EVANS & FROST

[2014] FamCA 948

FAMILY COURT OF AUSTRALIA

EVANS & FROST [2014] FamCA 948

FAMILY LAW - CHILDREN - ORDERS – Contravention – Where father’s application alleges two counts of contravention – Where Court satisfied on the balance of probabilities that the first contravention is established – Where mother withheld child from spending time with the father without reasonable excuse – Where Court not satisfied on the balance of probabilities that the second contravention is established – Where Court not satisfied the mother denigrated the father as particularised in the contravention – Where Court not persuaded that the mother’s contravention is a more serious contravention as defined in the Act – Where Court ordered that the mother attend a post-parenting program.

FAMILY LAW - CHILDREN – With whom a child spends time – Variation of Orders - Where time that the father would otherwise have been spent with the child was provided for in incremental increases in amount and frequency of time in the Order that was contravened – Where such contravention has in effect rendered the increments otiose as the father has spent no time with the child for the last five months – Where Court noted the orders needed recasting in order to give them efficacy – Where Court noted the court has power to vary orders under section 70NBA – Where Court varied Orders.

Family Law Act 1975 (Cth) s70NBA, 70NAE.

APPLICANT: Mr Evans

RESPONDENT: Ms Frost

FILE NUMBER: CSC 285 of 2011

DATE DELIVERED: 24 October 2014

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 20 and 24 October 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. Pursuant to s70NBA of the Family Law Act the following orders of Justice Benjamin made by consent on 10 March 2014 be varied with effect on and from the date of these orders so as to provide:

   5(a)On Thursday 30 October and Thursday 6 November 2014 from 3:30pm until 6:30pm with the father’s time to be supervised by an employee of X Babysitting Service, with the father to be responsible for the cost of the supervisor.

   5(b)For the following 8 weeks, (namely 9 November 2014 until 28 December 2014) from 9:30am until 12:30pm each Sunday, with the father’s time to be unsupervised.

   5(c)For the following 4 weeks (namely from 4 January 2015 to 25 January 2015) from 9:30am until 5:30pm each Sunday, with the father’s time to be unsupervised.

   5(d)For a period of 4 weeks (namely from 1 February 2015 until 22 February 2015) from 9:30am until the commencement of school the following day or if a non-school day until 9:30am, with the father’s time to be unsupervised.

   5(e)For a period of 4 weeks (namely from 29 February 2015 until 19 March 2015) from 9:30am Saturday until the commencement of school on Monday, or if Monday is a non-school day, until 9:30am with the father’s time to be unsupervised.

   5(f)[deleted]

   5(g)From 26 March 2015 the child shall live with the father during school terms each alternate weekend from after school on the Friday until the commencement of school on the following Monday, with the father to have the first weekend of the school term where the child was in the mother’s care for the last week of the school holidays or on the second weekend where the child was in the father’s care for the last week of the school holidays.

   6.All changeovers which do not occur during school hours shall occur at Relationships Australia … Contact Centre and both parties are to forthwith take all necessary steps to arrange and attend the first available intake interview at the … Contact Centre.

   11.In the December 2014/January 2015 school holidays the mother may, upon giving the father one months’ written notice of her intention to travel with the child during that period, spend holiday time with the child for a 1 week period including Christmas Eve, Christmas Day and Boxing Day 2014, and this order prevails to the extent it may be inconsistent with any other order made on 10 March 2014. 

   13.Subject to Order 11 herein:

   13.1As from the start of the third school term in 2015, the child shall spend the first half of the Queensland gazetted school holidays in even numbered years with the father;

   13.2As from the start of the third school term in 2015, the child shall spend the second half of the Queensland gazetted school holidays odd numbered years with the father;

   13.3As from the start of the third school term in 2015, the child shall spend the second half of the queensland gazetted school holidays in even nembered years with the mother;

   13.4As from the start of the third school term in 2015, the child shall spend the first half of the Queensland gazetted school holidays in odd numbered years with the mother. 

2. Within 3 Months from the date of these Orders, the mother is to undertake a Post-Separation Parenting Program (such as the Parenting Orders Program conducted by Relationships Australia) and within 4 months from the date of these Orders, provide to the father a certificate of completion of that course.

3. That otherwise the father’s Application-Contravention filed 17 June 2014 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 285 of 2011

Mr Evans

Applicant

And

Ms Frost

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application-Contravention filed 17 June 2014, the father alleges two contraventions by the mother.  The first is that on 29 May 2014 and the respondent has, without reasonable excuse, failed to make the child, B, available to spend time with the father, contrary to orders 5(a) and (b) of the consent orders made by Benjamin J on 10 March of this year.  The second contravention is said to be a breach of order 25 of those orders, which occurred at 25 April 2014, and particularised as being that the respondent denigrated the applicant to the child.  It is convenient to deal with those contraventions in that order.

2. As to contravention number 1, the mother concedes that the child was not made available to the father on 29 May or indeed thereafter.  However, she says that she had a reasonable excuse for doing so, particularly, that it was necessary to protect the health or safety of the child, as provided for in section 70NAE(5).  In support of that contention, she relies upon her affidavit filed 21 October 2014, and particularly a report that had been made to her by a nanny, who had been employed by the father to supervise his time under the orders, which read as follows:

   Good morning, [Ms Frost].  Regarding Thursday, 22 May 2014, when I met with [the child] and his father, [Mr Evans], at the Woolworths Shopping Centre, [the child] and I were told that we were to go in [the father’s] new vehicle and [the child] seemed very hesitant and upset to go in his father’s car.  I felt it was inappropriate to go in his vehicle, as every other week we had used public transport and I was not aware or told where we were going in the car.  [The father] asked [the child] and myself to walk to his car to show [the child].  Once there, [the father] asked the both of us to get into the car.  [The child] appeared frightened and hid behind me and refused to get into the car.  I said to [the father] I thought it was not in the best interests of [the child] to go into the car, as he was upset and I was not in favour of it as well.  [The father] got aggressive, raised his voice and slammed both car dors in such a way that passerby people were looking over in our direction and said to both of us that we would get the bus.  This is the first time I had seen him in such a way.  Kind regards, [Ms P].

3. The mother appeared to contend that that conduct meant that withholding the child was necessary to protect his health or safety.  I am satisfied on the balance of probabilities that on 29 May 2014 the mother withheld the child from spending time with the father in breach of the consent orders of Benjamin J.  I am satisfied of that on the balance of probabilities.  However I am not satisfied, on the balance of probabilities, that the withholding of the child was necessary to protect his health or safety, and in any event, even if I were satisfied that that was appropriate on 29 May, it is not a reasonable excuse for withholding the child for, in substance, about five months thereafter.  Therefore, I am satisfied that the first contravention is established and that the mother has no reasonable excuse for it.

4. I then turn to the second contravention, which is the denigration.  The father relies upon a statement made to him on 25 April to the effect that the mother’s friend, Mr V, was going to come to his place and beat the father up.  Although his affidavit deals with other events after 25 April, they have no relevance to the second contravention, which of course, only asserts a breach on 25 April and not any day thereafter.  The only evidence of denigration is of what the child said to the father.  I have no information as to when any conversation between the child and the mother might have occurred, if indeed it occurred at all, the context of it or, indeed, whether the child’s recitation is an accurate reflection of any conversation about such subject that might have occurred.  I am not satisfied, on the balance of probabilities, that the mother breached order 25 of the consent orders as particularised in the contravention.  The second contravention is not established.

5. The time which the father would have otherwise been spending with the child was set out by order 5, and involved incremental increases both in the amount of time, and frequency of time, that the father would spend with the child, and also the transition from supervised time to unsupervised time.  The carefully crafted increments in order 5 have now been rendered otiose by virtue of the fact that for the last five months the father has spent no time with the child.

6. It is therefore a matter of some concern that the orders need to be substantially recast in order to give them any efficacy. The court plainly has, under s70NBA of the Act, power to vary orders and this is a case in which I am persuaded that the orders should be varied. However, before I deal with that issue, I should firstly deal with the order that I should make other than variation of orders, consequent upon having found the contravention established and there being no reasonable excuse.

7. I am not persuaded that the mother’s contravention is a more serious contravention, as defined in the Act.  Further, I am persuaded that, other than variation of the orders, the only order which I should make consequent upon the contravention having been established is that the mother should, within three months of the date of these orders, attend a post-separation parenting program, such as that provided by Relationships Australia in its Parenting Orders Program, and provide the father with evidence of having completed that course within four months of the date of these orders.

8. I turn then to the variation of the orders.  The mother contends that the appropriate variation to the orders is to extend supervision with written reports for no less than six months from today’s date.  That is a dramatic variation to the orders which she consented to on 10 March 2014, and I am not satisfied that such a delay in the move to unsupervised time would be in the best interests of the child.  The reality is that the father spent a considerable amount of supervised time with the child from Thursday, 13 March until Thursday, 22 May earlier this year, and it is appropriate that the orders continue forward with as little variation as can reasonably be accommodated, given the effluxion of time.

9. As I indicated to the parties, I have had inquiries made of the Children’s Contact Centre, and have been advised that there is a two week wait at present for an intake interview, but thereafter there is no waiting time for parties to enrol with the centre to facilitate changeovers there.  I raised with the parties the desirability of using Relationships Australia to effect changeovers once the commencement of unsupervised time begins, because plainly these parties have difficulty in dealing with each other, and it would obviously be in the child’s best interests for his changeovers to be attended by as little emotional turmoil and opportunity for a parental conflict as possible.  Therefore, it seems to me as though changeovers under the orders which would not be effected at school should be effected at Relationships Australia.

10. I am therefore satisfied that the following variations should be made to the orders.  Firstly, order 5(a), on and from today, should provide that “(a) on Thursday, 30 October and Thursday, 6 November 2014 the father spend time with [the child] from 3.30 pm until 6.30 pm, with the father’s time to be supervised by an employee of [X Babysitting Service], with the father to be responsible for the cost of the supervision.”  Order (b) should be varied, so that it reads “for the following eight weeks, namely, from 9 November 2014 until 28 December 2014, from 9.30 am till 12.30 pm each Sunday, with the father’s time to be unsupervised.”  I interpolate that the change of those times is intended to better fit with the operating hours of the Contact Centre.  Order (c) should then be varied so that it reads “for the following four weeks, namely, from 4 January 2015 till 25 January 2015, from 9.30 am until 5.30 pm each Sunday, with the father’s time to be unsupervised.”  Order (d) should then be varied so that it reads “for a period of four weeks, namely, from 1 February 2014 until 22 February 2014 from 9.30 am Sunday until the commencement of school the following day or, if a non-school day, until 9.30 am with the father’s time to be unsupervised”.  (e) should be varied so that it reads “for a period of four weeks, namely, from 29 February 2014 until 19 March 2014 from 9.30 am Saturday until the commencement of school on Monday or, if Monday is a non-school day, until 9.30 am with the father’s time to be supervised”. 

11. Sub order (f), in my view, has no continued operation and should be discharged, and (g) should now read “from 26 March 2015, the child will live with the father during school terms each alternate weekend” etcetera. 

12. Order 6 should then be varied so that it reads “all changeovers which do not occur during school hours shall occur at Relationships Australia … Contact Centre”, and it will further be ordered that both parties forthwith take all steps to attend an intake interview as soon as possible at the Contact Centre.  There will then be a further variation to order 13 so that in each of the four sub-paragraphs they will be varied so that they read, at the commencement of each of them, “as of the start of the third term of the school year in 2015, the child shall spend” etcetera. 

13. Order 11 also needs to be varied in view of the effluxion of five months in which the child has not spend time with the father, so that it should now read “in the December 2014/January 2015 school holidays the mother may, upon giving the father one month’s written notice of her intention to travel with the child during that period, spend holiday time with the child for a one-week period, including Christmas Eve, Christmas Day or Boxing Day, and to the extent that this is in conflict with any of the other orders in the orders of 10 March 2014, order 11 will prevail.”

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 24 October 2014.

Associate: 

Date:  24 October 2014