GEIGER & GEIGER
[2013] FamCA 149
FAMILY COURT OF AUSTRALIA
| GEIGER & GEIGER | [2013] FamCA 149 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – Where there was equal shared parental responsibility – Where the mother unilaterally made a decision regarding the child’s education – Where the mother refused time to be spent with the father without reasonable excuse – Onus of proof – Standard of proof FAMILY LAW – SANCTIONS – Where this is the second occasion the mother has been found to have contravened without reasonable excuse – Where the contraventions are to be dealt with as more serious under subdivision F of Division 13A of Part VII of the Family Law Act 1975 – Order under s 65L that the mother be supervised, counselled and assisted by a family consultant in her compliance with orders – Order that the mother enter into a bond to be of good behaviour for a period of two years – Order that the father have compensatory time with the child |
| Family Law Act 1975 (Cth) ss 11E, 70NAC, 70NAE, 70NAF, 70NFA, 70NFB, 70NFE |
| Jets & Maker [2010] Fam CAFC 55 Jones v Dunkel (1959) 101 CLR 298 |
| APPLICANT: | Mr Geiger |
| RESPONDENT: | Ms Geiger |
| FILE NUMBER: | BRC | 14238 | of | 2007 |
| DATE DELIVERED: | 8 March 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 9 October 2012 and 8 March 2013 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Geiger in Person |
| FOR THE RESPONDENT: | Ms Geiger in Person |
Orders
Pursuant to s 65L of the Family Law Act 1975 a family consultant appointed by Mr HH, Regional Coordinator, Child Dispute Services, Brisbane Registry, Family Court of Australia, shall, as far as practicable, supervise the mother Ms Geiger’s compliance with orders of this Court requiring the children to spend time and communicate with the father, and to give the mother such assistance as is reasonably requested by her in relation to compliance with and the carrying out of those orders.
The respondent mother Ms Geiger enter into a bond to be of good behaviour for two years from today’s date subject to these further conditions:
(a)to comply fully with all orders made for the children J born … December 2001 and A born … March 2004 to spend time with and communicate with the father, save as otherwise agreed with the father, and
(b)to attend appointments with a family consultant as and when directed by Mr HH, Regional Coordinator, Child Dispute Services, Brisbane Registry, Family Court of Australia, for counselling, supervision and assistance in compliance with the Court’s orders.
The Order made by Justice Forrest on 9 October 2012 suspending all existing parenting orders is discharged.
IT IS ORDERED UNTIL FURTHER ORDER THAT
The children shall also spend time with the father, as may be agreed between the mother and the father, but in default of agreement, every alternate weekend during school term, commencing 16 March 2013 from 9.00 am on the Saturday until 5.00 pm on the Sunday.
All transitions of the children between the care of the parents pursuant to the orders of the Court shall take place in the car park at the McDonald’s Family Restaurant Suburb W, unless otherwise previously agreed by the parties in writing.
IT IS FURTHER ORDERED THAT
Any further contravention applications filed by the father or the mother in these proceedings, until the substantive proceedings are finalised, shall be listed before his Honour Justice Forrest.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Geiger and Geiger has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: BRC 14238 of 2007
| Mr Geiger |
Applicant
And
| Ms Geiger |
Respondent
REASONS FOR JUDGMENT
On 12 and 13 September 2011, I heard the father’s contravention application against the mother. The father had alleged the mother had contravened primary parenting orders of O’Reilly J of this Court made 10 September 2010 after an eight day trial.
On 1 November 2011, I found the respondent mother to have contravened her Honour’s orders without reasonable excuse as particularised and alleged by the father in respect of three of the five alleged contraventions.
I determined to treat the mother’s contraventions pursuant to the provisions of Sub-division E of Division 13A of Part VII of the Family Law Act 1975. I ordered the mother to attend and complete a parenting orders program conducted by a s 65LB provider of such programs within six months of the date of my orders (by 1 May 2012). I also ordered that the parties’ youngest child spend additional weekends with the father to compensate her and the father for the time that they missed spending together.
I made it clear in my reasons for judgment and disposition of that case that a consequence of my findings was that any future contraventions the mother committed without reasonable excuse would have to be dealt with pursuant to the provisions of Sub-division F of Division 13A – namely that part that deals with more serious contravention.
On 4 May 2012, after the mother and the father had been having further difficulties in respect of their co-parenting of their two children, the mother filed another Initiating Application seeking significant changes to O’Reilly J’s orders – most relevantly, that their daughter only spend time with the father supervised at a contact centre on a monthly basis. She sought interim orders that the existing orders be suspended and that the father spend no time with the children.
On 19 June 2012, before the first return date of the mother’s substantive application, the father filed another Contravention application. In it, he alleged the mother had again contravened O’Reilly J’s primary parenting orders by again changing their son’s school in March 2012 without the consent of the father without reasonable excuse. He also alleged that the mother had contravened the orders I had made on 1 November 2011 by not enrolling in, attending and completing a post-separation parenting orders program by 1 May 2012 and providing evidence in writing of the completion of such a program to him within that same period.
The mother’s substantive application came before a registrar of this Court on 25 July 2012. It was listed before me on 8 October 2012. The father’s contravention application came before a registrar on 27 July 2012. It was listed before me on 9 October 2012.
On 19 September 2012, the father filed an amended response to the mother’s initiating application. In it he sought final orders for their daughter to live with him, for him to have “full parental responsibility” and for the child to have no contact with her mother for at least six months after coming into his care before commencing supervised time with her. He sought no interim orders.
On 25 September 2012, the father filed another contravention application against the mother. In it, he alleged the mother had contravened O’Reilly J’s primary parenting orders by preventing their daughter from spending time with him in the Easter, June/July and September/October school holiday periods of 2012 without reasonable excuse. He also alleged that the mother contravened O’Reilly J’s orders by not keeping him advised as to her address when she had changed her address. That contravention application was also listed before me on 9 October 2012. At some point prior to 8 October 2012, the mother’s substantive application for interim orders was also administratively moved from my 8 October duty list to be heard in conjunction with the contravention applications on 9 October.
The Contravention applications
Count 1 of the application filed 19 June 2012 alleged the mother contravened the parental responsibility orders contained within Orders 1-3 of O’Reilly J’s orders of 10 September 2010.
Those orders were:
Parental responsibility
1.Subject to the specific orders below concerning the children’s education (orders 13-17) and health, therapy or counselling (orders 18-20) the parties have equal shared parental responsibility for [J] born … December 2001 and [A] born … March 2004 (the children) for decisions in relation to the major long-term issues concerning them including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for the children to spend time with the parties or either of them.
2.In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
3.In relation to such consultations:
a)the parent wishing to make a proposal as to a major long-term issue make it in writing to the other parent setting out the advantages of the proposal perceived by that parent and reasoning supporting it
b)the other parent respond in writing to the proposal by either agreeing with it or making a different proposal setting out the advantages of any different proposal and reasoning supporting it
c)if after such consultation a joint decision is not able to be made the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve the issue.
The particulars of the alleged contravention provided by the father were that the mother had enrolled their son at a new school and commenced his attendance at a new school in March 2012 without the father’s agreement and without “properly discussing” it with him as required by equal shared parental responsibility.
The mother admitted that she had contravened the orders but asserted that she had reasonable excuse for so doing.
Count 2 of that same application alleged the mother contravened paragraphs 1- 3 of my orders of 1 November 2011. Those orders were:
1.Pursuant to the provisions of s 70NEB(1)(a)(ii) the mother shall attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs.
2.The mother shall be personally responsible to access details of such programs through a Family Relationship Centre in her residential proximity and for making contact with such a provider of such programs, enrolling in, attending and completing such a program.
3.The mother shall complete such a post-separation parenting orders program within six (6) months of the date of these orders and provide evidence in writing of the completion of such a program to the father.
The particulars alleged by the father were simply that the mother failed to complete such a program and to provide evidence to the father within the required time.
The mother conceded that she had contravened my orders but asserted that she had reasonable excuse for doing so.
Count 1 of the contravention application filed 25 September 2012 alleged that the mother contravened order 5(a) of O’Reilly J’s orders of 10 September 2010. That paragraph of the orders reads:
5. The children spend time with the father as may be agreed between the mother and the father but at least:
a)for the whole of the March/April, June/July and September/October school holiday periods commencing at 12 noon on the first Saturday and concluding at 12 noon on the last Saturday of each such period.
The particulars given by the father are that the mother cancelled the child A’s time with him for the Easter (March/April) holidays the June/July holidays and the September/October holidays of 2012.
The mother conceded that she had contravened the orders but asserted that she had reasonable excuse for so doing.
Count 2 of that same application alleged that the mother contravened order 22 of O’Reilly J’s orders of 10 September 2010. That paragraph reads:
22.The parties must notify and keep each other informed of his and her residential address, email address, text message service number, landline and mobile telephone numbers.
The particulars given by the father include the assertion of a belief that the mother had moved again and had not given him her residential address, saying her address is to remain private.
The mother denied that she had moved and asserted her address was the same as she had given the father at Court, when directed by me to provide it to him during the hearing of the previous contravention applications in September 2011.
The applicable statutory provisions
Section 70NAC of the Act provides as follows:
Meaning of “contravened” an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order – he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise – he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
In my reasons for judgment in the last contravention proceedings between this couple I pointed out that the onus of proof rests on the applicant to prove contravention. I said that the standard of proof is on the balance of probabilities having regard to the gravity of the allegation and the contravention must be shown to be intentional though not requiring proof of contumacious behaviour. See s 70NAF of the Act and also Jets & Maker [2010] Fam CAFC 55 per O’Ryan J at paragraph 83. However, where the mother admits that she has contravened an order but asserts that she had reasonable excuse for so doing, clearly, it is incumbent upon her to establish as an objective fact to the requisite standard (balance of probabilities) that the facts upon which she asserted the excuse on each particular occasion could be established and that, if established, they provided a “reasonable excuse” pursuant to the terms of s 70NAE.[1]
[1]Sutcliffe & Sutcliffe(1989) FLC 92-004; Gesch & Baronio [2009] FamCAFC 136
Section 70NAE of the Act provides, in certain circumstances, reasonable excuse for contravening an order. Specifically, it provides as follows:
Meaning of “reasonable excuse for contravening” an order
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(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).
(5)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 spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was 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 and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6)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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was 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 and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The evidence and my findings
Count 1 – First application
The mother asserted reasonable excuse for contravening the parental responsibility orders in respect of the decision to put the boy into his new school. She said he was going to be expelled from his school for behavioural reasons if he was not moved. She said she was communicating with the father about the new school he was to go to and when there was no agreement she just went ahead and made the decision to put the boy into the new school.
The evidence satisfies me that the mother and father were communicating about the potential change to the boy’s schooling. In fact, the father accepted that he was made aware by the Principal of the school the boy was at that if he was not removed by the parents from the school that he would be expelled. Nevertheless, the father said he was still communicating with the mother and the proposed new school and that no joint decision had been reached. The evidence satisfies me that the father had made it clear that he had not yet reached the point where he was in agreement about sending the boy to the particular school the mother had chosen and was still researching and considering the position. Indeed, the mother agreed, under cross-examination that the father had offered for the two of them to have family dispute mediation to try to work through the issue. She gave no reason for not having agreed to participate in that and said she simply “acted on legal advice” that she was allowed to make the decision unilaterally. Further, she did not even give the father notice that she was going to act unilaterally or that she had. He actually found out from the schools that the boy had been pulled out of the first one and had started attending the second one.
The mother effectively asserted that it was imperative in the circumstances, given the boy was under suspension from the first school at the time, that he be put into a new school as soon as possible. That is, as I understand her position, the basis for her submission that she had a reasonable excuse for contravening the equal shared parental responsibility orders requiring the decision making to be joint.
Firstly, I was not convinced that the boy was under suspension at the time. The mother simply said he was and produced nothing from the first school to support that assertion. The father put into evidence a copy of an email from the Principal of that first school that told him the day the boy was “taken off [that school’s] books”. There was nothing about the boy being under a suspension and the father did not agree that he was. Secondly, the mother had previously home schooled the boy in 2011 in circumstances where he had been suspended from a previous school and there was no evidence given that on this occasion that could not occur until a joint decision had been reached between the parents or a Court order obtained. Thirdly, the evidence establishes that even upon enrolment at the new school, the boy was only attending two to three hours per day by arrangement.
There is nothing in the evidence that causes me to consider that the father was acting unreasonably in the process prior to the unilateral decision being made. In fact, it suggests he was acting responsibly and with regard to appropriate considerations. I do not consider his position and the boy’s immediate circumstances at the time as one that reasonably justified the mother’s unilateral actions. Her lack of good intent in so far as the father’s position is concerned is demonstrated, in my view, by her failure to keep the father informed as to decisions she was unilaterally making.
I am not persuaded that the mother had “reasonable excuse” for contravening the parental responsibility orders in these circumstances and find the contravention allegation proven.
Count 2 – First application
The mother asserted that she had reasonable excuse for not completing the post-separation parenting orders program within six months of my 1 November 2011 orders because she could not get into a course in that time. She said that the course she enquired about at Relationships Australia had a 9 month waiting list. She said that the course she enquired about at Foundations Care had a waiting list as well. She said that she had got onto a course at Foundations Care and had attended a number of sessions at the time of the hearing in October 2012. She tendered into evidence a letter from Foundations Care confirming that she was attending a suitable program, had attended an intake interview at 31 July 2012 (after the first hearing before the registrar of the father’s contravention application) and four sessions with two more to complete. That letter does not say when the mother first enrolled or made inquiry and says nothing about waiting lists or delays. She also put nothing into evidence from Relationships Australia supporting her evidence about the nine month delay.
On the other hand, the father put into evidence copies of email requests for information he had sent to the mother about her compliance with these orders earlier in the year, during the period within which she was to comply. I accept that the mother just ignored those requests. She did not simply tell the father that she had tried to get into a program but faced waiting lists and still intended doing one. When asked about that, she could give no explanation as to why she did not respond and provide him with some information as requested by him. She just agreed, with hindsight, that it probably would have been a good idea to have done so at the time.
In the circumstances, particularly given the fact that the mother went to the trouble of getting a letter of attendance from Foundations Care, suggesting that she might very well have produced evidence from that organisation and Relationships Australia supporting her case that she could not get into an earlier course, and having regard to the fact that I was generally not impressed with the mother’s credibility overall, I am not satisfied that the mother had a reasonable excuse for not complying with my order. Furthermore, had she been aware within the time prescribed by my earlier orders that she could not, through no fault of her own, comply with my orders, she could easily have included an application for an order extending the time within which she was to comply with the orders in her initiating application filed in May 2012, before the father filed his contravention application. She sought no such orders.
On the balance of probabilities, the mother has failed to persuade me that she had a reasonable excuse for contravening the orders. Accordingly, I found that alleged contravention proven.
Count 1 – Second application
The evidence before me that is relevant to this alleged contravention satisfies me that the father put a proposal to the mother by email in the lead up to the 2012 Easter school holidays when, pursuant to the existing orders and understanding between the parties, their daughter, the child A, was to spend time with him during the holidays. His proposal was to swap the holiday time with the child for alternate weekend time in the following school term commencing on the weekend of Friday 4 May, to be returned to the mother on the Sunday evenings.
The mother wrote back to the father by email a few days later and said to him
“im agreeable to [the child A] not spending holiday time with you..”
She went on to talk about an injury the child had recently received and the treatment that she was receiving. She said nothing at all about his proposal to swap that holiday time for alternate weekends. She said nothing about any concerns she had for the child’s wellbeing in his care or an injury she had allegedly suffered at his hands in the previous Christmas holidays when in his care.
The father sent the mother another email on 16 April 2012, after the school holidays had finished. He said to her, amongst other things:
As per the email below, where you have allowed me to not have [the child A] for the Easter period but instead to have this time fortnightly from 4th May through to the next contact time at the end of June 2012. I’d like to request this arrangement be made permanent during the year from this date, with the exception of Christmas where it can still be a 2 week block either side of Christmas in respective years per the orders.
There is no evidence of any response having been received from the mother. It appears that she has not taken any steps to disabuse the father of the misunderstanding of her position that he clearly had. I have absolutely no doubt that her position did not include intent to let the child spend alternate weekends with him from 4 May. I have absolutely no doubt that her position did not include intent to let the child spend the June/July holidays with the father either.
The father sent the mother another email on 24 April 2012. He asked her, in that, for confirmation of the arrangements for picking up their daughter on Friday 4 May. There is no evidence that he received any response. What he got was the mother’s initiating application filed on Friday 4 May seeking the orders suspending the orders that provided for the child to spend time with him during the school holidays.
The mother did not wait until that application was heard. Again, she acted unilaterally. She did not let the child go to him for those alternate weekends that he, perhaps naively given the history of the matter, had thought the mother had agreed to. More importantly, she did not let the child go to him for the June/July school holidays for which the orders provided.
The mother asserted that she had reasonable excuse. This time she asserted that she had reasonable excuse as provided for in s 70NAE (5). She asserted that she believed, on reasonable grounds, that not sending the child to the father for time with him as ordered was necessary to protect the health or safety of the child.
The mother deposed in her affidavit filed 4 May 2012 to the child returning from holiday time with her father and his family on 26 December (just over four months prior) complaining of a sore neck and head ache. The mother said at that time she “didn’t understand as to why it was sore”. She said that the next day (27 December 2011) the child was still complaining of a sore neck. The mother said that she looked “more closely into it and saw she has broken blood vessels on her lower neck.” She said that when she asked the child what had happened to her neck that child had told her a story that culminated in her wanting to move away from the presence of her step-brother and father and step-mother, standing up and walking away fast to her room and her father grabbing her on the neck and pulling her back fast into his body. The mother said the child’s neck was “sprained” as a consequence.
In her affidavit evidence, the mother said that the child was taken to the doctor on 27 December 2011, 5 January and 15 January 2012 due to the same injury to her neck. The mother then refers to a document she has annexed to her affidavit as support for that evidence. She gives absolutely no evidence about ever raising the allegation with the father. I am satisfied that she never did. Relevantly, in that regard, the father in his affidavit material denies that he grabbed the child by the neck as alleged.
Significantly, the doctor’s notes which the mother exhibited to her affidavit, from Dr KK of Medical Clinic BB, refer only to attendances upon the child A on 5 January and 16 January 2012. There is no mention of an attendance upon the child A on 27 December 2011, the day the mother said that broken blood vessels on the lower neck were visible, even to the mother’s untrained medical eye and the day the mother said she took the child to the doctor. There was no explanation from the mother for the absence of any evidence from a doctor to whom she took the child, if she actually took this action, on 27 December 2011. If the mother saw what she considered to be broken blood vessels, one might have expected a doctor who saw the child on the same day to also have seen them.
The doctor’s notes of the attendance on 5 January 2012 relevantly record that he has been told that the child has been subjected to some domestic violence while with her father. It does not record whether the child told him that or the mother. It records:
grasp from the back with clothes and sprain neck before Christmas
examination normal no bruise mark no neurological symptom and full range of movement on the neck
Clearly, the doctor’s notes of his attendance on the child of that day are entirely consistent with that being his first attendance on the child.
The doctor’s note of his January 16 attendance on the child records:
neck pain still complained about that
no tender spot
keep complaining every day
suggest to put on the voltaren gel
The mother failed to persuade me that she took the child to the doctor on 27 December 2011. If she had, I am satisfied that she would have put something into evidence from the doctor corroborating that. I do not accept that she did. Similarly, I do not accept that she saw broken blood vessels on the child’s neck on 27 December 2011. If she had, I am sure she would have taken her to a doctor and that the doctor would have also seen broken blood vessels if they existed and the mother would have put some evidence to that effect before the Court. Furthermore, the mother tendered into evidence in the previous contravention hearing photographs of her son that she believed showed physical signs of injury at the hands of the father. I expect she would have photographed her daughter on 27 December 2011 if she believed she could see broken blood vessels on her neck. In any event, if the mother did take the child to a doctor on 27 December 2011, application of the principle in the High Court’s decision in Jones v Dunkel[2] permits the Court to infer, in the absence of the mother adducing evidence from that doctor, that the evidence would not have assisted the mother.
[2] (1959) 101 CLR 298
Ultimately, the mother failed to persuade me that the risk to the child’s health and safety in the father’s care was such that it was reasonable for the mother to unilaterally stop the time that she was to spend with him pursuant to the primary orders of O’Reilly J. Clearly, the father waived the right to have her spend the Easter holidays with him but he did not waive the right to have her spend the June-July holidays with him. In any event, the mother accepted that she had contravened the orders. As the mother has not persuaded me that she had a reasonable excuse for the contravention, I find the alleged contravention proven.
Count 2 – Second application
As to the last alleged contravention, the mother asserted that she has not moved from the address last provided to the father which is, she said, 52 CC Street, Suburb DD. The father asserted that the address the mother last gave him as her current address was different to that. He said the mother had disclosed she was living at 42 CC Street, Suburb DD.
Significantly, the parties agreed the occasion on which the mother last gave the father her residential address was at this Court during the previous hearing of the father’s earlier contravention application. On 1 November 2011, I directed her to tell him her address as required by O’Reilly J’s orders.
I have now gone back and listened to the recorded transcript of that hearing and found the point at which the mother gave the father her address in open court. It is absolutely clear that she said that she lived at 52 CC Street, Suburb DD. The father’s belief that the mother said 42 CC Street, Suburb DD is clearly wrong.
Accordingly, not being satisfied that the mother has moved from that address since she disclosed it, the father has failed to prove that the mother has contravened that part of O’Reilly J’s primary orders at any time since 1 November 2011.
The mother’s application for interim orders filed 4 May 2012
At the conclusion of the contravention hearing, the father referred to a document that he had tendered into evidence (exhibit 1). That document is a letter to the Court written by him in which he asserts that he cannot continue in proceedings in this Court in respect of the two children he shares with the respondent mother. He asked the Court to make a “No Contact” order for the sake of the children being protected from the ongoing conflict.
Although I was troubled by such a position being taken by the father, he continued to assert to the Court that it was his position and that he would consent to the making of an order that suspended all of the existing orders providing for his children to spend time with him. I indicated that I would reserve my decision on the contravention applications and made an order that all existing orders that provided for the children to spend time with him be suspended until further order.
Having determined that the mother had no reasonable excuse for contravening primary parenting orders of O’Reilly J and for contravening previous orders made by me as alleged by the applicant father in three out of the four counts that he brought against her, I consider I should now hear submissions from both parties as to:
(i)How the mother should now be dealt with for the contraventions that have been proven;
(ii)Whether there should be any changes to the primary orders, and, if so, what;
(iii) The further disposition of the substantive proceedings.
Ex Tempore
Reasons for Judgment
Penalty
Having this morning delivered my reasons for judgment in the contravention proceedings between these two parents and having advised the parents that I have determined that the mother contravened without reasonable excuse primary orders of Justice O’Reilly made in September 2010 as alleged by the father on two counts and having found that the mother contravened without reasonable excuse orders made by me on 1 November 2011 as a consequence of previous contraventions of Justice O’Reilly’s primary orders, I now have to determine how I am to deal with the mother.
I have given both parties the opportunity to make submissions, having indicated on a preliminary basis how I consider I should deal with the mother in the circumstances of this case. Although they are without representation, both parties did what they could in respect of putting submissions to me.
Having previously, in 2011, found the mother to have contravened Justice O’Reilly’s primary parenting orders, this matter now falls within the provisions of s 70NFA(3) of Subdivision F of Division 13A Part VII of the Family Law Act. That subsection says that this subsection applies if a court has previously made an order imposing a sanction or taking an action in respect of a contravention by a person of the primary order. That is the case in these proceedings.
As I pointed out to the mother, s 70NFA(4) of the same subdivision does provide for the subdivision that is headed “contravention without reasonable excuse (more serious contravention)” not to apply if the court currently dealing with the contravention is satisfied it is more appropriate for that contravention to be under subdivision E, which is headed “contravention without reasonable excuse (less serious contravention)”.
I am not satisfied in the circumstances of this case that it is more appropriate for the three contraventions that I have found the mother to have been responsible for without reasonable excuse to be dealt with as “less serious contraventions” under subdivision E. I have gone back and read my reasons for judgment delivered on 1 November 2011, including my reasons delivered ex temporaneously that day that included particular reference to the fact that if the mother contravened again and was found to have contravened without reasonable excuse that it was most probable that such a further contravention would have to be dealt with pursuant to subdivision F Division 13 A of Part VII (more serious contraventions). I am satisfied, having regard to the factual circumstances of the contraventions that I have found the mother responsible for on this occasion, that her contraventions show serious and intentional disregard of the obligations imposed upon her by the Court’s orders that require her to cause her children to go and spend time with their father and to share equally the parental responsibility in respect of major long term decisions in the children’s lives, such as the schools that they attend.
I am more than satisfied on the evidence that I have seen that it is quite appropriate on this occasion to deal with the mother under subdivision F and to treat the contraventions as more serious contraventions. As such, the Family Law Act brings into play s 70NFB as the section from which I draw my powers now to deal with the mother.
Pursuant to s 70NFB, the Court must, if subdivision F applies in relation to the person who committed the current contraventions, make an order under paragraph 2(g) unless the Court is satisfied that it would not be in the interests of the child concerned to make the order. Paragraph 2(g) says that the Court must make an order that the person who committed the current contravention pay all of the costs of another party or other parties to the proceedings under this division. In this particular case, had the father been legally represented in these contravention proceedings, I would have had to order that the mother pay his costs, unless I had been satisfied that it would not have been in the best interests of the children concerned to do so. However, I am relieved from the obligations to have to consider that question by the fact that the father is not legally represented and has, therefore, not incurred any legal costs in respect of this. I appreciate the fact that he has had to take time off work on the occasions that he has been before the Court which would most probably have caused him some financial loss, but that is not the same as incurring legal costs.
However, subsection 1(c) of s 70NFB says that if I do not make an order under paragraph 2(g) then I must make at least one order under subsection (2), being an order or orders that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances. Subsection (2) of S 70NFB says that the orders that are available to be made by me are, firstly (a) if I am empowered under s 70NFC to make a community service order to make such an order; (b) to make an order requiring the person to enter into a bond in accordance with s 70NFE or (c) if the current contravention is a contravention of a parenting order in relation to a child, to make a further parenting order that compensates a person for time the person did not spend with the child or the time the child did not live with the person as a result of the current contravention unless it would not be in the bests interests of the child to make that order; (d) to fine the person; (e) to impose a sentence of imprisonment on the person; (f) if the person has reasonably incurred expenses as a result of the contravention to make an order requiring the person who committed the contravention to compensate the person for some or all of those expenses.
As I have already indicated, I am minded in this case to make at least two orders that I can make under s 70NFB(2). I am minded to make an order that the mother, Ms Geiger, enter into a bond subject to some conditions. I am also minded to make an order that puts in place some extra time or additional time that compensates the father for the time he has lost over the last year with his daughter, the child A, that will necessitate a lifting of the suspension of the current orders that was put in place with the consent of the parties on the last occasion, and I shall return to that.
If, as I have done, I determine that a bond is appropriate for the mother to be ordered to enter into, then I must turn to a consideration of s 70NFE of division 13A. This section provides for bonds that a court may require a person to enter into. A bond is to be for a specified period of up to two years. I intend to make the bond in this case for the period of two years. I consider that appropriate in all the circumstances. A bond may be with or without surety and a bond may be with or without security. Security being provided for by an order for some cash security to be put up which would be forfeited if the conditions of the bond are breached. I do not intend to order cash security. It will be with surety, that is, the mother’s own surety that she will comply with the bond.
The conditions that may be imposed on a person by a bond include, without limitation, conditions that require the person to attend an appointment or series of appointments with a family consultant; to attend family counselling; to attend family dispute resolution or to be of good behaviour. I intend to impose conditions in respect of the bond that I am going to order the mother to enter into from that list and I intend those conditions to include that she be of good behaviour for two years and that she attend appointments with a family consultant as and when directed by Mr HH for counselling, supervision and assistance in compliance with the Court’s orders that are in place.
Before imposing such a condition I am required to seek the advice of a family consultant about the services appropriate to the person’s needs as set out in s 11E of the Family Law Act. I did consider seeking the advice of a family consultant, I determined that I would, I contacted Mr HH the Regional Coordinator of the Child Dispute Services of this Court’s registry, and had a discussion with him. As a consequence of that discussion having regard to the circumstances of this case and all of the evidence I had before me on the matter on this contravention proceedings and the earlier one, I am satisfied to order as a condition of the bond that the mother attend appointments with a family consultant as directed by Mr HH. That will be for the mother alone. There will be no requirement or expectation for the father to attend save for of course if requested by the family consultant who may consider doing so, he will not be obliged to.
Section 70NFE tells me that if I propose to require a person to enter into a bond, I must before I make the requirement explain to the person in language likely to be readily understood by the person, the purpose and effect of the proposed requirement and the consequences that may follow if the person fails to enter into the bond or having entered into the bond fails to act in accordance with the bond. I shall do that now.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 March 2013.
Associate:
Date: 12 March 2013
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