English & Eklund (No 2)
[2024] FedCFamC2F 1317
•25 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
English & Eklund (No 2) [2024] FedCFamC2F 1317
File number(s): PAC 3379 of 2019 Judgment of: JUDGE OBRADOVIC Date of judgment: 25 September 2024 Catchwords: FAMILY LAW – CONTRAVENTION – No intentional failure to comply – Made reasonable attempts at complying – Lack of evidence of contraventions – Contravention dismissed Legislation: Evidence Act 1995 (Cth) ss 91, 140, 144
Family Law Act 1975 (Cth) s 70NAC
Cases cited: English & English [1986] FamCA 69
Fauna Holdings v Mitchell [2000] FamCA 313
Harvey & Harvey [2018] FamCA 516
Hay & Hay [1998] FamCA 95
Lindsey & Lindsey [1995] FamCA 117
Nieuwstraten & Nieuwstraten [1987] FamCA 11
O’Brien & O’Brien [1992] FamCA 52
Reilly & Reilly [1995] FamCA 152
Stavros & Stavros [1984] FamCA 38
Vedders & Gittens [2023] FedCFamC1A 138
Division: Division 2 Family Law Number of paragraphs: 94 Date of hearing: 16 September 2024 Place: Parramatta Appearing for the Applicant: In person Appearing for the Respondent: In person Solicitor for the Independent Children's Lawyer: Ms Beach 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 OBRADOVIC
DATE OF ORDER:
25 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Application – Contravention filed 22 August 2024 is dismissed.
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
JUDGE OBRADOVIC:
The applicant father (‘father’) alleges that the respondent mother (‘mother’) contravened final parenting orders on seven occasions, by way of an Application – Contravention filed 22 August 2024. For reasons which are explained below, the application is dismissed.
The parties are the parents of almost 12-year-old X. X was born in 2012. She lives with the mother and is to spend time with the father.
Parenting proceedings were first commenced by the father in July 2019 in the then Federal Circuit Court of Australia. An order transferring the matter to the then Family Court of Australia was made in April 2020, with the matter being allocated to the Magellan List. The original parenting proceedings have a complex history, with many court events.
Lengthy reasons for interim judgment were delivered in those original parenting proceedings on 26 February 2021.[1]
[1] English & Enklund [2021] FamCA 89.
On 24 August 2022, final orders were made by the Federal Circuit and Family Court of Australia (Division 1) in respect of X’s parenting arrangements (‘Final Parenting Orders’). The Final Parenting Orders were made after three days of final hearing, and consequent upon the parties reaching significant agreement. Lengthy reasons for final judgment were delivered in those original proceedings on 24 August 2022.[2]
[2] English & Enklund [2021] FedCFamC1F 621.
It was not long however, before the matter was back in Court, with the father filing an Enforcement Application on 10 March 2023, seeking orders in respect of the use of the child’s name. Orders were made by a Senior Judicial Registrar on 28 June 2023, which sought to ‘give effect to Order 19(e)’ of the Final Parenting Orders.
On 19 September 2023, the father filed an Application – Contravention alleging that the mother had contravened the Final Parenting Orders on numerous occasions. That application was ultimately determined on 1 May 2024.[3] The Court declared that the mother had contravened the Final Parenting Orders on three occasions without reasonable excuse. The mother was ordered to enter into three bonds (one in respect of each contravention) to be of good behaviour for a period of 12 months (‘First Contravention Judgment’). The bonds are not cumulative.
[3] English & Enklund [2024] FedCFamC2F 578.
In the meantime, the mother filed an Initiating Application on 6 October 2023, containing applications for both interim and final orders. The interim application, seeking a stay of Order 2 of 28 June 2023 (in respect of the use of the child’s name) was dismissed on 1 February 2024.
The application for final orders has been travelling along parallel to both contravention proceedings, and is listed before the Court for determination of the Rice & Asplund[4] threshold issue on 27 September 2024.
[4] Family Law Act 1975 (Cth) s.65DAAA.
The father again alleges that the mother has contravened Final Parenting Orders, namely the orders for X to spend time with him and in respect of the use of the child’s name. These were also the orders which were the subject of the First Contravention Judgment, and orders which the mother was found to have contravened; that is, the order for the child to spend time with the father on one occasion and the order in respect of the use of the child’s name on two occasions.
While this Court is not bound by an earlier decision of the same Court, those decisions are persuasive, but only in so far as the ratio is concerned. Evidence of the decision or a finding of fact in an Australian proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.[5] In any event, this Court comes to a different conclusion in regard to the now alleged contraventions of the Final Parenting Orders.
[5] Evidence Act 1995 (Cth) s.91.
What is clear though, is that there is no respite for X in terms of the parental conflict.
THE ALLEGATIONS
Each of the parents gave evidence, but only the mother was cross-examined. The mother denied each of the alleged contraventions.
Count 1
That the mother in June 2024 at 9am at Handover Location C, without reasonable excuse, refused to allow the child to spend time with the applicant in contravention of Order 7(a) of the Final Orders of Justice Hannam made on 24 August 2022.
The father’s evidence speaks to conversations that he had with X starting about a month before the alleged contravention, where she indicated that she wanted to attend a ‘sports competition’ on a weekend that she was due to spend time with him. The father said, ‘we finished the weekend with the understanding that she wouldn’t be attending the sports competition.
In mid-2024, the father was waiting in the carpark where changeover was due to occur. The mother arrived with X sitting in the front passenger seat. X was visibly upset and according to the father ‘screaming at the top of her voice’. X was saying things such as:
I hate you! Just go away. You lie. You won’t let me do what I want. Just die already! I never want to see you again.
When the father asked X to calm down and suggested they go into the restaurant and talk, X continued yelling at the father. The father attempted again to convince X to go into the restaurant and talk, but to no avail, X’s yelling continued.
The mother says that she told X, when X asked her for help:
[X] I’m sorry you feel that way, you have to go with Dad today. We can talk to [the family therapist]… about it.
The parents then had a discussion. The parents give different evidence as to what they each said. It is clear that the mother believed the father was video recording on his phone, and that the father denied that he was doing so.
The mother’s evidence is as follows as to what occurred next:
[The father] said words to me to the effect of “this is your fault. [X] is okay with me and you upset her”. [X] started screaming again she said “I’m not okay. You are the one that makes me upset. Stop, just go away already. I’ve had enough of it now. I’m never going to see you again. I’m not going”. I tried again to calm [X] down and get her to go with [the father]. I said “the court orders say you have to go”. [X] screamed “and they say I can do my [sports] club but he never lets me go I hate him and I’m not going”. At some point [the father] said to [X] “where’s you bag”, [X] pointed at her duffle bag that was at her feet and screamed “it’s here but I’m not going”. [X] kept screaming “you never listen, I hate you. I’m not going”. This continued for over 15 minutes. I couldn’t calm [X] down, I couldn’t get her to go with [the father], I felt [X] was getting more and more worked up. [The father] continued to video us with a big smirk on his face. I eventually said to [the father] “[father], please, please can you contact [the family therapist] and book a joint session with [X]. This is not okay, we need to help her”. I then drove home with [X] still in the car. I made that decision because I did not know what else I could possibly do to encourage [X] to go with [the father].
The father’s evidence is as follows:
I asked [X] where her bag was. She said it was by her feet, where I'd looked before, as I'd had a good view of the footwell while I stood next to her open window. [X]'s bag was not in the car. [The mother] turned away from me to rub [X]'s back, and soon after said "I can't do this" and drove away. She left 15 minutes after arriving, and while I was still standing next to them trying to work things out.
The parents agree that the mother left with X after about 15 minutes.
The following day, the father attended the sports competition where the mother and X attended. The father attempted to help X and spend time with her during the day while she was competing. The father says that he then asked the mother for X to leave with him after the event, but the mother replied with ‘[X] doesn’t have to.’
The mother denies saying these words, and instead says that she tried on multiple occasions during the day to encourage X to go with the father. The mother says that she said ‘this is your court ordered time with your dad, you should go with him now’ to which X replied ‘no I’m not going with him. I hate him. I never want to see him again.’
The father asserts that X was to spend time with him from 9am on Saturday 29 June 2024 to 5pm on Tuesday 2 July 2024 in accordance with the Final Parenting Orders ‘given it was the first day of the school holidays’.
Neither parent was cross-examined about these events.
Count 2
That the mother in July 2024 at 9am at Handover Location C, without reasonable excuse, refused to allow the child to spent time with the father in contravention of Order 7(a) of the Final Orders of Justice Hannam made on 24 August 2022.
The parents had agreed that changeover was again to be at the carpark at 9am.
As they were due to leave, X resisted getting ready, protesting to the mother ‘I don’t want to go.’ The mother explained to X that she had to go, that ‘the judge had decided’ and that ‘these are the arrangements we have to follow’. The mother says she ‘eventually… managed to persuade [X] to get in the car for changeover’. During the drive over, X kept screaming:
I’m not going. I’m not going. I hate him. I never want to see him again. I’m not going. I hate him I’ve had enough of him, he never lets me do anything. I’m not going.
When the mother arrived with X, she parked her car next to the father’s car. The mother said to X ‘it’s your time with your Dad, you will have a good time together okay’. X said she is not going, and the mother then said ‘you have to go [X], it’s your time with you dad.’ X then screamed ‘I don’t care I’m not going, no one understands. I hate him. I’m not going.’ The mother remained in the car with X, she says ‘encouraging’ her to go with the father.
The father heard X screaming, saying things such as:
I hate you. You don’t let me do anything I want to do. I’m not going.
The father decided to wait in his car ‘to take a different approach’ to the one he took ‘the week before (and on previous occasions)’, as he had not been successful in ‘de-escalating’ the situation.
The father observed the mother ‘getting agitated and looking around, while sitting next to [X], not doing anything to stop her from screaming.’ The mother asked the father to help, and he explained that it had not worked in the past so he was trying a different approach. The father then told the mother that it was ‘her responsibility to get [X] to go with [him]’ while she was in the mother’s care and the father’s responsibility when X is in his vehicle. The mother did not leave the car, and said to the father ‘I can’t calm her down’ to which the father replied ‘maybe you should change your parenting style’.
The mother’s evidence is that she asked the father several times to help her, but that he refused. The father called the mother ‘a bad parent’ in front of X.
After about 10 minutes of the father not exiting his car and X refusing to leave the mother’s car, the mother proceeded to reverse and the father said that he did not agree with her driving off. The mother left with X as she believed that remaining in the carpark any longer would not assist and would only cause X further distress.
The father says that after the mother drove away, he sent her a message asking her to contact him when she was ready to try again.
The father asserts that X was to spend time with him from 9am on 13 July 2024 to 5pm on 16 July 2024 in accordance with the Final Parenting Orders. The father asserts that he ‘did not see [X] for the second time during those school holidays’.
Neither parent was cross-examined about these events.
Count 3
That the mother in July 2024 at 9am at Handover Location C, without reasonable excuse, refused to allow the child to spent time with the father in contravention of Order 7(a) of the Final Orders of Justice Hannam made on 24 August 2022.
On Thursday, 25 July 2024, the mother sent the father a text message advising that X had a sports state trial on the weekend of 27-28 July, and that it was a compulsory event for X to attend. The mother, inter alia, indicated that X had told her that the father had insisted that X leave sports early ‘last weekend’. There was then a proposal by the father that X be left by the mother at an alternate location at 9am (instead of Handover Location C) so that the mother was not present during changeover. The mother did not agree to leaving X unsupervised, and advised that changeover would be at the handover location. The mother then said that the father did not respond to her earlier text, although it is not clear what it is that he was meant to respond to, and further said that ‘last time you ignored my text and email you forcibly dragged [X] out of sports early with no notice, causing extreme upset and embarrassment to her…’. The text went on. The father replied confirming he would take X to the competition, and then agreed to changeover at the centre on Sunday (at the conclusion of X’s time with him). The father suggested that X should communicate directly with him about her competitions, rather than the mother acting as the conduit. The father advised that he would wait for X indoors at the handover location in an attempt to make the changeover less stressful for X.
In July 2024, on the way to changeover, X was saying to the mother ‘I’m not going with him, no way’ and the mother replied with ‘X, you have to go with your dad, it’s his weekend with you’. X kept refusing.
Upon arrival at the carpark, the mother parked her car next to the father’s car as usual. The father had gone inside the restaurant, having advised the mother by text message the day before that this is where he was going to wait.
The mother describes what happened next:
I said to [X] “come on, we need to go meet Dad inside […] today”. [X] said “No, I’ve told you a million times I’m not going”. I said “[X], this isn’t a choice, the court orders say you have to go with your Dad, so you have to go with your Dad”. [X] started screaming and crying “no, I’m not going. I’m not going, He never lets me do anything. I’m not going. I have my [sports] comp tomorrow and he’s not going to let me go. It’s not fair, he never lets me do anything. I hate him”. I said “[X], Dad has agreed in writing to let you go to the [sports] competition tomorrow. I’m sure he is going to let you, he actually put it in writing this time. I’m sure everything will be fine. Let’s go inside and meet him now. Everything will be fine, I’ll pick you up from your [sports] comp tomorrow afternoon and we can go out for dinner. I’ll invite Nan and some of the girls from [sports]”. [X] just kept screaming “no, I’m not going. I’m not going. He always lies, I know he is not going to let me go. He just said that to trick me, he already said he is not letting me go to competitions anymore. He always lies, I know he won’t’ [sic] take me. I hate him”. I remained in the car with [X] trying to convince her to walk inside with me for about 7 minutes. At 9.07am I sent [the father] a text message that said “[X] is refusing to get out of the car, can you please come and help me”.
There was a text exchange between the parents, with the father insisting that the mother come inside. The mother refused to do so as she was concerned for X’s safety and did not want to leave her alone in the car. The mother’s evidence is that X had on previous occasions harmed herself while in a similar emotional state by hitting herself repeatedly, saying ‘I want to die, I don’t want to live, I want to kill myself.’
X refused to leave the car. The mother left with X after 35 minutes.
Later that day, the father sent the mother another text message asking if she was willing to try changeover again, and asking how X was. The mother did not reply.
Neither parent was cross-examined about these events.
Count 4
That the mother in August 2024 at 9am at Suburb Q, without reasonable excuse, refused to allow the child to spent time with the father in contravention of Order 7(a) of the Final Orders of Justice Hannam made on 24 August 2022.
The parents had agreed for the father to pick X up at 12 noon, following X’s sports. The mother was not there when the father arrived just after 12.
The father’s evidence is as follows:
[In] August, at 12.02, I walked into the [centre] and approached [X], who was with two other parents. I greeted [X], and she said she wasn’t going to come with me. When I asked “why aren’t you going” she said it was because she didn’t feel safe. I asked her why, and she said “what you say and do”. One of the two parents backed [X] up and told me she didn’t have to come if she didn’t want to. I asked them “what legal profession have you got?” and said “sounds like this has all been planned”. The parents asserted that [X] was 12 (which is incorrect) and could decide what she wanted to do. I explained to [X] that “mum sent me a message to pick you up from here”. During these conversations, I had picked [X]'s bag off the floor, so we could head out together, as I have done on many occasions. One of the parents asked [X] if she’d like her to call her mum, [X] said yes, and the lady proceeded to call [the mother].
The father then took X’s bag to his car, and called his partner. At 12.09pm, the father returned to the foyer and was told by another parent that X had gone upstairs. He did not go after her. A few minutes later, the father sent the mother a text message asking her not to come to the centre, and that he would wait with X until she decided to go with him. This was at 12.13pm. The father then called the police who advised that they would not get involved. The father then saw the mother arrive.
Between the time he took X’s bag a few minutes after 12noon, and the time the mother arrived, the father did not make any further attempts at speaking to X, he did not go upstairs to check on her nor to find out what she was doing. He went outside, made a phone call, texted the mother, called the police and waited. He took no positive steps to encourage X to go with him to spend time.
In the meantime, another parent had called the mother at about 12.05pm advising that X was with her, and that she did not want to go with the father. That parent asked the mother to come. The mother was at work, which she then left. The mother arrived at the centre at approximately 12.20pm. When she arrived, she observed the father standing outside talking on his mobile phone.
When the mother went inside, she observed coaches and parents standing around, and she was told that X was upstairs in the office. The mother then went upstairs and found X with two of her friends and one of the coaches. She asked X if she was ok, and X told her that she is not going with her father, and that she hated it there. X told the mother that the father had taken her bag, which had her phone and sports gear and that he would not give it back. The mother observed X to be upset.
The mother and X then went downstairs, and the father approached them. The mother said ‘I think it’s best I take her home, can I please have [X’s] bag?’, to which the father replied ‘the bag is in my car, she can have it if she comes with me’. X refused to go, and the mother observed her to be upset and shaking. The mother then decided that there was nothing more she could do to convince X to go with the father, and felt it best to take her home.
The father said ‘you need to leave, this is my time’, to which the mother replied ‘I can’t just leave her here, look how upset she is.’ The mother then took X and went to her car, after asking the father again to return X’s bag.
The father then sent the mother a text message:
[Mother], I have [X]'s bag. You’re completely undermining my relationship with her. We can meet at [Handover Location C] if you agree to facilitate changeover.
The mother did not go to the handover location.
The parents exchanged further emails, each blaming the other for what had occurred. The text messages are a reflection of the high conflict and very poor communication between the parents, and their lack of insight into their own behaviours. Such communications do not in any way assist X.
The father attended a school event at X’s school in August 2024. He brought X’s bag with her and attempted to give it to the mother, but the mother did not take it. Later that day, the father received a phone call from the police advising that the mother had made a complaint that he had stolen her property, being the bag. The father arranged with the police to drop the bag off the following day at the police station, which is what he did.
Neither parent was cross-examined about these events.
Counts 5, 6 and 7
That the mother in May 2024 at 8am at Suburb P, failed to ensure the child was enrolled under the correct name for a sports competition in contravention of Order 19(e) of the Final Orders of Justice Hannam made on 24 August 2022 and Enforcement Order 2(a) of the Enforcement orders of a Senior Judicial Registrar made on 28 June 2023.
That the mother in June 2024 at 8am at Suburb P, failed to ensure the child was enrolled under the correct name for a sports competition in contravention of Order 19(e) of the Final Orders of Justice Hannam made on 24 August 2022 and Enforcement Order 2(a) of the Enforcement orders of a Senior Judicial Registrar made on 28 June 2023.
That the mother in August 2024 at 8am at Suburb R, failed to ensure the child was enrolled under the correct name for a sports competition in contravention of Order 19(e) of the Final Orders of Justice Hannam made on 24 August 2022 and Enforcement Order 2(a) of the Enforcement orders of a Senior Judicial Registrar made on 28 June 2023.
The father’s evidence is that to enrol in the sports competition, a website is used by all attending members. The online enrolment form asks members to enter a ‘First Name’ and a ‘Last name’ into the required fields. The father says that these names are then used to create the Sports List for the day of the competition.
The father annexes to his affidavit a ‘Competition Entry Form’ for an event in August 2024. The competition form does not relate to any of the dates on which the father alleges the contraventions of the orders occurred.
The mother conceded in cross-examination that sports club enrolment forms do not ask for middle names, that she understood the enforcement orders of 28 June 2023, and she said that she entered X’s second name as part of her first name on the enrolment form so that she would be in compliance with the order requiring that she be enrolled as ‘[X Eklund English]’.
The mother gave oral evidence that she has tried to get X to call herself X English, but that X does not cope well with change. The mother said that X chooses to call herself X Eklund, that she has tried to get her to call herself X English, but that X is refusing and that X is not coping.
The father says that in mid-2024, X attended a sports competition. He annexes a list of names and times (annexure P to his affidavit) and says that this is the Participants’ List for the day of the competition which shows X’s name as ‘[X Eklund]’. Nothing on the list indicates the date of the competition as being in May 2024 as asserted by the father, rather X’s name appears under two event headings. On the face of the annexure, the list of competitors is for a 2023 event, not an event held in 2024 and not an event held in May 2024.
Next, the father says that in June 2024, he attended a sports competition in which X was present. He annexes a list of names and times (annexure Q to his affidavit) and says that this is the Competitors List for the day of the competition which shows X’s name as ‘[X Eklund]’. Nothing on the list indicates the date of the competition as being June 2024 as asserted by the father, rather X’s name appears under an event heading. On the face of the annexure, the list of competitors is for a 2023 event, not an event held in 2024 and not an event held in June 2024.
Lastly, the father says that in August 2024, X participated in an event at Suburb R. He annexes a list of names and times (annexure R to his affidavit) and says that this is the Competitors List for the day of the competition which shows X’s name as ‘[X Eklund]’. Nothing on the list indicates the date of the competition as being in August 2024 as asserted by the father, rather X’s name appears under two headings. On the face of the annexure, the list of competitors is for a 2024 event, but not specifically an event held in August 2024.
The mother annexes to her affidavit a document that which, on its face, indicates that ‘[X Eklund English]’ is a ‘Junior Member’ of the Suburb M Sports Club, with her membership expiring in 2024.
The mother’s evidence is that she does not submit X’s request to participate in voluntary competitions and events associated with sports, and that X does most of this herself. The mother further says that she has told X that the Court has directed both parents to enrol her under the name ‘[X Eklund English]’ and that X has said to her ‘my lawyer said I can call myself whatever I want’.
DETERMINATION
Relevant Legal Principles
Section 70NAC of the Family Law Act 1975 (Cth) sets the meaning of ‘contravene’ for a child related order. Relevantly, s70NAC(1) provides that a person contravenes a child related order only if:
(a)The person intentionally fails to comply with the order; or
(b)The person makes no reasonable attempt to comply with the order.
Without limiting sub-section (1), sub-section (2) sets out the circumstances in which a person contravenes a child related order. In respect of an order which provides for a child spending time, it is where the person intentionally hinders or prevents another person from spending time with the child in accordance with that order.
The obligation of both parties is to make reasonable efforts to comply with the orders. It is not enough to do no more than merely stand by and do nothing to encourage the child to go with the other parent.[6] Genuine compliance with an order involves encouraging a child to spend time with the other parent.[7] However, how a primary carer discharges their positive obligation to encourage a child to stay with the parent entitled to time varies in accordance with the age and maturity of the child concerned.[8]
[6] Stavros & Stavros [1984] FamCA 38.
[7] Harvey & Harvey [2018] FamCA 516 at [68] (‘Harvey’); O’Brien & O’Brien [1992] FamCA 52.
[8] Harvey at [71].
The onus of proof is on the applicant and the standard of proof is on the balance of probabilities, having regard to the gravity of the allegation.[9] The contravention must be shown to be intentional, that is, deliberate as distinct from inadvertent, but it does not require proof of contumacious behavior.[10]
Did the Mother Contravene the Orders?
[9] Evidence Act1995 (Cth) s.140. See also Reilly & Reilly [1995] FamCA 152; Lindsey & Lindsey [1995] FamCA 117.
[10]Fauna Holdings v Mitchell [2000] FamCA 313; Hay & Hay [1998] FamCA 95; English & English [1986] FamCA 69; Nieuwstraten & Nieuwstraten [1987] FamCA 11.
Order to Spend time with the Father
Relevantly, the Final Parenting Orders provide that:
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.
The father made very limited submissions at hearing, and what he did submit was of little assistance. The father did not address the relevant issues, by explaining how the events which he says occurred amount to a contravention in the defined sense. In his application he identified Order 7(a) as having been contravened, but then did not adequately explain how it was contravened, nor did he identify which, if any, of the sub-paragraphs of 7(a) applied and why.
There is no evidence as to the calculation of time or similar in respect of Order 7(a) of ‘each alternate weekend’ vis-à-vis Order 4 of the Final Parenting Orders. That is, there is no positive evidence which would satisfy the Court that the dates on which the father asserts X was to spend time with him pursuant to the Final Parenting Orders are the dates in question.
There was no evidence before the Court as to whether the time that the father asserts X was to spend time with him was during the school term or during a particular school holiday period.
A conclusion of ‘given it was the first day of the school holidays’ is not evidence of fact, nor is it apparent from the father’s evidence what fact(s) that conclusion is based upon.
The statement ‘I did not see [X] for the second time during those school holidays, from 9am 13 July till 5pm 16 July’ is not evidence of the fact of when a school holiday period was.
The Court takes judicial notice[11] of school holiday periods in 2024, namely: term 2 school holidays were from Monday 8 July to Friday 19 July.[12] While the Court is able to conclude that 13 July 2024 was a day during the school holiday period, the Court cannot without more, then conclude that the time in question was to occur in accordance with Order 7(a)(iii).
[11] Vedders & Gittens [2023] FedCFamC1A 138 at [35]; Evidence Act 1995 (Cth) s.144.
[12] 2024 term dates (nsw.gov.au) accessed 20 September 2024; Evidence Act 1995 (Cth) s.144(2).
The agreed facts between the parties that each of them was at the same place to effect changeover, at best leads the Court to infer that there was agreement that X would commence spending time with the father from that point in time. But no more.[13]
[13] This is notwithstanding the comments made by the Bench during its discussions with the father at the hearing on 16 September 2024.
The Court cannot conclude that the asserted times in respect of which the alleged contraventions occurred were ‘each alternate weekend from 9am Saturday until 5pm Sunday’ as provided for in Order 7(a) or within any of the sub-paragraphs of Order 7(a) of the Final Parenting Orders.
Lest it be said that the Court is applying a ‘logical strictness (or perhaps pedantry)’[14] which is not demanded by the language and objectives of Division 13A of Part VII of the Act, the Court is also not satisfied, on the balance of probabilities, that the mother has either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order, even accepting that the dates and times were those within the meaning of Order 7(a).
[14] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ATW19 [2021] FCAFC 58 at [3] per Allsop CJ in relation to this Court’s interpretation of particular and unrelated provisions of Migration Act 1958 (Cth).
The fact that X did not spend time with the father on any of those three occasions, does not ipso facto mean that the mother contravened the orders. The mother did not intentionally hinder or prevent the father from spending time with X.
The Court finds on the evidence that:
(1)The mother was at the agreed place at the agreed time on each of the four occasions the father complains about. On each of those occasions X was with her.
(2)The mother on each of the three occasions in question, encouraged X to spend time with father, both prior to arriving at the agreed place of changeover at the agreed time, and while there.
(3)The mother spent time on each of the four occasions, upon arriving with X, encouraging her to go with the father.
(4)While the mother saying to X things such as ‘there is a Court order’ may not be the best way to encourage a child to spend time with a parent, it is still encouragement.
(5)The mother says that she has consistently done everything within her power to try to help X adjust to spending time with the father, such as taking her to regular counselling sessions with the family therapist. The family therapy sessions took place from June 2022 to July 2024. The Court accepts the mother’s evidence in this regard. Nothing was put to her in cross-examination that casts any doubt over her evidence in this respect.
(6)The father, even though he also has a positive obligation to comply with the orders, did not encourage X to go with him on any of the four occasions:
(a)In June 2024, the father despite speaking to X was not able to calm her down, have her exit the mother’s car or go with him to spend time.
(b)In July 2024, the father did not leave his car and did not speak to X. He did not try to encourage her at all to spend time with him, despite hearing her yelling and refusing to go, and despite the mother asking for his assistance.
(c)In July 2024, the father did not approach X or speak to her. He did not try to encourage her at all to spend time with him, despite the mother asking for his assistance.
(d)In August 2024, the father, as noted above, between the time he took X’s bag and the time the mother arrived, did not make any further attempts at speaking to X, and he did not go upstairs to check on her nor to find out what she was doing. He went outside, made a phone call, texted the mother, called the police and waited. He took no steps to encourage X to go with him to spend time.
The evidence does not establish that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order.
Counts 1, 2, 3 and 4 are not established.
Order in Respect of Use of Name
Relevantly, the Final Parenting Orders provide that:
19 Each parent is restrained from:
(e)Enrolling the child in any educational institution, health care provider or extracurricular activity by any name other than “[X Eklund English]”.
Furthermore, the Orders of 28 June 2024 provide that:
2.To give effect to Order 19(e) of the Final Parenting Orders made on 24 August 2022 (“Final Orders”):
(a)each party must do all acts and things necessary to ensure that the child [X EKLUND ENGLISH] born [in] 2012 (“[X]”) is enrolled at any educational institution, health care provider or extracurricular activity as:
(i) first name: [X];
(ii) middle names: [Eklund]; and
(iii) last name: [English]
[notation]
B.Nothing in these Orders, or the Final Orders, limits [X] from using her chosen names for her own personal use.
The evidence indicates that X is enrolled as a member of a sports club under her full name ‘[X Eklund English]’. It is inferred from the oral evidence that her second name might have been entered as part of her first name, when she was being enrolled. This however does not form part of the alleged contraventions, and it shows the mother making an attempt to comply with Order 19(e) of the Final Parenting Orders. The Orders of 28 June 2024 were made ‘to give effect to Order 19(e)’ and they must be read and understood in that light.
In respect of X’s name appearing on the list of competitors, the Court notes in particular its findings at [59]-[65] above. The evidence does not establish that X was not entered into the competitions in mid-2024 under her correct name. The father’s assertions are not supported by the documents he relies on.
Furthermore, the father did not establish that the mother was responsible for entering X’s details for the particular competitions he makes complaint about.
The evidence does not establish any contravention by the mother of Order 19(e) of the Final Parenting Orders and/or Order 2 of the Orders of 28 June 2023.
Counts 5, 6, and 7 are not established.
CONCLUSION
The Court notes that the substantive proceedings are before the Court in respect of the threshold issue on 27 September 2024. In those circumstances and in light of the competing applications for final orders, it is not appropriate for any orders to be made for make-up time, orders that might vary, suspend or otherwise impact the Final Parenting Orders, or an order to attend a post-separation parenting program.
The Application-Contravention is to be dismissed.
The Court so orders.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 25 September 2024
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