English & Eklund
[2024] FedCFamC2F 578
•1 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
English & Eklund [2024] FedCFamC2F 578
File number: PAC 3379 of 2019 Judgment of: JUDGE BLAKE Date of judgment: 1 May 2024 Catchwords: FAMILY LAW – Contravention application – alleged contravention of parenting orders by mother – mother found to have contravened order child spend time with the father and orders concerning the use of the correct name of the child – mother placed on bonds and make up time ordered – other counts dismissed. Legislation: Family Law Act 1975 (Cth), div 13A, ss 60CA, 60CC, 65N, 70NAC, 70NAE, 70NAE(4), 70NAE(5), 70NAF, 70NEA(1), 70NEA(2), 70NEB. Cases cited: In the Marriage of O’Brien (1992) 16 Fam LR 723
Kelly & Kobelnek [1998] FamCA 296
Saldo & Tindall [2013] FamCA 951
Division: Division 2 Family Law Number of paragraphs: 88 Date of hearing: 30 April 2024 Place: Melbourne The Applicant: In Person The Respondent: In Person Advocate for the Independent Children's Lawyer: Ms Karagiannis Solicitor for the Independent Children's Lawyer: Legal Aid NSW Blacktown Family Law ORDERS
PAC 3379 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ENGLISH
Applicant
AND: MS EKLUND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
1 MAY 2024
THE COURT DECLARES THAT:
1.Count 3 as set out in these reasons for judgment delivered orally on 1 May 2024 is proved with the Respondent Mother having contravened Order 7(a) of the Orders made on 24 August 2022 (‘Final Orders’) without reasonable excuse.
2.Counts 8 and 9 as set out in these reasons for judgment delivered orally on 1 May 2024 are proved, with the Respondent Mother having contravened Order 19(e) of the Final Orders and Order 2(a) of the Orders made on 28 June 2023 without reasonable excuse.
3.The Court is satisfied that no court having jurisdiction under the Family Law Act 1975 (Cth) (‘the Act’) has previously determined that the Respondent Mother has, without reasonable excuse, contravened the Final Orders, or the Orders made on 28 June 2023 as referred to in Declarations 1 and 2 above.
4.Subdivision E of Division 13A of Part VII of the Act applies to the contraventions referred to in Declarations 1-3 above.
AND THE COURT ORDERS THAT:
5.The Respondent Mother enter into a bond in accordance with section 70NEC of the Act for her contravention of Order 7(a) of the Final Orders on 12 August 2023 being a bond:
(a)without surety;
(b)for a period of 12 months commencing from the date the Respondent Mother signs the bond;
(c)to be of good behaviour; and
(d)to strictly comply with all orders made by the Federal Circuit and Family Court of Australia.
6.The Respondent Mother enter into a bond in accordance with section 70NEC of the Act for her contravention of Order 19(e) of the Final Orders and Order 2(a) of the Orders of 28 June 2023 on 11 August 2023 being a bond:
(a)without surety;
(b)for a period of 12 months commencing from the date the Respondent Mother signs the bond;
(c)to be of good behaviour; and (d)
(d)to strictly comply with all orders made by the Federal Circuit and Family Court of Australia.
7.The Respondent Mother enter into a bond in accordance with section 70NEC of the Act for her contravention of Order 19(e) of the Final Orders and Order 2(a) of the Orders of 28 June 2023 on 30 July 2023 being a bond:
(a)without surety;
(b)for a period of 12 months commencing from the date the Respondent Mother signs the bond;
(c)to be of good behaviour; and
(d)to strictly comply with all orders made by the Federal Circuit and Family Court of Australia.
8.Pursuant to the Orders above, at 9:00 am on 8 May 2024, the Respondent Mother attend upon a Judicial Registrar at the Parramatta Registry of the Federal Circuit and Family Court of Australia to enter into the bonds.
9.Counts 1, 2, 4, 5,6, 7 and 10 as set out in the Application filed by the Applicant Father on 19 September 2023 and identified in the reasons for judgment are dismissed.
10.The Applicant Father shall have make-up time with the child X born in 2012 on one additional weekend from 9.00 am Saturday until 5.00 pm Sunday and for this purpose, the Respondent Mother shall by no later than 10 May 2024, nominate in writing at least four weekends that fall in the period from the date of these Orders until 30 September 2024, and the Applicant Father shall select which weekend the make-up time shall occur.
11.Pursuant to section 65DA of the Act, information about courses, programs and services to help with adjusting to the consequences of these Orders are set out in Attachment A.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)[1]
JUDGE BLAKE
[1] The transcript produced by the Court’s provider omitted a significant section of this judgment. To deal with this issue, regard has been had to the actual audio record of judgment delivery.
This is an application filed by the father on 19 September 2023 (‘Application’). He alleges that the mother has contravened final parenting orders made by Hannam J on 24 August 2022 (‘Final Orders’) and, also, an order made on 28 June 2023 by a Senior Judicial Registrar, giving effect to Order 19(e) of the Final Orders (‘Supplementary Order’). Those orders relate to the child, X, born in 2012 (‘the child’).
The father relied on his Application, an affidavit filed by him of the same date, and a further affidavit of 5 March 2024. The mother, while not required to do so, elected to rely on an affidavit she filed on 27 February 2024, a tender bundle containing the reasons of Hannam J of 24 August 2022, the family therapy report of Mr K, and the documents she tendered during the hearing, being membership confirmation for the child for a sports club and a membership certificate. Both parties filed case outlines and were afforded the opportunity to make oral submissions. Both parties represented themselves at hearing. The Independent Children’s Lawyer (‘ICL’) appeared at the hearing and filed an aide-mémoire. Following a brief discussion between the parties and the ICL, the ICL sought leave not to appear. Given the nature of the proceeding, I granted that leave.
These are not the only proceedings in this Court between the parties. The mother has filed an application to reopen aspects of the parenting orders. That application is to be heard later this year.
THE LAW
Contravention proceedings are commenced pursuant to Division 13A of the Family Law Act 1975 (Cth) (‘the Act’).
Section 70NAC of the Act defines what contravened an order means:
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) 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; or
(b) otherwise – he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
In contravention proceedings, the general obligations created by parenting orders need to be considered. I refer, in particular, to section 65N of the Act which provides as follows:
(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a)hinder or prevent a person and the child from spending time together in accordance with the order; or
(b)interfere with a person and the child benefitting from spending time with each other under the order.
Meaning of reasonable excuse
Where the Court is satisfied that a respondent has contravened orders, the Court is then required to consider whether the respondent has a reasonable excuse for doing so.
Reasonable excuse is defined in section 70NAE of the Act as follows:
(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 are not limited to, the circumstances set out in subsections (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 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 to 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 reason 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 by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
As to the defence available under section 70NAE(5) of the Act, it is in similar terms to what was available under the then section 112AC of the Act. Smithers J in In the Marriage of O’Brien (1992) 16 Fam LR 723 said:
…it seems to me that the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of a child is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to the order was necessary to protect the health and safety of a person. It is not a question as to whether the view of the custodial parent or the view of the custodial parent on reasonable grounds that the carrying out of the access order might not be in the best interest of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.
The reasonableness of a respondent's conduct must be judged by reference to an objective standard. It is not sufficient that a respondent merely thinks that the orders are wrong or that time with the other parent is not in the child's best interest. In the unreported decision of Kelly & Kobelnek [1998] FamCA 296, Hannon J expressed the test in the following way:
In my opinion the respondent, in order to exculpate herself from the contravention must establish that she has or had a reasonable excuse according to an objective test namely, whether a reasonable person in the position of the mother would consider on reasonable grounds that she had a reasonable excuse for the contravention.
Standard of proof
The provisions of section 70NAF of the Act set out the relevant provisions dealing with the standard of proof required for determining contravention applications. That section provides:
(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 contravened an order under this Act affecting children had a reasonable excuse for the contravention.
…
The approach to contravention proceedings
Proceedings in which it is asserted that a party has contravened orders of a Court are serious. A respondent who is found to have contravened Court orders faces a range of sanctions including, ultimately, fines and, in serious cases, the prospect of imprisonment. In those circumstances, a proceeding in which contravention of Court orders is alleged is different to what might be described as ordinary civil litigation or litigation concerning parenting arrangements. A respondent to a contravention application is entitled to understand clearly the case against him or her. Charges or counts must be clearly and precisely stated. Anything less, in my view, risks the respondent suffering prejudice as well as a lack of procedural fairness.
THE ORDERS THE FATHER ALLEGES WERE CONTRAVENED
In this matter, the father alleges that orders 7(a), 9, 10(a), 10(c), 19(c) and 19(e) of the Final Orders have been contravened. Those orders are as follows:
7.Upon the conclusion of time pursuant to Order (4), the child is to spend time with the father as agreed in writing between the parents and in default of agreement as follows:
(a) Each alternate weekend from 9am Saturday until 5pm Sunday;
(i) For the Term 4, 2023 school holiday period, the child’s alternate weekend time with the father shall extend to 9am Saturday until 9am Monday.
(ii)For the Term 1, 2024 school holiday period, the child’s alternate weekend time with the father shall extend to 9am Saturday until 5pm Monday.
(iii)For the Term 2, 2024 school holiday period, the child’s alternate weekend time with the father shall extend to 9am Saturday until 5pm Tuesday.
(iv)For the Term 3, 2024 school holiday period, the child’s alternate weekend time with the father shall extend to 5pm Friday until 5pm Tuesday.
(v)For the Term 4, 2024 school holiday period and each school holiday period thereafter, the child’s alternate weekend time with the father shall extend to 5pm Friday to 5pm Wednesday.
…
9.Unless otherwise agreed in writing between the parents, changeover is to occur at the McDonalds located at [Handover Location C].
10.The father is at liberty to communicate with the child by telephone or video call on each Sunday that the child does not spend time with him pursuant to these orders. For the purposes of facilitating these calls, the father is to phone the mother’s nominated phone number between 7.30pm and 8.00pm and:
(a)The mother is to ensure that the child is available to take the father’s call;
(b) [order omitted];
(c)The mother is to ensure that the child is able to receive the phone call without undue interference and in a private and quiet environment.
…
19. Each parent is restrained from:
(a) [order omitted];
(b) [order omitted];
(c)Enrolling the child in any additional hobby or activity where such activity would require each parent to facilitate the child’s participation in such hobby or activity from time to time, unless with the consent of the other parent.
(i)The parents agree that the child is to continue her current enrolment in [sporting activities].
(ii)Order 19(c) does not preclude either parent from enrolling the child in any activity which requires participation only during times the child is living or spending time with that parent.
(d) [order omitted].
(e)Enrolling the child in any educational institution, health care provider or extracurricular activity by any name other than “[X]”.
The father also alleges that the Supplementary Order has been contravened. The relevant order is as follows:
2.To give effect to Order 19(e) of the Final Parenting Orders made on 24 August 2022 (“the Final Orders”):
a.each party must do all acts and things necessary to ensure that the child [X] born [in] 2012 (“[X]”) is enrolled at any educational institution, health care provider or extracurricular activity as:
i. first name: [X];
ii. middle names: […]; and
iii. last name: [English];
In relation to the Supplementary Order, it is appropriate to record that there is a Notation on the Order which states:
Nothing in these Orders, or the Final Orders, limits [X] from using her chosen names for her own personal use.
CONTRAVENTION APPLICATION
The father brought 10 alleged counts of contravention arising from the Final Orders and the Supplementary Order. At the outset of the hearing, I dismissed Count 1 (11 Feb 2023), Count 5 (6 September 2022) and Count 7 (15 July 2023) on the basis that, inter alia, each count included more than one separate contravention of the Final Orders, and the rolled up nature of the charge was apt to cause confusion and procedural unfairness to an unrepresented respondent, in this case, the mother.
Accordingly, the remaining alleged contraventions that are pressed below are considered.
Count 2
State the paragraph number of the order, bond, agreement, injunction or undertaking that you allege has been contravened.
Order 7a from the Final Orders made on the 24th August 2022
State precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable.
Date Time Place early 2023 5.00 pm Suburb C Statement of the alleged contravention
The respondent failed to bring the Child to the changeover location during the Father’s Easter weekend. Order 8c allowed the Child to spend time with the Mother from 9-5pm Saturday, however the Child was not available after 5pm when she was due to enter the Father’s care.
The mother admitted the contravention but said she had a reasonable excuse.
The mother's evidence is that the child told her the father would see her at 9.00 am on Easter Sunday. The mother says she looked at the Final Orders and ‘thought [the child] was right’. She acknowledges the father sent her a text message at 5.11 pm asking why she was not at changeover but says she did not see it because she was entertaining guests. Later that night, she looked at the text message and realised the father was right. She says this was an innocent mistake. The parties agree that the father ultimately received make up time.
The mother says her mistake is a reasonable excuse for non-compliance. I accept that the categories of conduct that may be considered a reasonable excuse under the Act are not closed.
Given the evidence before me, I accept the mother made an innocent mistake. I note she promptly rectified it by arranging make up time for the father. In the circumstances, I accept there was non-compliance with the order. I am not satisfied, however, that the mother intentionally failed to comply with the order. In the circumstances, I find the contravention not proved. If I am wrong about that, I would find in the alternative that the contravention had been proved, but the mother had a reasonable excuse. Accordingly, Count 2 is dismissed.
Count 3
State the paragraph number of the order, bond, agreement, injunction or undertaking that you allege has been contravened.
Order 7a from the Final Orders made on the 24th August 2022
State precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable.
Date Time Place Mid-2023 9.00 am Suburb L Statement of the alleged contravention
The respondent took the Child to a [sports] event during the Father’s weekend, and failed to make the Child available.
The mother denies the alleged contravention.
The father's evidence is that the mother informed him in early 2023 about a school sports event that she had entered the child into in mid-2023. He says that she took the child away on a weekend in mid-2023 to a sports competition in Suburb L that was not the school event. He says there was never any written or verbal communication regarding attendance at this event. He says he never knew the child was competing at Suburb L. The father has annexed an email and text messages to his affidavit. Those disclose there was no agreement in writing to alter the hours of the father that weekend. There are also messages the father sent on the morning of changeover at around 9.13 am asking where the mother was. The father ultimately did not spend time with the child on this weekend. He has not received make up time.
The mother's evidence is that in mid-2023, she had a conversation with the father in front of the child in which she informed him the child would be competing in mid-2023, and he said ‘Okay thanks’. Her evidence is that she expected or assumed the father would attend the event and for the child to stay with him in a hotel. He never arrived, and the child subsequently stayed with her for the weekend. The father denies any conversation as alleged by the mother took place.
The mother has annexed to her affidavit the text message exchange that occurred between her and the father on that day. In her text message to him, replying to his enquiries as to where she was, which she sent at 12.38 pm, she says that the child is competing and that he knew that - that he told the child he had booked a hotel. He responds in turn that she is breaching the Final Orders, and she should stop bringing the child into it and that he never received any communication from her about this. She, in reply, references the discussion at the sports club and admits she should have put the arrangement in writing because he will always lie. He responds that she will not even return a hello at the sports club and is now claiming to have had a discussion with him. She then responds, providing an account of the conversation she says occurred.
Contemporaneous records of an event or alleged fact often provide powerful corroboration of the fact asserted. This is one occasion where they do not. Each party's contemporaneous record in the text message supports their asserted version of the facts.
Critically, the mother's evidence is that she expected or assumed the father would attend. She never confirmed that he would. I accept the father's evidence that he never received written or verbal communication about the event from the mother. There is no evidence before me that shows the mother gave him the details of the event. She simply, to use her words, assumed he would be there. Even if he said, ‘Okay thanks’ to the child's participation in the event, as she claims, that statement is ambiguous. It cannot be taken as consent to, among other things, the child competing during the father's time, and the mother taking the child to an event in the father's time or consent to alter a changeover location. All of this means that I do not accept the mother’s evidence that the father agreed to alter his time with the child.
In cross-examination and in written submissions, it became apparent that the mother had a further basis for asserting she had not contravened the order. She said (referring to order 19(c)(i) of the Final Orders) that the parents agreed that the child was to continue her current enrolment in the sports club. Her position was, therefore, that the child’s attendance at the competition in Suburb L was permitted by the Final Orders.
I have set out the orders above. Order 19(c) is contained within order 19 which deals with restraints. Order 19 sets out various restraints on the parents. Order 19(c) specifically restrains each party from enrolling the child in any additional hobby or activity where such activity would require each parent to facilitate the child’s participation in such hobby or activity from time to time, unless with the consent of the other parent. One exception to this is contained in subparagraph (i) to 19(c). That exception permits ‘the child to continue her current enrolment in the sports club.
The mother relies on this exception. She says in written submissions that the father’s interpretation of order 19(c) (that 19(c) does not enable the child to be enrolled in associated or related activities) is ‘unfairly restrictive’. She says if that interpretation is taken, the child cannot participate in anything but routine classes and training, and cannot compete. She says this is not in the child’s best interest because the training is specifically designed to ready the child for competition and if there is no intention to participate in competition, there is little utility in training. I note that order 19 was apparently consented to by the parties at the final hearing – see paragraph [58] of Hannam J’s decision.
The mother’s reliance on this exception is misplaced for the following reasons.
Order 19(c)(i) must be read as part of order 19. The opening paragraph to order 19 specifically restrains each parent from enrolling the child in any additional hobby or activity which would require the other parent to facilitate the child’s participation in such hobby or activity. The purpose of that provision is self-evidently clear - to ensure that neither parent enrols the child in an activity that would detract from the child’s time with the other parent. The exception in order 19(c)(i) needs to be read in light of this and is clearly limited. The only agreement the parties reached was for the child to continue ‘enrolment’ in the sports club. The parties never agreed, and the order makes no provision for, the child to engage in any and every sports club activity, including competition events that occurred during the father’s time. Had that been the intention, the parties clearly would have set out.
I note the mother gave other evidence in connection with the sports club. She produced the child’s enrolment in the sports club for 2023 (which would fall within the exception in 19(c)(i)). She confirmed that when the child competes, she is competing against other participants from other clubs or areas. She said, for reasons I will come to and have difficulty accepting, that the child decides by herself without parental permission which events she will be competing in. The position ,therefore, effectively taken by the mother is that if the child elects to participate in an event for the sports club, that decision of the child takes precedence over the time the child spends with the father. Put another way, if the exception were to operate in the way the mother says it does, the child would have the final say on whether she spends time with the father and could unilaterally alter his time. I do not accept that is a proper construction of the order or an outcome intended by the order.
In my view, what order 19(c)(i) permits is the continuing enrolment of the child in the sports club. It permits only enrolment in the club. It does not permit the child to participate in additional events and competitions (see my reasons later as to why these are additional events or competitions, and I rely on that reasoning here).
In the circumstances, I find the mother has contravened the order as alleged. The father never agreed to any change. The mother never gave him the details of the event. Given what she says also about the effect of the order, her actions were intentional.
I have considered whether the mother has a reasonable excuse for this contravention. I am of the view she does not. I am not satisfied that she did not genuinely understand the obligations imposed by the order upon her (section 70NAE(2)). Cursory consideration given by anyone, including the mother, to the position she advanced at the hearing (the child could effectively override the orders of the Court by deciding which activities to participate in at the sports club) would show it to be an absurd and disingenuous outcome. I am not satisfied, also, that she ought to be excused in respect of any contravention. Her decision to assume the father would attend and her decision not to provide him with details of the event are all hallmarks of deliberate conduct by her. The contravention is proved.
Count 4
State the paragraph number of the order, bond, agreement, injunction or undertaking that you allege has been contravened.
Order 7a from the Final Orders made on the 24th August 2022
State precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable.
Date Time Place Mid- 2023 8.00 am Suburb M Statement of the alleged contravention
The respondent picked up the Child in her vehicle during the Father’s weekend, and drove away with the Child.
The mother denied the allegation.
The father's affidavit evidence on this issue is sparse. He simply says he took the child to the sports club, and the mother then drove off with the child. He goes into somewhat more detail in his case outline. The matters that he sets out in that outline about him having another set of sports shoes that the child could have used are not, however, in evidence. In cross-examination, he made what might be described as a number of concessions. He conceded that the changeover occurred in accordance with the Final Orders. He agreed the child spent Saturday night with him and was with him on Sunday. He agreed that the child had arrived at the sports club with the wrong shoes on and that she had to wear sports shoes to compete. He also agreed that the child was only away for around 30 or 40 minutes.
The mother says the child was at the sports club. She agrees that the child went with her in her car on the morning mid-2023. The mother says the child was gone for no longer than 20 minutes. Her evidence is that they left to collect the child's shoes, and the sports shoes are mandatory equipment.
I note that the mother, instead of approaching the father and telling him what was happening, asked the child to contact the father and tell him what was happening. I do not regard that as acceptable practice, nor in the child's best interests, for the mother to do that, particularly where the child has special needs and particularly where there is a significant degree of conflict between the parents.
Returning to the allegation, I find the allegation not proved. The child did spend time with her father on this weekend. She was absent for 20 minutes or so to collect equipment while the father was volunteering. She went to collect some sports shoes, but was then returned and spent the rest of the weekend with the father. There are, no doubt, plenty of periods in a weekend when a child of this age is not in the immediate company of a parent. That does not, in my view, constitute a breach of order 7(a). To the extent I am wrong about this, I would find in the alternative that the mother had a reasonable excuse for contravening the order, that being to assist the child to participate in her event by ensuring she had the necessary equipment. I note the categories of reasonable excuse are not limited. The child was not gone for long, was returned to the event, and ultimately spent the rest of the weekend with the father.
This Count is dismissed.
Count 6
State the paragraph number of the order, bond, agreement, injunction or undertaking that you allege has been contravened.
Order 10a and 10c of the Final Orders made on the 24th August 2022
State precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable.
Date Time Place Mid-2023 7.30 pm Suburb N Statement of the alleged contravention
The respondent did not make the child available for a phone call with the Father between 7.30-8pm. Later that night the Child did ring, with background interference (shopping bag sounds).
The mother denied the allegation.
The father gives generic evidence that the mother has failed to ensure the child is available to take his calls and that there is background noise when he speaks to her. Off the back of this generic evidence, he asserts that a time when the child did not call back until after 8.00 pm and when there was background interference was in mid-2023. His case outline makes reference to prior arrangements he had with the mother, which he says were revoked. The mother asserts the child is always available.
I find this alleged contravention not proved. The father's evidence is generic. A clear and comprehensive account of what occurred in mid-2023 is not given by him. The evidence fails to establish the contravention occurred. This Count must be dismissed.
Count 8
State the paragraph number of the order, bond, agreement, injunction or undertaking that you allege has been contravened.
Order 19e from the Final Orders made on the 24th August 2022 and the Enforcement Order 2a made on the 28th June 2023
State precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable.
Date Time Place Mid-2023 Suburb L Statement of the alleged contravention
The respondent failed to ensure the child was enrolled under her correct name for a [sports] competition.
The mother denied the alleged contravention.
The father's evidence is that the child attended a sports event in mid-2023. He has annexed to his affidavit a sports list from the event that shows the child being listed as ‘X Eklund. He says this shows further evidence of the mother's disregard for orders ‘by enrolling the child under the surname of Eklund. Pressed by the mother in cross-examination as to whether he had any direct evidence of the mother not enrolling the child properly, he was unable to point to any.
The mother says that following the Supplementary Order, she updated the enrolment details for the child, including at the sports club. She does not say when she updated them. In support of her position, the mother annexed to her affidavit what she said was an updated enrolment record for the child at the sports club. I told the mother during the hearing that that document, on its face, was not evidence of enrolment. In response to that, she tendered a membership confirmation for the sports club sent by email to her in early 2023. Annexed to that document was a membership certificate. That certificate lists the child's name as ‘X Eklund-English.
An issue here is the name the child is enrolled under when competing in the competition in mid-2023, the competition being, according to the mother, the sports club state competition. In the witness box, the mother says that this is the name the child has written down and has told her coaches to write down. In her affidavit, the mother gives further evidence that the name on the list is what the child has told her coaches and peers to call her and that she, the mother, has little control over that. The mother says the child is 11 years old and has strong views. She says the child's conduct cannot be attributed to her. In written communication with the father, when he stated concerns about how the mother was enrolling the child in competitions and sports activities, she replied ‘As you know, [the child] is responsible for her own competition entries and has been for over 18 months. The Judicial Registrar specifically made a provision that [the child] can use any name she chooses’.:
I questioned the mother about whether the child was really responsible for her own competition entries and whether the mother was required to approve or give permission for the child to participate in competition. I asked this question in circumstances where the sports activity is an event that can involve serious physical injury to a child, and parental consent and the signing of waivers by carers would seem to be required. The mother was adamant in reply that the sports club does not require consent to enter competitions and that the child decides what to enter. She said, in effect, that the only thing she needed to do was to take the child to the event.
I am unable to accept the mother's evidence. First, it is inconsistent with what she says in her written submission. There, she says, the child’s existing enrolments ‘from time to time present opportunities such as competitions. When [the child] expresses a desire to join these events, strictly related to sporting activities, I tend to allow that’.: The reference to opportunities arising from present enrolments and the use of the phrase, ‘tend to allow’, connote both a separate decision to enter such competition and the requirement for parental consent to be given. Second, it is fanciful to suggest that in the modern world, activities that present a serious risk of injury to participants, which this sports activity does, would not require the gaining of parental permission and the signing of waivers prior to a child aged 10 or 11 being able to compete. Third, the child is currently 11 years old. According to the mother, then, the child has been deciding which competitions to enter, without parental consent or input or the signing of waivers, since she was nine years old. That is highly unlikely. In the circumstances, I am satisfied either that separate enrolment in competition is required, parental consent is required, or that the mother has the opportunity to oversee entry into these competitions and, therefore, has the opportunity to influence the enrolment details, including the name of the child, in entering such competitions.
Given the above, it stands to follow that the mother must approve the child's registration and entry into competition or, if not, has oversight of her entry into such competitions. That presents a clear opportunity for the mother to ensure the child is enrolled using the correct name into such competitions. The mother, in my view, would therefore know or should know what name the child is being enrolled under. Again, it is fanciful to suggest the child has the freedom and ability at her age to enrol herself in sporting events without any parental input. The child may ask her coaches to call her a different name, but that is quite different from the formal process of enrolment and entry into competition.
I separately asked the mother, quite apart from enrolment, whether she had ever instructed the sports club to ensure the child's name is properly recorded in competitions. She said she had not.
Finally, in the documents she filed, the mother argues that the child can use any name she chooses, which is the message she sent to the father, and that she has little control over what the child chooses to call herself. On this issue, I note the following. First, the Senior Judicial Registrar's Supplementary Order is clear that when it comes to enrolment at any education institution, healthcare provider or extracurricular activity, the child is to be named in the manner set out in the order. Sports club competitions are an extracurricular activity as contemplated by the Final Orders. Second, and I repeat, I do not accept the child is responsible for enrolment in such activities alone, given her age, and that the mother has no opportunity to influence these. Enrolment using the correct name is the responsibility of the parents, in this case, the mother. Third, the mother is responsible for ensuring the child is enrolled in any activity using the name specified in the Supplementary Order when the mother approves or permits the child’s participation. Fourth, the Notation of the Senior Judicial Registrar in the Orders of 28 June 2023 permit the child to use whatever name she wants for ‘personal’ use. That does not extend, in my view, however, to enrolment in educational institutions, healthcare providers, extracurricular activities, and competitions within such activities. The mother is mistaken to the extent she says the Notation in the Orders of 28 June 2023 permits her or the child to use whatever name she chooses when enrolling in competition in sporting activities.
In the circumstances, I find this contravention proved. I am satisfied the mother had oversight of the child’s entry into sports club competitions. I am satisfied she is aware of the name the child is enrolled under. I am satisfied she has permitted the child to be enrolled under the name ‘X Eklund. I am satisfied she has not taken any steps to instruct the sports club on the correct name to use on official or competition documents or to clarify matters. The competition draw document produced by the father bears this out.
In the circumstances, I find the contravention proved.
Count 9
State the paragraph number of the order, bond, agreement, injunction or undertaking that you allege has been contravened.
Order 19e from the Final Orders made on the 24th August 2022 and the Enforcement Order 2a made on the 28th June 2023
State precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable.
Date Time Place Mid-2023 7.00 am Suburb O Statement of the alleged contravention
The respondent failed to ensure the child was enrolled under her correct name for a [sports] competition.
The mother denied the allegation.
The father's evidence is that the child was enrolled in a sports competition. He does not say by whom, though it is plain it was not him. He has annexed a copy of the award the child received showing her name as ‘X Eklund’ dated mid-2023. The father has also annexed an email exchange with the mother in which he queried her compliance with that order. I have noted the content of that document above, in particular, the statement by the mother that ‘[The child] is responsible for her own competition entries and has been for over 18 months. The Judicial Registrar specifically made a provision that [the child] can use any name she chooses’.: I observe that what the mother says in the message largely mirrors the evidence she gave in the affidavit and the proceeding before me.
I questioned the mother about the child's participation in sports events in the witness box. She said that the coach decides which competition the child will participate in. She said that she never completes a separate registration or entry form for competitions. She said she does not give permission for the child to enter competitions. She says she has never signed any waiver form relating to any competitions. I am unable to accept this evidence, as it is inherently improbable, including for the reasons I gave in respect of Count 8 and the child's entry into sports competitions.
In her affidavit in response to the allegation, the mother attached a copy of what she says is the child's enrolment in a sports challenge competition in 2023 that shows the child's name as ‘X Eklund English. She produced this document in response to the father's allegation. I give this document no weight. First, it is not an enrolment form, but a letter from the organisers confirming the enrolment of the child in competition. Second, and more significantly, it is a document about a competition that occurred in late 2023. The father's allegation is about an enrolment in a competition in mid-2023.
As I have stated above, the mother has, for the reasons given, the opportunity to oversee enrolment or entry into such competitions to ensure the correct name of the child is used or, alternatively, has to give some sort of permission to enter or register or cite such form for the child to enter an event. It is the responsibility of the mother, when she, to use her words, ‘tends to allow’ the child to compete, to ensure that the child is properly enrolled under the correct name.
For these reasons, and for the reasons given also under Count 8, I find this allegation proved.
Count 10:
State the paragraph number of the order, bond, agreement, injunction or undertaking that you allege has been contravened.
Order 7a from the Final Orders made on the 24th August 2022
State precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable.
Date Time Place Late 2023 9.00 am Suburb C Statement of the alleged contravention
The respondent, [Ms Eklund], arrived with the Child, [X] to the change over location. They did not exit the vehicle. Without reasonable excuse, [Ms Eklund] drove away with the Child less than 6 minutes after arriving, refusing to allow the applicant to spend time with their daughter.
The mother denied the alleged contravention.
The father's affidavit evidence is that he attended the changeover location in late 2023. He says he observed the child screaming in the mother's motor vehicle when the child and the mother arrived. He says the child and the mother did not exit the vehicle and, less than six minutes after arriving, the mother informed him that she was leaving with the child and drove away. The father has annexed to his affidavit a text message exchange between the parties following the event.
The mother admits she attended the changeover location and then drove away with the child. In her affidavit, she says the child did not want to see the father that weekend. She says she managed to encourage the child to get into the car to go to the changeover location. She says, when she arrived at the changeover location, the child refused to get out of the car and started hitting herself in the head and hitting the car seat repeatedly and had tears streaming down her face. The mother says that the child said to the father ‘I’m not going with you’ and ‘you’re not going to let me go to state championships’. The mother claims the father said in reply ‘It’s my weekend [the child], you have to do what I want on my weekends because it’s my time’. The mother says the child then screamed to the father that she hated him. The mother says the father could see the child hitting herself in the head and did little to assist. She says, eventually, she could not bear the outcome and left the changeover location. She says she did so because she felt the child's wellbeing was seriously under threat. In cross-examination the mother stood by her account. She also confirmed that the child did not spend any time with the father that weekend.
Under cross-examination, the father said the child was sitting in the front passenger seat next to the mother and the father could see through the window next to which he was standing. The window was up, but was, during the course of the incident, wound down. The father agreed the child was upset. He said she was yelling and throwing her hands around. Asked what she was yelling out, the father said he could not understand, even though, at one point, the windows of the car were down. He also says he did not see her hitting herself. He claims she did not refuse to get out of the car and that he could not recall her saying she was not going. Asked what interaction he had with the mother, he said he had offered to talk to her about things and that she merely replied she could not do this and left. According to the father, the mother never encouraged the child to get out of the car and did nothing to calm the situation.
On these issues, I prefer the evidence of the mother. She has given a detailed account of what occurred. The father's account lacks credibility. On his own evidence, he was there for a period of up to six minutes and did not speak once to the child and only spoke once to the mother. It stretches credibility to believe that, for the duration of the incident, he did not understand one word of what his 11-year-old daughter was saying. His evidence that he ‘could not recall’ the child saying she was not going with him was both unconvincing in the circumstances and given unconvincingly. It also stretches credibility for him to suggest she did not refuse to get out of the car when, in fact, it seems clear on the evidence, including his evidence, that she did not, get out of the car.
The position, then, is that the child did not spend time with the father as contemplated by order 7(a) of the Final Orders.
The next issues are whether the mother contravened the orders as alleged and, if she did, whether she had a reasonable excuse. I do not accept that the mother contravened the orders. Having accepted her evidence of the account, I am unable to conclude that she intentionally failed to comply with the order.
Although it is unnecessary for me to do so, given the conclusion above, I have considered whether the mother may also have had a reasonable excuse. I am unable to conclude that she did. While the child was clearly upset and hurting herself in the manner contemplated by section 70NAE(4) or (5) of the Act, there is no evidence before me as to what happened after the incident in question, including whether it was necessary for the child not to see the father for the entirety of the weekend.
In the circumstances, this Count is dismissed.
PENALTY
I have found Counts 3, 8 and 9 proved and that the mother did not have a reasonable excuse for those contraventions. I have dismissed Counts 1, 2, 4, 5, 6, 7 and 10.
This is a matter in which Subdivision E of Division 13 A of the Act applies. The state of the evidence before me is that sections 70NEA(1) and (2) are satisfied. Accordingly, the Court may do any of the things specified in section 70NEB. The Court also has the power under Subdivision B to vary a parenting order.
In the case of Saldo & Tindall [2013] FamCA 951, Austin J considered the approach to take to the imposition of penalty and sanctions. His Honour surveyed the authorities on the principles to apply, and at paragraphs [27]-[31] set out the approach to take. I propose to deal with this matter consistently with those principles, and also note that at paragraph [21], his Honour noted, amongst other things, that individual contraventions should be the subject of separate and individual sanction.
Both parties sought orders, effectively, to vary the parenting orders. It is not immediately clear to me whether the mother can seek those orders. She is a respondent to an application for contravention where the Court can either find the contravention proved or dismiss the alleged counts. There is no separate application before me by the mother to vary parenting orders. The mother has made a separate application to vary parenting orders that is being dealt with by the Court and has been listed for hearing. In the circumstances, I decline to make any orders sought by the mother.
While the father can seek orders, I decline to make them. The evidence before me was directed to the application for contravention. There is no evidence before me directed to section 60CA of the Act or to the best interest considerations under section 60CC of the Act. Furthermore, there is already an application in the Court to reopen parenting proceedings, and that application is being progressed and will be dealt with. I therefore decline to make any order varying the parenting orders.
The father sought that I make an order that the mother attend and complete a post-separation parenting solutions program designed and facilitated by family therapist Mr K. I decline to make such an order. There are parenting proceedings in the Court between the parties, and if an order of that nature is going to be made, it is appropriate it be made as part of those proceedings. It is also not immediately clear to me, and the father failed to explain, how attendance at a post-separation parenting program would assist in ensuring the mother's future compliance.
The father sought an order that he be compensated for lost time with the child. I have made a finding that the mother contravened the Final Orders and that the father did not see the child on one weekend. I am satisfied he should receive make-up time. I will make an order that the father shall have make-up time with the child on one additional weekend from 9.00 am Saturday until 5.00 pm Sunday, and for this purpose, the mother shall, by no later than 10 May 2024, nominate in writing at least four weekends that fall in the period from that date until 30 September 2024, and the father shall select which weekend the make-up time shall occur.
I have considered whether there should be an order for costs. As both parties are self-represented, I decline to make any order for costs.
I have considered whether I should make any order for expenses. There is no evidence before me of any expenses incurred by the father, and I therefore decline to make any order.
The remaining option is the imposition of a bond for each of the contraventions. While the father did not raise this in material, I raised it with the parties during the hearing. Having considered all of the evidence and my findings and the parties' submissions, I regard it as appropriate that the mother enters a bond for each contravention.
The contravention under Count 3 prevented the child from spending time with the father. Although there was a contest on the facts which might be thought to lessen the need for any bond, I am satisfied the bond should be entered into. The mother did not just contest this Count on the facts. It is apparent from her submissions that she regarded herself as being entitled to place the child into that event. Plainly, that is not what the orders say and the mother's construction of them, for the reasons I explained, is without foundation. A bond of 12 months duration is appropriate. Given there is no evidence before me as to the financial circumstances of the mother, the bond will be without surety.
Count 8 concerns the correct use of the child's name. This is obviously a source of angst between these parties. I have rejected the mother's explanations as to her conduct. Her conduct flies in the face not only of the Final Orders, but of the Supplementary Order. A bond of 12 months duration is appropriate; the bond will be without surety.
Count 9, likewise, concerns the correct use of the child's name. I have rejected the mother's explanations as to her conduct which, as I say, contravene and fly in the face of the Final Orders and the Supplementary Order. A bond of 12 months duration is appropriate; the bond will be without surety.
Each bond is made to secure compliance with the Orders of the Court. They require the mother to be of good behaviour and comply with all existing and future parenting orders made by the Court for a period of 12 months.
I note that each of the contraventions that I have found proved arose in a reasonably short space of time. The contravention the subject of Count 3 occurred on the weekend in mid-2023. The contravention the subject of Count 8 occurred at the same time. The contravention the subject of Count 9 occurred slightly earlier in mid-2023. While all of the bonds will be separate, given the date of the contraventions and the nature of them, it is appropriate that the bonds be served concurrently.
By way of explanation to the mother and in accordance with the provisions of the Act, the bond requires her to be of good behaviour and comply with all current and future orders of the Court. The purpose of the bond is to record community dissatisfaction with the violation of Court orders and ensure the mother complies with all current and future orders of the Court.
The mother must strictly comply with the bond and its requirements. If the mother fails to enter into the bond and the Court is satisfied she has no reasonable excuse, the Court may impose a fine on her, not exceeding 10 penalty units. If she fails to comply with the bond, the Court must take that into account in addition to any other relevant matters. Other matters include the fact that the bond was entered into, anything done pursuant to the bond, and any fine imposed and any other order made, for or in respect of the contravention. If the mother enters into the bond and fails to comply with it without reasonable excuse, then the Court may do any of the following: impose a fine, not exceeding 10 penalty units, or revoke the bond and deal with the mother in a manner in which she could have been dealt with for the contravention if the bond had not been entered into.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 7 May 2024