GEIGER & GEIGER

[2011] FamCA 941

FAMILY COURT OF AUSTRALIA

GEIGER & GEIGER [2011] FamCA 941

FAMILY LAW – CONTEMPT – Contravention of Court order – Whether the mother contravened five Court orders which the father alleges – Court satisfied that the mother contravened three Court orders without reasonable excuse, and two with reasonable excuse

FAMILY LAW – SANCTIONS – Whether the contraventions are to be dealt with pursuant to sub-division E or sub-division F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Whether the contraventions demonstrate a serious disregard by the mother of her obligations under the primary order – Where this is the first occasion that the mother has been found to have contravened the final orders – Court satisfied that the mother’s conduct does not demonstrate a persistent disregard of her obligations – Finding that the contraventions are of the less serious type – Order that the mother complete a post separation parenting orders program – Order that the father have compensatory time with the child

Family Law Act 1975 (Cth) s 70NEB(1)(A)ii), s 65LB, s 70NEB(1)(b), s 70NAC, s 70NAD, s 70NAF, s 70NAE, s 61B, s 65DAC, s 65DAE, s 4, s 70NBA

Elspeth & Peter; Mark and Peter and John and Peter [2007] FamCA 655
Jets & Maker [2010] FamCAFC 55

APPLICANT: Mr Geiger

RESPONDENT: Ms Geiger

FILE NUMBER: BRC 14238 of 2007

DATE DELIVERED: 1 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE:

12 and 13 September 2011

and 1 November 2011

REPRESENTATION

THE APPLICANT: Mr Geiger in Person

THE RESPONDENT: Ms Geiger in Person

Orders

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 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.

4. Pursuant to the provisions of s 70NEB(1)(b), the child A born … March 2004 (“the child A”) shall spend time with the father commencing this weekend, Friday 4 November 2011, from 6.00 pm Friday night until 6.00 pm Sunday night each second weekend until she goes to spend holiday time with the father in the 2011-2012 Christmas school holidays.

5. Paragraphs 13, 18, 19 and 20 of the Order of her Honour Justice O’Reilly of 10 September 2010 are discharged.

6. The mother must not take the children to any therapy or counselling other than, in respect of the child J born … December 2001 (“the child J”), at the EE Mental Health Service run through the FF Health District situated at Suburb GG, without the prior written approval of the father.

7. In particular, the mother must not take the children to any counselling or services of any kind with any person associated with the organisation known as Organisation Z or any other organisation specialising in or purporting to specialise in sexual abuse of children.

8. The father shall be able to communicate directly with EE Mental Health Service run through the FF Health District situated at Suburb GG and, in particular, all staff of that service who are involved in the counselling and psychotherapeutic treatment of the child J, and these orders authorise all such staff to discuss the child J’s counselling and treatment with the father and to provide him with all such information that he may request about such counselling and treatment and, all such staff are hereby authorised, at their absolute discretion, to involve the father to any extent they consider appropriate in any such counselling and psychotherapy.

9. Unless there be a joint decision to the contrary, the mother must ensure that the child A remains enrolled at RR School at Suburb JJ and that she attend school on all school days unless genuinely ill.

10. Should the father decide that he wants to again have the benefit of the orders of her Honour Justice O’Reilly that the child J spend time with him pursuant to those orders he shall notify the mother of same in writing no less than two (2) weeks prior to the commencement of such time and the mother shall ensure that the child J attends at his father’s.

11. The father is at liberty to file any further applications he considers necessary in respect of variation of the final parenting orders made by her Honour Justice O’Reilly on 10 September 2010 and, in the event that he does, any such application shall be listed, where possible, before Justice Forrest for mention in the first instance.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 14238 of 2007

Mr Geiger

Applicant

And

Ms Geiger

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On 10 September 2010, her Honour Justice O’Reilly made final orders in high conflict, parenting proceedings between Mr Geiger and Ms Geiger after a difficult eight day trial that involved allegations of physical, sexual and emotional abuse being made by the mother against the father, none of which were ultimately found by her Honour to be proven. 

2. The final orders her Honour made were extremely comprehensive, covering many aspects of the co-parenting relationship in respect of the Geiger’s  two young children, the child J, born in December 2001, now aged almost 10 and the child A, born in March  2004, now aged 7.

3. Relevantly, those orders included the following paragraphs:

   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 [the child J] born … December 2001 and [the child 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.   

   Living arrangements

   4.The children live with the mother.

   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;

   b)for two weeks of each of the Christmas school holiday periods, for those commencing in the odd years from 12 noon 14 days before Boxing Day until 12 noon on Boxing Day and for those commencing in the even years from 12 noon on Boxing Day until 12 noon 14 days later.

   11.In relation to the Christmas 2010/2011 school holiday period and all subsequent holiday periods the father collect the children at 12 noon on the designated commencement day at a place nominated by the mother to the father in writing (for example, the [service station] at [Suburb KK] or McDonalds at [Suburb LL]) and return the children to the mother at that place at 12 noon on the designated return day. 

   12.For the purpose of such changeovers the father may be accompanied by his partner [Ms H] and the mother by her partner [Mr M] and the father and the mother must ensure that they not come within ten metres distance from each other. 

   Education

   13.Unless there be a joint decision to the contrary, the mother must ensure that the children remain enrolled at [NN School] at [Suburb MM] and ensure that the children attend school on all school days unless genuinely ill.

   14.The mother and [Mr M], and the father, [Ms H] and their children may attend all scheduled school functions usually attended by parents.

   15.The father and the mother on such occasions must ensure that they not come within ten metres distance from each other.

   16.The father and [Ms H] otherwise must not attend at the children’s school unless contacted by the school in relation to any accident or emergency.

   17.The father, by direct arrangement with the children’s school, may receive all letters, circulars, school reports, activity sheets, school photographs and so forth usually provided by the school to parents.

   Health and counselling

   18.The mother must ensure that the children attend upon [Dr G], paediatrician, [Suburb GG] Medical Centre, for all appointments advised by him and that they attend upon all appointments that he may advise or refer at [EE Mental Health Service] or other therapy or counselling. 

   Restraint on the mother

   19.The mother must not take the children to any therapy or counselling other than upon referral by [Dr G].

   20.In particular, the mother must not take the children to any counselling or services of any kind with any person associated with the organisation known as [Organisation Z] or any other organisation specialising in or purporting to specialise in sexual abuse of children. 

   [Dr G]

   21.The Independent Children’s Lawyer provide a copy of these orders and reasons for judgment to [Dr G].

   Information

   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. 

   23.The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the other at his/her request and expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.

   31.The Independent Children’s Lawyer not be discharged for 18 months. 

1. Unfortunately, notwithstanding the comprehensive nature of those final parenting orders, within weeks of the orders being made, problems began to emerge in the co-parenting of the parents. During the September-October school holidays, when the two children were staying with their father, they both left his home without his knowledge and walked approximately 5 kms to the house of a maternal family relative who they barely knew. How or why they actually did that is not something that I am required to determine in these proceedings.

2. In the Christmas school holidays over the 2010-2011 Summer there were more problems, when, due to the child J’s behaviour during the children’s time at his father’s home, his father determined to return the child J to his mother’s home. The child J has not spent time with his father pursuant to the orders since then.

3. On 14 June 2011, the father filed a Contravention Application in which he alleges five contraventions against the mother. That application was heard by me on 12 and 13 September, 2011. The father and the mother, though both legally represented at the trial before Justice O’Reilly, appeared before me on the hearing of the contravention application without legal representation.  I reserved my decision at the conclusion of that hearing.

Count 1

1. The father alleges that the mother has contravened the provisions of paragraphs 1-3 of the final orders by not discussing schooling issues in respect of the children prior to major decisions affecting the children taking place since the final orders were made. The mother denied the alleged contravention.

Count 2

1. The father alleges that the mother has contravened the provisions of paragraph 13 of the final orders by home schooling the child J and changing the child A’s school.  The mother denied the alleged contravention.

Count 3

1. The father alleges that the mother has contravened the provisions of paragraph 19 of the final orders by arranging for the child J to speak to a Lifeline Counsellor without referral from Dr G. The mother agreed that she had contravened that part of the order but asserted that she did so with reasonable excuse.

Count 4

1. The father alleges that the mother has contravened the provisions of paragraph 19 of the final orders by arranging for the child J to attend at EE Mental Health Service attached to FF Health District at Suburb GG without referral from Dr G. The mother agreed that she had contravened that part of the order but asserted that she did so with reasonable excuse.

Count 5

1. The father alleges that the mother has contravened the provisions of paragraphs 5a and 11 of the final orders by not notifying him of the changeover location and not providing the child A to him for the March/April holidays. The mother agreed that she had contravened that part of the order but asserted that she did so with reasonable excuse.

The Applicable Law

1. 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.

2. The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. 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 section 70NAF of the Act and also Jets & Maker [2010] Fam CAFC 55 per O’Ryan J at paragraph 83

3. Section 70NAD of the Act provides:

   REQUIREMENTS TAKEN TO BE INCLUDED IN CERTAIN ORDERS

   For the purposes of this Division:

   (a)a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and

   (b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and

   (c)  a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and

   (d)  a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.

4. 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 SPECIFIC ALLEGATIONS

Count 1

1. The father’s affidavit of evidence in chief that he filed and relied upon in the Contravention hearing was quite historical but did not include a lot of evidence about this allegation. He attached a bundle of emails that were sent backwards and forwards between him and the mother that he said supported his allegations.

2. Basically, his case is that the mother excluded him from sharing parental responsibility with her where the order provided for it to be shared equally. S 61B of the Act provides as follows:

   Meaning of “parental responsibility”

   In this Part, “parental responsibility”, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

3. Section 65DAC of the Act provides as follows:

   Effect of parenting order that provides for shared parental responsibility

   (1)       This section applies if, under a parenting order:

   (a)2 or more persons are to share parental responsibility for a child; and

   (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

   (2)The order is taken to require the decision to be made jointly by those persons.

   Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE)

   (3)      The order is taken to require each of those persons:

   (a)to consult the other person in relation to the decision to be made about that issue; and

   (b) to make a genuine effort to come to a joint decision about that issue.

   (4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

4. Section 65DAE of the Act provides as follows:

   No need to consult on issues that are not major long-term issues

   (1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

   (a)has parental responsibility for the child; or

   (b)    shares parental responsibility for the child with another person;

   about decisions that are made in relation to the child during that time on issues that are not major long-term issues.

   Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.

   (2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.

5. “Major long-term issues” is defined in section 4:

   Major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   i.the child’s education (both current and future); and

   ii.the child’s religious and cultural upbringing; and

   iii.the child’s health; and

   iv.the child’s name; and

   v.changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent

   To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

6. In this instance, O’Reilly J’s orders actually provided, in paragraphs 2 and 3, that consultation was to occur and how such consultation was to take place and how consultation with a family dispute resolution practitioner was to be resorted to in the event of impasse.

7. The evidence before me established to my satisfaction, on the balance of probabilities, that the mother unilaterally made decisions about both children’s education that were properly matters pertaining to parental responsibility that were the subject of obligation upon her, imposed both by the FLA and the orders of O’Reilly J, to consult with the father before the decisions were made.

8. The evidence established to my satisfaction that the child J was expelled from his school for his behavioural problems and that the mother chose, unilaterally, over the clearly expressed opposition of the father, to home school the boy. She sought to defend the contravention on the basis that the father had been to a meeting at the school where he had acknowledged that home schooling was the best option for the boy.

9. The father accepted that the school had said that home schooling was the best option for the boy but he denied that he had ever actually agreed with the mother thereafter that home schooling was in fact the option that they would put in place. I accept his evidence in that respect. It is clear from the emails that he sent the mother that he made it clear to her he did not agree with home schooling. Further, I accept he was not telling her that as part of consultation by her of him. I find that she did not consult with him on that at all.

10. Further, the evidence establishes that the mother unilaterally changed the child A’s school after the child J left the school they were both attending without even notifying the father of the move, let alone consulting with him. The mother tried to defend this action on the basis of an asserted need to move her to a different school caused by a change of residence that she claimed was forced upon her, by inference, by the father’s actions. I cannot find that the father was in any way responsible for the mother’s change of residence and I do not accept that such a change provided a reasonable excuse for not complying with the obligations imposed upon the mother by the parental responsibility order.

11. I am completely satisfied that the mother either intentionally failed to consult the father or that she made no reasonable attempt to comply with the order knowing that she was required to. Accordingly, I am satisfied that the father has proven that the mother contravened the parental responsibility obligations imposed upon her by paragraphs 1-3 of the orders and the provisions of the FLA.  I am further satisfied that she did so contravene without reasonable excuse.

Count 2

1. Paragraph 13 of the final orders was quite specific in respect of the mother ensuring that the children remained enrolled at NN School at Suburb MM and ensure that the children attend school on school days unless genuinely ill.

2. The father alleges, relying on the same facts that grounded his allegation that the mother contravened the parental responsibility provisions of the orders, that the mother contravened that part of the orders without reasonable excuse.

3. As I understand the facts, NN School advised both parents that the child J was required to leave the school because of his behavioural problems. That is not a fact that was in dispute at the hearing. Accordingly, I find that the mother has a reasonable excuse for not ensuring that the child J remained enrolled there and that he continued to attend there. That was a matter apparently beyond her control.

4. However, I am completely satisfied, for the reasons I discussed in respect of Count 1 above, that the mother contravened paragraph 13 in respect of the child A. Her claim of reasonable excuse for changing the child A’s school is rejected by me. If she considered that the child A’s school should be changed, she was obliged to discuss that with the father pursuant to paragraphs 1-3 of the orders, to seek mediation assistance if impasse continued, and to seek a variation of O’Reilly J’s order if impasse still continued. She did none of those things. There was nothing reasonable about her position. The mother has, without reasonable excuse, contravened paragraph 13 of the final orders by moving the child A to a different school.

Count 3

1. Paragraph 19 is clear and simple in its obligation. The mother was not to take the children to any therapy or counselling other than upon referral by Dr G.

2. Dr G is a paediatrician who had been seeing the child J at or around the time of the trial. O’Reilly J, I understand, requested a report be obtained from him as to the child J’s behavioural problems in order to determine whether there were any medical grounds explaining it. Her Honour, from her reasons, which I have read, was also acting on evidence that the mother had taken the children to numerous therapists/counsellors including at Organisation Z over time and her conclusion that same was not in the children’s best interests.

3. Unfortunately, the evidence establishes that Dr G prepared a report but would not release it until he was paid the sum of $850 for its preparation. That has not happened and the report has still not been released and the doctor has not seen the children again. The father has offered to pay half of the cost of the report but the mother has indicated a financial incapacity to pay for it.

4. Apparently then, having regard to the continued behavioural problems experienced by the child J, the mother sought out further assistance for the child J without regard to paragraph 19 of the order. She determined to have the boy counselled by a Lifeline counsellor, apparently a free service. Before she did that, she sought and obtained the approval of the ICL in this case, who remains undischarged pursuant to her Honour’s orders.

5. The boy was counselled by a Lifeline counsellor and that is the basis of the allegation of contravention constituting Count 3. There is no evidence that the counselling has gone on for longer than was necessary.

6. Clearly, the mother contravened the order. She asserts that the circumstances provide her with reasonable excuse. I am satisfied, particularly given that the mother sought and obtained the approval of the ICL before she arranged the counselling, and that there is no evidence that it has gone on longer than necessary or that it was in any way inappropriate to the boy’s immediate needs at the time, that she did have reasonable excuse. Accordingly, I find that the father fails to prove the alleged contravention by the mother without reasonable excuse that is particularised in Count 3.

Count 4

1. The evidence establishes that although the mother did not ensure that the children attended upon Dr G as ordered, she obtained a referral to EE Mental Health Service at Suburb GG for the child J from what she called “the Intervention Centre” at his former school at or around the time of his expulsion. Referral to that service was contemplated by her Honour’s orders in paragraph 18, although it was intended to be at the professional discretion of Dr G.

2. The mother then arranged for the child J to be seen by that Mental Health Service on that referral. The father asserted that her doing so contravenes paragraph 19 of the final orders. Clearly, it does, but the mother asserted that she had reasonable excuse for doing so. She again relied on the fact that she could not afford to pay Dr G’s report fees, or even half of them,  and that she could not take the children to see him because of that.

3. She asserted that the child J’s behaviour that caused him to be expelled from the school certainly warranted his referral to the Mental Health Service. Put into evidence [exhibit 6] by the mother was a medical report prepared by the Mental Health Service and signed by Medical Officer, Dr OO, in which she states the nature of the child J’s illness or medical condition is “complex trauma/PTSD [Post Traumatic Stress Disorder]/anxiety.” She says the child J is having weekly psychotherapy and counselling to help him with his problems. There was no evidence before me to suggest that the psychotherapy and counselling is not appropriate or is not helping him in any way. In all the circumstances, particularly the fact that her Honour contemplated the child’s attendance at the Mental Health Service at the referral of Dr G in any event, I am satisfied that the mother has reasonable excuse for the contravention that clearly happened. Accordingly, I find that the father fails to prove the alleged contravention by the mother without reasonable excuse that is particularised in Count 4.

Count 5

1. Paragraphs 5 a and 11 of the final orders have the combined effect of requiring the mother to have provided the children to the father for them to spend time with him for the whole of the March/April school holidays as well as the June/July and September/October school holidays and for changeovers to take place at a place nominated by the mother to the father in writing.

2. The father alleges that the mother did not comply with the provisions requiring her to notify him of a changeover location for the commencement of the March/April school holidays and that the child A was not provided to him for the time that she was required to be with him pursuant to the orders.

3. The father does not allege that the child J was not provided pursuant to the orders as the father had notified the mother well prior to the commencement of the holiday that due to the behavioural distress that the child J had shown in the father’s household in the Christmas holidays the mother was not required to send him for the March/April holidays.

4. The evidence supports a finding that the father did notify the mother of his decision in respect of the child J not spending time with him in those holidays pursuant to the provisions of the order. It further supports a finding that he made it absolutely clear to the mother, in a timely fashion, that he nevertheless required her to provide the child A to him for her to spend holiday time with him pursuant to the orders.

5. The father asserts that the mother failed to notify him in writing of a changeover location and that she did not provide the child A to him as required. That is the basis of the alleged contravention particularised in Count 5.

6. The mother admits that she contravened the order as alleged but asserts that she had reasonable excuse for so doing. The basis of her claimed reasonable excuse, as I understood her evidence, is that as there was expert evidence at the trial that it was not in the interests of the children to separate them that she determined, unilaterally, that it was not in the child A’s interests to spend time with the father without her brother being there with her.

7. I do not accept that this is in fact a reasonable excuse. I have read O’Reilly J’s reasons for judgment and I have seen the references contained in those reasons to the expert opinion that the children should not be separated. I am satisfied that the said opinion was given in respect of the issue as to whether the children should be separated in respect of which parent they should live with on a longer term basis as opposed to just for the shorter periods when they are spending time with the father.

8. Whilst it is clearly not ideal for the children to be apart when they are required to be spending time together with their father, the father’s patience and understanding in respect of the child J’s behavioural issues is reflected in his decision to forego the benefit of the obligations imposed upon the mother by the orders that require the boy to spend holidays with the father. That position has, I find, effectively been exploited by the mother by her saying that the child A should not go to him if the child J is not going to him when she is the one who maintains that the child J’s behavioural issues are such that he should not go.

9. The mother did not put any evidence before me that went to proving that the child A’s health or safety required her to be kept away from the father and I do not accept that the mother believed that was so on reasonable grounds.

10. The evidence also establishes that the ICL wrote to the mother by email well in advance of the March/April holiday period and made it absolutely clear to her that she was to make sure that the child A went to spend her holiday time with the father, there being no order that prevented the child A spending time with her father if her brother was not accompanying her.

11. The evidence satisfies me that the mother intentionally contravened those parts of the orders that required her to provide the child A to the father for the March/April school holidays.  I find that the mother failed to satisfy me that she had reasonable excuse for so doing.

Conclusion

1. I find the mother contravened the orders without reasonable excuse as particularised and alleged by the father in Counts 1, 2 and 5.

2. I will now hear submissions as to which sub-division of Division 13A of Part VII of the FLA  should apply in circumstances of the contraventions as found by me and also as to the appropriate penalty and as to any further orders that should be made by me.

Ex Tempore

Reasons for Judgment

Penalty

1. On 12 and 13 September 2011, I heard contravention proceedings brought by the father against the mother in which he alleged that she had contravened, particularised in five separate counts, final parenting orders made by her Honour Justice O’Reilly on 10 September 2010.    Today, 1 November 2011, after having reserved my decision at the conclusion of that contravention hearing, I have delivered my decision and given reasons. 

2. I determined that the mother contravened provisions of the final orders made by her Honour Justice O’Reilly in respect of three of the counts particularised by the father, namely counts 1, 2 and 5.  In respect of count 2 it was only partially as particularised by the father that I found that the mother had contravened without reasonable excuse.  I have now heard very brief submissions from the father and the mother as to how I should deal with the mother in respect of the three contraventions that I have found that she has committed.  Neither party, unsurprisingly, was able to take me to provisions of the FLA that are relevant to the determination. For immediate determination is the question of whether or not the mother’s contraventions are to be dealt with pursuant to sub-division E of Division 13A of Part VII of the FLA, that is, in respect of contraventions that are to be regarded as less serious in nature, or, in respect of sub-division F of Division 13A of Part VII of the FLA, that is, in respect of contraventions are to be treated as more serious in their nature.

3. Not surprisingly, the father submitted that the contraventions should be found by me to demonstrate a serious disregard by the mother of her obligations under the primary order. 

4. The father submitted that the mother, although only having been found to have contravened for the first time in respect of these final orders, has nevertheless, by her contravention, demonstrated her effective disregard for and contempt for court orders by the nature of her contraventions.  Effectively, he submitted that the contraventions that I have found the mother responsible for are just further examples of her unwillingness to abide by orders of the court and further unwillingness to facilitate and encourage meaningful relationships between the two children and him. 

5. Particularly, the father referred to the circumstances pursuant to which I found that the mother contravened the orders as particularised in count 2, namely that the child A had been removed unilaterally from her former school and enrolled at another school in a new area without notification of such intention to the father, without consultation with the father as to that issue and without apparent regard for the father’s interests in the matter, namely his role as a father of the child A with an interest in her schooling and without any regard, apparently, for the requirements of her Honour Justice O’Reilly’s orders in respect to parental responsibility and consultations and the provisions of the FLA. 

1. I am certainly concerned about the mother’s conduct in that regard, in addition to her conduct in respect to not providing the child A to the father for the holiday time that she was to spend with him pursuant to the orders.  

2. The mother submits, with some apparent contrition evident, that this is the first occasion that she has been found to have contravened these final orders and that her contraventions do not show a serious disregard of her ordered obligations.  She said she believed that she had good cause, or what might otherwise be described as “reasonable excuse” as that term is defined in the FLA, for doing so.  I told her that I had already determined that she did not have reasonable excuse and that such a submission was not really available to her at this stage of the proceedings.

3. As I indicated to the father during the course of his submissions, the Full Court has discussed the issue of what might be seen as constituting a serious disregard of obligations under an order in its decision in Elspeth & Peter; Mark and Peter and John and Peter [2007] FamCA 655. In that decision the Full Court discussed a number of first instance decisions in which the question had been considered and at paragraph 66 it said:

   What seems to be the common thread is 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. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under subdivision F.

4. It is also to be remembered that one of the consequences of having found the mother to have contravened in respect of the three counts that I have on this occasion is that any future contravention that is proven against her in respect of these particular orders of O’Reilly J must, as a consequence of today’s findings, be treated as the more serious type.  So, in itself, finding on this occasion that she has contravened without reasonable excuse is a serious consequence in respect of the mother that places her potentially at risk, in the event that she is found in the future to contravene the same final orders, of the more serious penalties that are available under sub-division F, such as imprisonment, a fine, bonds, good behaviour orders and the like.  

5. Ultimately, principally because of that discussed above and the fact that this is the first occasion that the mother has been found to have contravened these final orders, I am satisfied that the mother’s conduct, as found by me, does not in fact demonstrate a persistent disregard of her obligations or a truly wilful and deliberate attempt to resist carrying out an order, I am prepared to treat these contraventions as of the less serious type and as such falling within the provisions of sub-division E of Division 13A Part VIII of the FLA.  That brings me to consider then what I should do as a consequence. 

6. The powers that are available to me in such circumstances are set out in s 70NEB of the FLA.  Without reading the whole section, that section says that I may do any or all, of the following.  I can make an order directing that the mother attend a post separation parenting program.  I can make a further parenting order that compensates the father for time that he did not get to spend with the child or the children.  I can adjourn the proceedings to allow either or both the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order.  I can make an order that the person who committed the current contravention enter into a bond in accordance with s 70NEC, although I must note here that the Full Court of the Family Court has effectively determined that is not an option available having regards to other sections in the FLA which I shall not turn to at the moment as I am not considering a bond in any event.  I can, if the current contravention is a contravention of a parenting order in relation to a child and the person who has not been able to spend time with the child has reasonably incurred expenses as a result of the contravention make an order requiring the person who committed the contravention to compensate the person for some or all of those expenses. 

7. In this case there is no evidence before me that the father has incurred any such expense and he does not make any submission that I should deal with the mother in that regard, but it is something that the mother needs to be aware of that is available to the Court on such contravention proceedings.  I can make an order that the person who committed the contravention pay some or all of the costs of another party, that is, if the father was legally represented, I could order the mother to pay his costs.  He is not and as such he has not incurred any legal expenses. 

8. Those are the types of order of which I can make one or more in these proceedings.  I have determined in this case that some of those powers that are available to me are appropriate to utilise. 

9. I do intend to order that the mother attend and complete a post separation parenting orders program and I do intend to order that she completes such a course within six months of the date of these orders.  I do intend to order that the father shall have compensatory time with the child A. 

10. I also have the power pursuant to s 70NBA of the FLA to vary the provisions of the final order if I am satisfied that is appropriate and in the best interests of the child or children to do so in and as an adjunct to these proceedings.  I intend to do that. 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 1 November 2011.

Associate: 

Date:  1 November 2011