GABRIELLI and O'DOYLE

[2017] FCWA 46

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GABRIELLI and O'DOYLE [2017] FCWA 46

CORAM: THACKRAY CJ

HEARD: 31 OCTOBER 2016 & 1 NOVEMBER 2016 &

WRITTEN SUBMISSIONS (LAST SUBMISSION RECEIVED 5 JANUARY 2017)

DELIVERED : 5 APRIL 2017

FILE NO/S: PTW 1558 of 2008

BETWEEN: MR GABRIELLI

Applicant

AND

MS O’DOYLE
Respondent

Catchwords:

CHILDREN - With whom a child spends time - Orders - Contravention - Three contraventions by the mother made out - One breach considered a "more serious contravention" pursuant to Subdivision F of the Family Law Act 1975 (Cth) - Penalty in the form of a bond imposed - Parties agreed variation of orders appropriate - Orders varied

Legislation:

Family Law Act 1975 (Cth), s 60CC, s 70NFE(5), s 70NFF(3)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Ms Hossen

Solicitors:

Applicant: Self Represented Litigant

Respondent: DCH Legal Group

Case(s) referred to in judgment(s):

Elspeth v Peter (2007) 212 FLR 214

Stevenson v Hughes (1993) FLC 92‑363

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms O’Doyle] (“the mother”) and [Mr Gabrielli] (“the father”) separated 10 years ago. They have two daughters, [Child A], who will soon be 16, and [Child B], who recently turned 14 years of age.

2I am required to determine:

•the father’s applications for the mother to be found to have contravened parenting orders made in October 2015; and

•the mother’s application for a variation of the orders insofar as they deal with the time the girls spend with their father.

Background

3The parties have had more than 70 appearances in the Family Court.

4In April 2011, Martin J made orders providing for the girls to live eight nights each fortnight with the mother and six nights with the father. After difficulties developed in the girls’ relationship with their father, the girls commenced spending time with him more or less in accordance with their wishes. The father was unhappy and sought a variation of the orders so that the girls would spend equal time with him. His application came on for trial before Jordan AJ in October 2015. The disputed evidence was not the subject of cross-examination and there was no evidence of the girls’ wishes, apart from that given by their parents.

5The cause of the difficulties in the relationship between the girls and their father is controversial, with each parent blaming the other for the problems that have arisen. Whatever the cause, there is no doubt that Child A and the father often clashed. While Child A says that she felt she was able to manage the conflict, Child B found it very distressing. Following an incident in January 2015, Child B expressed anxiety about spending any overnight time with the father. In February/March 2015, the father went overseas for a month. On his return, the girls stayed with him for a few days. On the day after she returned to the mother’s home, Child B fainted at school and suffered what the mother described as “severe concussion”. Child B was taken to hospital, but no neurological cause was found for her collapse. The mother was told that the fainting may have been the result of stress and anxiety. Child B continued to see the father but did not spend any more overnight with him prior to the trial in October 2015.

The October 2015 orders

6On 9 October 2015, Jordan AJ made the orders which are the subject of the father’s contravention proceedings (“the October 2015 orders”). These provided for the parents to share parental responsibility equally, and for the girls to live week-about with each parent. The orders also provided for the girls to spend half of all school holidays with each parent.

7The orders of most importance to the current proceedings were as follows:

2.The Applicant and the Respondent do all things necessary to obtain a referral for the children [Child B] and [Child A] to be able to attend upon a counsellor together with each of the parties for the purpose of assisting in the parties’ relationship with one another and the children’s relationship with their parents and I appoint the counsellor [Ms O], Clinical Social Worker as the counsellor for this purpose.

….

4.The children live with the parties as follows:

(a)during non-school holiday time, on a fortnightly rotation with the Respondent for seven nights and with the Applicant for seven nights, with the Respondent from 5.00 pm Sunday in week one until the following Sunday 5.00 pm in week two with the drop-off to occur at the other party’s respective property, with the Respondent’s first block period commencing on Sunday 18 October 2015;

(b)the children spend time with the Respondent from 5.00 pm on Friday 9 October to 5.00 pm on Sunday 11 October 2015;

(c)during the children’s term school holidays being the holidays at the conclusion of terms one, two and three for one half of the term holidays, which holidays shall be defined to commence at the conclusion of school on the last day of the school term until the commencement of school in the following term, and with the first half to conclude at 5.00 pm on the date being as close to the middle date of the holidays as possible, and in the event of an uneven number of days in the school holidays, 5.00 pm on the day which shall be one day more than an equal division of time, and with the Respondent always to have the first half unless otherwise agreed in writing between the parties;

(d)for the purposes of Christmas school holidays with the parties equally …

…

5.The Applicant:

(a)forthwith provide to the Respondent, in writing, full details of all immunisation received by the children to this date; and

(b)that the Respondent be at liberty to have the children further immunised, if he chooses to do so, provided however that he provide to the Applicant in writing, full details of any such immunisation.

…

13.In the event that handovers occur other than through the children’s school, the parent with whom the child [sic] are immediately with prior to the handover, shall deliver the children to the other party’s residence and shall park at the top of the other party’s driveway and remain in the vehicle during the handover and the recipient parent shall remain in their home at all times during the handover.

…

18.The children’s passports are to be held by the parties, with [Child A]’s passport to be held by the Respondent and [Child B]’s passport to be held by the Applicant.

The reasons for the October 2015 decision

8In giving his (ex tempore) reasons, Jordan AJ said:

8What the Court is now hearing, not surprisingly, is that both girls have been in need of therapy. [Child B] is experiencing anxiety attacks. In the midst of this, she has been required or empowered to make a decision at the ripe old age of 11 that she can do without a meaningful relationship with her father [and] is in no need of and spending any significant time with him. This decision by an 11 year old is apparently fully supported by her mother. Prior to that decision, the children had been spending approximately six nights per fortnight with their father. [Child B] now blesses the father’s household with an occasional visit, as and when she chooses.

9[Child A] continues to value her relationship with her father and spend time with her [sic]. The mother seems unable to accept that this is [Child A]’s choice; that she loves her father, that she wants to spend time with him. Rather the mother sees it in a negative light, and that is that [Child A] is only there because she feels she needs to look after her father who is obviously in need of looking after.

10In her application, the mother wants this regime to continue and to be extended to [Child A]. She wants the children to be required to regularly make choices between their parents. She wants the children to be empowered and required to tell the father and tell the mother when they will choose to have time with and a relationship with their father so that every week the family would be faced with the prospect of the children being called upon to decide whether or not they will visit their father.

11In any situation other than that where there is absolute goodwill and cooperation between the parents, that would be an onerous burden. In a situation where the children are acutely aware of the conflict between their parents, to have these children facing the prospect every Sunday of a decision that they know would be closely monitored by their parents would be to compound the harm to which these children have already been exposed.

12It should be a matter for the parents to relieve their children of the responsibility for navigating their way through this exercise. It should be the responsibility of the parents to oversee the facilitation of the children having a healthy relationship with each parent. The children need to be relieved of the burden of feeling responsible and that they are causing problems. Ideally, the children should see two grownups being capable of being civilized to one another and capable of communicating and reaching agreement.

13In the alternative and in the absence of parental agreement, the children need to understand that the Court has made a decision. It is not their fault that the Court had to make a decision. Eleven and twelve year old children are required to do what their parents tell them to do. In this case, the parents are being dictated to by the law. Adults are bound by the law. Children are bound by the law. From this day on, the responsibility is lifted from them.

14In the course of the proceedings, the mother posed the rhetorical question to the court, what does she do if the children say they don’t want to go, or what does she do if they ring her and say that they want her to collect them? Well, I provide some rhetorical answers to that question. I take up the invitation by suggesting to the mother that she could start by telling the girls that they are loved by their father, that he cares for them, that they are safe in his care, and that they should simply enjoy their time with their father. Tell them that if they’re having problems in the father’s household, that they should try to sort them out with their father, not to ring the mother to complain, to ask to be picked up. The mother should not to [sic] reward them by responding in that way. Do not immediately jump at the first sign of problems. Acknowledge that the father has a role to play, that he is able to parent his children. His parenting might not be as good as yours or the same as yours, but he has a legitimate role he should be entitled to play. Don’t make unilateral decisions which cut across his responsibility and his times with the children and have the effect of placing the children right in the middle of possible areas of conflict.

15I say to the mother:

Surely it’s time to let the battle go? Enjoy the little time you have left with your daughters before they move on. Allow them simply to enjoy their time with you.

16I say to the father:

Let the battle go. Don’t respond. Don’t retaliate. Enjoy your time with your children. You have little left. Allow them to do nothing but enjoy their time with you.

9Notwithstanding his Honour’s exhortations, the contact regime was never implemented. The father commenced contravention proceedings shortly after the October 2015 orders were made. During the course of the proceedings, the mother appealed the October 2015 orders. The appeal was abandoned when members of the Full Court pointed out the effect of s 70NBA of the Family Law Act 1975 (Cth) (“the Act”), which authorises a court to vary the parenting orders when dealing with contravention proceedings.

Events after the making of the October 2015 orders

10The mother spoke to the children on the (Friday) afternoon that Jordan AJ made his orders. The orders required the children to be with the father from 5.00 pm that day and spend the weekend with him before returning to the mother at 5.00 pm on the Sunday. In other words, Child B was required, on a few hours’ notice, to spend overnight time with the father with whom she had not spent any overnight time since March 2015, and without the counselling with Ms O having commenced.

11The mother was unable to persuade Child B to attend that evening, but Child B did go to her father on the Saturday morning. The mother was able to persuade Child A to go for the weekend (although she was a little late in arriving, as I will explain later).

12The next visit was meant to commence on Sunday 18 October 2015, which was to be the start of the first of the week-about periods. Child A went to her father for the week, albeit she was again delivered late. Child B did not attend until the following Sunday morning, which was the last day of the visit, and she then returned to her mother that evening.

13The father filed his first contravention application on 21 October 2015. When it came on for a directions hearing before me on 16 November 2015, I set the matter down for an expedited trial on 14 December 2015. In doing so, I made very strong remarks about the court’s expectation that its orders would be obeyed, and the dire consequences that could follow in the event the orders continued to be breached. I pointed out that, in some cases, contraventions of parenting orders can lead to an order for change of residence.

14After I had made my remarks, the mother and her present husband spoke to the girls, impressing on them the seriousness of the orders, and indicating that if they did not go to visit their father, they might end up living with him full-time. I find that during this conversation:

•Child B was angry and frustrated and said words to the effect “if I don’t go to Dads, will that get Mum into trouble?”;

•Child A said words to the effect that “Dad will get really pissed off”;

•Child A also said, “why can’t I tell the Court what I would like to happen? I want to tell them. Why won’t they listen to me?”; and

•after significant discussion about what could happen if the orders were disobeyed, Child B said “so I don’t have a choice then”.

15It was in these circumstances that the girls both went to the father’s home, on time, on 29 November 2015 for the scheduled weeklong visit. That was the only occasion when the girls both spent the week with the father as ordered.

The reports of the counsellor appointed under the October 2015 orders

16The October 2015 orders recognised that there were problems in the relationships within the family, since they provided for Ms O to provide counselling to allow the family to work on these relationships. However, the children did not see Ms O until 9 December 2015 (shortly after both girls had spent their first week together with the father). Child B’s level of anxiety at the time was such that the initial appointment was largely taken up dealing with her issues.

17Ms O’s report of her first meeting indicated that her understanding was that Child A had begun “week about” time with her father in March 2015, and had not had “any significant disruption to her relationship with her father”. She understood that Child B had ceased overnight visits with her father in March 2015 and thereafter had only daytime contact. She was aware that it was the father’s belief that the mother had contributed to Child B’s anxiety and that he believed Child B would adjust to living with him each second week.

18Child A told Ms O that she felt she had a good relationship with her father, although they argued at times. She explained that she felt confident to express her own opinions, but this sometimes led to verbal conflict with her father. Child A advised that she considered the week-about arrangement was good for her, as it was less confusing than the previous arrangements, which did not involve regularity. Nevertheless, she said that if there was anything that could be different, she would like more flexibility if she wanted to do something with the other parent. Child A described how this had occurred recently when her father allowed her to return to her mother’s home for tutoring. Ms O concluded that Child A appeared “well adjusted and has the usual minor challenges most adolescents have with their parents”.

19Ms O reported that Child B had “a very different personality to [Child A]”. She observed that she “appeared visibly distressed at our meeting, showing signs of anxiety including agitation and teariness. She had also not slept well and had dark rings under her eyes”.

20Child B reported to Ms O:

in a very quiet voice that she had gone to her father for a week and although she had moments of fun with her sister and others, she felt scared and anxious being away from her mother. [Child B] describes symptoms of significant anxiety such as heightened feelings in her body (sweatiness; racing heart rate; nausea; dizziness) along with fearful thoughts and emotions that suggest panic, stress and worry. When she feels like this, she isolates herself and tries to cope by being quiet on her own listening to music or reading.

21Ms O reported that it appeared that Child B’s reluctance about spending time with her father had been precipitated by events in early 2015, including when Child A and the father “had become engaged in an extended argument that by all accounts was loud and intense” and during which Child B had telephoned her mother to tell her she felt scared. The other incident related to the fainting episode described earlier. Ms O reported that since that time Child B had become anxious about fainting again.

22Ms O further reported:

[Child B] has described to me feeling a sense of panic when people are arguing and she has identified conflict at [her father’s] house as a source of fear for her. It appears that when she feels a rush of anxiety, she also becomes dizzy and this then feeds into her fear of fainting. My thoughts are that her avoidance of spending consecutive nights at [the father’s] house has an anxiety basis. She is also quite sensitised what she perceives as anger and ideally [Child B] would feel confortable [sic] enough to want to spend longer periods with her father. [Child B] states that she stayed this past week with her father under duress and that she cried to herself each day and felt sad the majority of the time. [The father] told me he did not notice this with [Child B], however she has also told me that she expressed this sadness alone. She does not share these feeling [sic] with [Child A]

At this stage I am concerned for [Child B]’s mental health due to high anxiety levels and low mood (with the potential for this to become depression). There have also been episodes of vomiting and given [Child B]’s low weight, this also remains something I would like to monitor closely. This is due to the link between anxiety and eating disorders.

23Ms O recommended a continuation of counselling for Child B and for her parents with a view to reducing “familial conflict on all fronts in order to help [Child B] feel calmer and more in control”. Ms O also reported that Child B was “too anxious” to begin joint sessions with her father, but that the aim of the counselling would be for this to occur once her anxiety had settled and she had developed trust that communication with her father was likely to be successful.

24Ms O concluded her report by saying:

The cause of anxiety in children, (especially children in separated families) is complex and in my view there is not linear causation. The return to a full week in her father’s care after only day contact for the past nine months was challenging for [Child B] and I believe needs to be taken into account in arrangements over the coming months…. It is in [Child B]’s interest to have a trusting and loving relationship with her father and there is every chance this can be achieved if her anxiety issues and return to overnight contact are managed well.

25Mrs O sent her report to the parties on 11 December 2015. On 15 March 2016, she wrote to the parties in these terms:

I think it is time to try and set some weekly contact time considering things have changed with the girls recently.

After talking to [the mother], it would seem that a weekday contact on Thursdays after school until after [Child B] swimming might work.

I think contact on weekends could alternate between Saturdays and Sundays. If [Child A] finishes work at 3pm Sat, then 3 - 8.30 (after dinner) might work and alternating this with the following weekend being Sunday 1-5pm. [The mother] can pick up at the end of each weekend day visit.

[Child A] and [Child B] also have the option to sleep over any of the Saturdays. I think [Child A] may also want to [sic] things to be more flexible in terms of ordering her more time with [the father] as she wishes.

[The mother] has suggested that the weekends could start this Sunday.

26Ms O wrote to the parties again on 24 March 2016 saying:

Having had communications from both of you, it would seem that Thursday or Monday are the nights that are practicable for now. [The mother] has advised me that as of June 1st, a swap to Wed evening is possible. This would need to be confirmed as soon as possible if a Wed is preferred in future….

The weekends alternating Saturday and Sunday with [the father], with the option of sleepovers on Saturday seem appropriate, with flexibility for [Child A] should she wish for longer time with [the father].

… The last Court orders did not reflect what was actually happening with [Child B] and now with changes with [Child A], it looks like orders will need to be revisited.

It is a difficult situation when children of [Child A] and [Child B]’s age start making their feelings known about where they wish to spend their time. I have to work with everyone involved and aim to look out for the wellbeing of children balanced with parents’ needs and requests.

This option for contact is acceptable I would say for now although it probably does not feel so to [the father], I understand that. I see the regularity and quality of the contact as being as important as the amount of time.

…

On a positive note, [Child B] is doing well and is happy, more settled and not showing signs of the anxiety she had prior to starting therapy. I would hope she could trial some overnights soon. I would expect [Child A] would choose to stay with [the father] on occasion.

27Mrs O wrote to the parties again on 4 April 2016 in these terms:

I feel we need to revisit what we are hoping to achieve with therapy as there appears to be a problem for [the father] in how [he sees] my role. I cannot be an enforcer of an order and I cannot set the contact times or make increases in time occur. All I can do is attempt to assess for issues and deal with them accordingly. Things are now complicated due to [Child A]’s decision. My understanding is that she is willing to stay with [the father] at times.

… A weekly contact and some decent weekend time each week would help maintain [the father’s relationship] with the girls. [Child B] is doing better and I have advised that I think she can attempt sleepovers again and we will re-assess how she goes with that. What I cannot do is enforce this. Therapy that is child focussed is about helping children and young people with their mental and emotional wellbeing and the quality of their relationships and sometimes that is not in synch with what parents want.

… I can see [the father is] frustrated with the legal and therapeutic process … but the focus now should be on the quality of time spent with the girls and I do agree that includes decent lengths of time. I have spoken to [the mother] about this. This is where the complexity comes in, as [Child B] is not agreeable to sleeping over and [Child A] does not want to on a regular and set basis.

… Without having similar aims as to what we are meeting for, I do not feel a joint meeting should go ahead between [the father] and the girls. I think at this stage I should see the girls and make an assessment of where things are at and whether I feel family sessions are likely to lead to any further progress. We can then review where to from here.

28On 13 April 2016, after seeing the girls that day, Ms O sent an email to the mother and the father. The email read in part:

To start with the good parts of this feedback both [Child B] and [Child A] are showing many signs of improved relationship with [the father]. Their perceptions of conflict seem to be almost nil (apart from normal teenage/parent disagreements) and both girls are saying that they have enjoyed what time they have spent with you recently. [Child B] is noticeably different in that she used to express lots of negative and conflicted feelings, but now she is reportedly feeling happy, settled, less anxious and now enjoys time she send [sic] with [the father] and [Child A].

I note that [Child A] now spends less time with you [Mr Gabrielli] but from her point of view, the time now spent is quality time. She says she enjoys seeing you, although it does not tend to be extended stays. This is in line with her 15 year old development which is very peer focussed. She also spends a lot of time out of the home working and seeing peers when with [the mother].

[Child B] still harbours some anxiety avoidance about sleepovers. This needs to take its course and she will attempt a sleepover with encouragement from [the mother] when there seems a possible time to do so. Forcing [Child B] any sooner is not likely to work in my opinion. She is telling me she feels happier, calmer and better about the family situation the way things are now. This puts her in good stead to return to sleepovers at some point I hope.

I realise there are no regular contact times as agreement was not reached between the two of you and direct negotiation did not occur. My understanding is that [Child A] sees [the father] around twice per week and [Child B] 1-2 times per week and that the girls arrange this with you directly.

In terms of therapy, I do not feel that having further family therapy with [the father] and the girls will work if the anticipated outcome is increased time in [the father’s home]. This is not my role and a return to Court will be required to look at this further. [Child B] and [Child A] are 13 and 15 now respectively and their views would have to come into Court decisions about contact I would think.

I am happy to see [the father] and the girls again should issues arise that need working though [sic] ie. If there are relational problems. Right now both girls are saying they are happy with their relationship with you, which is very positive. I appreciate that seeing them more is something you want and there is no easy solution to this that does not involve forced contact. This then risks increasing resentment and has the potential to set your relationship back.

29Ms O prepared another report on 27 June 2016. She reported that since first seeing the girls in December 2015, she had had various sessions with them, and with the father. She noted that after she had first met with [Child B] she felt that forcing her to resume the week-about contact with the father could place her mental health at risk. She said that Child B “was clearly not coping and was starting to build herself up to a level of panic about having to go to her father’s again for another week.” However, after seeing Child B two more times, she observed that her anxiety symptoms had begun to lessen after she had provided her with some brief therapy “around her fear of fainting and worries about contact visits with her father”. She reported that Child B had maintained daytime contact with the father once or twice a week at this time. She also reported that Child B had not gone on a two week interstate holiday with the father and Child A over the Christmas period. Child B had been prepared to consider going on the holiday for a shorter time but Ms O reported that she had discussed this with the father, but that he said he could not arrange for this to occur.

30Ms O also reported that Child A had explained to her that while she “felt ok with week about contact” she wished that there could be “flexibility to staying with her father, as her life was becoming more complicated with work, school and after school activities such as sport. She said she found the week-about pattern confusing and she did not like it when her father did not allow her to do certain activities if it was “in his time”. Child A told Ms O that she wanted flexibility around this. She also told Ms O that she wished her father would “not get so angry with her, but she also said that she usually argues back. She said that she usually gets on well with her father but wanted him to show more of his caring side and less of his ‘stressed out’ and angry side”.

31Ms O reported that when Child B and the father eventually had a joint counselling session, Child B was “very anxious” but willing to attend. Although Child B was “extremely quiet and nervous”, Ms O reported that she “managed to state to her father that she did not like it when he shouts and that when he does, she feels panicky and as though she is going to faint”. Ms O reported that while the father attempted to listen and understand Child B, “he had some trouble grasping what [Child B] was experiencing”. The father did express willingness to Child B “to try and work on his relationship with [Child A] and to consider the impact on [Child B] when they are arguing”.

32Ms O reported that as the sessions with her progressed, it became clear that while Child B’s mental health was improving and she was enjoying daytime visits with the father, her reluctance to sleep at the father’s home remained. Child B explained to Ms O that she “couldn’t understand her father’s need for her to stay with him overnight, as she felt that seeing him during the day, once or twice per week meant they were still having a good relationship”. Ms O reported that when overnight visits were spoken about, Child B “would become teary, nervous and upset. Although [Child B] was feeling happier and less anxious in general, her anxiety levels and worries were very easily triggered”.

33Ms O reported that by mid-February 2016, Child A had also made it known that she did not want to stay at her father’s home for a week at a time anymore. Child A said that she “felt it was too difficult with her school commitments, as she felt unable to study at her father’s home due to lack of organisation in his house and reduced time to study with travelling time. She also wanted to see peers during the school week who lived closer to her mother’s home. She also felt she did not sleep well at her father’s house and generally preferred the environment at her mother’s. Missing [Child B] was also a factor”.

34Ms O’s report continued:

[Child A] stated she preferred to visit her father for dinner during the week and weekend stays. We discussed the need for some regular contact time and [Child A] said she wanted to continue to see her father and to stay there sometimes. She has a tendency to feel concerned for her father and experiences guilt if she does not see him regularly. She feels bad if she has argued with her father and this makes her want to do what she can to appease him.

There is both a caring and a concerning element to [Child A]’s relationship with her father and I would hope that as she gets older she is confident to express her own thoughts so she not feel [sic] she has to make decisions about her father’s needs over her own.

[Child A], [the father] and [Child B] came together for a session in March [2016] where [Child A] expressed her reasons for changing her mind about week about contact. [The father] was very disappointed and although he tried to show the girls he was open to listening to them, his sadness about the situation was clear. All of them said that there was much less disagreement between them and that visits had mostly gone well.

Although the girls were happier (notably [Child B]), [the father] was not. I did not feel that pursuing any further family therapy at this time was appropriate as family therapy is not about forcing one agenda or changing the minds of children to bring about increased contact time.

35Ms O expressed the opinion in her report that “forcing children to have overnight contact at the ages the girls is likely to increase resentment and hostility. [Child A] is currently 15 and [Child B] is 13 years old and as such their opinions, thoughts and views should be considered by all of the adults involved”. She concluded her report by saying:

My view is that [Child B] and [Child A] are more likely to have a positive relationship with their father if there is not this constant push for them to spend more time with him. They see their father every week, usually more than once per week and both [Child B] and [Child A] have told me they do not feel they would become any closer to their father just by staying there overnight. They feel that going out for dinner or visiting their father’s partner [R], or their Grandmother is enjoyable and that their time with their father does not need to be for long periods.

[Child B]’s mental health is currently stable and I feel in part this is due to [Child B] being buffered from the stress of the Court process and Court ordered contact whilst she has been in therapy. I would have concerns about the impact on [Child B]’s mental health were she to be ordered to be in her father’s care for part of each week against her will.

Time spent between [Child B], [Child A] and their father needs to be conflict-free wherever possible, with emphasis on building and maintaining a positive relationship.

[Child A] seems to want to continue to stay overnight at her father’s home on a flexible basis. I think there is an openness for the girls to consider holidays with their father if contact remains largely conflict free and supportive without a sense of coercion to see him.

36Ms O also mentioned an incident she had learned about when Child B came to see her on 24 June 2016. Child B reported that there had been a recent visit with her father during which he had

attached a handcuff to [Child A]’s wrist apparently as a ‘joke’, however [Child A] became distressed and asked for him to remove it. The handcuff was attached to a door. [Child B] told me she felt increasingly upset and also asked her father to remove the handcuff. According to [Child B], he did not do so straight away, rather he tightened it and pretended to [Child A] that he could not find the key. Eventually the handcuff was removed, but [Child B] felt that her father allowed [Child A] to be upset for too long and this also distressed her.

37In her oral evidence at trial, Ms O said she had spoken with Child A about the handcuff incident at a session with her on 2 August 2016. Child A reported that she had wanted her father to stop as the handcuffs hurt, but she also did not want to get her father into trouble. She was concerned that her father was depressed and that she was partly responsible for this because she was not seeing him anymore.

38Ms O also expressed the opinion that, contrary to the view of the father, she did not believe the mother was leading “some campaign” to ensure the children did not see the father. She stressed that she had observed Child B’s anxiety and considered this was associated with the father’s anger. Ms O also gave evidence of the ease with which she was able to facilitate arrangements with the mother to set up the bi‑weekly contact between the girls and the father which she had recommended. She further noted that sometimes the concerns parents have about the other parent are based in reality and are not vindictive. She accepted that it is possible such concerns on the part of a parent can influence children, but she expressed the opinion that by the time children are the age of Child A and Child B “individuation is happening” – and that there was evidence this was happening in this family. Ms O pointed in particular to the balanced views expressed by Child A and observed that the children’s views were grounded in reality and were not based on irrational fears.

39Ms O also gave oral evidence of having spoken with Child B about orders being made to see the father on set days. She said that while Child B prefers things to be flexible, she did not mind the idea of some set days – and that sometimes she preferred this because she would then know where she would be. However, Ms O stressed that she had not spoken to Child B about this for some time so she was “not sure where she is at the moment”. She also gave evidence that Child A does not want set times and that she felt she was quite good at working out times when she can see her father. Ms O said that she felt with a child of Child A’s age, who was working and had a lot of school commitments, it would be preferable for the visiting arrangements to remain flexible.

40Ms O also gave evidence that when she had seen the girls in September 2016, they said their father had been upset and angry and swearing and shouting. Child B reported that the father had told his own mother during the visit that the girls’ mother “is a fucking bitch”. They said the father was driving fast in an angry way and that they were scared. As I understood the position, the father was annoyed that the children had been delivered late.

Report of the Family Consultant

41The girls were seen by [a] Family Consultant on 20 October 2016 in order to provide the court with up-to-date evidence about the children’s wishes.

Child A

42The Family Consultant reported the following concerning Child A:

•hanging out with her friends and going to the beach were her favourite pastimes;

•Child A reported that her relationship with her father was good and that they “get along really well”;

•while Child A said she and her father do have “some arguments”, she felt they would probably clash more if she lived with her father more of the time;

•Child A reported that her father was “funny” and that she loved him, but that what she disliked about their relationship was that “sometimes he can get really angry” and that when she was younger this was “really scary”, but that “now it is not as scary but sometimes things are like, really extreme”;

•when asked if there was anything her father could do to improve their relationship, Child A replied “get less angry” and she expressed the view that “because I spend less time with him now, there is not enough time for him to get angry”;

•Child A reported that she got along okay with her mother but that they have “a few disagreements and arguments… it is because our personalities clash”;

•Child A reported that she loved her mother and that she enjoys “talking and hanging out” with her mother; but that her mother could improve their relationship if she would “stop picking on me”;

•Child A also reported that she felt that Child B was her mother’s “favourite” because “she always gets what she wants”, whereas she reported that “[Child B] always says I am Dad’s favourite”;

•Child A reported that she and Child B “used to have to support each other when Mum and Dad fought and through all sorts of events … like the Police coming to the house maybe 3 times”;

•Child A reported that her parents “don’t talk now so they get at each other in different ways like taking each other to Court ... having us with them, or stopping the other from doing something”;

•Child A spoke about different things each of her parents had done which had annoyed her or, in the case of her father, she had found “pretty scary”;

•Child A summarised her parents’ relationship by saying “they hate each other and Dad says it is all Mum’s fault and Mum says it is all Dad’s fault … when we talk on the phone Dad says ‘don’t tell her this’ and Mum says ‘don’t tell him that’”;

•when asked about the impact of her parents’ conflict on her, Child A said “it is really stressful … and I don’t like it at all … we get really upset and wish it didn’t happen but we have learned to accept it so it doesn’t affect us anymore”;

•Child A’s preference was that her parents would “talk to each other like friends and are flexible” but said that she felt particularly burdened because “everyone says I am the one who tries to make everyone happy … it is just naturally what I try and do”;

•Child A’s perception was that her mother supports Child B and her spending time with the father and that “she says we can go anytime” although Child A added that “I feel like it is when it works for her sometimes”;

•Child A also said that her father “thinks us wanting to live at Mum’s means we don’t want to see him – that’s just not true”;

•Child A reported that she was visiting her father “twice a week and sleeps over on the weekend and school holidays” and that she preferred the current care arrangement to the shared care arrangement “because it is closer to my school and more of my friends live around there”;

•she also expressed the view that living with her mother “it’s sort of a nicer environment and the house is nicer and it is more open … and more like a home” and that she found it “easier to study there”;

•while she enjoyed visiting her father because it was “like going on a trip”, and they “do more things and go places, which is good”, she gets “less (study) done”;

•in dealing with Child B’s choice not to spend overnight time with her father, Child A reported that Child B “didn’t tell anyone but she thinks like Dad is really abusive” and elaborated by saying “this is from us ([Child A] and her father) arguing” and she said that Child B “is really scared to go there overnight but daytime is OK”;

•when asked about the father’s response to Child B’s choice not to spend overnight time with him Child A said “Dad was really confused … he got really angry and upset and he still keeps asking her ‘why don’t you stay?’”;

•Child A said that the present visiting arrangement was her preferred arrangement, but emphasised “I really want flexibility” – although she added “with flexibility it is hard on Mum and Dad because they have a life too… it’s a bit of a mess, but I do want to live at Mum’s… I like going to Dads but I want to keep it flexible but with two days to go to Dad’s”;

•after some discussion with the Family Consultant, Child A expressed a preference to visit the father from after school and for dinner “probably Monday and Wednesday and stay over on Saturday … every second Saturday”;

•significantly, Child A emphasised that if the arrangement was flexible, she would likely be inclined to spend more time with her father;

•Child A also said that she would like to spend more time with the father during school holidays but she again added “with flexibility”; and that she would like to see both parents on Christmas Day and on her birthday;

•when Child A was asked how she would feel if the court ordered a week‑about arrangement she replied “I would feel quite stressed I guess … not annoyed but kind of annoyed because I would find it very hard to go from house to house … I could do it but it would be stressful”;

•Child A told the Family Consultant that she had not spoken to her father recently about her preferences because “he would be really upset and that would make me upset because I don’t want to upset him … sometimes that is what [Child B] and I fight about … she doesn’t call him and she is rude to him, that’s what I think”;

•when Child A was asked if there was anything in particular she would like the Court to consider she replied by saying “better is something in between (her parents’ proposals) may be every second Saturday and dinner on Monday and Wednesday (with her father) … but flexible, more (time with her father) if I wanted it… I am really undeceive (sic) because I don’t really want to upset anyone”; and

•when she was asked if there was anything in particular she wanted her parents to understand, Child A replied “to dad, even though we don’t see him as much we still love him ... it is not as if we are never going to see him again”.

43I trust the parents will reflect on everything Child A had to say to the Family Consultant and recognise the burden this teenager has had to carry for so many years.

Child B

44The Family Consultant reported the following matters about Child B:

•Child B presented as a bright girl who, although appearing a little anxious, engaged well in the interview, giving due consideration to her answers and to the views she expressed, noting that she felt “It is good to finally have a say”;

•Child B noted that “both (parents) blame each other saying the other put all the applications in”;

•Child B reported that her relationship with the father was “OK … sometimes we don’t get along, but it’s pretty good” and that she liked the fact that her father was funny and was fun to be with, and that sometimes he was “nice and caring”;

•when asked if there was anything she disliked about her relationship with her father, Child B replied that “he gets quite angry and that is really really scary”;

•Child B reported that she loved her father and felt that he loved her but that if there was anything her father could do to improve their relationship it was “sort of control his anger and that”;

•Child B reported that her relationship with mother was “way better” than her relationship with the father, to which she added “I am really close to Mum … I’m like closer to Mum and [Child A] is closer to Dad”;

•Child B felt that her mother was “really nice and caring and understands” although her mother was “sometimes … a bit strict about our phones” and sometimes gets stressed about the court proceedings and was “grumpy” but otherwise “she is pretty good”;

•when discussing her parents’ relationship, Child B said, “they don’t get along … Dad thinks Mum is stopping us from going to his house but [Child A] and I are choosing to stay at Mum’s”. She reported that her parents both “put each other down … Mum says to her friends “dad lies” and Dad tells his friends the same and they both just put each other down”;

•when asked about the impact of this behaviour on her Child B said “it is not nice to hear, but I guess I’m used to it now”;

•Child B expressed the opinion that her mother “tries to make some things better, but she can’t really do much” and she also felt that “Dad thinks Mum is telling us to stay at Mum’s house but she isn’t … he just thinks that … she is saying to us we can go to Dad’s whenever we want”;

•when asked about the impact of her parents’ behaviour on her and her sister, Child B said “It is like really stressful and it is hard to be around them both … its hard (to protect yourself) but sometimes we just go into our rooms and do stuff there … [Child A] thinks she has to care for her dad … I think she knows he relies on her a lot but she just accepts it … I think [Child A] feels like she has to carry more now that I don’t go to dad’s … sometimes [Child A] thinks she wants mine and Dad’s relationship to be better but she can’t fix it; it is not her problem … sometimes she thinks I don’t love him”;

•Child B reported that she had not stayed at her father’s house “for a long [time] but I was always afraid of him getting angry … you get frightened and you think he is going to do something … he like raise[s] his voice and he has a really loud voice and it is just really scary”;

•when asked if her father understood her experience, Child B said “I’m not sure … I told him while we were with [Ms O] … she ([Ms O]) tried to explain it to him … but I think part of it is he doesn’t want to listen to it”;

•Child B described the current care arrangement as one where she and Child A “usually see dad on the weekend and sometimes after school … normally we go after [Child A]’s work and sometimes on Wednesdays we go and have dinner at Dad’s and visit Nanna”;

•when asked what her preferred living arrangement would be, Child B said “same as it is now is good … living with Mum and going to see dad for dinner and on weekends but not sleeping over”;

•Child B reported that her father often asked her why she prefers the current arrangement and that she had responded by saying “I have told you before and I don’t want to talk about it … he hasn’t asked as much now as he used to”;

•in dealing with school holidays, Child B said “I would like to spend more time with Dad on the holidays but not sleep over”;

•Child B said that she wanted to wake up at her mother’s home at Christmas and go to her father’s home in the afternoon.

•when Child B was asked about the October 2015 orders she said “Mum told me and I started crying and went to my bed”. When recalling this, Child B began to cry, but went on to say “Mum was saying you have to go and I just said I didn’t want to go … then I said I would try and go and we were driving there but I just burst into tears so we came home again and [the mother’s husband] went there and he talked to Dad but he (the father) got really mad”;

•Child B also reported that when she was in “Year Six I fainted and I was with Dad for a week and he got really mad and I got stressed and when I went to school I fainted and I think it was the stress … that’s another reason I don’t want to go to Dad’s; I don’t want that to happen again … but it is really more that he is really angry”;

•in discussing the family therapy she had had with Ms O, Child B reported “Dad was nice to [Ms O] because he didn’t want her to see him mad … but when [Ms O] said it should be how we want it to be he didn’t like it and he wanted to go and see another counsellor … he always wants to get his way … he has always been like that”;

•when Child B was asked how she would feel if her parents agreed to maintain the current care arrangement she said “I would be happy … my stress would go down”. On the other hand, if the court ordered a week-about arrangement Child B said that she would feel “mad and sad … they would try to force me to go, but I probably wouldn’t”;

•when asked if there was anything in particular she would like the court to consider, Child B replied “just let the kids have a say and they should have the choice”;

•when asked if there was anything in particular she wanted her father to know, Child B replied “if you could not be so angry … I just want him to believe it and accept it … he (the father) thinks he wants to believe I will go to his house … I think he thinks he has lost his daughter … but I don’t think he has”; and

•when the Family Consultant asked Child B about the best way for the father to “find” his daughter again, Child B replied “stop being angry”.

45The Family Consultant fed back the children’s views to both parents. The mother found their views unsurprising, and felt they should be respected. On the other hand, the father claimed that the children’s views had been adversely influenced by the mother rather than being based on their “lived experience in his care”. He also expressed the opinion that Ms O had “sided with the mother”; and that she had not performed the role laid down in the October 2015 orders, since her task had been to “facilitate the children spending time with each parent in the accordance [sic] with the Orders”.

46The Family Consultant formed the view that the children’s views as expressed to him were “genuinely held”. He observed:

There was consistency across the children’s accounts with regard to their experiences and both children appeared articulate and unrestrained in conveying their views and recollections. The children spoke freely and spontaneously, and their answers to questions were consistently age appropriate. Moreover, when questioned further about their views, or asked to expand, both children were able to do so without hesitation and without any apparent contradiction or ambiguity. There was also no indication throughout the interviews that the answers provided had been coached or rehearsed. It is also notable that both children apportioned responsibility for any exposure to conflict to both parents, and did not appear to be aligned with either parent’s perspective in terms of their parent’s dispute.

However, the Family Consultant also considers the children have formed their views within the specific context of their particular family dynamics and which incorporates both parent’s post-separation words and actions. The dynamic between the parties since separation has been one of high conflict and deep acrimony. The children are very aware of this with [Child A] describing her parents as hating each other. Both children described their parents expressing their disdain for each other either towards them or in earshot of them. In addition, the children both described their parents attributing responsibility of the conflict to the other. It would be implausible to consider their parent’s conflict and entrenched animosity has not significantly influenced the children’s views.

These two children have spent the majority of their lives finding ways to navigate this apparently difficult family environment and maintain their relationships with both their parents. It appeared to the Family Consultant that they have both done so with considerable deftness. The parties, as parents are responsible for shielding their children from such conflict, and to the degree they have failed to do so, the Family Consultant considers the children’s views can be considered to have been unduly influenced. However, rather than considering their views to be compromised, the Family Consultant is of the view, given the children [sic] apparent candour against such an acrimonious backdrop, their view should be considered all the more sincere and genuine.

47In summarising his understanding of what the children had told him, the Family Consultant expressed the opinion that while Child A had apparently, at the time the orders were made, been willing to live in the shared care arrangement laid down in the October 2015 orders, Child B was not. He noted that Child B had described the distress and emotional difficulty she had experienced in trying to comply with the orders. The Family Consultant observed that the orders were made without

independent evidence of the views of the children. Since that time the children have expressed their views to the family therapist, [Ms O], and to the Family Consultant. Given the views expressed by the children are consistent on both occasions, the Family Consultant is of the view enforcement of the Orders for a shared care arrangement for the children would have an adverse emotional impact on the children, particularly [Child B]. In this regard, the Family Consultant would agree with [Ms O]’s assertion “forcing [Child B] to resume week about contact with her father could place her mental health at risk”.

48The Family Consultant went on to express the view that implementation of the orders “would similarly be detrimental to [Child A]’s emotional and psychological wellbeing”.

49The Family Consultant was of the view that “the optimal care arrangement for these children would be one that respects and is based on the views of the children”. In this regard, the Family Consultant recommended “the parties consider a variation to the Orders of 9 October 2015 rather than an implementation of the Orders, such that [the] children’s views are incorporated”. He went on to say that he was

strongly of the view that, should the father continue to seek Orders that are contrary to the children’s preferences there is a risk of the children’s relationship with him, will be significantly harmed. Should implementation of Judge Jordan’s Orders be sought by the father, it is likely to be met with increased resistance and resentment by his children.

50However, the Family Consultant went on to say that he also

holds concerns about the proposal of the mother for the children to spend time with the father solely subject to their wishes. While [Child A] emphasised flexibility in expressing her preferences, the Family Consultant is of the view, the conflicted and acrimonious relationship between her parents, sadly will not practically support this. While the Family Consultant encourages the parties to understand [Child A]’s desire for flexibility and to accommodate it as best they can, it is also recommended there be specified times for the children to spend time with their father. The Family Consultant discussed this with [Child A] and she accepted the proposition that this could be achieved while incorporating flexibility.

Taking into consideration the children’s views in relation to the care arrangements as well as to their concerns for their own wellbeing, and in [Child B]’s case her mental health, the Family Consultant recommends the children spend frequent time with the father at specified times. It is recommended that [Child B] is not required to spend any overnight time at the father’s house. By way of suggestion the Family Consultant offers for consideration the father collect the children from school two afternoons each week and the children spend time with him and have dinner with him before being returned to the mother’s house. In addition the children spend time with the father every second weekend with [Child B] returning to the mother’s house for the nights.

The conduct of the trial

51I originally listed the contravention applications for trial before me on 14 December 2015, but the hearing was adjourned by consent. I need not trace the various reasons why the parties did not want the matter to proceed to trial thereafter. The trial, which eventually commenced on 31 October 2016, proceeded in a slightly unorthodox fashion.

52Due to the availability of witnesses it was necessary first to call Ms O. It was then necessary to call [Ms G] who had provided stress therapy to the girls some years ago relating to issues they had with the father at the time, including his physical discipline of them. Once these witnesses had concluded their evidence, I indicated to the parties that I intended to conduct the hearing on the basis that the contravention applications should be heard first, prior to me considering the application for variation of the parenting orders.

53When the evidence and submissions were completed on the contravention issue, little time remained of the two days that had been allocated to the case. Neither parent wanted to come back to court and each indicated their desire for me to make orders varying the October 2015 orders so as to provide such regime for the children as I considered appropriate, having taken into account the evidence from the contravention part of the proceedings and also taking into account the report of the Family Consultant. Accordingly, there was no additional oral evidence taken in relation to the parenting issue and the matter was dealt with on the basis of submissions concerning the extent of the variation to the orders of October 2015.

The contravention application filed on 21 October 2015

54The father’s first application asserted that the mother had, without reasonable excuse, contravened the October 2015 orders on 9 October 2015 and 18 October 2015.

9 October 2015

55The first count alleged was that the mother failed to deliver the children to the father at 5.00 pm on Friday, 9 October 2015, which was the day Jordan AJ delivered judgment. In his supporting affidavit, the father:

•acknowledged that Child A had been delivered by the mother’s husband at 6:30 pm on 9 October 2015;

•acknowledged that Child B was delivered at 8 am the following day;

•asserted that while he was speaking with Child B about why she had not come to him on the Friday night, he had told her that “everyone agreed it was in the girl’s [sic] best interests for them to spend a week with me and a week with mum”, to which she had replied “mum did not agree” and “that the judge was stupid and that he did not even know her”; and

•said that the girls were collected early at 4 pm on Sunday, 11 October 2015, by arrangement, and that the mother agreed that he could have additional time with Child B on the following Tuesday, which he did from 9 am to 3.30 pm (he also had a little time with Child A from after school that day).

56The father also gave oral evidence that he spoke with Child B by telephone on the evening of 9 October 2015, and that she said she was tired and going to bed, to which he responded that that was “OK” and she should have “a good sleep”.

57The mother’s evidence relating to the alleged contravention on 9 October 2015 was set out at [18] et seq of her affidavit sworn 15 June 2016, and at [6] et seq of the affidavit of her husband sworn on 13 June 2016. I accept their evidence that:

•Child B was very upset when she was told about the outcome of the proceedings before Jordan AJ. She went to her room, began sobbing and ultimately became inconsolable;

•Child A said to her mother “But no one’s asked me what I want – why is no one listening to me”. It is, of course true that no one had asked Child A what she wanted, notwithstanding that she was 14 years of age at the time;

•Child A was willing to comply with the requirement to visit her father, and was most anxious about her father’s reaction in the event that Child B would not accompany her on the visit;

•there were email and text exchanges between the parents while the mother was attempting to have the children go on the visit on the Friday afternoon;

•the father spoke with Child B over the telephone, during which time Child B continued to sob;

•when it became apparent that the mother could not force Child B to go on the visit, she arranged for her husband to take Child A to the father’s home on the basis that if Child B could be calmed down, the mother would bring her to join her sister;

•the mother’s husband spoke at length with the father when he dropped Child A at the father’s home and described Child B’s agitated state to the father. The mother’s husband, who is a paediatrician, told the husband that he considered it would have been abusive for Child B to be bundled into the car to be delivered to the father as this could only have been done by physical force; and

•after further discussion with Child B, the mother was able to persuade her to visit the father the following morning.

58It is noted that the mother’s affidavit evidence did not indicate that she had encouraged Child B to visit her father in the specific way that Jordan AJ said she should at [14] of his reasons (noting that the reasons were given orally, and hence were not available to the mother in written form at the time). However, in her oral evidence the mother said she constantly tells the girls that their father loves them and that he cares for them “as best he can” and that they would be safe at his home. She said that she again told Child B on the afternoon the orders were made that the father loved her. She also gave oral evidence that she reiterated this in the period leading up to 18 October 2015 and that she was herself supportive of the contact occurring. While I was prepared to accept the evidence the mother gave in her affidavit, I am not so convinced that her oral evidence was entirely accurate. The mother would have been angry and upset on the day the orders were made. I consider it likely she allowed the children to see this and I doubt she was in the mood to speak with the girls in the way Jordan AJ had recommended. Nevertheless, I accept that the mother made clear to the girls, Child B in particular, that her expectation was that they would visit the father in accordance with the terms of the orders.

59It might appear from the mother’s evidence that she did not explain to the children that on this visit (i.e. 9 October 2015) that they were not, in fact, required to stay for a full week but rather only for two nights. However, the affidavit of her husband at [10] indicates that they were aware the first visit would be a short one, and I accept his evidence.

60As the mother failed to deliver the girls on time, it cannot be denied that the order has been breached. The question is whether the mother had a reasonable excuse for her failure to ensure compliance with the order. That question falls to be considered in light of the father’s concession that the mother was not obliged to force the girls physically into her car to be taken to the father, and his concession that it would have been physically impossible for the mother to have done this with Child B.

61It is well established, in the words of Nygh J in Stevenson v Hughes (1993) FLC 92‑363 at 79,813, that:

There is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep …

62Furthermore, as Fogarty J said in the same case at 79,816:

It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.

63I am satisfied that the mother took all reasonable steps necessary to ensure that Child A attended at the appropriate time. I am satisfied that the only reason that Child A did not attend at the nominated time was because of the difficulties in arranging for Child B to go to the father. Child A was delivered a little late, but I consider the mother had a reasonable excuse, given what was happening in her home at the time. Similarly, given Child B’s state of distress I am not satisfied that the mother could have done anything else which would have ensured that Child B was presented to the father on time. I am therefore satisfied that the mother had a reasonable excuse for not having complied with the order.

64This count therefore will be dismissed.

18 October 2015

65The second count alleged that the mother failed to deliver the children to the father on 18 October 2015 at 5 pm, which was to be the first occasion when the girls were to spend a week with the father. In his affidavit in support (and in a supplementary affidavit) the father:

•acknowledged that Child A was delivered, but was 45 minutes late;

•asserted that Child B was in the car at the time Child A was delivered, but that the mother had not encouraged her to get out of the car;

•asserted that he spoke to Child B and asked her if she was staying but she said she did not have any clothes and that “she wanted to ease into the week about and did not want to come during the weekdays. She said that she might come on the weekend”;

•said he told Child B that “everyone agreed she should spend week about with me and Child B again stated that not everyone agreed and she told me that ‘her Mum did not agree’”;

•claimed that the mother did not persuade or attempt to persuade Child B to stay with him; and

•acknowledged that Child B was delivered to him on 25 October 2015 at 11.20 am and stayed until that evening.

66The mother’s evidence about 18 October 2015 was set out at [33] and following of her affidavit. I accept her evidence in which she asserted:

•Child B was extremely distressed about having to visit her father;

•amongst other things she said “If I go to Dad’s, he won’t let me come home. Even if I want to come home, he won’t let me. I don’t want the Police to come and I don’t want to get in trouble but I don’t want to go Mum”;

•she was able to encourage Child B to accompany her and Child A to the father’s residence. Upon their arrival Child A endeavoured to persuade Child B to come inside to see her father but Child B was not prepared to leave the vehicle; and

•Child A remained at the car for about five minutes but was anxious about being late to go in to see her father so the mother told Child A to go inside. The mother remained in the car with Child B speaking to her but Child B was not prepared to leave the vehicle.

67Although the mother gave evidence about speaking with Child B, she once again gave no indication in her affidavit that she attempted to encourage her in the way Jordan AJ had suggested. It is apparent, however, that she insisted that Child B at least accompany her to the father’s residence. It is noteworthy also that the orders required the mother to stay in her vehicle on arrival, so it was not even an option for her to go to the door of the car nearest where Child B was sitting and open it with a view to encouraging her to exit the vehicle. I am again not satisfied that there is anything that the mother could have done to ensure compliance with the order.

68In arriving at this conclusion, I consider that the evidence of Ms O corroborates the mother’s evidence about the state into which Child B had descended by this time, and the likely adverse impact on her mental health if somehow the mother had been able to force her to go into the father’s home. The Act expressly provides in s 70NAE(4) that:

(4)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).

69Given the concessions made by the father about the mother’s inability to force Child B to go on visits, and given the mother’s understandable concerns about Child B’s mental health, I am satisfied that she had reasonable excuse for contravening the order.

70This count will therefore also be dismissed.

The contravention application filed on 15 July 2016

71There were five complaints in this application, but three (complaints 2, 3 and 4) were summarily dismissed and therefore do not require discussion.

The vaccination contravention

72Complaint 1 alleged that the mother had failed, without reasonable excuse, to provide the father with full details in writing of the immunisation received by Child A, in breach of Order 5(a) of the October 2015 orders.

73Following the hearing, the mother attempted to comply with the order by contacting the Health Department to obtain evidence relating to immunisation of both girls. She was informed that records were not kept for children over the age of 13 years, but she obtained the records for Child B. By email dated 15 November 2015, the mother said to the father:

Please find attached vaccination certificate for [Child B]. The Department of Health do not hold one for children [Child A]’s age. I requested it some time ago from [Medical Centre A], however I have not received it. I will follow it up.

74The mother said, and I accept her evidence, that she twice telephoned Medical Centre A to obtain the records for Child A. She was told someone would “get back to her” but this never happened. She accepted that thereafter she had not followed the matter up. She explained that she had been busy at work and dealing with the court proceedings.

75The father did nothing about the mother’s failure to comply with the order until he filed the contravention application. In particular, he failed to remind the mother of her advice to him that she would follow up the enquiry with the Medical Centre.

76The mother protested in her defence that the father already knew about the children’s vaccination records because it had been her habit to inform the father about the vaccinations after they occurred. One example of this was produced in the form of an email sent on 23 July 2009. Nevertheless Order 5(a) stated that she was to provide such details to the father in writing following the making of the October 2015 orders. The mother did not explain in her evidence why she simply did not write to the father after the hearing telling him what vaccinations the children had received, but I realise from reading the transcript of the trial before Jordan AJ why the mother felt she needed to obtain some documentary evidence, and I accept that was a sensible thing for her to attempt to do, given the history and lack of trust between the parties.

77Although the mother made some efforts to comply, strictly she did not comply and I therefore conclude that the contravention is made out.

The school holiday contravention

78Complaint 5 concerned the mother’s failure to deliver the children to the father for the first week of the June/July 2016 school holidays. The father was entitled to this time pursuant to the October 2015 orders. However, as I understand the orders, no obligation was imposed on the mother to deliver the children to the father at the commencement of the school holidays. Unless otherwise agreed, the children were to live with father for the first half of the holidays and the order expressly provided that the holidays were to begin at the conclusion of school on the last day of term. The effect of Order 13 in my view is that the father was expected to collect the children from school rather than wait for them to be delivered by the mother. There was no evidence that the father had attended at the children’s school to collect them, but at no point in her defence of the father’s contravention applications did the mother take the point. The matter was therefore argued on an apparent acceptance that the mother was under an obligation to take the children to the father.

79The background to this complaint is that, in January 2016, the mother sought the father’s agreement to her taking the children to the north of the State in the June/July holidays on the basis that the father could have the girls for the April school holidays (albeit the mother said she was not sure that Child B would be willing to stay with him for such an extended period). There was a flurry of emails on the topic, but the father did not accept the mother’s proposal and she went ahead and booked the holiday.

80The father raised his concerns about the mother’s foreshadowed breach at a mention hearing before me on 30 June 2016. The father complained that the mother was proposing to take the girls to [Coastal Town C] for the whole of the July holidays in circumstances where the orders provided that he was entitled to have them for half of the time. The following exchange then ensued between me and the mother’s counsel:

Ms Hossen:Your Honour. I understand that he was offered the whole of April, so that she could have the July school holidays but he didn’t want to take it. So, even though it might say exactly half, people have to be flexible but I guess.

His Honour: Ideally they have to be flexible but if they are not prepared to be flexible then they have to comply with the Court order. I am not going to get into this because the matter is not properly before me but all I say is the order has not been suspended.

[Mr Gabrielli]: Sorry I didn’t hear that your Honour.

His Honour: The order has not been suspended. The appeal has gone. The contravention is on foot but the order remains in place. Now you will need to advise your client in relation to what her obligations are and [Mr Gabrielli] will need to consider what his options are in the event that he sees that the order has been breached, but I am not going to comment further but it is very important to comment that the order remains in place.

81Notwithstanding what I said in the presence of both the mother and her counsel, the mother went ahead with the planned holiday, and was away for all of the school holidays, returning only on the Friday evening of the last week. The mother allowed the father to see the children on the Saturday and Sunday of the final weekend of the holidays, but she arranged a dinner on the Saturday night which the girls elected to attend. The mother’s explanation for organising the dinner was that her husband worked away and was not often in Perth. Her answers in cross-examination indicated that she felt the girls were of an age that they should be able to choose what they wanted to do.

82I accept that by the time these holidays came around, the children were visiting their father as they wished, rather than spending time with him as required pursuant to the October 2015 orders. I also accept that both girls had gone to the father’s home at the start of the April holidays and he had not forced them to stay, even though he was entitled to have them for half the holidays. Nevertheless, the father had never formally acquiesced or consented to not having the children for half the June/July holidays. He was entitled, in my view, to expect that the children would spend the first week of the holidays with him – or at the very least for such time as they might have chosen to spend with him if they were in Perth at the time. The mother’s decision to go ahead with a holiday took the children away from Perth and therefore removed any opportunity for either of them to spend time with the father.

83I am not satisfied that the mother had a reasonable excuse for making the arrangements she did and this contravention is therefore made out.

The contravention application filed on 3 October 2016

84Although this contravention was filed on 3 October 2016, it was not served until the Friday prior to the trial, which commenced on the Monday. The mother did not want a further adjournment and elected to defend the application on short notice.

85This complaint concerned the mother’s failure to allow the father time with the children during the first week of the September 2016 school holidays.

86Under the terms of the October 2015 orders, the father’s time with the children was meant to begin on Friday 23 September 2016 at the end of the last day of school, albeit the mother gave evidence indicating that she understood (wrongly) that “the first weekend belongs to the last week of school”. By this time the children were choosing when, and for how long, they would spend with the father. They did not go to him on the Friday at the end of term.

87On Monday, 26 September 2016, the mother moved to her parents’ home in [Suburb M] while renovations were being undertaken to her home in Perth. The mother failed to advise me in her evidence-in-chief that when the girls went down to Suburb M on 26 September, they took two friends with them with the mother’s permission. I accept the mother’s evidence that she came up to Perth a number of times during the first week of the holidays and that she offered the girls the opportunity to visit their father but they chose not to do so – which was unsurprising given that they had friends with them in Suburb M.

88It emerged during the trial that Child A had, in fact, asked her father to collect her at the start of the holidays but he refused, insisting it was the mother’s obligation to undertake the transport. I accept the mother’s evidence that Child A, in fact, asked the father twice to collect her from a sleepover on the last day of school, but the father would not agree. Child A went straight from school to the friend’s home and as the father would not collect her after the sleepover, the mother had to do so on the following day at 7 am. This arrangement was neither palatable to the mother nor to Child A, but the mother had various errands to attend to on that morning, before having to take Child A to her place of employment later in the morning.

89Given that the father was offered the opportunity to collect Child A for the start of the holidays but refused to do so, I am not satisfied that the contravention is made out in so far as it relates to Child A. Had the father collected her as she had wanted him to, it would then have been a matter for the father and Child A to sort out whether she was to stay with him for the balance of the holidays.

90Different considerations apply in the case of Child B, albeit this holiday was different to the Coastal Town C holiday as it was feasible for both the children to visit the father even though the mother had moved temporarily to Suburb M. This was because there was a bus stop outside the home in which they were living and the children had bus passes as well as having been offered the opportunity by the mother to be driven to Perth to visit the father.

91The fact that it was feasible for the girls to visit their father by using public transport was demonstrated in the second week of the holidays when they did just that. Notwithstanding that this was the week the children were meant to be with the mother, they both elected to spend time with the father. Child B visited him on three separate days (4, 5 and 6 October 2016) but went home each night. Child A stayed with him on those three days, including overnight on 4 and 5 October 2016. The arrangements concerning Child B caused the mother some inconvenience since, in order to accommodate Child B’s desire to visit her father, but not to remain there overnight, the mother had to return to her home in Perth that was under renovation, where she stayed, as she put it, “crammed in a room” so as to be able to take Child B back to the father the following morning.

92The fact that Child B spent time with the father in the second week of the holidays does not derogate from the fact that she spent no time with him at all in the first week. While the mother made some effort to ensure that Child B visited her father in the first week of the holidays, the evidence failed to satisfy me that she made all reasonable endeavours to maximise Child B’s time with the father in that week. In particular, her concurrence with the desire of the girls to take friends with them to Suburb M increased the prospect that Child B would not see her father at all during that first week.

93I therefore consider the contravention, in so far as it relates to Child B, is made out.

Penalty for breaching the October 2015 orders

94I took submissions at trial relating to penalties in the event that I found any of the contravention claims to have been established. After reserving my judgment, I sought further written submissions. The mother’s submissions were received on 30 November 2016, but the father’s submissions were not provided until 5 January 2017. Although the father’s submissions were filed outside the time provided, I have taken them into account.

95Although the father claims there have been previous breaches of orders (and that there were more breaches of the October 2015 orders than those discussed in these reasons), the mother has never been formally found to have contravened court orders. I am therefore obliged to deal with the breaches pursuant to Subdivision E of Division 13A of Part VII of the Act unless I am satisfied that the mother behaved in a way that showed a “serious disregard for … her obligations” pursuant to the October 2015 orders, in which case I would be obliged to treat the breach as a “more serious contravention” pursuant to the provisions of Subdivision F (see s 70NEA(4)).

96In determining whether to treat a breach as a “more serious contravention” it is instructive to consider the terms of the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill (2005) (Cth) which said:

What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the removal of a child to another place despite orders of the court or harassment despite repeated warnings and the terms of the parenting order. In such cases, the court will deal with the matter under Subdivision F, which requires the court to consider imposing more serious penalties ranging from community service orders to fines and imprisonment.

97The meaning of the expression “serious disregard for obligations” was discussed in Elspeth v Peter (2007) 212 FLR 214 where it was said by the Full Court at [66] that “the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order”.

98I have found that there were three breaches of the October 2015 orders.

99The first breach relates to the vaccination issue, which could not be seen as a “more serious contravention” given the mother’s efforts to comply with the order.

100The second breach related to the July 2016 holidays when the mother took the children to the north of the State, notwithstanding what I had said in open court about the orders remaining in place. Were it not for the fact that the matter had been aired in court, in the unusual circumstances of this case I would not have considered the contravention to be a serious one warranting treatment under Subdivision F, especially in light of the proposal for additional time to be spent with the children in another holiday period. In my view, however, the matter took on a different complexion when the mother decided to continue with the holiday plans in the face of what I had said in her presence in court. She did not make an application to vary the October 2015 orders, and her actions ensured that the father did not see the girls other than for the last two days of the holiday. I regard her conduct as showing a serious disregard for her obligations under the orders.

101The third breach related to the September 2016 school holidays when the mother went to Suburb M for part of the holidays. Given all of the circumstances, especially the fact that the girls visited the father during the second week of the holidays, I am not prepared to regard that breach as falling within the category of “more serious”.

102There are a variety of penalties available under the two relevant subdivisions of the Act. One penalty common to both is to require the mother to enter into a bond (see ss 70NEC and 70NFE). Conditions that may be imposed pursuant to a bond include requiring a person to attend on an appointment(s) with a family consultant, to attend family counselling, to attend family dispute resolution or “to be of good behaviour”. However, the provisions of the Act make clear that other conditions can be imposed.

103The father proposes that the mother be required to enter into a bond to ensure the mother’s compliance with the orders. The mother submits that the appropriate penalty is that she allows the father makeup time in the April 2017 holidays in accordance with the girls’ wishes. Given the proviso that the compensatory time be in accordance with the children’s wishes, I consider this would be no penalty at all.

104In dealing with the less serious contraventions (the vaccination issue and the September 2016 holidays), and bearing in mind what I will later say about the penalty for the more serious contravention (the July 2016 holidays) I do not intend to impose any penalty other than to reprimand the mother for her breaches.

105In dealing with the more serious contravention, I consider that the appropriate penalty is the one proposed by the father – namely that the mother should be required to enter into a bond to comply with the orders that I propose to make regulating the time the children are to spend with the father until 1 August 2017, at which point it is agreed the children should spend time with him only in accordance with their wishes.

106Dealing therefore with the requirements of the Act, I intend that:

•the period of the bond be until 1 August 2017;

•that the bond be without surety;

•that the bond be without security; and

•the amount of the bond be $1,500.

107In imposing this penalty my focus has been on ensuring future compliance with the orders and noting that after 1 August 2017 compliance will be dependent upon the children’s wishes.

108By way of simple explanation to the mother, as required by the Act, my intention in imposing the bond is to ensure her compliance with the orders that I will make when varying the parenting orders. I am not persuaded that there is any necessity for surety or security as I am satisfied that means will be found to require the mother to make the $1,500 payment in the event she fails to comply with the bond. The amount of $1,500 takes account of the limited information I have about the mother’s financial position; is not a trivial sum but is not unduly punitive, bearing in mind that this is the first time the mother has been found to have contravened an order.

109In accordance with my obligation under s 70NFE(5) the Act, I will, prior to making my orders, explain to the mother that if she fails to act in accordance with the bond without reasonable excuse, the court could:

•impose a fine not exceeding 10 penalty units (s 70NFF(3)(a)); and

•revoke the bond and deal with her in relation to the contravention application in respect of which the bond was entered into in any manner in which she could have been dealt with for the contravention (s 70NFF(3)(b)).

110In arriving at my decision concerning penalty, my focus has been on the individual involved and I have recognised that it is not open to me to take into account the deterrence factor that might be associated in imposing a penalty on the mother. In arriving at my decision, I have recognised that other penalties, both more and less serious, are available but I consider the sentence I have imposed to be the most appropriate, given its connection to compliance with the ongoing orders.

Variation of parenting orders

111By the time the hearing concluded before me, the parties were in agreement that the October 2015 orders should be varied. They were unable to agree the terms on which the orders should be varied, but both accepted that the girls should predominately live with the mother and spend time with the father (which in the case of Child B would not include overnight time unless she agreed). It was also common ground that the orders should extend through to 1 August 2017 and that thereafter both girls should spend time with their parents in accordance with their wishes.

112During the final part of the trial, I discussed with the parties various options that seemed to be available. I pointed out that there could be a defined visiting regime of the sort proposed by the father or a fully flexible arrangement as sought by the mother – or alternatively there could be an order which, without specifying times, nevertheless provided a “guaranteed” amount of time that the children would be required to spend with the father. I gave the parties time to consider these possibilities and to exchange any proposals they might have, as there appeared to be a measure of agreement that a course between the two extreme alternatives would be the preferable one. Following that opportunity, the mother produced a further Minute of Proposed Orders, to which the father had various objections.

113I have set out below a suite of orders which I consider appropriate. They will provide the degree of flexibility that the girls clearly want, but will also ensure that there is a guaranteed minimum amount of time they will spend with the father. In view of the way in which both parties left it to me to craft these orders, I do not consider it necessary to provide further reasons for my decision by reference to the various provisions of s 60CC of the Act. The overriding reason is that I consider these orders will best promote the best interests of the children.

114In particular I do not propose to give the parents the satisfaction (or dissatisfaction) of attempting to pronounce on which of them I think is the more culpable for the years of turmoil that their children have experienced as they have waged war over them. The girls in due course will pronounce their own judgment as they look back on their never to be regained childhood. Child A has already developed a rational narrative of her life thus far in the mature and measured observations she made when speaking to the family consultant. My only task is to look to the future and consider what orders are least likely to cause further problems, while hopefully giving the girls the opportunity to maintain the meaningful relationship with their parents for which I consider they yearn. In crafting the orders, I have particularly had in mind the minimisation of the prospect of further proceedings, which could only be damaging to the children and to the parents themselves.

115The mother proposed a variation of the October 2015 orders so as to provide that she would hold the children’s passports. No evidence was given or submissions made to indicate that anything has occurred since the making of those orders to warrant that issue being re‑visited. The parties did agree, however, that it was no longer necessary to seek the consent of the other parent in order to travel overseas. I therefore propose to vary that requirement, which was contained in paragraph 17 of the orders.

Orders

1.Paragraph 4 of the orders made on 9 October 2015 be discharged.

2.Paragraph 17 of the orders made on 9 October 2015 be varied by deleting the words “, with the written consent of the other party,”.

3.The children [CHILD A] born [in] 2001 and [CHILD B] born [in] 2003 shall live with the mother.

4.[Child A] shall spend time with the father during school terms as follows:

(a)on two afternoons each fortnight from after school until 7 pm;

(b)on one Friday each fortnight from after school until 9 pm;

(c)on one overnight period on a Friday or Saturday each fortnight which may incorporate the time referred to in Order 4(b), with the visit to commence not later than 7 pm and conclude at 7 pm on the following day; and

(d)such additional times as [Child A] may nominate.

5.[Child B] shall spend time with the father during school terms as follows:

(a)on two afternoons each fortnight from after school until 7 pm;

(b)on one Friday each fortnight from after school until 9 pm;

(c)on one weekend day each fortnight commencing at 9.30 am and concluding at 7 pm; and

(d)such additional times as [Child B] may nominate.

6.[Child A] shall spend time with the father during school holidays as follows:

(a)for four consecutive days and nights; and

(b)for such additional times as [Child A] nominates.

7.[Child B] shall spend time with the father during school holidays as follows:

(a)for four days from 9.30 am to 7 pm; and

(b)for such additional times as [Child B] nominates.

8.[Child A] shall be at liberty to nominate the days and nights she will spend with the father pursuant to these orders but in the event she fails to do so the mother shall nominate the days and nights and shall give the father not less than 48 hours’ notice prior to each visit.

9.[Child B] shall be at liberty to nominate the days she will spend with the father pursuant to these orders but in the event she fails to do so the mother shall nominate the days and shall give the father not less than 48 hours’ notice prior to each visit.

10.[Child A] and [Child B] shall, in addition, spend time with the father as follows:

(a)at Christmas in 2017 and each alternate year thereafter from 9.30 am to 3.30 pm;

(b)at Christmas in 2018 and each alternate year thereafter from 3.30 pm to 9.30 pm;

(c)on Father’s Day from 9.30 am to 7.30 pm;

(d)on the father’s birthday from after school to 9.30 pm if a school day and from 9.30 am to 9.30 pm if not a school day; and

(e)on each of the girls’ birthdays from after school to 5.30 pm if a school day and if not a school day from 11 am to 3.30 pm.

11.On those occasions the visit is to commence after school, the father shall collect the girls from school and the mother shall collect the children from the father’s home at the conclusion of the visit.

12.On those occasions the visit does not commence after school, the mother shall take the children to the father’s residence and the father shall return the children to the mother’s residence at the conclusion of the visit.

13.The times the children are to spend with the father (save for those times expressed in Order 10) shall be subject to their wishes after 1 August 2017.

14.By way of penalty for the breach of the orders made 9 October 2015, prior to leaving the precincts of the Court the mother enter into a bond to comply with these orders. The conditions are as follows:

(a)the period of the bond be until 1 August 2017;

(b)that the bond be without surety;

(c)that the bond be without security; and

(d)the amount of the bond be $1,500.

I certify that the preceding [115] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
5 April 2017