Ferreiro & Zangari
[2022] FedCFamC1F 349
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ferreiro & Zangari [2022] FedCFamC1F 349
File number(s): PAC 2379 of 2018 Judgment of: SENIOR JUDICIAL REGISTRAR BEST Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – Contravention Legislation: Family Law Act 1975 (Cth) Division: Division 1 Family Law Number of paragraphs: 71 Date of hearing: 7 April 2022 Place: Brisbane Counsel for the Applicant: Mr Breeze Solicitor for the Applicant: Cambridge Law Solicitor for the Respondent: WM Lloyd & Associates ORDERS
PAC 2379 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FERREIRO
Applicant
AND: MS ZANGARI
Respondent
order made by:
SENIOR JUDICIAL REGISTRAR BEST
DATE OF ORDER:
17 MAY 2022
THE COURT FINDS THAT:
A.On 12 November 2021, the Mother contravened without reasonable excuse Order 21 of the Order of 25 November 2019 and Order 12 of the Order of 24 December 2020.
B.On 22 November 2021, the Mother contravened without reasonable excuse Order 21 of the Order of 25 November 2019 and Order 12 of the Order of 24 December 2020.
THE COURT ORDERS:
1.That within seven (7) days each party confirm by correspondence to the Chambers of Senior Judicial Registrar Best the post-separation parenting programs or counselling interventions they have completed in the period following separation, including the program, program provider and the date of completion.
2.That the Court’s Reasons for Judgment of 19 May 2022, and the parties communications pursuant to Order 1 herein be provide to a Family Consultant and advice and recommendation sought from a Family Consultant pursuant to section 11E of the Family Law Act 1975 (Cth) in relation to the Post-Separation Parenting program that would:
(a)best empower the parties to better protect the children from ongoing parental conflict and communication breakdown; and
(b)better support each other in parenting the children in a manner which is emotionally safe.
3.That advice pursuant to Order 2 herein be respectfully sought and disseminated to the parties prior to 4pm on 17 June 2022.
4.That the proceedings be adjourned to 10am on 6 July 2022 for further brief oral submission relevant to:
(a)the recommendations of the Family Consultant pursuant to Order 2 herein and the consequent Order of this Court;
(b)submissions in relation to whether either party is ordered to contribute to the others costs of these proceedings; and
(c)such further Order to be made by this Court.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Ferreiro & Zangari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Senior judicial registrar BEST
BACKGROUND
The parties in this matter separated on a final basis in May 2018, with proceedings initiated by Application filed on 29 May 2018.
In the period following separation, the parties have evidently sought to co-parent two children, X now aged 11 years and Y presently aged 9 years.
A review of the Court file is indicative of a prolonged period of litigation, a process leading, no doubt, to significant financial and emotional cost to the parties.
On 25 November 2019, a final parenting Order was made by consent between the parties. The proceedings were subsequently reinitiated by Application in a Case in or about April 2020 in circumstances where the Father had retained the children contrary to the earlier Order. The parties then made further Application for final orders by Initiating Application and Response accordingly.
It is evident that a further interim Order was made, partially by consent, on 24 December 2020.
It was not suggested that the earlier final order of 25 November 2019 was discharged by any subsequent order prior to that made on 24 December 2020 and accordingly both remain in effect, and both are alleged to have been breached by the Father in the context of the current Contravention applications.
Substantive proceedings remain pending in the Parramatta Registry of the Court. The proceedings were transferred from Division 2 to Division 1 on 11 March 2021. The parties clearly maintain different views as the care arrangement that will best meet the children’s best interests moving forward, and the matter will progress to Case Management Hearing on 22 July 2022 before Justice Riethmuller.
The Father sought to prove two contraventions of Order by the Mother at the hearing on 7 April 2022. I reserved my decision at the conclusion of the hearing.
Both contraventions involve Y and allege that the Mother hit the child in contravention of provisions which respectively sought to restrain both the Mother and Father from physically disciplining either child.
The contraventions alleged were:
(a)Count 1: That on Friday, 12 November 2021 at B Street, Suburb C in the State of New South Wales, the Respondent hit the child Y in contravention of Order 21 of the Order of 25 November 2019 and Order 12 of the Order of 24 December 2020.
(b)Count 2: That on Monday, 22 November 2021 at B Street, Suburb C in the State of New South Wales the Mother hit the child Y in contravention of both Order 21 of the Order of 25 November 2019 and Order 12 of the Order of 24 December 2020.
The Mother denied both contraventions when they were formally put to her at the outset of the hearing.
evidence
Both parties were represented, and cross-examined during the hearing.
The Father further subpoenaed Mr E, former School Principal of D School and Ms F whom was the former Deputy Principal of the same school. Both were cross-examined.
All parties and witnesses attended by MS Teams.
The Father relied on the following documents in support of his case:
(a)The Applications for Contravention both filed 17 December 2021 (constituting amended applications for contravention filed in accordance with direction of the Court) and alleging the two counts set out above;
(b)His Affidavit filed on 24 November 2021;
(c)His Affidavit filed on 3 December 2021;
(d)His Affidavit filed on 22 February 2022;
(e)Extracted documents from a tender bundle amounting to some 24 pages in total (despite the produced Tender bundle running to some 393 pages); and
(f)Video of the child’s two police interviews dated 18 and 26 November 2022 viewed during the hearing and the subject of tendered transcripts.
The Mother relied on the following documents in support of her case:
(a)Her affidavit filed on 1 February 2022.
Applicable Law
The Applicable Law in respect of failure to comply with orders that affect children is contained in Division 13A of Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 70NAC sets out what must be established to satisfy a Court that a contravention took place:
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.
The standard of proof that applies in determining whether a person has contravened an order, and if they are found to have contravened, whether the person had a reasonable excuse for doing so, is proof on the balance of probabilities (section 70NAF of the Act).
The First alleged contravention: 12 November 2022
The Applicant Father contends that on 18 November 2021, after collecting Y from D School, Suburb A, the child started crying and said to the Father:
Last Friday after school mum found the phone you gave me and [X] in my drawer where I hid it before mum found it in my school bag so mum didn’t hide my phone. I hid the phone under my pencil case in my drawer. Mum got really angry and started yelling and screaming at me to give her my pin number. [X] got really scared and covered her ears and ran to mum’s room and closed the door. Mum read the messages and was yelling and screaming at me for twenty minutes and she hit me on my side. I went to mum’s bedroom to check on [X]. I was really scared and worried about [X] she was curled up in a ball on mum’s bed crying and covering her ears. I sat with her and cried. Mum has been really annoyed at me since then. Mum told me not to tell anyone about what happened. I’m scared to go back to mum. I don’t want to go back to mum.
The Father says that he asked if the Mother had hit him ‘hard’ and he said “it hurt a lot dad”.
The Father then deposes to reporting the disclosure to the Police and a police officer attending his home at 10.51pm and speaking with Y.
The video of this interview was played and accords with a transcript tendered by the Father’s solicitor.
The Police Officer in question identifies himself only as ‘Mr G’ and it is evident that Y is interviewed in the presence of his Paternal Grandfather. Y was initially asked to verify his understanding of a lie and the truth and provided an example reflecting his understanding.
Police Officer (PO): Okay. So, what’s happened with your mum, last Friday?
[Y (Y)]: She had, she had went looking for my pencil case
PO: Yep
[Y]: And then she had found me phone underneath it
PO: Yep
[Y]: She had thrown it on my bed and started to yell at me
PO: Yeah
[Y]: For 10 minutes
PO: Yeah ah ha
[Y]: Then after that 10 minutes she’d hit me on my side
PO: Where did she hit you?
[Y]: On the right side of my body
PO: Oh, okay
[Y]: Underneath my arm
PO: Yeah
[Y]: And she, and then she had continued on yelling for another 10 minutes
PO: Okay, alright
…
PO: Um. Okay. Where were you at the time when mums come looking for this pencil case?
[Y]: I was in the room. On my bed.
…
PO: Yeah. Heh Heh (laughs) Well, I suppose that’s fair. Does she, has she ever hit you before?
[Y]: Yep
PO: Yeah
[Y]: A few times
PO: How does that make you feel? How does her behaviour make you feel?
[Y]: Upset
…
PO: Okay. Alright. Why was mum, why was mum cranky when she found your phone?
[Y]: Because she, she thought it wasn’t there cause I told her it wasn’t there so that I wouldn’t get into trouble
PO: Yeah
[Y]: Because I knew that she would do the exact same thing
PO: Hmm
[Y]: Yell and scream at me
PO: Hmm. How hard do you think mum smacked ya?
[Y]: Really hard
PO: Really hard. Yeah, okay. Could you just show me on yah, on yah, if you’ve got any marks there on your belly
[Y]: I don’t, have any
NSW Police, after interview, determined to record the incident as ‘lawful chastisement’. They record expressly in subpoenaed records that “..an assault has not occurred and as such no offence has occurred”. The police records do reflect that an Officer spoke with the Mother about 4pm on 25 November 2021, it is stated:
About 4PM, 25 November 2021 Police spoke with the PN who stated she did get angry with her son on Wednesday 10 November although vehemently denied laying hands on her son due to the Family Law Court Orders fearing that she would be breaching the orders.
At hearing and in her sworn evidence, the Mother denied any physical discipline of the child on 12 November 2022 and at all. Her evidence is that she has never hit either child, and that she has “other strategies” that she utilises with the children if they misbehave; she says “I am totally against physical discipline of the children” (para 11 Affidavit of the Mother filed 1 February 2022). She maintains in relation to both instances that Y has fabricated matters conveyed to his Father and to the Police in circumstances where he is compromised by parental discord at the current time and has been encouraged to lie by the Father. She says specifically in her Affidavit filed on 1 February 2022:
I did not get really angry and start yelling and screaming at [Y] in order for [Y] to give me his pin number for his phone. I did not see [X] get very scared, cover her earns and run into my room and close the door. At no time did I yell and scream at [Y] for 20 minutes, and I have never ever hit [Y] on his side or anywhere else. I did not see [Y] go to my room and find [X] curled up there in a ball on my bed, crying and covering her ears. I did not see [Y] sit with [X] and cry. I was not really annoyed with [Y] since this incident because the alleged incident did not happen. I did not and have not, told [Y] not to tell anyone about what happened. In my opinion what [Y] has allegedly said to [Mr Ferreiro] is pure fabrication by either [Mr Ferreiro] or [Y]. [Y] has never said to me that he is afraid of me or that he is scared to come back to me.
The Mother then went on to provide an account of events on 12 November:
I say that on the 12th of November 2021 the children and I were playing in my room, when [X] got up and left [Y] remained and started hitting me on my back about 4 times, [Y] then punched me slightly. I immediately said to [Y], “Why are you hitting me?”, and why have you been lying to me this week? Let’s go to your room and have a talk”. When we went into [Y’s] room, I saw that [Y] began to cry and I spoke to [Y] about feelings and some of the issues that had occurred in our home in that past week. I use a feelings chart and an image of “hot chocolate breath to de-escalate a situation with the children so that I may be able to find the cuase of the children’s recent behaviour. During my conversation with [Y] about feelings, [Y] said, to me words to the following effect, “You know Dad keeps telling me that you’re a bad woman and that you are a liar, and he keeps repeating it over and over.” I then said to [Y], “This is a very difficult situation, is it because Dad tells you that I am a bad woman and that I am a liar the cause for you lying to me?, you should not lie to me about your phone.” I finished my talk with [Y], and we both agreed that our goal was for [Y] to grow into a strong, healthy, happy, safe little boy in a good environment without lying.
The parties evidence under cross-examination did not deviate from their affidavit evidence.
The Second alleged contravention: 22 November 2022
The Father alleges that he received text messaging from Y that prompted him to attend at the school again on Friday, 26 November, albeit at a time in which the party’s substantive proceedings were before Senior Judicial Registrar Tran.
The child was collected from his classroom by the then Principal Mr E, and on the Father’s evidence proceeded to run towards his Father, hug him and say “mum has been hitting and yelling and screaming at me all week”.
Y is described by the Father as crying and insistent that he return to the Father’s residence.
Mr E’s evidence, which I find credible, was that he received a notification which prompted him to attend at Y’s classroom. He asked Y to come out of class and spoke to him such that they were visible to the teacher and students. Y proceeded to say that he was not wanting to go home to Mum, because she ‘hits’ him and ‘yells’ at him and he wanted to go home to Dad. Mr E had no recollection of the classroom teacher, Ms H, being present. As he walked down with Y to the vicinity of the front gate of school, he observed Y to run to the Father and jump into his arms. He further observed Y to repeat what he had said to Mr E outside the classroom. He observed the Father to be upset about that, and saying in the child’s presence that Mr E needed to call the police. Mr E then went to the school office where he sought guidance from a child protection/legal adviser and further telephoned the police to report the child’s disclosures.
Shortly after these events, the Father says Mr E returned to the Office in order to telephone the police. Whilst awaiting the arrival of a police officer, the Father’s evidence is that the child again said “mum was yelling at me and hit me because I told police about the first time she hit me”.
After the Father contacted the Suburb C Police Station, he left the school with Y to await the attendance of an Officer at his residence. At 2.25pm that day, the Father deposes to two police officers attending at his residence.
Y was interviewed by a Police Officer whom identified himself as Constable J from the Suburb K Police Station. The Paternal Grandfather was observed to be present with Y sitting next to him, and identified himself as Mr L.
The video recording was played during the hearing, and the parties agree that the transcript elicited by the Father is an accurate record of that hearing. Therein, the Officer initially elicits confirmation from Y as to whether he understands the difference between a truth and a lie. Y then agrees to ensure that he tells the truth and does not tell any lies during the interview. It was put to Y that something happened on Monday, 22 November, at which time he proceeds with that prompting to explain that “I was sitting in my bedroom and mum had stormed in and then she started to yell and scream at me for no reason. And then. And then about ten minutes in mum had hit me and it went for around 15 minutes.”
He then describes being on the top bunk of the bed, whilst she mother left the room and returned about four or five times, yelling at him saying he was a “liar” and “not truthful”. The following dialogue then ensues:
Police Officer (PO): Okay now, you mentioned that she, she hit you?
[Y (Y)]: Yep
PO: Um. How many times did she hit you?
[Y]: Once
PO: Um. Whereabouts did she hit you?
[Y]: on the right side.
PO: Do you want to just satnd up and just show us if you want to point with your hand whereabouts that happened?
[Y]: There ([Y] slightly raises his shirt and points to his right side)
PO: Just there. So like on the side or at the front area?
[Y]: On the front side.
PO: And what did she, how did she hit you?
[Y]: She’d hit me like that. ([Y] makes a hitting gesture to the right side of his body)
PO: Um. So you’re showing me like your hand is open. Was her hand open or was it closed?
[Y]: Like that. ([Y] shows open hand)
PO: Like that? Okay. And did she hit you with the front part or the back part of her hand?
[Y]: The front.
PO: The front. Okay. She didn’t have anything inside her hand at the time?
[Y]: N N ([Y] shakes his head from side to side indicating a no response)
PO: Okay. How hard do you think she hit you?
[Y]: Quite hard
PO: Quite hard. Now, I know that you’ve already spoken to the police, um, previously when she hit you in the same spot, do you remember that?
[Y]: On Thursday last week.
PO: Yep. Now, how, um, was it about the same hardness or would you say this was a little bit harder?
[Y]: This was a little bit softer.
PO: Little bit softer that the last time?
[Y]: Yeah
PO: Okay. Um. If you had to draw on a piece of paper a long line and one of them is really, really hard and the other one is really soft, whereabouts do you think the line would stop? How far across? (Police officer points to sections of hard surface indicating distance between points)
[Y]: Probably a third of the way to hard.
PO: So, um, if this end down here is really, really hard, this is the middle and this is very soft. Whereabouts?
[Y]: Probably in between the middle.
PO: So between very hard and medium?
[Y]: Yep
PO: Okay. And um, did it hurt you?
[Y]: A bit
PO: A little bit. How long did it hurt for?
[Y]: Around two seconds
PO: Two seconds. Okay. Um. Did you, um, have any marks or bruises that were left behind?
[Y]: Nah
PO: Okay. Um. Did you have look and make sure there was no bruises?
[Y]: Yep
PO: Um. When did you check?
[Y]: I checked straight after she’d hit me.
PO: What about the next day when you were getting changed?
[Y]: Nah
PO: Okay. There was no marks or you didn’t check?
[Y]: There was no marks.
PO: No marks. Um. And do you agree earlier when we’re speaking to you on the table there, you showed us both of us police officers and there’s no marks there?
[Y]: Yep
PO: Is that right?
[Y]: Yep
Y is later asked when the last occasion was that he was hit prior to events on 22 November, and he says:
PO: Okay. Um. Before Monday this Monday when she hits you on top of the bed there, which we’re talking about today, before that when was the last time she hit you before then?
[Y]: On Wednesday
PO: Wednesday. Okay. Alright. Um, and that was you said, that was a little harder than this time. You said this one here on Monday was a little bit softer. Is that right?
[Y]: Yep.
PO: Than the last one?
[Y]: Yep.
PO: Um, and you’ve already spoken to police as well. You did a recording like this last time, is that right?
[Y]: Yep
NSW Police, after interview, determined to record the incident as ‘lawful chastisement’. They record expressly in subpoenaed records that :
Police spoke with the POI [the Mother] who emphatically denied smacking the victim in any way and states she has no intention of breaching the family court orders. She explained the ongoing tension between her and the victim’s father and explained a lot of the information is being “fed” to the victim. Police asked the POI about why she would call the victim a “liar” in which the POI explained the victim’s father has provided the victim with a personal mobile phone and told to “hide it” from the POI, and the POI found the victim’s phone he denied any knowledge about it, despite having text messages on it.
Police fully believe the smack the victim received was reasonable and proportionate in the circumstances and thus lawful chastisement has occurred despite the POI emphatically denying such occurred. Therefore, police have rejected the assault.
I have previously set out the Mother’s evidence deposed by Affidavit filed on 1 February 2022 relevant to her complete denial of any physical discipline of the children. She further says relevant to events at school on 26 November, that in fact she was with Y at home on the afternoon of 25 November and heard his phone ringing in his bag when she said to him “[y]our phone is ringing, and if it’s our father you should speak to him”. She goes on:
[Y] said to me, “I don’t want to answer the phone because if it’s Dad I will be in trouble”.
I then said to [Y], “Why would you be in trouble?”
[Y] said to me, “Dad told me on Monday to send him a message from school telling him to come and pick me up”
I said to [Y], “Why would your Dad do that?”
And [Y] said, “Dad said to me that I should say I am afraid of you and I want to come home”.
I saw that [Y] then looked at his phone, put it back into his school bag and then continued to play with his sister [X].
The above evidence is presumably elicited to explain why the child endeavoured to contact the Father by text message whilst at school the following morning, 26 November 2021.
Following events at school on 26 November, the child was retained by the Father and I understand subsequently recovered to the Mother’s care upon this Court ordering that return and recovery.
CONCLUSION
The Father offers only evidence of the child’s disclosures to him, consistent with the disclosures the child makes during police interview in relation to both dates. To the extent that it is necessary to do so, I find the Father credible in his reporting of the child’s disclosures.
What was not provided by the Father was any evidence of meaningful insight in relation to the impact of his engagement with Y in relation to a covert mobile phone on the dynamic within the Mother’s household and the subsequent pressure and risk brought to bear on the child’s relationship with the Mother.
Presumably in due course a more comprehensive assessment of the dynamic in which both children find themselves will examine this issue.
The question for this Court remains simply whether on the balance of probabilities I consider it likely that the Mother physically disciplined the child on the two separate occasions alleged, irrespective of the context.
In concluding to the affirmative in this regard, I place significant reliance upon the disclosures of the child, the assessment of the relevant police officers relevant to the child’s credibility in their finding that lawful chastisement had occurred and the likelihood that there was conflict within the household arising from the child’s covert use of the mobile phone provided by the Father.
Relevant to the Mother’s veracity, I note that her admission as to becoming “angry” with Y in her discussions with a Police Officer on 25 November 2021 does not accord with her own affidavit evidence.
I further consider it unlikely that the child would disclose to his Mother on the afternoon of 25 November that his Father was seeking to elicit his participation in a scheme of sending text messages from school, only then to present as so genuinely distressed, in the view of Mr E particularly, on the morning of 26 November.
The Court finds that the Mother contravened the order in question, on the day alleged, without reasonable excuse. The Court finds that the Father has established to the Court’s satisfaction that the first alleged contravention took place.
The Court finds that the Mother contravened the order in question, on the day alleged, without reasonable excuse. The Court finds that the Father has established to the Court’s satisfaction that the second alleged contravention took place.
The mother denied the conduct alleged of her and accordingly did not adduce evidence purporting to establish any excuse for any contravention of Court order.
In anticipation of the hearing, the Father expressed by his filed Case Outline a desire to seek, as a consequence of any finding of contravention, a variation of the Orders of 25 November 2019 and 24 December 2020 such that Y would be placed in his residential care.
The Court advised at the outset of the hearing that a variation of such significance would not be considered consequent upon any finding of contravention as alleged, and in the absence of evidence of whether such a significant change would be in the best interests of the subject children. The Father still determined to press his application to hearing.
I was without any further meaningful submission with regard to an appropriate penalty to impose consequent upon a finding of contravention, or any cost order sought.
At the foundation of any contravention process must be an ideological view that it is necessary to enforce compliance with an Order of the Court in order to ensure the protection and promotion of a child’s best interests.
Clearly Y being placed in the middle of the dynamic at play between his parents in at least November 2021 poses a significant risk of emotional harm, that harm thou arises largely from forces and tensions which extend above and beyond the physical contact alleged.
Punishing the Mother consequent upon a finding that she has physically hit the child once on each occasion to the side of the child’s body during a heated engagement in which there was yelling with regard to the child’s behaviour where there is no evidence of physical injury, ignores the blatant need to prevent in the future a situation in which Y is forced to negotiate such tensions and such engagement with the Mother.
One of the very clear objectives of the Family Law Act includes at subsection 60B(1)(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The question that logically arises in light of this objective, is why then is exclusive focus upon the Mother’s physical contact with Y (deemed lawful chastisement by the NSW Police Service), when:
(a)The Father role in the context of use of the mobile phone and the child’s secrecy and resultant conflict with the Mother is not in focus; and
(b)Where the Mother’s verbal engagement with the child in relation to the phone, including what the child deems as `yelling’ is also not in focus.
In other words, to view the physical contact between the Mother and child in isolation, is to deny this Court a meaningful opportunity to address a damaging dynamic which potentially continues unfettered and to which both parents appear to be contributing. I am not confident that either parent is more to blame or responsible for the dynamic than the other, that assessment will be key to the substantive proceedings and any variation to the current care arrangement which are questions beyond the scope of this Court.
Imposition of penalty
This case is covered by Pt VII Div13A Subdivision E of the Act. It is a contravention without reasonable excuse, but a less serious contravention.
By virtue of subsection 1(a) therein, the Court is empowered to make an Order directing the person who committed the current contravention together with another specified person if deemed appropriate to attend a post-separation parenting program.
By virtue of section 11E of the Act, before making an Order under this subsection, the Court must consider seeking the advice of a family consultant about the services appropriate to the person’s needs.
I intend to order that both parties attend a suitable post-separation parenting course.
Subsection 70NEB(2) provides that the Father should not be directed to participate in such a Course unless he is a party to these proceedings (which he is) and:
the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates
I accordingly intend to seek the advice of a Family Consultant of this Court relevant to a suitable program for the party’s completion and will refer them these reasons for judgment, and relist the matter following circulation of those advices and to afford the parties a brief opportunity to make oral submissions relevant to the suitable program to be completed. I further intend to seek an indication of what programs have been completed to date in order to inform the assessment of the Family Consultant.
I decline to consider the imposition of a bond in this case. I do so in circumstances where I wish to avoid any further and unnecessary proceedings given the damaging impact on the parties financially and upon their co-parenting relationship.
Given the circumstance in which the Father sought a change of residence consequent upon a finding of contravention, it is clearly evident that the Father’s motivation in pursuing his Applications for Contravention was to secure such an outcome and/or an advantage relevant to his application that both children live with him.
Whilst the Father is entirely at liberty to pursue such a course, I see little benefit in doing so in the context of any further contravention application intended to result in the Mother being breached and/or further punished where he is at liberty to raise issue as to her management of the children in the context of the substantive proceedings which progress to judicial case management hearing shortly.
I will further hear any submission relevant to costs on the next date.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Senior Judicial Registrar Best. Associate:
Dated: 17 May 2022
0
0
0