Glassop and Glassop
[2015] FCCA 3437
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GLASSOP & GLASSOP | [2015] FCCA 3437 |
| Catchwords: FAMILY LAW – Contravention Applications – held that on eight counts, Respondent contravened parenting Orders without reasonable excuse – what Orders should be made – where no previous contravention Orders made – Applicant seeks costs incurred by him in proceedings – Respondent seeks Order requiring attendance at parenting after separation course or, alternatively, good behaviour bond – question whether the provisions of s.117 of the Family Law Act 1975 (“the Act”) apply to Order of costs made under s.70NEB of the Act – held that s.117 of the Act does not apply to the determination of costs Orders under s.70NEB of the Act – costs awarded. |
| Legislation: Family Law Act 1975, Part VII, Division BA ss.13A, 65N, 70NAC, 70NAD, 70NAE, 70NAF, 70NBA, 70NDB, 70NEAB, 70NEB, 70NEC, 70NFB, 112AC, 117 |
| In the Marriage of O’Brien (1992) 16 Fam LR 723 |
| Applicant: | MR GLASSOP |
| Respondent: | MS GLASSOP |
| File Number: | MLC 1637 of 2010 |
| Judgment of: | Judge Jones |
| Hearing date: | 4 August 2015 |
| Date of Last Submission: | 31 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dellidis |
| Solicitors for the Applicant: | Kordell Lawyers |
| Counsel for the Respondent: | Mr Serra |
| Solicitors for the Respondent: | Harper Buscombe & Madden Lawyers |
THE COURT DECLARES THAT:
Count 1 – the Respondent Mother did, on 16 March 2015, without reasonable excuse, contravene Order 2 made on 17 October 2014, in that she failed to return the child [X] born [omitted] 2000 to the Applicant Father;
Count 2 – the Respondent Mother did, on 17 March 2015, without reasonable excuse, contravene Order 2 made on 17 October 2014, in that she failed to return the child [X] born [omitted] 2000 to the Applicant Father;
Count 3 – the Respondent Mother did, on 18 March 2015, without reasonable excuse, contravene Order 2 made on 17 October 2014, in that she failed to return the child [X] born [omitted] 2000 to the Applicant Father;
Count 4 – the Respondent Mother did, on 19 March 2015, without reasonable excuse, contravene Order 2 made on 17 October 2014, in that she failed to return the child [X] born [omitted] 2000 to the Applicant Father;
Count 5 – the Respondent Mother did, on 20 March 2015, without reasonable excuse, contravene Order 2 made on 17 October 2014, in that she failed to return the child [X] born [omitted] 2000 to the Applicant Father;
Count 6 – the Respondent Mother did, on 21 March 2015, without reasonable excuse, contravene Order 2 made on 17 October 2014, in that she failed to return the child [X] born [omitted] 2000 to the Applicant Father;
Count 7 – the Respondent Mother did, on 22 March 2015, without reasonable excuse, contravene Order 2 made on 17 October 2014, in that she failed to return the child [X] born [omitted] 2000 to the Applicant Father;
Count 8 – the Respondent Mother did, on 23 March 2015, without reasonable excuse, contravene Order 2 made on 17 October 2014, in that she failed to return the child [X] born [omitted] 2000 to the Applicant Father;
THE COURT ORDERS THAT:
The Respondent Mother pay the Applicant Father’s costs fixed in the sum of $2,300.00 within 90 days of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Glassop & Glassop is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1637 of 2010
| MR GLASSOP |
Applicant
And
| MS GLASSOP |
Respondent
REASONS FOR JUDGMENT
Background
In these proceedings the Applicant, Mr Glassop (“the Father”) has filed a Contravention Application and an Affidavit on 17 April 2015, together with an Application in a Case and Affidavit filed on 10 July 2015. Ms Glassop is the Respondent Mother.
By way of background, parenting Orders were made by consent on 17 October 2014 (“the 2014 consent Orders”) in relation to one of the children of the parties’ relationship:
[X] born [in] 2000 (“[X]”)
The Contravention Application alleges 9 contraventions of Order 2 of the 2014 consent Orders on each day from 16 March 2015 to 23 March 2015, inclusive. Count 9 of the Contravention Application was struck out as duplicitous.
Relevantly for this Contravention Application, the 2014 consent Orders provide:
2. The child live with the husband.
3. The parties have equal shared parental responsibility for the child SAVE THAT the husband shall have sole parental responsibility for decisions regarding the child’s health, including his mental health and allied health treatment, provided however:
a. The husband gives the wife an opportunity to offer her opinion and input to any decision the husband makes;
b. The husband advises the wife as soon as practicable of making any decision; and
c. The wife shall be authorised to seek medical treatment from a General Practitioner or a hospital in the event of a medical emergence (sic) and she is unable to contact the husband.
4. The child spend time with the wife as follows:
a. During school terms, each alternate weekend from the conclusion of school Friday (or the conclusion of school Thursday if Friday is a public holiday) until the commencement of school Monday (or the commencement of school Tuesday if Monday is a public holiday) commencing 24 October 2014 and re-commencing in each school term in the same pattern as if the school holidays had not intervened;
…
i. As may otherwise be agreed between the parties in writing (including SMS and email) in accordance with the child’s wishes.
5. Changeovers for the purposes of these orders, shall take place at the child’s school on school days and otherwise at the husband’s residence at the commencement and the wife’s home at the conclusion.
The Father is 43 years old and works two part-time jobs in the [omitted] sector. The Mother is 44 years old and also works in the [omitted] Sector. The parties commenced living together in September 1996, married on [omitted] 2003, separated in June 2006 and divorced on 13 April 2010.
There are two other children of the marriage. [Y] who was still born on [omitted] 1999 and [Z] born [omitted] 1997 (‘[Z]’). Separate parenting Orders were made for [Z] shortly before the 2014 consent Orders. They provide that [Z] spend time with and communicate with the parents in accordance with her wishes. Since 28 October 2014, [Z] has lived with the Father, apparently following allegations made by [Z] that she was assaulted by the Mother’s partner, Mr E. An Application for an Intervention Order was taken out on [Z]’s behalf against Mr E. Mr E gave undertakings for a period of 12 months and the Application was withdrawn.
[X] and [Z] live with the Father together with their half-sister [A] (aged 20 years), who is a child of the Mother from a previous relationship.
The Mother lives with Mr E, their 7 year old son, [B], and Mr E’s 10 year old daughter from a previous relationship.
Following separation, the children lived with the parents in a shared week-about arrangement. On 21 February 2011, final parenting Orders were made, which provided for [X] and [Z] to live with the parents on a week-about basis. These Orders were discharged in October 2014 and separate Orders made for [Z] and [X].
The Law
Part VII, Division 13A of the Family Law Act 1975 (“the Act”) deals with the consequences of a failure to comply with parenting Orders and obligations that affect children.
Meaning of “contravened an order”
Section 70NAC of the Act deals with the meaning of “contravened an order” and states:
“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.”
The Mother admits that she contravened Order 2 of the 2014 consent Orders in relation to each of the eight counts of contravention, but submits that in respect of each count she had a reasonable excuse. In her written submission filed on 31 August 2015 she submits that “there is a clear basis for the Court to find that the retention of [X] by the wife was necessary to protect his mental health. In the event that the court does not make this finding, it is submitted that the wife should be found to have a reasonable excuse in any case.”
Meaning of “reasonable excuse for contravening an order”
Section 70NAE of the Act deals with the meaning of a “reasonable excuse for contravening an order”.
The section commences:
(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).
Under s.70NAE(2):
“(2) A person (the respondent) is taken to have 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 Court on the person bound by it; and
(b) the Court is satisfied that the respondent ought to be excused in respect of the contravention.”
Section 70NAE(5) deals with contravening an Order about with whom a child is to spend time. It states:
“A person (the respondent) is taken to have 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 necessary to protect the health of the person referred to in paragraph (a).”
It is apparent from s.70NAE(1) of the Act that where an Order deals with the time a child spends with the parent, s.70NAE(5) of the Act prescribes the circumstances where a person is taken to have a reasonable excuse for time spent not occurring, but does not limit the circumstances in which a Court may find that the person has a reasonable excuse.
As to the defence available under s.70NAE(5) of the Act, which is expressed in similar words to that available under s.112AC of the Act at that time, Smithers J in the case of In the Marriage ofO’Brien (1992) 16 Fam LR 723 stated at 727:
“[I]t seems to me that the passing of s.112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether, in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.”
The standard of proof in proceedings under Part VII, Division 13A of the Act is on the balance of probabilities: s.70NAF.
Where a Contravention is established
If a contravention is established, then, regardless of whether the contravention was reasonably excused, the Court has powers under s.70NBA of the Act to vary the parenting Order and the powers under s.70NDB of the Act to make an Order compensating a parent for time lost. More specifically, s.70NDB(1)(c) of the Act states that the Court:
“(c) may make a further parenting order that compensates the person for time that the person did not spend with the child (or the time that the child did not live with person) as a result of the current contravention.”
Contravention without a reasonable excuse
The structure of the two subdivisions, E and F, of Division 13A of the Act is such that the Court must decide whether subdivision E or F is the appropriate subdivision in the circumstances. Subdivision E applies where the person who has contravened an Order without reasonable excuse has previously not had a sanction imposed on him or her for the contravention of a parenting Order or acted with serious disregard of that Order: see s.70NEA. In considering whether to make certain Orders under subdivision E or subdivision F, such as a bond, community service orders, fine or a sentence of imprisonment, I must be satisfied beyond reasonable doubt that the grounds for making the Order exists: s.70NAF(3).
Where the Court is not satisfied that there has been serious disregard by a person of their obligations under a parenting Order and a sanction has not previously been imposed, then the Orders that can be made in less serious cases include:[1]
(i)an Order to attend a post-separation parenting program to better understand the obligations created by parenting Orders;
(ii)a bond under s.70NEC of the Act; or
(iii)a costs Order.
[1] Subdivision E, particularly s.70NEB of the Act.
Where the Court is satisfied that there has been serious disregard by a person of their obligations under a parenting Order and a sanction has previously been imposed, then the Orders that can be made include[2]:
(i)a community service Order;
(ii)a bond;
(iii)a fine not exceeding 60 penalty units;
(iv)a sentence of imprisonment; or
(v)a costs Order;
[2] Subdivision F, particularly s.70NFB(2) of the Act.
The alleged contraventions
The alleged contraventions are as follows:
a)Count 1 – the Mother contravened Order 2 of the 2014 consent Orders on 16 March 2015 by reason that she failed to return [X] to live with the Father;
b)Count 2 – the Mother contravened Order 2 of the 2014 consent Orders on 17 March 2015 by reason that she failed to return [X] to live with the Father;
c)Count 3 – the Mother contravened Order 2 of the 2014 consent Orders on 18 March 2015 by reason that she failed to return [X] to live with the Father;
d)Count 4 – the Mother contravened Order 2 of the 2014 consent Orders on 19 March 2015 by reason that she failed to return [X] to live with the Father;
e)Count 5 – the Mother contravened Order 2 of the 2014 consent Orders on 20 March 2015 by reason that she failed to return [X] to live with the Father;
f)Count 6 – the Mother contravened Order 2 of the 2014 consent Orders on 21 March 2015 by reason that she failed to return [X] to live with the Father;
g)Count 7 – the Mother contravened Order 2 of the 2014 consent Orders on 22 March 2015 by reason that she failed to return [X] to live with the Father;
h)Count 8 – the Mother contravened Order 2 of the 2014 consent Orders on 23 March 2015 by reason that she failed to return [X] to live with the Father.
The Evidence
The Father relies on his Affidavit filed 10 April 2015 and an Affidavit of Mr T filed 11 August 2015. The Father also referred, during the course of cross-examination of the Mother, to Family Reports, dated 13 October 2014 and 5 July 2010, prepared by Dr N in earlier parenting proceedings.
The Father gave viva voce evidence and was cross-examined. The Father gave his evidence in a straight-forward manner and was a credible witness.
The Mother gave viva voce evidence and was cross-examined.
The Mother was generally not a credible witness. Her evidence was at times inconsistent, largely, it seems to me, because she struggled to provide a convincing reason for not returning [X] to his Father after her time with [X], in accordance with the 2014 consent Orders. Her evidence on this varied, inexplicably, from being concerned about [X]’s mental well-being, to acting in accordance with [X]’s wishes. Her oral evidence was at times unreliable. For example, she gave evidence-in-chief that an agreement between the parents in early February 2015 to vary the parenting arrangements (to enable [X] to spend additional time with the Mother) was an oral agreement. In cross-examination, the Mother conceded this was incorrect, in the face of evidence that it was a written agreement.
Further, I have formed the view that the Mother has a tendency to exaggerate her evidence in order to support her case and to resort to and repeat allegations regarding the Father, which are unsupported by evidence or have been found to be baseless. For example, during cross-examination the Mother stated the Father had assaulted her partner, Mr E. In fact this is simply not factual. At most, the evidence is that a former friend of the Father (now apparently a friend of the Mother) assaulted Mr E. Likewise, the Mother gave clear and direct evidence-in-chief that on the evening of 16 March 2015, when Acting Sergeant M spoke to [X] on the telephone, [X] was “hysterical” and “sobbing.” The use of these two words evoke a very strong emotional state on the part of the child, as he was engaging in conversation with Acting Sergeant M. Acting Sergeant M (who is now Leading Senior Constable M) was called to give evidence by the Mother. His evidence directly contradicted the Mother’s evidence about the child’s emotional state. The Mother claims in her written submissions in reply that she was in a better position to assess [X]’s behaviour and his state of mind. I am confident that Leading Senior Constable M was perfectly able to form an objective and independent opinion, listening to [X], as to whether he was “hysterical” and “sobbing” during the telephone conversation.
In general, therefore, where there is a dispute between the evidence of the Father and Mother, I prefer the evidence of the Father.
Proceedings were adjourned to enable Acting Sergeant M (as he was then), now Leading Senior Constable M, to give evidence. Orders were made for the filing of written submissions by both parties.
The parties tendered the following exhibits:
a)Exhibit F1 – copy of statement of Ms Glassop dated 29 March 2015;
b)Exhibit F2 – copy of Full Brief – Informant Attachment;
c)Exhibit M1 – copy of Intervention Order dated 29 April 2015;
d)Exhibit M2 – copy of post by [X] on Facebook dated 15 March 2015; and
e)Exhibit M3 – copy of child-support account statement.
Both parents agree that [X], who is 15 and a half years old, is an intelligent and sensitive child. The Father described him as a compliant child, who is conflict avoidant. This evidence accords with the opinion of Dr N in her Family Report dated 13 October 2014. That report is relatively recent and, in my opinion provides the Court with an objective assessment of the child’s views and experiences with his parents. It records [X] reporting to Dr N in his interview with her that he is very much aware of the conflict between his parents, that he is exposed to denigration by the Mother and Mr E of his Father when staying at his Mother’s house (p.17/43) and reports on his Mother’s volatile moods by comparison to the equanimity he has experienced at his Father’s house. Dr N concluded (p.20/43) :
“Assessment of [X] suggested that he is a troubled young man who continues to be worried about the conflict between his parents. He described his discomfort when his mother and stepfather allegedly make derogatory comments about his father. [X] impresses as a child who is conflict avoidant and prefers not to take any positions in case it will draw negative attention to him. That he expressed any preferences at all at this assessment suggested that his opinions are strongly held, as expressing them appears to be somewhat contrary to his general nature. [X] also seemed to be very distressed by what he says he experiences in his mother’s home and he reported a troubled relationship with Mr E and disinclination to hear criticism of his father. [X] ultimately impressed as a most unhappy boy who had a great deal of integrity.”
Dr N concluded that [X]’s wishes that he live with his Father should be respected “as they are likely to best ensure his long term emotional adjustment.” (p.20/43)
The 2014 consent Orders were made three days after this Family Report was released to the parties. These Orders provided that the parties have equal shared parental responsibility for [X], save that the Father have sole parental responsibility for [X]’s health, [X] live with his Father and spend time with his Mother during school terms on alternate weekends and half the school holidays, with provision for special occasions.
15 March 2015
There is no dispute that the alleged contraventions commenced following the death of the child’s puppy on Sunday, 15 March 2015 from snail pellet poisoning at the Father’s house. [X] was spending time with his Mother in accordance with the 2014 consent Orders on that weekend. It seems his half-sister, [A], collected [X] from his Mother’s home on the Sunday and took him to his Father’s house so that they could bury the puppy.
The Father’s evidence was that [X] was extraordinarily emotional, he was crying and he was distraught. This fact is agreed to by the Mother. however, her evidence is that [X] was also angry with the Father for not taking the puppy to the vet. I should note that the Father’s evidence is that it was late Saturday afternoon when he came home to find the puppy in a pool of vomit and frothing at the mouth. The usual vet was not open, and when he contacted the emergency service, he was advised to ensure the puppy was given plenty of water and to keep it warm and inside overnight. His evidence is that around midnight the puppy was looking much better and so the Father went to bed. However, he woke in the early hours of Sunday morning to find the puppy had passed away. The Mother’s evidence is that [X] told her that he was angry with his Father, because he did not take the puppy to the vet, as he had done on a previous occasion.
The Father’s evidence is that [X] did not express any anger towards him on the Sunday before he was returned to the Mother’s house.
The Mother tendered in evidence a posting by [X] on his Facebook about the death of his puppy (Exhibit M2).
16 March 2015
The Mother said that when she went in to wake [X] in the morning of Monday, 16 March 2015, he was exhausted, still distressed and said that he had a sore tummy and did not feel like going to school. There is no dispute that [X] is a good scholar and generally enjoys school. The Mother said that she decided that it would be best for [X] to stay at home. The Father does not cavil with this particular decision. It is the Mother’s later decisions not to return [X] to his Father which are the focus of his Contravention Application.
At 7:13 am on Monday, 16 March 2015, the Mother sent to the Father an email which stated:
[Mr Glassop]
[X] is home today still upset.
He will be at school tomorrow.
He has asked if he can come home and stay Wednesday night for [omitted]’s (sic) birthday
[Ms Glassop]
The Father sent an email to the Mother on that same day at 11:58 am stating:
Hi [Ms Glassop], what time you dropping [X] (sic) off tonight?
Regards
[Mr Glassop]
The Father says that, as he received no response to this email, he sent a further email to the Mother at 5:57 pm stating:
Hi [Ms Glassop], just in case my earlier message did not get through, what time are you dropping [X] off tonight?
Regards
[Mr Glassop]
At 6:11 pm, the Mother responded stating:
[Mr Glassop]
[X] has requested to stay with me this week.
Can you make sure he has all his required books for school.
[Ms Glassop]
The Father says that he did not agree with [X] remaining in the Mother’s care and saw no reason why he should not return to his care and accordingly sent an email to the Mother at 8:16pm stating:
Sorry [Ms Glassop], no, that will not be acceptable. Can you ensure that he is returned to my care no later than 8:30 pm tonight, you will need to ensure he has all his school uniform with him when he is returned tonight.
Regards
[Mr Glassop]
The Mother did not respond to this email.
On the evening of 16 March 2015, Acting Sergeant M (as he then was) telephoned the Mother for the purpose of conducting a welfare check. This occurred as a consequence of the Father contacting the police. The Father said that, given Mr E’s conduct towards [X], he was concerned about [X]’s safety.
The Mother gave evidence that when Acting Sergeant M (as he then was) spoke to [X] over the telephone, she was sitting in the lounge room and could hear [X]’s conversation with the police. She said [X] was hysterical on the phone and sobbing again because he was reliving the death of the puppy. The Mother said that [X] questioned why the police had rung him. The Mother said that Acting Sergeant M (as he then was) told her that he would be ringing the Father to inform him that [X] would not be returning that week. She said Acting Sergeant M (as he then was) told her that [X] was clearly upset about the dog, that [X] was 15 years old and did not need to be returned to his Father.
The Father said that Acting Sergeant M (as he then was) telephoned him and informed him that [X] was fine and that [X] wanted to stay at his Mother’s house for the week. The Father said that he also asked him why he was breaching the undertaking given to the Magistrates’ Court on 10 March 2015. The Father said he informed Acting Sergeant M (as he then was) he was not breaching the undertaking, as it permitted him to communicate with the Mother by text message or email.
By way of background, on 10 March 2015, the Father gave an undertaking at the [omitted] Magistrates’ Court, in resolution of an Application for an Intervention Order made on behalf of the Mother. These included undertakings that he was not to go within 200 metres of the Mother’s home or workplace, except on official business. These undertakings were subject to anything permitted by Family Law Order or written agreement.
Leading Senior Constable M gave evidence by telephone. He said that on the evening of 16 March 2015, he spoke to the Father, who said that he had a Family Law Order in place, under which his son should have been with him, and he had some concerns for the welfare of his son and believed there was some sort of possible assault that may or may not take place. Leading Senior Constable M (as he now is) said that he then telephoned the Mother spoke to her and then spoke to their son, [X].
He said the Mother said she was aware there was a Family Law Order in place and said that her son wanted to stay with her for the rest of the week. He said the Mother informed him that she believed the Father had breached an Intervention Order that was in place and as such she would be attending the [omitted] Police Station the following day to report this. He then spoke to [X] and he asked whether he was aware of the Court Order and the fact that he should be with his Father, and asked him what he wanted to do. He said that [X] said he was aware but that he wanted to stay with his Mother until the end of the week.
Leading Senior Constable M said he then spoke to the Mother and informed her he would be ringing the Father. When he telephoned the Father, he advised him that Victoria Police were happy that [X] was in no danger and that [X] would be staying there the night. He said he told the Father that [X] was happy to stay with his Mother until the end of the week.
Leading Senior Constable M was asked whether [X] was hysterical, sobbing and crying on the telephone when he talked to him. He responded “No”.
He was asked whether he informed the Mother that as [X] was 15 years old he did not need to be returned to his Father, in accordance with Family Law Orders. He responded that he did not believe he would have said that.
17 March 2015
[X] remained at his Mother’s house on 17 March 2015. The Mother’s evidence in relation to her failure to return [X] to his Father’s home on Tuesday, 17 March 2015, is that [X] asked to stay with her for the week. She said [X] was still upset, that he did not want to return to his home, that he was angry with his Father, and did not want to see the blue vomit in the backyard and to be reminded of the events and wanted time to chill out and focus again. She said that when [X] told her that he wanted to stay a week, she asked him whether he would like her to speak to the Father and he said “Yes”. This is the reason why she sent the email on 16 March 2015 to the Father stating that [X] wanted to stay with her.
The Mother agreed in cross-examination that [X] was well enough to go to school on 17 March 2015 and, when asked why he was not well enough to return to his Father, she responded “He didn’t want to go back. He wanted to stay”.
The Mother relies on a message sent by [X] to the Father’s Facebook page on Tuesday, 17 March 2015, at 7:39 am in which he said:
Dad I’m staying at mums all week because it’s [omitted]’s (sic) birthday and if I go back Thursday it will just mess my whole week up ok.
The Father’s evidence is that he did not check his Facebook until 23 March 2015.
In cross-examination, the Mother agreed that in her emails to the Father on 16 March 2015, she did not refer to [X]’s distress or mental health.
18 March 2015
In evidence, the Mother agreed that on 18 March 2015, she received by email, correspondence from the Father’s solicitor dated 18 March 2015. She agreed that the correspondence informed her the Father did not consent to [X] spending the week with her, that the correspondence stated [X] was permitted to spend time with her (by reason of Order 4(a)) for [omitted]’s birthday from the conclusion of school until 6:30 pm and that the Father would attend at her residence at 6.30pm, Wednesday, 18 March 2015 to collect [X].
There is no dispute that the Father attended at the Mother’s residence on the evening of 18 March 2015 to collect [X].
The Mother’s evidence regarding the events of Wednesday, 18 March 2015 is that shortly after 6:30pm, whilst she was driving home, she received a phone call from Mr E saying that the Father was at the property and was banging and yelling. She told him to get off the phone and call “000”. She said when Mr E rang her back she could hear banging and the Father yelling. She said she told Mr E not to go outside. She said she was travelling on the [omitted] Road, which is a bitumen double lane road around 12 km from home. She says that she was driving on the straight part of the road, where there were white double lines, when she saw the Father coming in the opposite direction. He drove onto her side of the road and she swerved off onto the gravel and stopped the car, because she was shaking.
The Father denied the Mother’s allegation that he was banging and yelling on the door of her house on the evening of 18 March 2015, and that whilst driving along the [omitted] Highway he deliberately swerved towards her, whilst she was driving her vehicle the opposite way.
An Affidavit filed on 11 August 2015 by Mr T, business owner of [omitted], a business specialising in transferring media, attached to his Affidavit a DVD of an audio-video transferred from the Father’s iPhone. The audio-video recording was taken on 18 March 2015 by the Father for a period of around 7 minutes when he attended the Mother’s home that day.
The video was viewed separately by the parties and their legal representatives. I viewed the video in open Court via a laptop using a USB stick (there being no dispute that the audio-video recording on the USB stick is the same audio video recording on the DVD created by Mr T). I am satisfied, having viewed the video that:
a)it commences at around 6.33pm and finishes at around 6.40pm and that it is a continuous recording;
b)it shows the Father driving a car, stopping the car, turning off the engine, and then walking and knocking at a door of a house; and
c)whilst the Father is waiting at the door, there is no audible sound of banging or the Father’s voice, the Father turns around, enters the car, waits for a short period of time and then commences driving.
Given the time and date on which the video was recorded, there can be no dispute that the house is the Mother’s home.
The Father agreed that the video recording did not show him driving along the [omitted] Highway.
The Mother was cross-examined about the audio-video recording. It was put to her that the audio-video recording is an accurate representation of the fact that the Father drove to her house, parked the car in front of house, walked to her door or the front of her house, knocked, walked back to his car, waited in his car and left. The Mother said she could not comment on this. She said she could only comment on what she heard.
The Mother said that, at the time she alleges that she had overheard the Father banging and yelling at the front of her house, [X] was in his bedroom. When asked why he was in his room and not ready with his bags packed to be collected by his Father, the Mother responded that [X] had already told his father that he was staying at her home.
On 29 April 2015, on Application by Senior Constable W on behalf of the Mother, an Intervention Order was made against the Father for a period of six months.
The application for the Intervention Order dated 29 April 2015 (Attachment BG-3, to the Father’s Affidavit filed 17 April 2015), states as follows:
“The respondent has attended the address where the undertaking prevented him from attending yelling and banging doors trying to get the son to go home with him. Both the son and the current partner of the AFM have remained inside to prevent a confrontation. The respondent has then attended to back paddock and let the livestock out of its paddocks in an attempt to get the occupants out of the house. The respondent has left the address in his silver Holden sedan. The AFM was travelling in a southerly direction towards home when a vehicle she recognised to be the respondent travelling towards her near [omitted]. The respondent has swerved violently into the AFM side of the road causing her to take evasive action to prevent an accident. An intervention order is required to prevent the AFM from causing family violence. The AFM fears the violence is escalating and there will be injuries to parties if there are no orders in place.
The first thing to note about this record, is that the attendance by the Father at the Mother’s house was not a breach of the undertaking he gave, as the undertaking was subject to the 2014 consent Orders. Under those Orders, when [X] was not at school, changeover would be effected by him collecting [X] from the Mother’s home: Order 5.
The Father gave undertakings on 31 March 2015 not to communicate with the Mother and be within 200 metres of the Mother’s home.
Counsel for the Father referred to a police brief prepared by Constable W regarding the alleged incident on 18 March 2015 at the Mother’s home. In that brief to the prosecution, Constable W stated:
“There is no evidence provided in support of the allegations made by the victim and her partner other than the statements attached.”
Reference was made to the Mother’s statement made on 29 March 2015. The Mother was asked why she stated in a statement that, upon receiving a phone call from her partner at 6.37 pm, she told him to stay inside and not go out. The Mother responded that “Mr Glassop and his mates in the past have assaulted my partner.” On further cross-examination, the Mother said she was referring to an assault in 2006 when a person called [name omitted], hit Mr E. When it was put to the Mother that the Father did not assault Mr E, the Mother responded “Mr Glassop brought his friends around that night”.
Counsel for the Father referred to an extract from the Mother’s statement dated 29 March 2015 in the police brief, in which the Mother stated:
“Mr Glassop and I have been separated now for nine years and his violence towards me is increasing. He has informed me in the past that he will not stop until I have nothing left.”
When asked what violence towards her was increasing, the Mother said, “He parks out the front of my work.” “He has applied to be a volunteer at my workplace.”
The Mother agreed that she told the police on 18 March 2015 that the Father’s presence at her home was in breach of the undertaking. The Mother said that that is what she believed at the time.
19 March 2015
On Thursday, 19 March 2015, [X] sent a message to his Father’s Facebook stating:
Dad I’m going camping this weekend with mum and won’t be home till Monday night
The Father’s evidence is that he did not check his Facebook until 23 March 2015 and, consequently, was not aware that [X] had sent these communications. The Mother says that the main way [X] communicates with his parents is via Facebook postings using his iPad. The Mother said that she was not aware of these Facebook messages until she read the Father’s Affidavit in these proceedings.
In cross-examination, the Mother said she could not explain why she did not communicate herself with the Father about [X] joining them in the camping weekend.
The Father deposes that having read [X]’s messages on his Facebook, he responded on the morning of 23 March 2015 in a positive way, stating he would see him later on. He said he attended [X]’s school that day, spoke to the Deputy Vice-Principal of Student and Staff Well-being who confirmed that [X] had not attended school that Monday.
When asked why she continued to breach the 2014 consent Orders in the face of a clear indication there was no agreement and there was an expectation the Orders would stand, the Mother’s answer was that the police had conducted a welfare check on the Monday night and had informed her that everything was fine and that [X] did not have to return to his Father and that the Father would be told that [X] was staying with her. When pressed about this explanation, the Mother then responded that it “was about [X]’s emotional state of the time, [X] didn’t want to go back to his dad, he was angry.” When asked how she knew on Monday that [X] would be upset for the rest of the week, the Mother responded that [X] had asked to stay with her that week.
Weekend commencing 20 March 2015
In relation to the failure to return [X] to his Father’s care on the weekend commencing 20 March 2015, the Mother said that originally the plan was that [X] was going to return to his Father’s on the Friday. She said [X] was still a bit emotional but he was a lot better. She said he had asked on Thursday whether he could come away for the weekend with them. She responded to him that “he would need to speak to his father about that because you had told dad that you are going back there on Friday.” The Mother said that [X] assured her that he had spoken to his Father and that everything was fine.
At 7:59 am on 24 March 2015 the Mother sent an email to the Father stating:
[Mr Glassop],
[X] is returning to your place tonight can you pick him up.
[Ms Glassop].
The Father deposes that he collected [X] on Tuesday, 24 March 2015 at the conclusion of school. He said that [X] told him that he had gone camping with the Mother, Mr E and their children from 20 March 2015 and returned in the evening of Monday, 23 March 2015, and that on Sunday, 22 March 2015 the family went to a birthday celebration of Mr E’s Great Aunt who had turned 100 years old. The Father deposes that [X] also stated he wanted to give his Father “advanced notice” that the Mother would be taking him away again to Perth some time at the end of October or early November 2015.
There is no dispute that from 24 March 2015 to the date of the contravention hearing, the 2014 consent Orders have been complied with by both parties.
The Father’s evidence is that he is pursuing the Contravention Application, because of his concern to ensure that the parenting arrangements for [X] are adhered to, in order to avoid what occurred with [Z]. Both parents agree that [Z] (being strong willed and a different personality to [X]) exercised her will in determining who she would reside with and that the circumstances were chaotic and not in [Z]’s best interests. I should note here, that the Mother ascribed all of [Z]’s poor behaviour to the time she spent with her Father. This appears to be an allegation without foundation and, in any event, [Z] presently lives with the Father having some contact with the Mother.
The Father agreed that having to give undertakings on 31 March 2015 was a cause of annoyance, but denied that he was proceeding with the Contravention Application because of this.
The Mother gave evidence-in-chief that when an alternate arrangement was made by agreement between the parties for [X] to spend time with her in February 2015, she had initially asked [X] to speak to his Father and make sure it was okay with him and that [X] rang his Father and he said it was fine.
In cross-examination, the Mother agreed that in fact the parties had communicated about the February 2015 weekend by email and reached an agreement in writing.
The Mother also gave evidence that on 18 July 2015 whilst [X] was spending time with her, he asked her whether he could attend a family dinner on the Father’s side, she agreed and his sister took [X] to the function.
The Mother was cross-examined about the history of proceedings prior to the 2014 consent Orders. She agreed that from late 2006/early 2007 a week about arrangement was in place until 2010 when she suspended the children’s time with the Father. She said that [A] had alleged that the Father had sexually abused the children and that [X] had told her that the Father had given him Temazepam. The Mother said she that she never accused the Father of interfering with the children. That, she said, had come from [A]. The Mother agreed that she suspended the Father’s time with the children because of these allegations and that the Father did not see the children at all from January 2010 until 17 May 2010, when Interim Orders were made for him to see the children for limited periods of time.
The allegation that the Father had given [X] Temazepam was dealt with in Dr N’s Family Report dated 5 July 2010 (at p.36 to 38):
[X] is a 10-year-old boy. He impressed as a friendly, open, good natured boy who appeared wise beyond his years. He seemed to engage well, and he spoke easily with good eye contact and simple direct statements. His grief about the problems in his family was difficult for him to conceal. He impressed as a well-adjusted young man with considerable personal strengths.
…
[X] confirmed that his father had offered a tablet on one occasion only and that it had been orange-flavoured. [X] recalled that at that time he thought [Z] already believed that her father might try to drug her. He said disgustedly “I think it was vitamin C”
[X] told me that his mother had told him they could not see their father because he had slept with Mr E’s former partner, [omitted]. [X] described that he saw the dynamics in his family as “mum and [Mr E] don’t like dad. Dad likes mum but he doesn’t like [Mr E]”.
[X] cried when speaking of his grief at missing his father and told me emphatically that he wanted to return to “week on week off.” He also stated that he wished both his parents and Mr E would “stop fighting”. He said that he would be unhappy if he could not spend equal time with his father and have things the way they used to be. He saw the biggest problem facing him as “not seeing my dad”. [X] said he had no difficulty sleeping at his father’s home and did not believe his father drugged him with sleeping tablets.
The Mother agreed that after that Report was released on 5 July 2010, Orders were made for the reinstatement of shared care. The Mother said that she did not recall whether or not in February 2011 she sought Orders that the children spend 4/14 nights with their Father. She agreed that on 21 February 2011, final Orders were made by consent for equal shared parental responsibility for all children and a week-about arrangement. She agreed that, in 2013, things started to go awry with [Z], in that [Z] was spending 3 months in the Mother’s home and 3 months at the Father’s home, following a parenting plan reached between the parties that [Z] spend time with her parents in accordance with her wishes. The Mother agreed that this arrangement was not good for anyone. The Mother responded to a question put to her that [Z] was engaging in unacceptable behaviour, such as drinking in excess, “Whilst in her father’s care, yes”. However, the Mother then denied she blamed the Father for this.
The Mother indicated, in cross-examination, that she was aware of proceedings before the County Court in relation to correspondence dated 30 August 2013 received by the Father’s employer (a government department) alleging, amongst other things, that the Father had committed sexual offences against one of his daughters. Counsel put to the Mother that the correspondence was purportedly signed by Ms D. The Mother confirmed that Ms D was Mr E’s ex-partner. The Mother confirmed that she was aware that a forensic analysis of the handwriting on the envelope containing the correspondence had determined that it was the Mother’s handwriting.
Submissions
The Mother submits that she had a reasonable excuse for the contraventions of the 2014 consent Orders over the relevant period, having regard to [X]’s mental health, arising from his distress from the death of the puppy and his anger with his Father. In these circumstances, she argues it was reasonable for her to give significant weight to [X]’s wishes to remain with her.
The Mother’s submission is that the Father deliberately embarked on a course of action designed to bring the Contravention Application because of, or, as retaliation for, undertakings he gave on 10 March 2015 and the subsequent Intervention Order taken out against him on 29 April 2015, which resulted in him giving certain undertakings. The Mother submits that the Father’s evidence that he did not check his Facebook for messages from his son until 23 March 2015 is implausible. The Mother criticises the Father for failing to make an effort to contact [X] after he was made aware (by reason of the Mother’s email on 16 March 2015) that [X] wanted to spend the week with the Mother. She argues that, given the Father’s knowledge that [X] was upset by the death of his puppy, his failure to communicate with [X] over that week demonstrates that the Father was more focused on treating the issue as a confrontation, than on [X]’s needs. She asserts that, “If the husband had behaved differently and opened communication with [X] it is very likely that [X] would have gotten over his distress and anger much more quickly.”
There are two things that can be said regarding the general tenor of the Mother’s submission and the particular accusations made by her about the Father’s behaviour during the relevant period. Firstly, it is for the Mother to establish that her conduct of behaviour occurred, because there was a reasonable excuse within the meaning of s.70NAE of the Act. Secondly, her accusations levelled at the Father are premised on her evidence that [X] was angry with his Father and that his emotional distress was at a level such that it would not be in [X]’s best interests to be returned to his Father, in accordance with the 2014 consent Orders. For the reasons set out below, I reject both of these premises.
The Father submits that the Mother did not have a reasonable excuse within the meaning of s.70NAE of the Act in relation to each of the eight counts. He seeks an Order of the Court pursuant to s.70NEB(1)(f) of the Act, that the Mother pay the costs he has incurred as a result of these proceedings. This amount he submits is $12,686.90. He submits that s.117 of the Act is not relevant to these proceedings and, in particular, the financial circumstances of the parties, is not a matter the Court is required to take into account. He submits, however, that insofar as the Court is moved to apply the provision of s.117 of the Act the following factors are relevant:
a)both parties are in full-time employment and reside in their own homes;
b)the Mother has a de-facto partner, who is in full-time employment, whilst the Father does not live with a partner;
c)the Father financially supports the Mother’s child from a previous relationship;
d)Exhibit M3 discloses that at 20 June 2015, the Mother owed $2,117 in child support to the Father and that in the period between 7 July 2015 and 13 July 2015, the Mother paid a total of $2,143.40 in arrears; and
e)The Mother has previously been able to pay costs against her (in relation to the dismissal of a Contravention Application brought by her) in the amount of $2,750.00 on 16 October 2014 (these being Orders made by the Court on 16 October 2014).
The Mother submits that no Order for costs should be made in these proceedings. In her written submissions, she notes that the Father has not sought an Order for make-up time and that, furthermore, since the relevant period there have been no contraventions of the 2014 consent Orders. She maintains there is no likelihood that they would be contravened in the future. She submits that “in this instance where the husband has been transparently motivated by a desire to see the wife punished”, it is not appropriate for costs to be made to punish the Mother. She relies on the following extract from the judgment of Cronin J in the Full Court decision in Mclintock and Levier (2009) FLC 93-401 where his Honour said:
230. In my view, there is a distinction between the coercive and punitive provisions of the Act.
231. It is helpful to compare Division 13A of Pts VII - XIIIA and XIIIB. Section 70NAA(1) deals with the power of a court to make orders to enforce compliance with orders affecting children. Part XIIIA specifically refers to “sanctions” and importantly, empowers a court in exercising its “additional sentencing alternative” to apply State or Territory laws with respect to certain sentences. While there are certain similarities of language between ss70NFC and 112AG(5), the distinction is clear between the coercive nature of the orders in Div 13A and the punitive orders in Pt XIIIA.
232. Similarly, the language of Pt XIIIB relating to contempt of court could not be a more stark way of contrasting the intention of the Legislature. Section 112AP(2) empowers a court to punish a person for contempt. There is no reference to punishment in Div 13A.
233. The focus of a court therefore in dealing with a contravention application under Div 13A must be in making orders which will enforce future compliance with its orders.
234. For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.
The Mother submits that if the Court deals with the question of what Order to make pursuant to s.70NEB of the Act, then s.117 of the Act applies. She submits that the financial circumstances are:
a)the Mother earned a taxable income of $38,076 in the financial year ended 30 June 2015;
b)she pays child support in the amount of $294.91 per fortnight from 5 August 2015; and
c)she is not in receipt of legal aid.
Furthermore, the Mother submits that the Court should have regard to the conduct of the parties. With respect to this, she argues that her actions which led to the Contravention Application, were motivated by concern for the child. She believed that the Father had consented to the child going camping for the weekend, because the child told her this. In contrast, she submits, the Father has behaved in an intransigent manner, focusing on the enforcement of what he believes is his right, rather than the interests of [X].
The Mother submits that a requirement to attend a post-separation parenting course would be appropriate, or, if the Court was minded to impose a more severe sanction, then an appropriate Order would be a bond of good behaviour for 2 years.
The Mother submits that the 8 counts alleging contravention should be dealt with as one continuing contravention as they arose from [X]’s reaction to the death of the puppy.
I shall deal with each count separately until the weekend commencing 20 March 2015, when [X] went on a camping trip with the Mother’s family and attended a family gathering on the Sunday evening of that weekend.
Did the mother have a reasonable excuse?
Count 1 - 16 March 2015
The Mother’s submission that she had a reasonable excuse for breaching the 2014 consent Orders are grounded on her evidence that [X]’s emotional state was fragile and remaining with her was appropriate conduct, given his mental health.
In her written submissions, the Mother attacks the Father for the steps she says he failed to take in dealing with the puppy. She maintains that it was entirely reasonable that “[X] would think his father callous and thoughtless in his reaction to the poisoning.”
For the reasons which I have set out above, I accept the Father’s evidence that when [X] left from his home on 15 March 2015 to return to his Mother’s, he had not expressed any anger towards the Father.
I do not accept the Mother’s evidence that [X] told her that he was angry with the Father for not taking the puppy to the vet. [X]’s Facebook posting on 15 March 2015 (Exhibit M2), which is a clear expression of his feelings and emotions that day, makes absolutely no reference to any failure by the Father to take the puppy to the vet or, in any way, expresses any anger towards his Father. Indeed, [X] says in that posting, “with all our love R.I.P [omitted] from the people that always loved you [A] and [Mr Glassop] love you always.” It is clear to me that [X] is including his Father in his expression of love for the puppy. It is unlikely he would be doing this if he was indeed expressing anger towards his Father, as maintained by the Mother.
Consequently, I find that whilst [X] was very distressed about the death of his puppy (this issue being undisputed), he did not blame the Father for the puppy’s death, nor was he angry with his Father.
I am satisfied that in the circumstances, the decision by the Mother that [X] not attend school on Monday, 16 March 2015 was in [X]’s best interests.
The Mother submits that the Father’s insistence in the emails he sent to her on 16 March 2015 that [X] return to his home “reveals a lack of insight by the husband… That [X] would have been particularly upset by immediate return to the site of the death of the puppy and to the care of the parent that [X] thought had been responsible. In contrast, the wife displayed insight and genuine concern for the child in her actions.”
I have already rejected the Mother’s evidence that [X] held the Father responsible for the puppy’s death. With respect to [X]’s mental health, the Mother’s evidence was that he was highly distressed, emotional and overwrought during the day and into the night.
The Mother gave evidence-in-chief that Acting Sergeant M (as he then was) spoke to [X] over the telephone that evening and that [X] was hysterical on the phone and sobbing again, because he was reliving the death of the puppy. The Mother further said that Acting Sergeant M (as he then was) told her that he would be ringing the Father to inform him that [X] would not be returning that week. She said Acting Sergeant M (as he then was) said to her that [X] was clearly upset about the dog, that [X] was 15 years old and did not need to be returned to his Father’s care.
The evidence given by Leading Senior Constable M directly contradicts the Mother’s evidence. As I have earlier said, the use of the words “hysterical” and “sobbing” evoke a very strong emotional state on the part of the child, as he was engaging in conversation with the police officer. Leading Senior Constable M gave evidence that the child was not hysterical or sobbing during the telephone conversation. His evidence was that the child was fine. Leading Senior Constable M stated that he had taken contemporaneous notes of the conversation and had, prior to giving his evidence, refreshed his memory. He gave evidence that he could not recall telling the Mother that [X] was 15 years old and did not need to be returned to his Father, in accordance with Family Law Orders. Moreover, Leading Senior Constable M did not corroborate the Mother’s evidence that he told her he would be informing the Father that [X] would be staying with the Mother for the week.
I am satisfied that the Mother’s evidence as to [X]’s emotional state on Monday night is highly exaggerated. I prefer the objective evidence of Leading Senior Constable M that [X] was not “sobbing”, nor “hysterical”, and that he was fine. Her submissions that the Father lacked insight and that her actions were appropriately child-focused are premised on her evidence about [X]’s fragile emotional state. As I do not accept her evidence on this, I find that there was no reasonable excuse for the Mother failing to return [X] to his Father’s care on 16 March 2015.
Accordingly, I find that on 16 March 2015, the Mother contravened Order 2 of the 2014 consent Orders without reasonable excuse.
Count 2 - 17 March 2015
The Mother’s evidence in support of her submission that she had a reasonable excuse to contravene the 2014 consent Orders on 17 March 2015 are that [X] continued to be upset and angry with his Father, that he wanted to stay with his Mother and that he had conveyed this wish to the Father via Facebook. She contends that [X]’s main way of communicating with the parents was via Facebook and submits that the Father’s evidence that he did not check his Facebook until 23 March 2015 should not be accepted.
The Mother’s contention that the child had conveyed his wish to the Father via Facebook misses the point; namely, that the obligation is on the parents to communicate regarding issues affecting [X] and by Order 4(i) they are required to agree in writing regarding any changes to time spent in accordance with those Orders, taking into account the child’s wishes. The Mother made no effort to reach an agreement with the Father on this matter. She simply told the Father on 16 March 2015, by email, that [X] would be staying with her for the week, without any explanation of the reasons for this; such as her concerns about [X]’s emotional wellbeing or [X]’s expressed wishes. The fact that the Mother believed it was sufficient for [X] to convey, by way of Facebook posting, to his Father that he wanted to stay the week, reveals a concerning disregard for the 2014 consent Orders and a lack of insight about the effects of placing the responsibility for communication with his Father about changes to the parenting arrangements on [X].
I have earlier found that [X] was not angry with his Father and have rejected the Mother’s evidence about [X]’s emotional state.
In the circumstances, I find that there was no reasonable excuse for the Mother failing to return [X] to his Father’s care on 17 March 2015.
Accordingly, I find that on 17 March 2015, the Mother contravened Order 2 of the 2014 consent Orders without reasonable excuse.
Count 3 - 18 March 2015
There is no doubt, on the evidence, that the Mother was aware that the Father intended to collect [X] from her residence, as he was entitled to do in accordance with the 2014 consent Orders, at 6:30pm.
Having viewed the audio-video recording (Annexure BT-1 to the Affidavit of Mr T), I find that the Mother’s evidence that the Father, when he attended her residence, was banging and yelling, is baseless. I find that the Father did not bang and yell when he attended the Mother’s home. The Mother next gave evidence that whilst she was driving home, the Father swerved in her direction as he was proceeding from the other way, forcing her to drive onto the gravel and stop, because she was shaking. The Father denies this occurred. For the reasons set out earlier, I prefer the Father’s evidence.
Although an Intervention Order was made by the police on the Mother’s behalf and undertakings given by the Father on 31 March 2015, it is evident that the police formed the view, in the brief to the Crown prosecutor, that there was no other evidence to support the allegations made by the Mother.
The Mother offers no other evidence for her failure to return [X] to the Father’s care on that evening.
In the circumstances, I find that there was no reasonable excuse for the Mother failing to return [X] to his Father’s care on 18 March 2015.
Accordingly, I find that on 18 March 2015, the Mother contravened Order 2 of the 2014 consent Orders without reasonable excuse.
Count 4 – 19 March 2015
The Mother relies on the fact that [X] had expressed his wishes to his Father via Facebook posting to him, that he wished to spend the week at her home. In addition, she says that Acting Sergeant M (as he then was) had told her the Father would be told by him that [X] was staying with her. I do not accept this evidence, as factual, as it contradicts the evidence of Leading Senior Constable M (as he is now).
The Mother relies on her evidence regarding [X]’s wishes and combined with [X]’s emotional state, both of which I have earlier rejected as forming a reasonable excuse.
In the circumstances, I find that there was no reasonable excuse for the Mother failing to return [X] to his Father’s care on 19 March 2015.
Accordingly, I find that on 19 March 2015, the Mother contravened Order 2 of the 2014 consent Orders without reasonable excuse.
Counts 5, 6, 7 and 8 – 20 March 2015 to 23 March 2015
In relation to these counts, the Mother relies on the fact [X] expressed his wish to go camping with her family on the weekend by way of a Facebook posting on 19 March 2015. She also gives evidence she believed it would be good for [X]’s emotional well-being if he had the weekend away.
I have earlier dealt with the issue of relying on the child to bear the burden of conveying changes to parenting arrangements under parenting Orders and the obligation on the Mother to take this responsibility and reach agreement in writing.
I do not accept that the weekend was necessary for [X]’s well-being, although I am sure he enjoyed it and attending his relative’s 100th birthday celebration. I am satisfied that the Mother took no action, as she was obliged to do, to return [X] to his Father or reach alternative arrangements with the Father by agreement in writing.
In the circumstances, I find that there was no reasonable excuse for the Mother failing to return [X] to his Father’s care on 20 March 2015, 21 March 2015, 22 March 2015 and 23 March 2015.
Accordingly, I find that on 20 March 2015, 21 March 2015, 22 March 2015 and 23 March 2015, the Mother contravened Order 2 of the 2014 consent Orders without reasonable excuse.
What Orders should the Court make?
I have found that the Mother contravened the 2014 consent Orders on each count without reasonable excuse. Although the breaches were continuous for a one week period, there have been no previous contravention Orders made against the Mother and no further breaches since that period of time.
I am satisfied that in the circumstances s.70NEB of the Act applies. Section 70NEB of the Act provides:
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of 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;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
I have considered the submissions on behalf of the Mother that the appropriate sanction would be to make an Order under sub-paragraph (a), requiring her to attend a post‑separation parenting program. In my view, these proceedings have gone past that stage.
The Mother does not strike me as a parent who would benefit from a post-separation parenting course. The parties have been involved in litigation regarding their children for many years. I doubt, given my assessment of her evidence, the Mother would be open to absorb and apply the content of such courses.
I accept that the focus of a Court in dealing with a Contravention Application under Division 13A must be in making Orders which will enforce future compliance with its Orders.
The Father seeks an Order for costs under s.70NEB(1)(f) of the Act. The Mother seeks an Order for the imposition of a good behaviour bond under s.70NEB(1)(d) of the Act in the alternative. In circumstances where the Father has been wholly successful in his Application, I am satisfied that the appropriate Order to make, to enforce future compliance, is a costs Order pursuant to s.70NEB(1)(f) of the Act.
I do not accept the Mother’s submission that, in determining whether to make an Order and what Order to make under s.70NEB(1)(f) of the Act, a Court is constrained by the provisions of s.117 of the Act. If this submission were correct, s.70NEB(1)(f) of the Act would be rendered otiose. Section 70NEB(1)(f) of the Act stands on its own, permitting the making of costs Orders, without being constrained by the general rule that party’s in family law proceedings bear their own costs. Further, the purpose of the making of Orders under s.70NEB of the Act is different to the making of costs Orders as an exception to the general rule under s.117(2) of the Act. In the former case, it is to enforce future compliance. In the latter case, it is to compensate a party for costs incurred, where the Court finds it is just to do so in the circumstances. There is no reason, however, why a Court exercising its discretion under s.70NEB(1)(f) of the Act, should not have regard to the factors enumerated under s.117(2A) of the Act. Both parties made submissions regarding these factors.
In the circumstances, I am satisfied that an Order should be made pursuant to s.70NEB(1)(f) of the Act, that the Mother pay some of the Father’s costs in the amount of $2,300.00. In order to enable her to arrange her finances, I will allow her a period of 90 days to pay these costs.
Conclusion
For the reasons set out in my judgment, I make the declarations and Orders set out above.
I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 21 December 2015