FIORDAN & REESA

[2017] FamCA 776

FAMILY COURT OF AUSTRALIA

FIORDAN & REESA [2017] FamCA 776

FAMILY LAW – ORDERS – Contravention – Contravention application made by the father against the mother alleging breach of final parenting orders – Where final orders pronounced children were to live with father - Where mother unilaterally relocated one of the parties’ children to Western Australia to live with her – Where mother admits contravention of the orders but argues she had a reasonable excuse – Where mother argued that contravening the order was necessary to protect child’s health or safety – Where most of mother’s allegations in relation to child’s safety were already before the court during the trial – Where court is not satisfied that the mother believed on reasonable ground that taking child to live with her was necessary to protect her health or safety – No reasonable excuse found - Father contends breach was a less serious contravention – Where mother to enter into a bond with security of $2000 – Where mother to pay for father’s costs of and incidental to proceedings – Where mother to complete a post separation program.

FAMILY LAW – ORDERS – Contravention – Contravention application subsequently filed by mother alleging father had breached various orders on two counts – Where the alleged contraventions of orders cannot be made out on the evidence – Where mother misconstrued orders – Where the alleged contraventions by the mother are too broad – Where mother’s contravention application dismissed.    

Family Law Act 1975 (Cth) 70NAC, 70NAE , 70NAF, 70NEA, 70NEB, 70NEC

Fiordan & Reesa [2015] FamCA 1021

APPLICANT: Mr Fiordan

RESPONDENT: Ms Reesa

FILE NUMBER: TVC 393 of 2011

DATE DELIVERED: 26 September 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 11 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mayes

SOLICITORS FOR THE APPLICANT: SR Wallace & Wallace

THE RESPONDENT: In person

Orders

THE COURT ORDERS THAT:

1. Pursuant to s 70NEC of the Family Law 1975, MS REESA must forthwith enter into a Bond for a period of two (2) years with security of $2,000.00 to:

   (a)        be of good behaviour; and

   (b)       comply with all orders of this Court.

2. The mother shall, within one month, do all such acts and things and sign all such documents necessary for her to enrol in a post-separation parenting course. The mother shall complete such course within six (6) months and provide the father with a copy of her Certificate of Completion.

3. The mother pay the father’s costs of travel to recover the child, fixed in the sum of $1,908.94, within 90 days of the date of these orders.

4. The mother pay the father’s costs of and incidental to these proceedings, fixed in the sum of $680.00, such payment to be made within 90 days of the date of these orders.

5. The mother’s Application – Contravention filed 20 February 2017 is dismissed.

6. Otherwise all extant applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC393/2011

Mr Fiordan

Applicant

And

Ms Reesa

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By his Application – Contravention filed 7 October 2016, Mr Fiordan (“the father”) alleges that Ms Reesa (“the mother”) breached orders which I pronounced in this matter on 20 November 2015, by relocating one of the parties’ two children, B, presently 11 years of age, from R Town to Western Australia on 1 October 2016.  The mother admits the contravention, but says that she had a reasonable excuse for it. 

2. By her Application – Contravention filed 20 February 2017, the mother asserts that the father also breached my orders of 20 November 2015 in various respects, which I shall shortly recite.

3. On 11 July 2017 I heard the father’s application and dealt with the father’s oral application that the mother’s Application – Contravention be summarily dismissed.  At the conclusion of that hearing I reserved my judgment.  These are the reasons and orders arising from that hearing.

BACKGROUND FACTS

1. The father is presently 50 years of age and resides at E Town near R Town in Queensland.  He is a driver by occupation.  The mother is presently 46 years of age, and resides at O Town in Western Australia.  The closest town of any substance to O Town is N Town, which lies some distance to the north. 

2. The parties were in a de facto relationship between September 1998 and either November 2008 (according to the mother) or August 2010 (according to the father).  To that relationship were born two children, D (presently 14 years of age) and B (presently 11 years of age).

3. The parties’ separation was acrimonious, and they have been in nigh constant conflict in relation to the children thereafter.  Unfortunately the ensuing litigation was protracted, although ultimately final parenting orders were pronounced by me for reasons given on 20 November 2015: see Fiordan & Reesa [2015] FamCA 1021. That judgment resolved a number of controversies between the parties, including the mother’s assertion that the father posed a risk of harm to both children, comprising physical and/or sexual abuse, and emotional harm. In part those risks were said to arise from the father’s alleged drug use and alcohol abuse. I was not persuaded that the father then remained abusing alcohol or was currently using illicit drugs, nor that he was otherwise an unacceptable risk of harm to the children. On the other hand, I was satisfied that the mother posed a risk of emotional harm to the children, but not that it was, of itself, an unacceptable risk. That risk arose from the fact that the mother perceived little advantage to the children in having the father in their lives, and would be quite happy to tolerate a situation which he was practically removed from them.

4. I determined that the children’s best interests lay in them continuing to live with the father, but that they should spend time with the mother either, if she continued to live in Western Australia, for extensive periods during school holidays, or alternatively, if the mother resided within 50kms of the town where the children were ordinarily residing, on each alternate weekend and for one half of school holidays, together with some special days.  Additionally I made orders which permitted the maternal grandfather to also spend time with the children, again depending upon where he resided.

5. Although no appeal was brought from that judgment, in her evidence under cross-examination, the mother conceded that she does not accept many of the findings which underpinned those orders.

6. For reasons which do not presently need to be detailed, notwithstanding the extensive opportunity for the children to spend time with the mother under the 20 November 2015 orders, that was not availed of by her until, without forewarning to the father, she arrived in E Town on 21 September 2016.  The maternal grandfather advised the father that the mother was in town, and the father agreed for the children to spend time with her, notwithstanding that the appropriate notice had not been given by her.  The children went into the mother’s care on 24 September 2016 and the maternal grandfather dropped D back to the father’s house on 29 September.  He explained that the mother and B were visiting friends in Mackay, but would be back in E Town the next day.  That did not eventuate, and on 1 October the father contacted the maternal grandfather, who advised that he had not heard from the mother.  Later that day the mother sent a text message to the father stating “B is safe happy & well with myself in WA where she has made her choice to stay.  Let me know when you would like to speak to her.”

7. On 3 October 2016 the father advised the mother that she was in breach of the orders.  He received no reply to that email.

8. On 7 October 2016 the father filed a recovery order application, together with the contravention application.  On 21 October 2016 Judge Demack made a recovery order.  On 28 October 2016, the father accompanied by two police officers, executed the recovery order at the child’s school, and B went into the father’s care.  B was very upset.  Since then she has returned to live with the father and D at E Town, and resumed her schooling there.

THE FATHER’S APPLICATION

The law

1. A person contravenes an order under the Family Law Act if he or she either intentionally failed to comply with the order, or made no reasonable attempt to comply with it: s 70NAC.  It is incumbent upon the person alleging the contravention of the order to establish either of those alternatives on the balance of probabilities, in the event that it is a less serious contravention: s 70NAF and s 70NEA.  If they do so, and the person who contravened the  order does not prove that he or she had a reasonable excuse for the current contravention, then in the case of a less serious contravention, the powers of the court are enumerated in s 70NEB of the Act.

2. Section 70NAE deals with the meaning of reasonable excuse for contravening an order.  It sets out a number of instances which will comprise a reasonable excuse, but does not limit a reasonable excuse to those enumerated cases.  One of the cases is stipulated in s 70NAE(4) as follows:

   A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)The respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)The period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

The contravention

1. It is not in dispute that the mother contravened order 5 of the orders made 20 November 2015, which provided “The children live with the father.”  The father contended that this was a less serious contravention, and accordingly he only needs to establish the contravention on the balance of probabilities.  I am satisfied that the mother, on 1 October 2016 contravened the order by taking the child B to live with her in Western Australia.

Reasonable excuse

1. The mother contends that it was necessary to contravene the order to protect B’s health or safety.  Relatively contemporaneous detail of the mother’s alleged state of mind is contained in an annexure to her affidavit filed on 16 October 2016, in the form of an attachment to an email she sent to her then solicitor on 14 October 2016.  The annexure is headed “Reasons for Removal of [B Fiordan].”  Essentially the mother relies upon a number of alleged disclosures made to her by B, either directly between 20 September 2016 and 29 September 2016 whilst she was in E Town, or indirectly made by B to a friend’s mother, Ms J.  Those disclosures were:

   ·That the father was “just drunk all the time” and that scared B;

   ·That whilst drunk, her father screams at B and D;

   ·That the father’s house smells of marijuana, according to B’s friend N;

   ·That on 25 September 2016 the father “had got drunk on two occasions and fallen asleep on top of [B] on the couch;”

   ·That the father had sexually abused B four years ago;

   ·That on Friday 16 September 2016 the father had “grabbed [D] by the throat & pushed him up against the wall a few times.”  This had caused B to scream;

   ·That D hits and kicks B, has told her that he was going to kill her, and throws balls and remote controls at her head whilst constantly teasing her. 

2. In that annexure to her email the mother recounted:

   With the distress I saw in [B] I felt it was then my obligation & duty of care as a mother not to send her back to her father’s & remove her from an unsafe place.  I then changed my flights & booked [B] a flight to WA with me.  I was not prepared to send her back to her father’s after all the disclosures from the children…

3. Amongst the material which the mother relies upon before me are conversations which she had with Ms J, and also a recording which Ms J showed her.  Ms J has now known B for about five years.  Her daughter and B are friends.  It also appears as though when the mother left E Town for Western Australia, Ms J took the mother’s employment position.

4. In her affidavit, Ms J recounted that B had slept over at her house on many occasions since 2012, although more often in the last 18 months (as at 14 October 2016).  On occasions B has told Ms J that “she is scared to return to her father’s home.”  When she says that, she has become very distraught and cried on many occasions.

5. It appears as though B has stayed with Ms J for up to 10 consecutive days and nights on occasion, and on some of those she would “sit with [Ms J] for up to half an hour bawling her eyes out.”

6. In August 2015 Ms J enquired of B whether she wanted to talk, and either then or sometime thereafter, B told her:

   ·That the father had held D up by his throat against a wall on more than one occasion;

   ·That the father gets drunk regularly and scares B when he is drunk, including on one occasion falling on top of her, which caused her to be unable to breathe and she thought she was going to die;

   ·That the father had touched her on her private parts on occasion whilst the mother was still living in E Town;

   ·That the father “discloses” his naked body to her on more than one occasion when he was drunk;

   ·That the father drives the children in his car whilst he is drunk.

7. In July 2016 Ms J’s concerns reached a point where she made a notification to the Department of Child Safety, although she did not hear anything in response.  Perhaps in consequence of that, when the mother was in E Town over the September 2016 school holidays, Ms J believed that she needed to tell her of B’s situation, and the disclosures which she had made to her.

8. In cross-examination, Ms J appeared to concede that most of the disclosures by B to her had pre-dated the trial of the primary parenting proceedings in 2015, and that in fact only one specific instance of the father being drunk had subsequently occurred, being on 25 December 2015, on which occasion she received a misdirected text message from the father, and at the same time she was receiving messages from B to the effect that the father was intoxicated.  Therefore, correctly, counsel for the father identified that with that exception, the matters which the mother was being told by Ms J were the same matters that had been the subject of the trial.  Moreover, B’s disclosures of alleged sexual abuse by the father have been investigated by the Department of Children Services some years ago, and as I noted in my 20 November 2015 reasons, the Department concluded “far from [the father] being a risk to the children, it was the mother, by way of emotional abuse.”

9. In the trial judgment at [59]-[63] I recited a number of transcripts of conversations between the mother and the children.  I concluded at [65] that in those conversations the mother was, at least covertly, and probably overtly, manipulating the children to say and do things during Skype communications with them, and probably likewise in face-to-face time which she spent with the children.  At [106] I concluded that it “may fairly be said that [the mother] is prepared to accept gossip as truth and act upon it.”  There is no reason to think that the mother’s character and disposition has markedly changed since then.

10. Moreover real doubt is cast in relation to the mother’s true intentions by virtue of her conduct immediately prior to travelling from Western Australia to E Town on 21 September of last year.  Particularly, on 16 September 2016, she had enrolled B in a high school close to O Town, and put as her residential address the mother’s home at O Town.  She put herself as the “parent/responsible person #1”, and the maternal grandfather as a “parent/responsible person #2”.  She put her current partner as the other contact detail, and made no reference to the father.

11. A number of points can be drawn from this document.  The first is that it was completed only five days prior to the mother arriving in E Town.  The second is that the mother only enrolled B, rather than both children, in the school.  The third is that it made no mention of the father, and particularly no mention of the fact that by the 20 November 2015 orders, he had sole parental responsibility for B.  The fourth observation I should make is that indeed B attended that school upon her returning to Western Australia in September 2016.  It was from that school that the father took her whilst executing the recovery order.

12. Whilst the mother did not explain why she enrolled B in the local high school prior to coming to E Town in her affidavits, in submissions she said that she had been concerned about B prior to coming to E Town, and had only completed an enrolment because there was only one student place available left at the school, and she wanted to secure that to cover the eventuality that, if when she was in E Town she determined to take B with her, the place at the local school would be available to her.  However the difficulty with that, leaving aside the fact that it is not sworn evidence, is that it is not consistent with the mother’s assertion in her email to her solicitor of 14 October 2016 referred to at paragraph 16 hereof. The inference which I draw from the enrolment form is that it was the mother’s intention to take B back to Western Australia from E Town prior to her leaving Western Australia.  Further, I am satisfied that the mother, having that predetermined course, was thereafter likely collecting evidence which she could rely upon to justify taking B.

13. There is one other matter I should refer to, and that is that the mother asserts that the only reason why she did not also take D with her to Western Australia was because, whilst she was in E Town, “I spoke to [D] before I left & he said he wanted to stay there & finish the year at school.”  I have grave doubt in accepting that evidence.  Particularly it troubles me that no attempt at school enrolment for D had been made in Western Australia prior to the mother travelling to E Town. Moreover, the mother alleges disclosures of further misconduct by the father toward D, including having on 16 September 2016 grabbed him by the throat and pushed him up against a wall a few times, smoking marijuana in his presence, and being drunk in his presence, including driving a car with D in it whilst drunk. It seems inexplicable that the mother was so troubled in relation to B that she resolved that the only way to protect her health or safety was by breaching the orders, yet did not feel any such concern in relation to D, or if she did feel such a concern, not to a level which motivated her to contravene the order in relation to him.

14. Moreover the mother did not explain in her evidence why she did not raise her concerns with relevant authorities, rather than simply taking Jazmin, or indeed even raise them with the father.

15. Ultimately it is for the mother to persuade me of the reasonable excuse.  I am not persuaded that on 1 October 2016 the mother believed, on reasonable grounds, that taking B to live with her in Western Australia was necessary to protect her health or safety.

Appropriate orders

1. The father contends that the mother should be required to enter into a bond for two years with a security of $2,000.00 to be of good behaviour and comply with Court orders, be required to complete a post-separation parenting course within six months, reimburse him his expenses in the sum of $1,908.94 incurred in collecting the child from Western Australia, pay his legal fees in the sum of $680.00 together with his costs of attending the contravention proceedings, all within one month of order.  The mother opposes any such orders.

2. In my 20 November 2015 reasons I concluded that the mother sees little advantage in the children in having the father in their lives, and would be quite happy to tolerate a situation in which he was practically removed from them.  Her conduct in taking B to Western Australia is consistent with that continuing to be her position.  She conceded that she does not accept many of the findings in relation to critical matters in the 20 November 2015 reasons, which unfortunately predicts that she is likely to feel justified in acting inconsistently with those orders where they conflict with her beliefs.

3. I am well satisfied that in those circumstances the appropriate means of seeking to coerce the mother into compliance with the orders that were then made is by way of a bond, and I am satisfied that the security sum of $2,000.00 is appropriate.

4. In his affidavit filed 10 February 2017, the father details his expenses of collecting the child from Western Australia.  I am satisfied that those expenses are in the sum of $1,908.94 and I am satisfied that those expenses were reasonably incurred as a result of the contravention, and that the father should be compensated for those expenses pursuant to s 70NEB(1)(e). She should, however, have three months to pay them.

5. I shall consider the legal costs of these proceedings later in these reasons.

6. I am further satisfied that the mother should be required to attend a post-separation parenting course, and that she should be required to complete that within six months.  The mother opposed this on the basis that she is about to commence some other course of study, but I am not persuaded that that should be any basis for not requiring her to again try and obtain some better skills to co-parent these children with the father.

THE MOTHER’S CONTRAVENTION APPLICATION

Overview

1. The father contended that the mother’s contravention application should be dismissed on the basis that, taking her case at its highest, it did not prima facie disclose any contravention of orders by the father.  I shall therefore consider the mother’s case at its highest, accepting as truthful and accurate all of the material upon which she relies in support of it.

The first alleged contravention

1. The mother appears to allege two contraventions, being on 20 November 2015 and 5 December 2015.  On both instances she says the father breached orders 3, 4 and 6 of the orders made on 20 November 2015.  Those orders relevantly are as follows:

   3. The mother and father shall:

   …

   (c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issues or illness suffered by the children.  This order authorises any treating medical practitioner to release the children’s medical information to the other parent.

   4. The father shall advise the mother and keep the mother informed of the following:

   …

   (c) the name, address and telephone contact number of any counsellor attended by either of the children, and shall authorise such counsellor to provide to the mother any information in relation to the treatment of the children or either of them.

   …

   6. The children spend time with and communicate with the mother at all reasonable times as the parties may agree and failing agreement as follows:

   Should the mother continue to live in remote Western Australia

   (a)for the entire June/July Queensland gazetted school holiday period in each year;

   (b)for three weeks during the December/January school holidays and each year as follows:

   (i) in 2016 and alternate years thereafter for the three weeks of the Queensland gazetted December/January school holidays;

   (ii) in 2015 and alternate years thereafter for the second three weeks of the Queensland gazetted December/January school holidays, with the children to be returned to Queensland on Saturday prior to school recommencing.

   (c)by telephone, or Skype at 6:30pm twice per week on such days as agreed by the parties, or if not agreed, then Tuesday and Friday;

   (d)by telephone, or Skype at 6:30pm on each of the children’s birthdays, Mother’s Day, the mother’s birthday Easter Sunday and Christmas Day if the children are not otherwise in the mother’s care.

   (e)…

   (f)the mother shall provide to the father at least four weeks in advance of the proposed travel, proposed travel itinerary, details of the flights and evidence of the return tickets purchased for the children and any accompanying adult.

   (g)…    

2. The first contravention, which is said to have occurred on 20 November 2015 at E Town, is stated as follows:

   The father has not allowed visitation or telephone/Skype contact between the children and their mother since the orders were made on 20 November 2015.  There is no relation (sic) promoted by the father between the children and their mother as per court orders.

   The father has not informed the mother of any medical needs or conditions of the children.

   The father has not let the children attend regular counselling for the children since the orders were made 20 November 2015.

3. It is convenient to deal with those three matters in reverse order.

4. The first observation I should make is that the date of 20 November 2015 is the date when the orders were pronounced.  It could not seriously be contended that such a date is likely to contain any contravention by the father, but rather it appears as though what the mother was intending to do was to make the assertion that since that date the father has never allowed visitation or telephone/Skype, never informed the mother of any medical needs or conditions of the children, and never let the children attend regular counselling.  Of course that then raises some difficulties in relation in particularity, but I shall only consider that if required.

5. Dealing firstly with the allegation in relation to counselling, this is plainly based upon a misconstruction of the order.  The order only required the father to advise the mother of the details of any counsellor attend by the children.  It did not oblige the father to in fact require the children to attended counselling.  That is the gravamen of that aspect of the alleged contravention.  It is plainly not a viable allegation.  That alleged contravention should be summarily dismissed.

6. Turning then to the alleged failure to inform the mother of “any medical needs of conditions” of the children, the mother’s affidavit of 20 February 2017 only speaks of one  incident, in which the father did not inform her in December 2015, when D was taken to hospital with a broken arm.  However she deposes that she did receive phone calls and text messages from D himself on 10 December and 11 December 2015, in consequence of which she knew of his broken arm.

7. Perhaps there may have been some basis for the mother alleging a contravention on the part of the father in relation to that episode, but that is not how the contravention is framed.  Rather, the mother alleges that the father has not informed the mother of “any medical needs of conditions of the children”, and the mother’s affidavit simply does not support such an assertion.  I do not overlook that she says she took D to the doctor on 27 September 2016, when she was informed that he may have pneumonia, but the mother does not, at least in her affidavit, argue that the father should have informed her of something at that time.

8. As presently cast, I am satisfied that the contravention in relation to the father failing to inform the mother of medical needs or conditions of the children, ought be summarily dismissed.

9. Next there is the alleged contravention that the father has not promoted a relationship between the children and their mother “as per Court orders.”  The orders contained no obligation on the father to promote a relationship between the children and the mother, other than by the children spending time with the mother or communicating with her.  That contravention therefore must rise or fall in relation to the specific allegations about those matters. 

10. Turning then to those, and first addressing the father allegedly refusing to allow the mother to spend time with the children, although the mother does annexe to her affidavit of 20 February 2017 a number of text messages in which she raises the prospect of spending time with the children in E Town, counsel for the father correctly points out that the mother has never complied, at least on the evidence she puts before me, with order 6(f), in that she has never provided to the father, at least four weeks in advance of the proposed travel, a proposed travel itinerary, details of flights and evidence of return tickets purchased for the children and any accompanying adult.  Inevitably they were all preconditions for the father in fact making the children available to spend time with the mother.

11. However there is a further absurdity in the mother’s claim, and that is that patently in September 2016, the father did make the children available to her.  Therefore even if one were to construe the first contravention as generously as possible, it must fail, because construed as contending that the father has never allowed the children to spend time with the mother, that is patently incorrect.

12. As to the allegation of the father not allowing telephone or Skype contact between the mother and the children, this is dealt with in paragraph 5 of the mother’s affidavit filed 20 February 2017.  In that she:

    ·Refers to a recording in which the father is apparently with B, and attempting to telephone the mother, who did not answer her phone;

    ·Says that the father “would not let the children phone me for Mother’s Day, my birthday, Christmas and the children’s birthdays;”

    ·Says that the father hangs up the phone when she tries to contact the children;

    ·Annexes some Telstra bills for her phone, which are impossible to make any sense of.

13. The first point to note is that there is no mention of Skype attempts by the mother in her affidavit.  The second point to note is that she does not say that she has attempted to telephone the children each Tuesday and Friday, but rather believes that it was the children’s responsibility to telephone her.  Thus all that one is left with, is an allegation that in November and December 2015 (and following that) “she has tried to contact the children and the father” but he “continues to hang up the phone.”  It appears that she then ceased to attempting to telephone the children.

14. Even taking that evidence at its highest, it could not support the allegation that the father has not allowed telephone contact between the children and the mother at all since 20 November 2015.  However there was a further difficulty, and that is that the mother’s affidavit does in fact record a number of telephone conversations between herself and the children.  For instance at paragraph 20 she refers to D having called her whilst she was in Western Australia with B.  Further, in paragraph 33 she deposes to having received a phone call from B on 10 November 2016.  Next, in her email of 14 October 2016 to her then lawyer, the mother refers to a Facetime conversation with B in July 2016.  All of that demonstrates on the mother’s own case, that there has been telephone contact between her and the children since 20 November 2015.

15. If what the mother asserts is that on a specific day there was telephone contact not permitted with the children, then it would need to be so specified.  However in the broad way in which the mother has presently cast her contravention, it must necessarily fail.

16. The first alleged contravention in the Application – Contravention filed 20 February 2017 ought be summarily dismissed.

The second contravention

1. This contravention is said to have taken place on 5 December 2015, as follows:

   Numerous letters, text messages and requests for Skype/telephone contact have been sent to the father without any response.  The father is not promoting a relationship between the children and the mother as per Court orders.  The father has not allowed the mother to contact the children for their birthdays, Mother’s Day or Christmas Day.

   The children have had various medical conditions over the past year which the father has failed to inform the mother.

   The father has not allowed visitation with the children and the mother as per Court orders.

   The father is not allowing social contact with the children and their friends in the [E Town] region.

2. Again it is convenient to deal with those in a reverse order.

3. There was no order requiring the father to allow social contact between the children and their friends in the E Town region.  Therefore this aspect of the second contravention must fail. In any event, on the mother’s own case, B was spending up to 10 consecutive nights at her friend’s home.

4. As to “visitation”, I have already discussed this sufficiently in relation to the first contravention.  Even accepting that the date of 5 December 2015 does not appear to have any logical basis to it, and rather what the mother is alleging is a more general breach, then as I have previously discussed, the mother has not established that she has ever complied with order 6(f), and she having complied with it, that the father has refused to make the children available.  What the mother annexes to her affidavit are a series of texts in which she badgers the father in relation to a number of matters, in the course of which she indicates she intends to spend time with the children.  The orders are quite clear as to the mother’s entitlement to spend time with the children, and that as a precondition to its exercise, she needs to comply with order 6(f).  In any event, as I have indicated earlier in these reasons, in fact the father did permit the children to spend time with their mother in September 2016.

5. Therefore even generously construing this contravention as a general failure to allow any time to be spent by the children with the mother, it must fail.

6. Turning then to the medical conditions allegation, it will be immediately noted that there is a complete want of specificity as to what the “various” medical conditions comprise.  Although there is mention of the broken arm in the mother’s affidavit, it appears as though she did find out about that.  There are no alleged medical conditions in relation to B.

7. As presently cast, I am satisfied that this aspect of the second contravention should be dismissed.

8. Next is the allegation that the father has not permitted the mother to contact the children on special days.  Unfortunately the mother’s affidavit does not allege that: rather what it alleges at paragraph 5 is that the father “would not let the children phone me for Mother’s Day, my birthday, Christmas and the children’s birthdays.”  Otherwise it does not say that her attempts to contact the children failed.  Rather it appears as though the mother thinks that the calls should be at the father’s expense.  This aspect of the contravention is not supported by the evidence and must be dismissed.

9. Next, as to the father allegedly failing to promote a relationship between the children and the mother, I have already observed that there is no general obligation on him to do so, other than by permitting the children to spend time and communicate with the mother.  This allegation therefore must fail.

10. Finally there is the allegation that the father has not responded to “numerous letters, text messages and requests for Skype/telephone contact.”  There is no obligation on the father to respond to the many harassing and badgering communications which the mother sends him from time to time.

11. Again this aspect of the second contravention must fail.

12. Since no aspect of the second contravention is prima facie established, the second contravention should be dismissed, and it follows that the mother’s Application – Contravention filed 20 February 2017 wholly fails, and ought be summarily dismissed.

COSTS

1. The father only seeks his costs of the contravention proceeding.  He seeks two species of reimbursement: the first the amounts which he will need to contribute to Legal Aid said to be in the sum of $680.00.  As to that, there was tendered into evidence an email from legal Aid of 20 April 2017, in which it was indicated that the father’s contribution was $340.00, and annexed to the father’s affidavit was evidence of a further contribution being required of him on 4 October 2016, in the sum of $340.00 as well.  I am satisfied that the father’s costs therefore are $680.00.

2. I do not have a current Statement of Financial Circumstances for either of the parties, although at paragraph 24 of her affidavit of 30 March 2017, the mother asserts that the father earns more than double what she does.  As I understand it both of the parties are in full-time employment.

3. The father is in receipt of Legal Aid.

4. The mother has not misconducted herself in resisting the father’s contravention application.  

5. The contravention application was necessitated by the failure of the mother to comply with previous orders.

6. The mother has been wholly unsuccessful in the contravention proceedings.

7. Weighing those matters in the balance I am satisfied that there should be an order for costs against the mother, fixed in the sum of $680.00.

8. As to the father’s claim for reimbursement of travelling expenses, I am not satisfied that they should form part of any legal costs ordered to be paid by the mother.  There will therefore be an order that the mother pay the father the sum of $680.00 on account of legal fees.  I am satisfied that they should be required to be paid within three months.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.                     

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 September 2017.

Associate: 

Date:  26 September 2017