Finch & Shibo
[2021] FamCA 353
•4 June 2021
FAMILY COURT OF AUSTRALIA
Finch & Shibo [2021] FamCA 353
File number(s): BRC 2788 of 2009 Judgment of: BAUMANN J Date of judgment: 4 June 2021 Catchwords: FAMILY LAW – CONTEMPT – Where the father contends the mother has failed to facilitate the child’s telephone communication with the father in accordance with final parenting orders – Where the Court does not find the mother’s conduct was a flagrant challenge to the authority of the Court – Contempt Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 45A(2)(b), 45A(4), 112AP, 70NAE Cases cited: Bande & Cade (2011) 45 Fam LR 376
Ganem & Ganem (No. 2) [2013] FamCA 257
Ibbotson & Wincen (1994) FLC 92-496
Oakley & Millar [2019] FamCAFC 12
Number of paragraphs: 54 Date of hearing: 19 and 20 May 2021 Place: Brisbane Counsel for the Applicant: Mr R Lake Counsel for the Respondent: Mr C van der Weegen ORDERS
BRC 2788 of 2009 BETWEEN: MR FINCH
ApplicantAND: MS SHIBO
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
4 JUNE 2021
THE COURT ORDERS:
1.That the amended Application – Contempt filed 27 November 2020 be 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
The application for contempt heard by the Court is the most recent legal contest in a long history of litigation between the Applicant father, Mr Finch (aged 63 years) and the Respondent mother, Ms Shibo (aged 38 years), in relation to their daughter K (born in 2007), who will soon turn 14 years of age.
The parties had married in 2006 but separated in 2008, when K was but 12 months of age. Litigation ensued almost immediately and the initial final orders made by consent by Forrest J, on 26 November 2011, was not, in any way, the end of litigation. What followed since then has been a number of applications to vary; disputes as to issues such as changeovers and overseas travel; appeals to the Full Court and the like.
In 2013, Forrest J made an order pursuant to then section 118(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) restraining the father from initiating further proceedings without leave.
FURTHER CONTEXTUAL HISTORY
Without detailing fully the litigation pathway between 2011 and 2015, suffice it to say that on 21 August 2015, after a trial, Forrest J made final parenting orders which are annexed to these Reasons and marked Appendix One. Those Orders did not result in a cessation of further litigation and there have been a number of applications made by the father seeking leave to file further proceedings.
Importantly, on 30 January 2020, Hogan J reserved judgment in respect of an application by the father to bring further proceedings. Her Judgment, delivered 20 March 2020, allowed the father to seek limited variations to the final consent orders and dismissed a number of other applications. As I note below, when her Honour was dealing with the application she was aware of an application for contempt that had been filed by the father on 23 January 2020.
The matter first came before me on or about 19 June 2020 when, having noted various issues in relation to relief sought by the father in an Application in a Case filed by him and ordering the transfer of part of the proceedings to the Federal Circuit Court of Australia, the next significant Order was the one made 6 August 2020 when I determined that section 102NA of the Act applies, in respect of the then contempt proceedings before the Court. The father (then unrepresented) would be restricted – and the mother also (if she became unrepresented) would be restricted – from cross-examining the other party personally.
The effect of the Order was that the now commonly called “cross-examination scheme” was activated and Legal Aid Queensland has ultimately appointed three lawyers to represent the father. The mother did not access the scheme and maintained her current representation, privately funded. It became apparent to me that the contempt application initially filed was flawed as to form and, although it had been prepared by the father as an unrepresented litigant, I found it appropriate to allow lawyers on the record to consider filing an amended application for contempt. The lawyers at the time retained by the father did so and the amended contempt application filed 27 November 2020, supported by an affidavit by the father, was the application that came before me for hearing.
As the transcript of the proceedings on that day reflect, and with both parties represented, Mr Finch by Mr Lake of Counsel and the mother Ms Shibo by Mr van der Weegen of Counsel, it enabled the Court to take a number of preliminary points from Counsel and, as a result of a robust exchange between the Bench and the Bar Table about, for example, whether the power to dismiss pursuant to s 45A(2)(b) or s 45A(4) was enlivened, Mr Lake, on instructions, ultimately withdrew eight of the 10 charges identified in the amended contempt application.
REMAINING COUNTS
The counts that remain were marked as count 5 and count 7 which are as follows:
Count 5: on dates between 21 August 2015 and 31 October 2020 at 6.15pm “on dates particularised in the affidavit of Mr Finch sworn 26/11/20”, the Respondent failed to ensure that the mobile telephone provided to the child was switched on and appropriately charged and with the child each Wednesday and Sunday. In breach of orders 6 of orders dated 21 August 2015 and failed to ensure that the child answers the phone and speaks to the father when the father calls in breach of order 8 of orders dated 21 August 2015.
In respect of that count, the father relied upon paragraphs 9 to 29, inclusive, of his affidavit in support filed 27 November 2020. The mother had elected to file an affidavit in response on 2 February 2021 and responded to the Applicant’s evidence at paragraph 8.
Count 7: it is alleged that on dates between 21 August 2015 and 31 October 2020, at 9.00am “on dates particularised in the affidavit of Mr Finch sworn 26/11/20”, the respondent failed to facilitate a telephone call from the father on each special day in breach of order 11 of orders dated 21 August 2015.
The husband relied upon his trial affidavit at paragraphs 32 to 34, inclusive, to support the charge. The mother, in her affidavit in response, gave evidence in respect of this count at paragraph 10.
The procedure required, under the Family Law Rules 2004 (Cth) (r 21.08), was followed.
STATUTORY FRAMEWORK
The Reasons delivered by Hogan J, earlier referred to when considering whether to grant the father leave to commence three contravention applications dated 6 January 2020; 9 January 2020 and 20 January 2020 (such leave being necessary pursuant to the Orders made by Forrest J on 7 March 2013) noted as follows:
40.During the hearing [on 30 January 2020], the father informed the Court that the allegations relied on in support of the Applications for Contravention were the same allegations he had particularised in an Application for Contempt that had relatively recently been filed. He also advanced, it seemed to me quite properly, that, given this, his Applications for Contravention were not “needed”.
41.Given that I consider it would, prima facie, be an abuse of process to seek to prosecute both an application for contempt and applications for contravention in reliance on the same particularised allegations, I consider that the most appropriate course is simply to refuse the father’s application for leave to file the Applications for Contravention particularized above, rather than granting leave to institute the same and then dismissing them on the basis just expressed.
It is therefore apparent that the Applicant father made a considered choice to proceed with his contempt application initially filed 23 January 2021, rather than the press for leave to file and continue with his three contravention applications.
STATUTORY FRAMEWORK
Section 112AP of the Act provides:
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a)does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
(1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5)Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(6)The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.
(9)In this section:
“order under this Act” means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
The seriousness of a finding that an actual person is in contempt is clear from section 112AP(4) which provides that “…the court may punish the contempt by committal to prison or fine or both”.
Mr van der Weegen, Counsel for the mother, contended that the statutory defence of reasonable excuse (under section 70NAE) is available to the mother. That section prescribes 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.”
However, I agree with the submission in response, by Mr Lake of Counsel for the father, that by definition that defence in section 70NAE is not available to the mother under section 112AP. As a matter of interpretation, the defence under section 70NAE(1) relates to division 13A of Part VII and not Part XIIIB – the contempt provisions.
However, although a defence under section 70NAE cannot apply strictly, as the authorities next referred to make clear, the evidence of the Respondent (if accepted) as to why she did contravene the order as she broadly admits, is relevant to the determination of whether the contravention of the order “involves a flagrant challenge to the authority of the court”. In respect of those words, both Counsel relied upon authorities such as Bande & Cade (2011) 45 Fam LR 376, Ibbotson & Wincen (1994) FLC 92-496, Ganem & Ganem (No. 2) [2013] FamCA 257 and Oakley & Millar [2019] FamCAFC 12.
The Full Court in Oakley (supra) at [30], adopted the “aptly summarised” principles applicable, enunciated by Aldridge J in Ganem (supra), which are now incorporated in these Reasons:
10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195;(2002) FLC 93-107)
11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
•The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93-267 at 80, 536)
•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91-729 at 75, 294)
•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend [sic] to do the act which is alleged to be the contempt. In the Marriage of English, above.
•The act must involve a flagrant challenge to the authority of the court. …
Furthermore, in Bande & Cade (supra) at [119], as the Full Court said:
[t]he concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1994) FLC 92-496 the Full Court held (at 81,162): “The use of the term ‘flagrant challenge’… is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied…”
I now turn to the evidence to be considered analysed within these principles.
THE APPLICANT FATHER’S CASE
The history of the litigation between the parents in respect of their only child, K, could aptly be described as torturous. The father has made it clear that he regards himself as a victim of the Family Law system (and Judges in that system) who have perpetrated a great injustice upon him and his daughter. His frustration was palpable and before amendments to the original contempt application were made (with the benefit of advice from his first section 102NA scheme appointed solicitor), the original form of the contempt application filed 23 January 2021 demonstrate his intense focus.
The father’s demeanour in the Court at the hearing and in the witness box was respectful and his cross-examination did not cause me concerns about his reliability on the issue I was required to determine. Simply stated, his affidavit filed 27 November 2020 deposes to:
(a)On numerous dates between 1 January 2020 and 28 October 2020, “I tried to call the mobile phone that I had provided for the child and the phone was switched off” (count 5); and
(b)Further, this was the same result for Father’s Day 2020, the child’s birthday in 2020 and Easter Sunday 2020 (count 7).
Under cross-examination, the father said or submitted (he being inclined to make submissions in the witness box) inter alia, that:
(a)he recalled some text message exchanges with the mother on 4 January 2020 and when ultimately tendered, accepted that the exchange which was commenced by him at 4.16pm on 4 January 2020 and thereafter is exactly as is set out in the document tendered and marked as Exhibit 1;
(b)he would not concede his text message was a potential contravention of Order 21 (restraint against contacting the mother);
(c)as he has not seen or spoken to his daughter now for 17 months (since December 2019), he partially brought the proceedings for contempt against the mother to punish the mother;
(d)he does not accept K does not wish to see him; and
(e)now that the mother has commenced fresh proceedings to vary the current parenting Orders, he accepts that he can engage in the forceful investigations he requires to be undertaken and is happy that that process has now begun. In my view, he took this view as a result of the number of occasions he has been unable to obtain leave to bring further proceedings.
THE RESPONDENT MOTHER’S CASE
The mother did not request an interpreter, however I readily accept her evidence that English is not her first language. Some of her confusion or hesitancy in the witness box may be attributable to the challenges of understanding English as it was put to her by Counsel for the father, Mr Lake. In no sense did Mr Lake treat her unfairly but some of the phraseology (for example, “I put to you”) seemingly caused confusion to the mother.
I am not persuaded in all respects that I should, as was submitted by Counsel for the father, regard her as “unreliable”. Although, when she gave two different versions about when she became aware K was not speaking to her father, that was concerning. I deal with that issue below. However, the mother displayed a defensive attitude at times, which I find both probably arises from the constant litigation that has engulfed these parents for most of K’s life and the father’s both forthright and assertive manner, coupled with a degree of timidness demonstrated by her. This reveals the difficulties these parents find to communicate. I infer the Orders restraining communication were made for this reason.
The mother’s affidavit evidence, in respect of the two remaining counts, was in a similar vein, namely, whilst admitting the contravention in respect of both count 5 and 7, she said (at paragraph 10), inter alia:
K is afraid of her father and has pleaded with me to not make her see nor speak to him. Dealings with her father has caused K to be traumatized causing her to suffer from depression and anxiety. She refuses to take phone calls from him and hides the sim card he provided so I cannot make her speak to him. Any mention of her father causes her anxiety kick in and it upsets her considerably.
Initially, at paragraph eight, the mother deposed (after objection to part of that paragraph was allowed) that:
On the 15 Sept 2020 I spoke Ms X (K’s psychologist) about the upset and anxiety that K is experiencing. The psychologist advised me… I took the medical practitioner’s advice and guidance and decided not to proceed with the visit to her father, as this was in the best interest of K.
(As per original)
Under further cross-examination by Counsel for the father, the mother said:
(a)she understood the terms of the Order. I am not certain that she fully understood that the restraint against the father contacting her did not apply to her discretion to contact him, permitted under Order 14. She has, occasionally, in the past, contacted the father, for example about schooling;
(b)she did not tell the father before her text response of 4 January 2020 that K did not wish to speak or see him – and acknowledged that, genuinely, the child spent time with and communicated with the father between August 2015 and December 2019 in accordance with the final Orders;
(c)the mother gave different versions about her awareness of K’s actions in not speaking to the father – in circumstances where she said, and I accept, it was her practice to ensure the phone the father provided for the child was charged and that at the prescribed time the child was in the “back room” for privacy when speaking with her father;
(d)initially the mother said she believed K was speaking with her father before June 2020, but that earlier than this date the child returned the old phone to the father who replaced the SIM card and returned the phone. The evidence is unclear about when this actually occurred. I find that the mother did become aware sometime before June 2020 that K was not speaking to her father but that she did nothing about it because of what the child told her about her fear of the father;
(e)the mother gives no evidence of any statements by the child to her about the basis for any asserted fear by the child – sufficient to bring to an abrupt end all physical and telephone communication after over four years of continued contact;
(f)the mother did not seek counselling for the child until mid-2020 when she consulted her General Practitioner; had a mental health plan prescribed and took the child to Psychologist Ms X. Ms X was called to give evidence by telephone (at the last moment) by the wife’s Counsel. I deal with her evidence next; and
(g)the mother denied the suggestion that facilitating K to communicate with her father had become “too hard” and she simply “ignored” the orders. She was aware, of course, that the father’s contempt application was proceeding from at least 30 January 2020 when that fact was confirmed by the Reasons for Judgment of Hogan J.
The mother relied upon the evidence of the child’s treating psychologist Ms X, in her affidavit filed 27 January 2021 and Ms X was briefly cross-examined. Ms X’s report concerns the initial appointment on 4 August 2020 and the initial prescribed 10 visits completed by 1 December 2020, with further sessions now being scheduled.
Ms X says the child “presented with self-reported symptoms of anxiety”. Although Ms X had seen no other material and had not consulted the father, she opined that:
K’s symptoms appear to be precipitated by her relationship with her father. K reported she had chosen to cease contact with her father, further disclosing that any contact with her father, or reminders of him, can trigger symptoms of anxiety.
Under cross-examination, Ms X admitted she was a little underprepared to give evidence as she had little notice she was required to do so. Ms X was not able to say when K “made the choice” to cease contact with the father, but it is a statement that the child has repeatedly made to her since the initial consultation in August 2020. I accept the evidence of Ms X about what the child said to her. I also accept that Ms X communicated to the mother what K had told her about not wishing to spend time with the father.
DISCUSSION
The Court cannot determine on the evidence for this application, what event or series of events has caused the child to express a wish to have no further contact with the father at this time. Whilst the father believes the mother has both facilitated the child’s assertion; has done nothing to encourage the child to contact the father and is the reason that contact between himself and his daughter has broken down, I am not able to make such a finding on the evidence before me at this time.
The family’s life is to be the subject of a fresh family report, as a result of the parenting applications currently before the court and proceeding, and it is likely further additional and collateral evidence might emerge in those proceedings to enable a better understanding to occur of whether there was an event, or whether it has been a gradual change of attitude by the child, or whether, in fact, the mother has, as the father fears, precipitated the child’s current reluctance to spend time or speak with the father.
The mother, faced with the father’s text about “forcing me to revisit the matter in a more aggressive and serious way”, through “contempt proceedings to file next week”, did draw a response from the mother in these terms set out in Exhibit 1:
Hi Mr Finch, I’m sorry about this situation you find yourself in. Yesterday morning K told me that she didn’t want to see you anymore as she is scared of you. She refused to get in the car to visit you. I am definitely not trying to block your access but it is important that we both listen to K’s wishes.
To which the father sent the following exchange:
All of a sudden after all these years K is scared of me. Bullshit.
The mother responded:
Please don’t swear. I just told you what happened. Please don’t contact me again.
To which the father finally responded:
Ok I will see you in the Family Court. ASAP to deal with all the deliberate Contraventions and serious Contempt of Court this time I will not make any concessions. As you have caused over 300 contraventions since 2010.
Further, he said finally, at approximately 8.00pm on 4 January 2020:
I would like you to have K call me on her phone so I can hear from her that she is scared of me. Can you do this please after that I will not bother you again.
It is disappointing, in my view, that a child of this age was not encouraged by the mother to speak to the father – at the very least to tell him personally her wishes. However, the mother says that any mention of the father caused the child anxiety. In my view, the mother did contravene the Order and admits the same. She might have done more between January 2020 and August 2020 to encourage the child to at least ring the father.
There is the process set out in the final Orders (Order 8) which provided as follows:
8.That the mother shall ensure the child answers the phone and speaks to the father when he calls pursuant to paragraph (7) hereof and she shall use her best endeavours to give the child privacy in a quiet location during her conversations with the father and should the child miss taking the call from the father on either the Wednesday or Sunday night for any reason, the mother shall ensure that the child calls the father back and speaks to him as soon as practicable thereafter.
The mother did not do so.
Order 7 of the said Orders provide importantly that:
7.…the father may telephone the child on the mobile telephone number for the phone he has provided to her once between 6:15 pm and 6:45 pm Queensland local time each Sunday and Wednesday evening and speak with her as long as the child will speak with him between those times.
The mother had a positive duty when she became aware that the child was not speaking with the father, in my view, to do more than she did, which was nothing.
However, the evidence of Ms X persuades me that this child, who was in January 2020 over 12 years of age, was anxious about seeing her father for reasons currently unknown and asked her mother to listen to her wishes which the mother says she did.
CONCLUSION
For a contempt finding under section 112AP of the Act for the contravention that has occurred, it is necessary to find that the mother’s actions were a flagrant challenge to the authority of the Court. The father bears the onus of establishing that fact beyond all reasonable doubt.
In my assessment, in the face of the child’s views expressed, I do not regard the mother’s actions as exceptional. She knew that, in time, a full examination all facts would be required when she decided to initiate proceedings. Certainly she can be criticised for not commencing fresh proceedings earlier than she did. However, the contempt application was proceeding and amended by the father in November 2020 into a more proper form and the parties did not know until the reasons of Hogan J were delivered on 30 March 2020 what the state was of the other proceedings.
When the father chose to commence these quasi-criminal proceedings he should have known that the finding for contempt, under section 112AP, requires the satisfaction of a strict test. The penalties available are serious.
Although I am not required to find that the mother’s actions constitute a reasonable excuse, as authorities make clear, the mother’s conduct and reasons for not complying with the Order, which in my view were intentional, were shaped by what the child, she says, told her. I accept the child did make it clear to the mother she did not wish to spend time or communicate with the father.
The mother seemed unable, on the evidence, to find a way to seek to establish if there was a logical or reasonable basis for the child’s new stated fear of the father. She chose to adopt the child’s expressed concerns – finally seeking counselling for the child – which confirmed the child’s wishes.
In all the circumstances, I am not persuaded the mother is guilty of contempt within the meaning of section 112AP and, therefore, I am compelled to dismiss the application. I so order.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 4 June 2021
APPENDIX ONE
(1)That all previous parenting Orders in respect of the child, K born in 2007, (“the child”) are discharged.
(2)That the child shall live with the mother.
(3)That the mother shall have sole parental responsibility for the child, subject to a requirement that when she makes a decision in respect of “major long-term issues” in relation to the child as that term is defined in s 4 of the Family Law Act 1975 (Cth) she shall inform the father in writing of the decision she has made.
(4)That the child shall spend time with the father during Queensland State School holidays as follows:
(i)In the September – October school holidays, from 10:00 am on the first Thursday of the holidays until 3:00 pm on the immediately following Monday (a total of four nights);
(ii)In the Summer school holidays, from 10:00 am on the first Thursday in January until 3:00 pm on the immediately following Monday (four nights) and again from 10:00 am on the third Thursday in January until 3:00 pm on the immediately following Monday (four nights);
(iii)In the Easter school holidays, from 3:00 pm on the first Thursday of the holidays until 3:00 pm on the immediately following Monday, whether that be over the Easter festive days or not (a total of four nights);
(iv)In the June-July school holidays from 10:00 am on the first Thursday of the holidays until 3:00 pm on the immediately following Monday (four nights).
(5)That for the purposes of the child spending time with the father in the school holidays as provided for in paragraph (4) hereof:
(i)the mother shall have the child ready for collection by the father at the vacation care service at the State School, Suburb M , Queensland and shall collect her from there at the end of the time after the father has returned her to that place;
(ii)the father, by himself or accompanied by his wife or any other third person of his choice, shall collect the child at the start of the time from the vacation care service at the State School, Suburb M , Queensland and shall return her to that same place at the end of the time; and
(iii)should the father fail to collect the child within 30 minutes from the start of the time, the mother may collect the child and take her home again without any obligation to hand the child over to the father again to spend time with him before the start of the next visit scheduled pursuant to paragraph (4) hereof;
(iv)should the father fail to collect the child for two consecutive visits pursuant to paragraph (4) hereof, the mother shall be at liberty to relist this matter on notice to the father for the purposes of seeking a discharge of paragraph (4) hereof; and
(v)should the father fail to return the child to the vacation care service at the State School, Suburb M at the end of any of the time provided for in paragraph (4) hereof, the mother shall be at liberty to relist this matter on notice to the father for the purposes of seeking a Recovery Order and also a discharge of paragraph (4) hereof;
(vi)the mother shall pay any costs of the vacation care service at the State School, Suburb M incurred in giving effect to this Order.
(6)That the mother shall ensure the mobile telephone provided for the child by the father is switched on and appropriately charged and is with the child each Wednesday and Sunday evening between 6:15 pm and 6.45 pm Queensland local time, unless the child is in the father’s care at the time.
(7)That the father may telephone the child on the mobile telephone number for the phone he has provided to her once between 6:15 pm and 6:45 pm Queensland local time each Sunday and Wednesday evening and speak with her as long as the child will speak with him between those times.
(8)That the mother shall ensure the child answers the phone and speaks to the father when he calls pursuant to paragraph (7) hereof and she shall use her best endeavours to give the child privacy in a quiet location during her conversations with the father and should the child miss taking the call from the father on either the Wednesday or Sunday night for any reason, the mother shall ensure that the child calls the father back and speaks to him as soon as practicable thereafter.
(9)That neither parent shall record any telephone conversation between the father and the child.
(10)That the mother shall not let any third person use the mobile telephone that the father has provided for the child’s communication with him for any reason.
(11)That the father may also call the child on the mobile telephone number for the phone he has provided to her and the mother shall facilitate a telephone call from the father to the child on the phone provided by the father, on the following special occasions if she is not spending any time with the father on this day:
(a)Father's Day between 9.00 am and 9.30 am Queensland local time;
(b)Christmas Day between 9.00 am and 9.30 am Queensland local time;
(c)the child's birthday between 9.00 am and 9.30 am Queensland local time;
(d)Easter Sunday between 9.00 am and 9.30 am Queensland local time.
(12)That neither parent shall discuss adult issues with the child, including but not limited to these proceedings, and the father shall not question the child about her life in the mother’s home.
(13)That neither parent shall denigrate the other parent, or the other parent’s friends or family in the presence or hearing of the child, and each parent shall immediately remove the child from the presence of any person who does so.
(14)That the mother may communicate with the father at her discretion by writing letters to him at his place of residence or by speaking with him on the child’s phone at the beginning or end of the Wednesday and Sunday evening calls between the father and the child, but the father shall not directly communicate with the mother unless she requests and permits such communication.
(15)The father shall inform the mother of any change in his residential address as soon as practicable after he is aware of any such change happening.
(16)That should the father have to communicate with the mother in the event of an emergency with the child when she is with him or to advise her of a change in his residential address as required by paragraph (15) hereof then such communication shall be initiated indirectly through the father’s current wife and the father shall not directly speak with the mother unless she permits such communication.
(17)That, subject to the provisions of this parenting Order, there is no restraint on the mother travelling out of the Commonwealth of Australia with the child for the purposes of overseas holidays.
(18)That should the mother intend to travel with the child outside Australia she shall give the father four weeks’ notice in writing of her intentions, including details as to her expected departure and return dates and details of her planned itinerary, including details of her return flight booking and all ports of embarkation and disembarkation and the addresses of all the places where the child will be staying whilst away.
(19)That if it has not already happened, the Australian Federal Police are requested to remove the name of the child, K born in 2007 (female), from the Family Law Watch List.
(20)That if the child is overseas, the mother shall facilitate a telephone call or SMS message from the child to the father's mobile telephone, on one occasion per week, whilst the child is overseas.
(21)That the father is restrained and an injunction hereby issues, restraining him from approaching the mother's residence or communicating with the mother in any way, save as otherwise provided for in this parenting Order.
(22)That the Independent Children’s Lawyer is discharged.
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