found him to be truthful and he made concessions when appropriate to do so.  The difficulty is that the matter is not dependent upon issues of credit in respect of the father but rather, a forensic consideration of the factual circumstances surrounding the time that the child should have spent with him.

3. The evidence of Ms K is generally supportive of the observations of the father and in circumstances where the child appeared to be having a pleasant time, she had some criticism for Mr W in that she alleges he did not once suggest that the child should go with the father, or indeed provide the approval from the mother.  It seems that Ms K considers that Mr W in all the circumstances could have done more.

4. I consider that her criticism of Mr W is a button pressed faintly.

5. For his part, Mr W alleges that he was happy to cooperate, that he was involved as an honest broker in the proceedings and that there was no agenda that he had to dissuade the child from spending time with the father.

6. Specifically Mr W refuted any suggestion that he was under some instruction from the mother as to how he was to act.  To a very large degree it was the evidence of Mr W that matters simply unfolded and he did all that he could but that after 45 minutes he considered that the cause was likely lost.

7. I have no difficulty accepting the evidence of Mr W and consider him to be a witness of truth.

8. Importantly Mr W’s attendance was a matter supported and requested by the father on the basis that there was recognition of the difficulties that the father might experience in persuading the child to spend time with him.  Against that background, it is difficult to accept that there can be any criticism of Mr W in circumstances where all of the reports suggest that he was appropriate, civil and indeed encouraging. It is not suggested seriously that there was some conspiratorial plan afoot between the mother and Mr W such that he was to act in a particular fashion was likely to impact adversely on the child and dissuade him from remaining with the father.  For reasons that are not clearly understood it would seem to me that the child on this occasion simply did not wish to remain with the father but preferred to return home in the company of Mr W.

9. I do not consider that there has been a breach of Count 9 in respect of the circumstances centred upon the unsuccessful handover.  It is not a matter of the breach being admitted but that the mother had a reasonable excuse.  It was clear and demonstrable that the child could not be persuaded to go with the father on this occasion and it is difficult to see that much more could have been done.

10. Of course it was always possible for Mr W to simply have left the child in the care of the father at the McDonald’s Restaurant and then as soon as was practicable, left the premises.  That would seem at any event at odds with the request by the father that either the mother, Mr W or indeed the maternal grandmother should have some involvement with the handover arrangements.

11. The fact that Mr W remained for 45 minutes was a unilateral decision on his part, he was not asked to go and nor was there any suggestion that he was acting on the express instructions of the mother in terms of how he should act.

12. It is regrettable and unfortunate that handover was not able to be effected but I do not consider that it amounts to a breach of the order as alleged.

13. The second and perhaps more complex issue is to whether there is a continuing obligation following the initial unsuccessful handover and whether by the mother not complying with the request of the father to handover the child at his home on 5 July 2014, that behaviour would constitute a breach.

CONTINUING OBLIGATION

1. Counsel for the father argues that there is an implied obligation to comply with a parenting order where there is a lack of clarity as to the specific obligation created.

2. Reference is made to the decision of Stavros & Stavros (1984) FLC 91-562. In that case Hogan J dismissed an application for contravention. The order provided that “the husband have access to the said child from 9am to 7pm each Sunday and that such access be exercised by the husband collecting and re-delivering such child from and to the wife”.

3. The wife did not make the child available and the father argued that she was obliged to do so.  The husband appealed the decision of Hogan J to dismiss the contravention proceedings.  His Honour held that unless the order was made with sufficient clarity, a contravention application could not stand.  The husband argued that there was a clear obligation on the wife to take reasonable steps to provide the child at the commencement of time.

4. Whilst I accept that the approach of the Full Court in Stavros has been followed in many subsequent decisions, the factual circumstances in the present case are significantly different.  Stavros and subsequent supportive decisions focus on the obligations created by the order at the commencement of the time.  A good example is the dispute between the parties as to whether the father’s time with the child was to start on 3 or 4 July 2014 dependent upon which day might be considered the last day of school term.  In the circumstances as they were well-known to the mother, she had a clear obligation to comply with the intention of the order which was that there be a handover as had been agreed.

5. That circumstance is different to whether, once handover is not effected pursuant to the order, there is a continuing obligation on the parties but in this case the mother, to comply with the order in a manner as may be directed by the father.

6. To repeat, there is no doubt that there is an obligation on the mother to facilitate the child spending time with the father and to that end must deliver the child at the commencement of the designated time for handover.

7. Counsel for the mother argues that Section 65N (2) namely:-

   A person must not:-

   (a)Hinder or prevent a person or the child from spending time together in accordance with the order; or

   (b)Interfere with a person and the child benefiting from spending time with each other under the order;

   requires a “positive act on the part of the mother” to make the child properly available at the handover as ordered, but is not obliged to respond to further requests should the initial handover not be successful

8. In any event, the mother argues that if the Court finds that there is a continuing obligation to comply she is entitled to the protection of Section 70NAE namely, that she did not understand that the order provided such an ongoing obligation.

9. Section 70NAC provides that a person is to have contravened an order if, and only if, they have either intentionally failed to comply with an order or made no reasonable attempt to comply with an order.  The orders provide for the father to spend time with the child and a location for the handover at the commencement and conclusion of his time is specified.

10. The authorities reflect the obligations found in the statutory provisions, although they appear to impose prescriptive rather than proscriptive obligations on the residential parent.  It is implicit in the orders that the mother is under an obligation to take reasonable steps to deliver the child to the father at the commencement of the father’s time.

11. Nygh J (with whom Fogarty J and Gun J agreed) expanded on the obligations of a custodial parent during handover in Stephenson & Hughes (1993) FLC 92-623 and at 79,813 held that an order for time with a child:-

    Imposes an obligation which goes beyond mere passive non-interference and it imposes upon the party who is obliged to give access a positive obligation to encourage that access.

12. More recently, in Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214 at 25:-

    The obligation to ensure compliance with a parenting order carries with it more than merely an obligation to remain passive.  It requires a positive application of parental authority.  A parent cannot be said to deny a child medical or dental treatment or an education merely on the basis that such denial complies with a child’s expressed wishes.  A parent has an obligation to ensure, so far as possible, compliance with the orders of the Court where those orders reflect the Court’s determination of what is in the best interests of the child.

13. Whilst a party is under an express and ongoing obligation to positively encourage the child’s relationship with the other party and to spend time pursuant to an order, whilst all reasonable steps need to be taken to give effect to such an order, the difficulty arises where the obligation to comply with an order and support a relationship are so far removed from the original order and the obligations created under it that compliance is either no longer possible, reasonable or appropriate.

14. Clearly, the parties were not able to effect a successful handover at the commencement of the father’s time at the McDonald’s Restaurant.  Thereafter the father sought to impose terms and conditions on the mother which provided for her to deliver the child to the father’s residence.  That alternative was clearly not contemplated in the orders.  Moreover, it ignores the difficulty created by either the child’s refusal to spend time with the father or the consequences of the handover being unsuccessful.  There may be underlying issues that are central to the events that occurred at handover which are simply not addressed by the delivery of the child to an alternate handover point.

15. It may also be the case that once the handover was unsuccessful, other issues then affected the personal circumstances and availability of each of the parties.  For instance, it may have been reasonable for the mother to have made arrangements on the basis that the child was to spend three days in the father’s care.  Once that did not occur, those arrangements may have been thrown into disarray.  The matters that occurred at handover may also have impacted on the child with different expectations now in play.

16. More importantly, the communication from the father requests the mother to either accompany the child personally at the handover or, to ensure that her partner Mr W or the maternal grandmother are in attendance.  The reason for that request is because of an apprehension by the father that there needs to be a significant level of support and encouragement for the child to attend with the father.  The mother acceded to the father’s request and Mr W attended on this occasion.  The order does not provide for that to occur.  It is reasonable to find that the father accepted that on that occasion such involvement may be necessary.  It might be that the mother is not able to replicate those conditions and certainly the request by the father that the child be simply delivered to his home is not provided for in the orders and had hitherto not been the position adopted by the father.

CONCLUSION

1. In all the circumstances, I consider that once the initial handover was unsuccessful the subsequent arrangements as requested by the father represented a substantial variation to the provisions of the order for time to be spent with the child and as such did not create any ongoing obligation on the mother to comply with the further directions of the father.

2. Accordingly, Count 9 is dismissed.

I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 December 2014.

Associate: 

Date:  5 December 2014