GRESHAM & GRESHAM

FAMILY COURT OF AUSTRALIA

GRESHAM & GRESHAM

[2017] FamCA 270

FAMILY LAW – CONTRAVENTION – Where the father is found to have contravened orders without reasonable excuse on four counts – Where the parties are ordered to complete a post-separation parenting orders program – Where the application is otherwise dismissed.

FAMILY LAW – CHILDREN – INTERIM ORDERS – Variation – Where interim orders regarding the mother’s telephone communication with the children are varied.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Gresham

RESPONDENT:

Mr Gresham

FILE NUMBER:

BRC

10362

2013

DATE DELIVERED:

2 May 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

19 April 2017

REPRESENTATION

THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Mr Evans

Evans & Company Family Lawyers

ORDERS

Post-Separation Parenting Orders Program

Pursuant to the provisions of s 70NEB(1)(a)(ii) the mother and the father shall each separately attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs within six (6) months of the date of these orders.
Each of the mother and the father shall be personally responsible to access details of such programs through a Family Relationship Centre in their residential proximity and for making contact with a provider of such programs, enrolling in, attending and completing such a program and each shall provide evidence in writing of the completion of such a program to the other party and also to the Independent Children’s Lawyer appointed in these proceedings as soon as practicable after the completion of such a program.

Variation of Primary Orders

Communication

Paragraphs 9, 10 and 11 of the Orders of Principal Registrar Filippello made 29 October 2015 are discharged.
Until further order, the children, B born … 2008 and C born … 2012, (“the children”) shall communicate with the mother as follows:
(a)Each Wednesday and Sunday night when the children are not in the mother’s care, or when they have not spent time with the mother that day, the father shall initiate, or cause the children to initiate a call to the mother at 6.30 pm Queensland time; and
(b)At all such other reasonable times as the father and the children or either of them agree from time to time that the children or either of them can call their mother, with the father’s agreement to any such request not to be unreasonably withheld (and to this end the father shall inform the children that they will be expected to speak with their mother each Wednesday and Sunday night that they are in the father’s care, but also that they may ask to speak with their mother at any other reasonable time);
(c)Such communication shall be facilitated by the Skype video calling platform unless that is not reasonably practicable by reason of the Skype platform not being technically available at the time, in which circumstances the communication shall take place by telephone call instead;
(d)The father shall ensure, in so far as it is reasonably within his capacity, that the Skype video calling platform is able to be utilised for the purposes of these calls;
(e)The father shall give each of the children privacy to speak with their mother during such communication by having them go into their bedroom for the duration of the call or by removing himself from the immediate vicinity in which they are making the call, if it is not their bedroom;
(f)The mother shall limit the length of each such call (be it by Skype video platform or telephone) to a maximum of 20 minutes in total, regardless of how long it is she speaks with each child during such calls;
(g)Any variation from the terms of these orders in respect of the children’s communication with their mother and in the obligations they create in that respect shall only occur if agreed by the mother and the father in writing in advance.

Specific Issues

Until further order and notwithstanding the parental responsibility orders contained in the primary orders of the Principal Registrar of 29 August 2015, the father shall be permitted to continue to take the children to church services at the D Church, Suburb E even without the mothers’ agreement.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10362 of 2013

Ms Gresham

Applicant

And

Mr Gresham

Respondent

REASONS FOR JUDGMENT

By an Application – Contravention lodged with the Court in mid-December 2016 that bears a date stamp showing it was filed in the Court on 5 January 2017, the applicant mother of the two subject children (now aged eight and five) seeks to have the respondent father of those two children dealt with pursuant to the provisions of Part VII Division 13A of the Family Law Act 1975 (“the Act”) for contravention of parenting orders that currently regulate their co-parenting relationship.
Interim orders were made in this Court by the former Principal Registrar (“the PR”) after a contested hearing on 29 October 2015. At the time, the mother was living and working in Asia and the father was living on the northern end of F Town and working in the south of Brisbane. The mother had moved to Asia from Australia in the second half of 2014. Between their separation in December 2012 and her move to Asia, the mother and father had, largely, co-operatively shared the care of their two young girls without Court orders in place.
The mother had moved to Asia on fairly short-notice against the wishes of the father, who was quite satisfied with their shared co-parenting arrangements at the time.
The mother had asked the father to let her take the children to live with her in Asia but he had not agreed to that. Sometime after she had moved to Asia, the mother commenced proceedings in this Court seeking orders that the two girls be permitted to be taken by her to live with her in Asia. That was opposed by the father and the PR’s interim orders were made such that the girls were to continue living with their father on F Town and to spend time with their mother in school holidays. Those orders also provided for equal shared parental responsibility, regular communication between the girls and their mother and other specific issues orders.
The mother returned to Australia in the middle of last year, 2016, whilst the parenting proceedings she had commenced had still not been finalised. She had ceased working in Asia earlier that year and had done some international travel for several weeks before returning to live on F Town.
Apparently, from her arrival back in Australia, the mother has been desirous of moving straight back into an equal shared care co-parenting arrangement but the father has, for his own reasons, resisted that. Accordingly, they continued to regulate their co-parenting arrangements pursuant to the 2015 interim order with arrangements being made between them for the children to spend weekends with the mother during school term as well as the periods during school holidays, whilst the mother immediately filed a fresh application seeking further interim orders providing for equal shared care. Soon thereafter, the father filed his own application seeking departure from child support assessment.
It is completely clear that their co-parenting relationship was, by that time, no longer a mutually trusting and respectful one. It continued to deteriorate.
The girls spent the first week of the September/October school holidays with their mother and the second week with their father. Soon after the holidays, when they were scheduled to spend some more weekend time with the mother, the father withheld the girls, apparently owing to some serious concerns he had for their well-being if they were to continue to go and spend time with the mother as things were.
A hearing of their competing parenting proceedings then took place before Senior Registrar Spink on 24 November 2016. The Registrar made some more interim orders on 1 December, 2016, that varied those of the PR from 2015, such that the girls’ time with the mother was to be supervised from that time on by a commercial children’s contact service on F Town, with an Independent Children’s Lawyer appointed to represent the children. Just over two weeks later, the mother lodged the Application-Contravention. It was listed for hearing before me on Wednesday, 19 April 2017.
At the hearing before me, the mother appeared without legal representation. The father was represented by his experienced, specialist family law solicitor. At the commencement of the proceedings, as I generally do at the start of contravention hearings, I asked the mother what she was hoping to achieve by the proceedings if I made a finding that the father had contravened the orders as alleged, without reasonable excuse. I also asked her if she had read Part VII Division 13A of the Act.
It quickly became clear that the mother had not read Division 13A.
This Court is constantly required to hear and determine contravention applications brought by litigants who appear without legal representation who have not read and do not know and understand all of the provisions of Division 13A. It is an onerous task for a Judge to have to determine a contravention application, particularly given the complexities of Division 13A, even when assisted by the most capable of legal practitioner. The task becomes even more difficult and time consuming when a litigant in person presses a contravention application without an understanding of Division 13A. This hearing took up an entire day of the Court’s time.
Interestingly, the mother informed the Court that she was not seeking to have the father punished for his alleged contraventions. She said that she wanted him to be ordered to undertake “counselling” and she was hoping to have some changes made to the extant interim parenting orders, particularly around the issue of communication between her and the children. She was quite adamant that her application had not been brought as a knee-jerk, retributive response to the father’s successful application to have her time with the children supervised until further order. I was far from persuaded by her assurances of that.

The Contravention Application

The mother’s application included sixteen alleged contraventions. At the outset of the hearing, the solicitor for the father made submissions in respect of some of them that they should be summarily dismissed as they did not disclose any actual contravention of the orders and nor did the evidence the mother had deposed to in her affidavit in support. After hearing submissions from the mother in response, I summarily dismissed alleged contraventions 14 and 15, satisfied that they did not disclose a case for the father to answer.
During the course of the hearing, I also summarily dismissed alleged contravention 12 for the very same reason, when the mother herself conceded that the primary order did not oblige the father to do that which she alleged he did not do.
Alleged Contraventions 1 – 3 were all similar in substance. The mother contended that the father had, without reasonable excuse, failed to facilitate Skype communication between the two girls and the mother on 27 September, 29 September and 2 October 2016. The father denied that he had contravened the primary order as alleged.
Relevantly, the primary order said to have been contravened was paragraph 9 of the PR’s orders of 29 October 2015. It is as follows:
Whilst the children are living with the Father, the Mother shall be at liberty to contact the children via telephone and/or Skype at all such times as may be agreed, but failing agreement on at least three (3) occasions per week, being Tuesday, Wednesday and Thursday each week with the parties to use their best endeavours to facilitate the calls to fall as near as is practicable within the period between 5:45pm and 6:45 pm AEST and to endure for up to 30 minutes PROVIDED THAT if a call is missed, it will be returned as soon as is practicable, with the Mother having liberty to nominate alternative days within seven (7) days of the date of these Orders.
It is agreed between the mother and the father that shortly after the PR’s orders were made they agreed to change the days of these calls to Tuesday, Thursday and Sunday as was permitted by the order.
Paragraph 10 of the primary order is also of relevance. It is as follows:
a)The Father shall do all things necessary to ensure that a device using the Skype account is switched on with Skype signed in and otherwise not in use at the time referred to in Order 9) herein;
b)The Father will encourage the children to have Skype communication with the Mother by providing a device to the children to answer the Skype call and encourage the children to return a missed Skype call by the Mother;
c)The Father shall do all things necessary to ensure the relevant device to be used remains charged, operable and otherwise not in use at the time referred to in Order 9) herein;
d)Each party shall be responsible for the cost of purchasing, installing and maintaining the required device hardware and software and internet access for use with their device to facilitate such communications;
e)The Father shall use his best endeavours to allow the children to communicate freely and comfortably with their Mother during the calls and to provide the children with such privacy as is appropriate.
In the second week of the September/October school holidays in 2016, the father took the girls for a family holiday at G Town off the coast of Queensland. They were there with his parents from Victoria, and at least one of his siblings and some of the girls’ cousins. He gave evidence, not challenged by the mother, that she had the girls for the first week of the holidays and that she had taken them camping somewhere. He said that although he had the right to call the girls whilst they were on holidays with their mother he had not exercised that right, preferring, he said, to let the girls enjoy their holiday time uninterrupted by his calls. However, there was no evidence of any agreement being reached between them that the mother would do the same thing during the week they were on holidays with the father on the island. Accordingly, the father had no grounds for expecting that.
The evidence is that on Tuesday, 27 September 2016, the mother sent a text message to the father at 6:04 pm. It said:
The girls asked me to Skype on Tuesday as normal. Can you please confirm they will be available in a quiet area at 6:45? Thank you
At 6:40 pm, the mother sent the father another text message. It said:
Can you please confirm?
The mother and the father agree that a practice had developed whilst the mother was in Asia, and had apparently been maintained, that the mother would usually Skype call at 6:45, the very end point of the timing ‘window’ provided for in paragraph 9 of the orders. Clearly, I am satisfied, the father expected the calls to come at around that time and on 27 September, 2016, was aware that the mother intended to call at that time.
The mother asserts that she attempted to Skype the girls several times “at the agreed time” and that she called the father’s mobile phone, which she says “rang out without answer several times”.
At 6:49 pm, the mother sent another text to the father’s number. It said:
Just confirming I have messaged you, called you, messaged and called the girls on Skype and there is no answer. This was the agreed time and they were expecting a call. Please arrange a time for them to call. Thanks
At 7:48 pm, the father sent the mother a text message. It said:
We have virtually no reception here and can’t make outgoing calls, we were in the middle of early birthday dinner. I spoke to [B], she said she’d give you a call from the car tomorrow heading to [theme park].
The mother cross-examined the father at the hearing and asked him about his text message. In that evidence, the father said that he did not have an internet Wi-Fi connection in the place they were staying on G Town and that the 4G connection was not very satisfactory for the use of Skype in that place. He said the connection on G Town was not really very good for Skyping anywhere in the town, though he conceded that he had sent emails and posted pictures on Instagram during his stay there – things that obviously required an internet connection. Furthermore, he said that the family was celebrating his birthday that night, although his birthday was actually later in the year, because they were all together on holidays then. He said that the Skype call came through when “the candles were on the cake” which I understood to mean that he was aware that the mother had tried to place a Skype call to the girls at the time that he was about to light candles on his birthday cake or about to blow out the lit candles.
The father gave no evidence that he tried to facilitate a telephone call to the mother for the girls, let alone a Skype call at any time that evening.
The father said that on Wednesday, 28 September 2016, that he had travelled with the girls back for a visit to a theme park. He said that he had asked the girls to “jump on Skype on the way back to the theme park and at that time they chose not to”.
The mother adduced into evidence an email sent by the father to her at 5:33pm on Thursday, 29 September 2016. It said:
We are Off to the bowls club for bingo night. I have asked the girls several times today to give you a call when I had range but they seem to (sic) busy and occupied.
We will be back home Saturday, so will have connection to call you then.
The mother said that she “attempted on numerous occasions to call [the father’s] phone (given his earlier suggestion that Skype would not work) to speak to [the girls] at the agreed time”. She said the calls went unanswered and she then sent the father a text message at 7:00 pm to confirm that she had been calling and asked him to arrange for the girls to call her. There was no evidence that the father tried to get the girls to give their mother a telephone call or a Skype call that evening.
The father said, and the mother did not challenge him on this, that on Friday 30 September, when he and the girls were having lunch at the bakery at H Town that he called the mother and had the girls speak with her.
The mother said that on Sunday 2 October, she and the father had a text message exchange. He had said in one of his messages:
We have a music afternoon at a friends house from 2-5ish(?).
They continued a discussion and he then said:
We’ll Skype you layer (sic) on.
The mother said that at 6:45 pm she called multiple times via Skype and the calls were not answered. At 6:47, the mother sent a text to the father. It said:
I’m trying to Skype.
The father sent a text message to the mother at 7:26pm. It said:
Sorry we’re just finishing up at the music campfire. Heading home soon, will Skype you in the morning.
The mother said that she received a text message from the father at 10:34 am on Monday 3 October. It said:
Can the girls Skype now? We’re going to a movie in ½ hour.
The mother said she made herself available and they had a Skype call.

Discussion about these alleged contraventions

Pursuant to s 70NAC of the Act a person is taken to have contravened an order if, and only if, he has intentionally failed to comply with the order; or he has made no reasonable attempt to comply with the order.

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).
It was submitted on behalf of the father that there was flexibility built into this particular primary order such that the father could not be found to have contravened it as alleged on the three occasions.
With respect, I do not accept that. The order requires the father to use “best endeavours to facilitate” the Skype call (or phone call if Skype could not be used but telephone could) “as near as practicable within” the specified window. In this case, the father expected the mother’s calls to come at 6:45 on each of the nights. On each of the three nights, he involved the two girls in activities that he knew would, or at least might impede the ability for them to take the Skype call or telephone call from their mother. He knew where at H Town he could best get reception for the internet or, at least, for a telephone call, and he did not “use his best endeavours” to go there to facilitate the call, preferring to make other arrangements for the girls at the relevant time. Even then, he did not take the girls to a place to facilitate the call with their mother as soon as was practicable after the missed calls during the allotted time, and he did not even make sure the call happened on the 28^th September, simply saying that the girls “chose” not to make it.
The fact that he facilitated a call at lunchtime on Friday 30^th September in lieu of the call that was meant to happen the night before, in my view, is a matter to be considered in mitigation but did not strictly comply with his obligation. The father led no evidence to satisfy me that such call was made as soon as practicable after the missed call the night before. I express the very same view about the Skype call that he facilitated on Monday morning, 3 October after the missed call the night before.
I was quite satisfied on the evidence that I read and heard that the father simply decided that it was holiday time for the girls with his extended family and that the activities they chose, took priority over the obligation to facilitate the Skype calls with their mother at the specified time. I am quite satisfied that the father’s position was one he unilaterally determined was not an unreasonable position having regard to the fact that he had chosen not to call the girls during their holiday week with the mother, so he chose to impose that position on the mother without prior agreement with her.
Accordingly, I am satisfied that the father contravened the primary order as alleged in Counts 1, 2 and 3 and I do not consider that there was a reasonable excuse for his contravention.
Alleged Contraventions 4 – 6 were also all similar in alleged substance. The mother contended that the father had, without reasonable excuse, failed to “allow the children to communicate freely and comfortably with [her] during Skype communication and to provide the children with such privacy as appropriate”. The mother alleged contravention in this form on Sunday 16 October, Tuesday 18 October and Tuesday 1 November, 2016. The father denied that he had contravened the primary order as alleged on any of these occasions.
The particular primary order the mother alleged was contravened was paragraph 10 e) of the PR’s orders of 29 October 2015. That was set out in paragraph 19 above. Relevantly, for this discussion, it said:
e)The Father shall use his best endeavours to allow the children to communicate freely and comfortably with their Mother during the calls and to provide the children with such privacy as is appropriate.

48.In her affidavit evidence, the mother said that at the beginning of the Skype call that took place on 16 October, she “found that [Mr Gresham] had set up the iPad at the dining table for the girls to talk.” She went on to assert that he “remained directly behind the iPad, listening in to our conversation and I noticed the girls continually diverting their gaze to [Mr Gresham] in moments where they felt uncomfortable to have an open conversation with me.”

The mother went on to say:
When [Mr Gresham] walked away from the table, [B] whispered at one point that she wanted to talk about some things, but didn’t want to “upset daddy”.

50.As for the alleged contravention on 18 October, the mother said that when she called in on that occasion, she “found that [Mr Gresham] had set up the iPad at the dining table for the girls to talk.”
51.As for the alleged contravention on 1 November, the mother said that when she called in on that day, she “found that [Mr Gresham] had set up the iPad at the dining table for the girls to talk and was moving between sitting behind the iPad looking right at them and listening, or walking to the kitchen bench, where he has full view of the screen and full earshot of our conversations.” The mother said that he sent her a text during the Skype call about her birthday, a subject that she and the girls were talking about during the call and she asserted that was evidence of him not giving her privacy.

In his oral evidence, the father said that the calls from the mother from October 2015 were generally coming at around 6:45 pm, the time when he and the girls are usually having dinner. He said that he believed that he, the mother and the girls became quite comfortable over the year that she was in Asia with the girls simply continuing to sit around the dinner table, eating their dinner, talking to their mother on the Skype call with the iPad on the dinner table. He said that he would simply continue to sit at the table and eat his dinner too. He would not get up and go outside or away from the girls to eat his own dinner. He would not encourage them to go into the bedroom to do the Skype call as he wanted them to eat their dinner and not to eat their dinner in their bedrooms. Relevantly, he said that he would sometimes participate in the Skype call process as the girls would sometimes need prompting about things that had happened to them about which they could talk to their mother.
I accept the honesty of that evidence given by the father. It was not challenged by the mother after he gave it. Accordingly, I accept that the mother would have been aware that there was a lack of complete privacy when the Skype calls were taking place at the dinner table and she would have been aware of that for a long period of time leading up to October 2016. She gave no evidence that she ever asked for a change to that pattern of conduct at any point prior to October 2016. In that regard, I am satisfied that the mother effectively acquiesced in the practice without complaint, expectation or demand for it to change, at least up until October 2016.
In his oral evidence, in answer to a question I asked him, the father said that he could remember that in one of the Skype calls that he thought might have taken place in October 2016, he remembered the mother asking the girls to go into their bedrooms after they had finished their dinner and telling them that she would call them again in there. He said that the girls had responded to their mother that they were happy to continue talking to her from the dinner table. He did not give any evidence that the mother had expressly asked him either in writing, in text message form, or in an oral conversation if he would give her and the girls’ privacy during their conversations.
The mother put the proposition to the father that she had written at some point asking for him to provide privacy, but the father did not confirm that and she adduced no evidence to support that proposition.
Accordingly, on this point, the evidence did not satisfy me that there had been a reasonable and clear request made by the mother of the father, prior to the Skype calls of October and November 2016, for more appropriate privacy to be provided, in circumstances where I am satisfied that she had acquiesced in an arrangement the father had, with bona fides, in place for almost a year. Without evidence of an express and unequivocal assertion by the mother, made at a certain point in time prior to the dates she alleges he contravened the order, that she had an expectation of stricter compliance by the father with the obligations imposed upon him by the primary order, as opposed to circumstances that she had apparently acquiesced in for nearly a year, I am not satisfied that the father contravened paragraph 10 e) without reasonable excuse as alleged on 16 and 18 October and 1 November 2016.
Alleged Contraventions 7 and 8 were very similar in alleged substance again. In fact, there were two aspects to these alleged contraventions. The mother contended that the father had, without reasonable excuse, failed to “facilitate Skype communication” between her and the girls and also failed to “allow the children to communicate freely and comfortably with [her] during Skype communication and to provide the children with such privacy as appropriate”. The mother alleged contravention in this form on Sunday, 6 November and on Sunday, 13 November 2016. The father denied contravening as alleged.
The mother, in her evidence, asserted that on the Friday just before Sunday, 6 November the father had collected the children from their school when they were expecting to be collected by their mother. She said that again she found that the father had set the iPad up at the dining table for the Skype call and that he was sitting at the table, behind the iPad, looking directly at the girls and listening.
The mother said that this was a call during which she said to the children that it might be easier for them to speak with her when they were not at the table and that when they were free they could “move into the bedroom so we could talk in privacy”. She said that the father was “clearly uncomfortable with this and became argumentative”. The mother said that she reminded the father that she was calling to speak with the girls and she said she asked him if they could call her back when they had moved.
The mother said that the child, B, called her back from her bedroom and they had a conversation. She said that she began a conversation with B about why she had not picked B up on the Friday afternoon. The mother said that she reassured B and told her that unless she told B directly that she was not coming to get her that she (B) could “always expect her to be there”.
The mother said that at this point in time, the father disconnected the Wi-Fi and sent her a text message which read “I remind you that adult issues are not to be discussed.” The mother said that the call only lasted 3 minutes and 9 seconds. She adduced a print out of a screen shot that showed the call only went for that long and that her subsequent call on the same day failed to connect.
Interestingly, that same screen shot showed that the three previous Skype calls of 30 October, 1 November and 3 November had been 34 minutes 26 seconds, 35 minutes 44 seconds and 36 minutes 5 seconds in duration respectively – all longer than the “up to 30 minutes” provided for in the order. This demonstrates that the mother was not strictly complying with paragraph 9 of the primary order by limiting her calls to “up to 30 minutes” and also that the father was not rigidly terminating those calls at 30 minutes as a reasonable interpretation of the orders would have permitted him to do.
As for the alleged contravention of 6 November, I am satisfied that the Skype call was facilitated as required on that day. There was little direct cross-examination of the father about this particular alleged contravention and he gave no direct evidence about it that I could discern. On the evidence adduced, I am satisfied that the father did send the text message that the mother said she had received and that he had terminated the call as is alleged after 3 minutes and 9 seconds.
Clearly, a call of up to 30 minutes did not take place. Clearly, the father heard aspects of the conversation, evidencing that complete privacy was not provided. Does satisfaction with each of those matters necessitate a finding of contravention without reasonable excuse?
As for the privacy issue, accepting the mother’s evidence about what happened during the call, one must accept that the mother made her feelings about wanting privacy clear during this call. However, it is, in my judgment, worth observing that on the mother’s own evidence this was the first call after the father withheld the girls from spending unsupervised time with the mother in circumstances subsequently upheld by Senior Registrar Spink as appropriately in the girls’ best interests on an interim basis. The mother did not given any evidence of any discussion about, or request or demand for privacy in her calls conveyed or communicated to the father privately prior to the call taking place. Accordingly, I am satisfied that it was not unreasonable for the father to be in a position to hear the conversation between the mother and the girls when the mother called in, just as he had been for most of the calls over the previous year. What then occurred was an inappropriate discussion, instigated by the mother, about the adult matters, including the requirement for “appropriate privacy” within the Skype conversation with the girls. In these circumstances, I am satisfied that the father had a reasonable excuse for continuing to monitor the conversation between the mother and the girls as the mother’s unchallenged evidence demonstrates that he did.
Accordingly, I am satisfied, on the mother’s own evidence, that the father had a reasonable excuse for contravening that part of the primary order that required “appropriate privacy” to be afforded to the Skype calls.
Furthermore, again on the mother’s own evidence, I am satisfied that the mother was discussing adult issues with B when she began discussing the issue of not picking B up on the previous Friday and that was something that paragraph 26 d) of the primary orders of the PR of 29 October 2015, prohibited. On the mother’s evidence, that is when the father terminated the call early. As such, I am simply not satisfied on the evidence that the mother has proven to the requisite standard of proof that the father terminated the 6 November Skype call early without reasonable excuse.
As for the similar contravention alleged to have occurred on Sunday 13 November, the mother said that the father messaged her in mid-afternoon that day, telling her he “had arranged to go to Church that evening at [the] allotted Skype time”.
The mother said that the father asked her to Skype at that mid-afternoon time. The mother said:
Feeling I had no choice, I again removed myself from my own plans (made around the agreed orders) and called the girls so that I would not miss that time with them.
For this call, [Mr Gresham] had set up the iPad at outdoor lounge and was walking around them constantly monitoring the conversation and interrupting with his own comments and questions to them.
The father gave no direct evidence about this call. The mother did not cross-examine him at all about it.
I am not satisfied that the mother has proven that the father contravened without reasonable excuse as alleged. On her own evidence, the father asked her in advance of a scheduled call if she would change the time for the call. There is no prohibition on him doing that. On her own evidence, the mother agreed to change the time for the call. She did not have to. A Skype call, so arranged, happened. The mother’s principal complaint appears to be that the father did not provide her and the girls with privacy.
Again though, the mother adduced no evidence of having made an express request of the father for the Skype calls to be private in accordance with the primary order, notwithstanding her previous acquiescence in the non-private arrangements that had been in place for over a year at this time. Furthermore, having regard to what had happened during the Skype call the Sunday before, I am not satisfied that the evidence clearly establishes on the balance of probabilities that the father contravened without reasonable excuse by listening to the conversation between the mother and the girls. I consider, in the light of what had happened in the weeks leading up to 13 November, it was not unreasonable for him to listen, as the mother said that he did, to satisfy himself that the mother was not again discussing adult issues with the children.

I do not find that the father contravened the primary orders without reasonable excuse on 13 November 2016.
Alleged Contravention 9 is of a different type. The mother contended that the father had, without reasonable excuse, failed to notify her of medical attention received by the girls, specifically a dentist appointment attended by the girls on 3 December 2016. The father denied he had contravened as alleged.
The primary order alleged to have been contravened was paragraph 25 of the PR’s orders of 29 October 2015. It provides:
If a child is hospitalised or receives medical attention, the parent who has the care of the child at that time will notify the other parent immediately after the initial attendance with the medical practitioner, medical centre or hospital, with that notification to include details of the illness, injury, treating doctor, the prognosis and treatment, if known.
In her evidence, the mother said that when she was having a Skype call with the girls on 4 December 2016, the children told her that they had attended a dental appointment the previous day. The mother said that the father had not informed her of this. The mother said she then spoke with the dentist who told her the appointments had been made on 28 May 2016. The mother asserted that the father had six months to inform her of the appointments. She asserted that it is imperative, where they have equal shared parental responsibility for the two girls, that they are both aware of such appointments and their outcomes. She also said “there is no reason” for the father to exclude her from the medical matters relevant to the children.
First, whilst the mother might feel that there is no reason for the father to exclude her from the medical matters relevant to the children, she is just wrong about that. The PR’s orders of 29 October 2015, expressly conferred equal shared parental responsibility on both parents “save for medical decisions, for which the Father shall have the sole parental responsibility”.
Furthermore, although the father is actually obliged by paragraph 25 to still provide the mother with information about hospitalisation of the children or any medical attention they might receive, I do not accept that extends to information about dental appointments of or for the girls.
The mother submitted, without reference to any definitions or authority, a dental appointment fell within the definition of medical attention. With respect, I reject that. “Medical” is defined in the Macquarie Dictionary, Revised Third Edition, as an adjective meaning “of or relating to the science or practice of medicine”. The same dictionary defines “dental” as being an adjective meaning “of or relating to the teeth”. Medicine is practiced by medical doctors whilst dentistry is practiced by dentists.
I am quite satisfied that the use of the term “medical attention” in paragraph 25 was not intended to include dental treatment. Accordingly, I am not satisfied that there was an obligation imposed on the father by paragraph 25 of the PR’s orders to inform the mother of any dental inspections or treatment received by the girls. I am not persuaded that the father contravened that order on 3 December 2016, as the mother alleged.
Alleged Contravention 10 is of the same kind as that alleged in Contraventions 7 and 8. The mother contends that the father contravened by failing without reasonable excuse to facilitate Skype communication between the mother and the girls and failing to allow them to communicate freely and comfortably during that Skype call and failing to provide such privacy as appropriate on Tuesday, 6 December 2016. The father denies that he contravened as alleged.
The mother said in her evidence that she made her Skype call to the girls at 6:45 pm on 6 December 2016. She said she found that the father had set up the iPad at the dining room table for the girls to talk with her. She said that again he was sitting behind the iPad looking directly at the girls and listening. She said that at about 6:50 pm the father picked up the iPad and walked away with it so that she could not speak with the girls. The mother said that the younger of the two girls was excitedly telling her about a new trophy and a medal that she had received at the time. The mother said that the father disconnected the call and ignored her requests to put the girls back on. She said that when she sent the father messages asking him to put the girls back on to her he sent her a text message saying that she was being inappropriate with the girls during the call. The mother said the call was terminated after 4 minutes and 35 seconds. The copy of the screen shot of the call log she adduced supports that.
The father was cross-examined about this alleged contravention. He gave evidence that supports a finding that he was listening to the Skype call on that evening. The mother asserted in a text message sent to him that day after he terminated the call that she had reminded the father of the requirement for privacy on several occasions. However, she gave no direct evidence of having done so in this matter, apart from what she said had happened during previous Skype calls.
Once again, I am not persuaded by the mother that the father contravened without reasonable excuse by listening to her Skype call with the girls. As I have already observed, I have not been persuaded that he did not have a reasonable excuse for listening in to the Skype conversations that the mother was having with the girls at this time.
Again, the only basis upon which I consider I could be persuaded that the father contravened his obligations as alleged that night is if the mother proved on the balance of probabilities that the father’s early termination of the call was without reasonable excuse. With respect, I am not satisfied that she did prove that.
The mother gave evidence herself that when she was talking with her younger daughter, the child told her of the trophy she had won. The mother said that she had said something to the girl to the effect of “Mummy doesn’t have any trophies at her house. It would be nice if you could bring your trophy over to Mummy’s house”.
The father said that when the mother said that to the younger girl, the child began to get upset about this and began to cry. The mother denied that assertion and suggested she might have begun to cry after the father terminated the call.
I accept that the child became upset when the mother started speaking to her about having no trophies at her home and suggesting to the child she might like to take her trophy to her mother’s home. Although the mother rejected the notion, I am satisfied that talking to the young child about this subject matter, was subjecting the child to some inappropriate emotional pressure in the context of the parenting dispute and should not have occurred. I am satisfied that the father terminated the call in those circumstances, advising the mother that she was raising inappropriate matters with their younger daughter and that she should not do so. I consider that was a reasonable excuse for terminating the call when he did in the circumstances of this case. I am not satisfied the father contravened as alleged on 6 December 2016, without reasonable excuse.
By alleged Contravention 11 the mother contended that the father took steps to change the child’s religious denomination on school records without consultation with the mother and that he was taking the children to religious services each weekend in an attempt to align them with a religious denomination without consultation with the mother and that that in doing these things he contravened the order providing for equal shared parental responsibility without reasonable excuse. The father denied contravening as alleged.
In her evidence, the mother said that she signed a Confirmation of Enrolment form for their younger daughter’s 2017 enrolment at D School which had certain details included on it and was signed by the mother on 24 February 2016. The mother adduced into evidence a copy of the document as signed by her. It includes the child’s name, date of birth, country of birth, year of entry to the school, gender and language spoken at home all filled in. There was nothing included in the space provided for Religious Denomination. The mother said she sent that form back to the father for him to complete and lodge with the school in February 2016.
The mother said that the same form they had completed for their elder daughter for her 2014 enrolment at that same school had left Religious Denomination blank also. The mother asserted that is what had been agreed at the time.
The mother said that she and the father had agreed during their relationship that the children would not have a religious denomination, though they had agreed for them to attend at the D School. She said that they agreed that they would let their children make up their own minds about their religious affiliation (presumably as they grew older and reached maturity). She said that the agreement for them to attend at the D School had no bearing on their religious affiliation, even though she conceded they attended weekly religious instruction at the school and sometimes attended church services as part of school activities.
The mother asserted, and there was no dispute, that the father wrote in a religious affiliation on the younger child’s enrolment form after she sent it back to him and without her knowledge or consent, in the box for Religious Denomination. She said that she learned that from the school on 7 December 2016.
The father was cross-examined about the assertion that he was taking the girls to church services on Sundays. He gave evidence that he had started taking the girls to church services at the D Church attached to the D School they attended. He said the girls had asked him if they could go as they knew children there and he was desirous of becoming part of the community there as well. I was left with no doubt that he was taking them regularly, as often as every week.
The father asserted during cross-examination that he had been taking the girls to church at that church as far back as when the mother was living in Asia. He asserted that the mother knew about it then. The mother challenged him on that. He maintained his evidence, but, on the balance of probabilities, I do not accept that the mother did know about it. It certainly was not something that was put by the father’s solicitor to the mother when he was cross-examining her and I got a sense of conviction on the mother’s part when she put to the father that she did not know of it when she was in Asia and less conviction on the father’s part in respect of his assertion that she did.

96.Accordingly, I am satisfied that the father inserted a religious affiliation on the enrolment form of the younger child without the mother’s knowledge or consent, after she had signed the form and returned it to him. I am also satisfied that the father began taking the girls regularly on a weekly basis to the D Church without ever discussing that with the mother and getting her consent to that course.

The mother asserted those facts constituted a contravention of the equal parental responsibility order and the father’s solicitor submitted that they did not. He submitted that the fact that the mother agreed for the children to attend an D School was sufficient evidence that the mother agreed to them being affiliated with the D Church and being taken to the D Church on Sundays.
With respect, I do not accept that submission. The mother was cross-examined about the matter. I do not find that any of her answers proved that what she deposed to in her affidavit was not true. I was not persuaded that she actually had agreed with the father that the girls’ attendance at the D School was but one aspect of them becoming affiliated with the D religion that also included agreement, either express or implicit, to them attending at D Church Services each Sunday and to their religious denomination (at least in so far as the younger child is concerned) being described as D Church.
I consider that I am therefore required to determine whether what the father did in unilaterally telling the school that the younger daughter was D Church and unilaterally taking the girls to a D Church regularly on most Sundays amounts to a contravention of the equal shared parental responsibility order contained in paragraph 1 of the PR’s orders of 29 October 2015.
Paragraph 2 of those orders provided:

The parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
a)They shall inform the other of any major decision to be made;
b)They shall consult with each other on any major decision to be made;
c)They shall make a bona fide effort to resolve any issue in dispute.

Regardless whether paragraph 2 of those orders was included or not, the law imposed effectively the exact same obligations on the parents. Section 65DAC of the Act imposes a statutory obligation on parents (or any persons) who share parental responsibility for a child under a parenting order when a decision about a major long-term issue in relation to a child is to be made to:
a)Consult the other person in relation to the decision to be made about the issue;
b)Make a genuine effort to come to a joint decision about that issue; and
c)To actually make the decision jointly.
As I have said before in many of my judgments, in my view, the corollary of that is that such decisions if not made jointly cannot be made unilaterally at all by one of the parents.
The term “major long-term issues, in relation to a child” is defined in s 4 of the Act to mean:
…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:
(a)The child’s education (both current and future); and
(b)The child’s religious and cultural upbringing; and
(c)The child’s health; and
(d)The child’s name; and
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
In the immediate context, the question to be asked in respect of each of the particular facts (writing the child’s religious denomination as D Church and taking both children regularly to church) is whether the decision to do those things can properly be described as a decision on issues about the care, welfare and development of a long-term nature about the child’s or children’s religious and cultural upbringing. If that is answered in the affirmative then actually making that decision on a unilateral basis must be considered to be a contravention of the order conferring equal shared parental responsibility on both parents.
If, as I accept, the parents had previously agreed that they would not give the girls a religious denomination but had agreed the girls would nevertheless go to the D School as non-D Church students, the decision to say that the younger child was D Church on her school enrolment form was clearly a decision to deviate from that agreed course. I do consider it to be a decision of a long-term nature about that child’s religious and cultural upbringing as it was clearly giving the D School written fiat to treat the child as a child of the D Church faith in its day to day dealings with her when, by agreement between the parents, she was not.
Further, I am also quite satisfied that a decision to begin taking the girls to regular, Sunday church services at the same D church, particularly when there is absolutely no evidence that it was in any way required by the school they attend, is a decision of a long-term nature about their religious and cultural upbringing. Whilst not convinced that a decision for a one off attendance at a church service would constitute a decision of a long-term nature about religious and cultural upbringing, I am satisfied that a decision to commit to regular, mostly weekly attendance and exposure to the religious teachings of one particular religious faith does constitute such a decision. With respect, I do not consider that the absence of any intention to have the children baptised or confirmed in the D Church faith, as the father gave evidence of, makes a difference to this finding.
It follows that I am satisfied that the father was required to consult the mother, make a genuine effort to reach a joint decision and actually have her agreement before writing “D Church” on the child’s enrolment form as her religious denomination and before starting to take the girls to regular Sunday church services at the local D church. In not doing that, I am satisfied that he has contravened the equal shared parental responsibility order.
All of the submissions made by the father’s solicitor on this issue, in my judgment were directed at persuading me that the father had not contravened the equal shared parental responsibility order. I did not understand him to make submissions that the father had a reasonable excuse if I found him to have actually contravened the equal shared parental responsibility order. In any event, I am not persuaded that he did. Accordingly, I am satisfied that the father contravened the parental responsibility order without reasonable excuse as alleged by the mother.
By way of Contravention 13, the mother contends that the father contravened the non-denigration part of paragraph 26 of the PR’s orders of 29 October 2015 without reasonable excuse by “denigrating [the mother] to the children in a manner which has caused them to believe she is receiving ‘help’ which is why it will be ‘a long time’ before they see her. The father denied contravening as alleged.
In her evidence, the mother said that during the Skype call on the evening of 8 December 2016, the younger daughter said “Mummy, it’s going to be too long before we see you, because there are people helping you”. That was the extent of the mother’s evidence on the point. In her cross-examination of the father, the mother did not even ask him any questions that went to this alleged contravention.
The father gave no evidence about the issue.
Whilst the evidence of what the child said is suggestive of the possibility that the father, or some other person, has said something to the child about the circumstances in which the children found themselves, namely only being able to spend limited, supervised time with the mother for some time, it is simply not open to find that the explanation for the child’s comment to the mother is that the father “denigrated” the mother to the children. I am not satisfied that the father did denigrate the mother to the children as alleged. Accordingly, I am not satisfied that he contravened the order as alleged without reasonable excuse.
By way of Contravention 16, the mother alleges that the father contravened paragraph 3(b) of the orders of Senior Registrar Spink of 1 December 2016, without reasonable excuse in that he failed to provide the children for a supervised visit with the mother on 16 December 2016. The father denied that he contravened as alleged.
Relevantly, paragraph 3(b) of SR Spink’s orders provides:
3.That pending further order the Applicant Mother spend time with the children on such terms and conditions as may be agreed in writing between the parties, but failing agreement on the following basis:
(a)For supervised visits, for such periods falling on each alternate weekend, as may be arranged with [I Contact Centre] with the parties given leave to provide a copy of these orders to the supervisor.
(b)For supervised visits as may be arranged falling during the school holidays enjoyed by the children, in addition to the alternate weekend time referred to, but not to exceed two (2) further days per fortnight PROVIDED THAT in the event that the Respondent Father travels during the holidays, in what would otherwise have been his “half” of the holidays, the arrangements for the children to spend time with the Applicant Mother shall be suspended; and
(c)That the cost of the supervision be borne by the Applicant Mother.

In her evidence, the mother said that she sent a message to the father on Wednesday, 14 December 2016, advising him the named private children’s contact service had availability to supervise a school holiday visit (relying on paragraph 3(b) of the primary order of SR Spink) on Friday 16 December from 1 pm.
The mother said the father replied that he was only willing to provide the children from 5-7 pm as they would be in kindy and vacation care. The mother said the father later repealed his offered time of 5-7 pm on Friday 16, “citing that he had now organized a ‘surprise’ for the children.” She said that one of the staff members from the private contact service spoke with the father and told him she could collect the children from kindy and vacation care and that he could then collect the children at the end of the time from the mother’s house at 5:30 pm. The mother said the father again declined.
The mother adduced into evidence the screen shots of some of the text communication between her and the father around this issue. At 7.22 pm on Wednesday, 14 December she sent him a text message informing him that the contact service had “availability from 1pm this Fiday [16 December]”. The father responded with a text in which he said “Can only do 5-7 Thur Fri this week and the weekend as requested. I’m on annual leave after Fri, then M&D here from Jan 8-18 so more flexibility after this week.”
The mother responded saying “Why only 5-7? Are the kids not in vacation care?” The father responded to that with the following:
I need to meet my employment commitments. Yes, that’s where they’ll be, [B] is excited about Christmas cooing activities. Not something I wish to discuss any further tonight please. Also, Fri evening is out, I checked my calendar and already have a surprise for the girls lined up.
That was the extent of the evidence about the issue. The mother gave no further evidence in her affidavit or in her oral evidence that supports her case that the father contravened primary order 3 (b) by not complying with the obligation it imposed upon him to ensure that the children got to spend supervised time with their mother on at least two additional days “per fortnight” during school holidays, in addition to the supervised time they were to spend with their mother on the alternate weekends. She did not give evidence nor lead evidence from the father in her cross-examination of him that permits the Court to determine that the children did not spend the time with their mother that the order provided they spend with her. For example, she did not give evidence as to when the “fortnight” started and finished and as to exactly how many days during that fortnight she got to see the children in addition to the already scheduled alternate weekends.
I asked the mother a question whilst she was standing at the bar table as to how many times she got to see the children around that time and she said something like two or three times, essentially asserting, as I understood it, that she did not get the requisite number that she was meant to get pursuant to the order. However, that was not sworn evidence so could not be regarded as such. Even if it could be, it still did not prove the father contravened the order.
I understand the mother’s evidence to be adduced to try to prove that the father unreasonably denied the mother a supervised visit with the girls when it could have occurred on Friday afternoon 16 December 2016, which I accept she apparently considers amounts to a contravention by the father.
Whilst the merits (in terms of the child-focus) of the father’s refusal to let the mother and a supervisor pick the girls up from vacation childcare at 1:30 on the Friday afternoon for them to spend the afternoon with the mother before being dropped back to the father, even if it had been at 4:30 or 5:00pm , in time for him still to take them to a pre-arranged ‘surprise’, might be seriously open to question, I am not satisfied that the mother has actually proven that the father contravened the order.
The father whilst declining to agree with the mother’s proposal nevertheless proposed an alternative time that would suit him. No evidence was adduced as to the complete time frame within which the contact service could actually facilitate supervised time for the girls and outside which it could not. No sworn evidence was adduced demonstrating that the children did not get to spend the time with the mother that the order provided for. Indeed, insufficient sworn evidence was adduced to enable me to determine that the father’s unwillingness to agree to the time proposed by the mother on the Friday afternoon of 16 December, actually, of itself, resulted in the girls not spending time with their mother on two additional days over the relevant period of two weeks (whichever two week period that was). There was a lot of expectation for negotiated outcomes built in to the primary order, in my judgment. Just because the mother did not get time with the girls on one afternoon that she wanted does not prove contravention of the primary order.
Accordingly, I am not satisfied that the father contravened paragraph 3(b) of SR Spink’s order without reasonable excuse as the mother alleged.

The Outcome

I have found that the father contravened without reasonable excuse as alleged in contravention counts 1, 2, 3 and 11. In respect of the other twelve counts I have dismissed the alleged contraventions.
At the conclusion of the evidence and the submissions as to the findings I should make, I asked for submissions as to the consequences that should follow findings of contravention or dismissal so that the matter would not have to come back before me again after I handed down my reserved decision. Oral submissions were made by the mother and by the solicitor for the father.
As I have already observed, the mother submitted that any contraventions found should not be dealt with other than as “less serious contraventions” pursuant to Subdivision E of Part VII Division 13A. She submitted that some changes should be made to the primary orders that were contravened and that the father should be ordered to attend “counselling”.
I accept the mother’s submission that the contraventions I have found should not be treated as more serious contraventions pursuant to Subdivision E of Part VII Division 13A. I am not satisfied that the father behaved in a way that showed a serious disregard for his obligations under the primary order, though I have found that he contravened without reasonable excuse.
I take into account that the contraventions of the primary order surrounding the girls’ Skype communication with their mother during the September/October 2016 school holidays occurred on three consecutive occasions in the father’s week of school holidays immediately following the mother’s week of the school holidays during which the father said he did not have contact with the girls as he could have pursuant to the orders. Further, the father did make the effort to have the girls call their mother by phone at lunchtime the day after one of those missed Skype calls and by Skype on the morning after one of the other missed Skype calls. Though that was not sufficient actual compliance with the obligations imposed by the order, I do consider it mitigates against the seriousness of the contraventions.
I also take into account that the contravention of the shared parental responsibility order occurred in circumstances where the children were attending an D School with their mother’s approval and consent and had, as part of their attendance at that school, also attended the particular church that the father started taking them to on a regular basis. Whilst I have determined that his actions amounted to a contravention of the obligations imposed on him by the primary order and s 65DAC of the Act, and disregarded the mother’s right to be consulted and have input on the issue, I do not consider that the action of taking the girls to the D church on a regular basis was, in all the circumstances, something that would adversely impact upon their wellbeing.
I am satisfied, in all the circumstances of this case, including the fact that the mother alleged 16 contraventions and only succeeded on 4 of them, that an order for both of the parents to attend a post-separation parenting program would be appropriate (pursuant to s 70NEB(1)(a)(ii) of the Act) and I will make such an order. I do not consider it necessary in this case to seek the advice of a family consultant pursuant to s 11E before making such an order. I consider both parties, but in particular, their co-parenting relationship, could benefit from both of them completing a post-separation parenting program and do not consider, with respect, that I need to trouble a family consultant with the matter.
The solicitor for the father submitted that I should order the mother to pay the father’s costs of the matter if the contraventions were dismissed. However, as I have found that four of the alleged contraventions have been proven by the applicant and have determined to make some orders pursuant to Part VII Division 13 A Subdivision E of the Act, I consider that s 70NEB(1)(g) prevents me from making an order that the mother pay some or all of the father’s costs, even though I dismissed a large number of the alleged contraventions. The mother might not have avoided such an order had she not succeeded on those four counts that she did.

Variations to the Primary Orders

Section 70NBA permits the Court to vary a primary order after having heard and determined a contravention application regardless of whether a contravention is found to have occurred or not. The best interests of the children remain the paramount consideration pursuant to s 70NBA(2), though none of the other matters set out in that sub-section as matters also to be taken into account apply in this case.
Having heard and determined this contravention application, I am satisfied that the best interests of the children require some variation to the primary orders.
The primary orders made by the former PR on 29 August 2015 were made in the context of the mother living in Asia and the children principally only spending time in the mother’s physical care and during school holidays. The provision for Skype calling on three occasions each week was made in that context. Despite living back in Australia and seeing the children more regularly, the mother has been insisting, as the orders clearly permitted her to, on the same amount of Skype communication as those orders provided for.
The father said that much Skype communication has been proving a little difficult for him in the daily routine with the girls. He said that he comes home from work at around 5:00 pm then has a window of about two to two and half hours to give the girls their dinner, get them clean and ready for bed, do their homework with them and do the other things to be done in a household like his each day. He said that a half hour out of that nightly routine three times per week taken up with them Skype calling with their mother is quite demanding. I am satisfied that is probably correct. I consider that the demands associated with three half hour (or longer) Skype calls each week are probably increasing the pressure on the co-parenting relationship in this matter at the present time. I am of the view that the best interests of the girls would be served by taking steps to reduce that pressure.
I consider that reducing the calls that the girls and the mother have each week to a set minimum of two calls, each being of slightly shorter duration than currently provided for, will help reduce that pressure. I also consider that changing the order so that the father is responsible for calling the mother and facilitating the Skype call at a set time on each of the particular days that the calls are to take place will reduce that pressure whilst still ensuring that the girls maintain regular communication with their mother between the times that they are actually spending time with her, so that their relationship with her is maintained. I will make orders varying the primary order so that the girls may communicate by telephone or Skype with the mother at all other reasonable times as might be agreed between them and the father, to be facilitated by the father, as I am of the view that the father would facilitate such additional communication as requested by the girls in reasonable circumstances. I will include in the order a provision that the father’s agreement to such additional calls as might be requested by the girls from time to time is not to be unreasonably withheld and also a requirement that he is to inform the girls of their entitlement to ask to be able to call their mother at other reasonable times than the mandatory times.
I am satisfied that there was general agreement between the mother and the father that 6:30 pm Queensland time was an appropriate set time for the calls to take place. I am also quite satisfied that twenty minutes is ample time for the two girls to say hello to their mother and to have a short conversation with her about things that might have happened in their lives since they last saw or spoke with each other. It will also limit interference with evening routine in their household. It will be for the mother to apply adult self-control and restraint in this respect and to appropriately end the calls as required, such that unfair responsibility for that is not shifted by her to the father as has been happening.
My orders will require the father to ensure that the girls are able to use the Skype calling platform, at least from his end, save for technical unavailability on any particular occasion, at which time a phone call shall take place instead. Privacy for their calls to the mother is something I do consider is in the girls’ best interests and is not just a right of the mother. The orders I will make will provide for the father to give that privacy. The mother is bound by order not to discuss adult issues with the girls and again with the privacy she is to be given she must demonstrate adult self-control in this respect, so that she does not place unfair emotional burdens on the children.
Finally, if there is to be any change to the terms by which the communication is to take place from time to time or on any given day, such change may only happen by prior agreement between the mother and the father in writing. To be clear, the order I will make in this regard means that if either parent wants a call to take place at a different time on a particular day rather than at 6:30 pm that must be agreed in writing in advance. If no such agreement is reached then no unilateral change is to occur. Neither parent should think that he or she can unilaterally make arrangements that prevent compliance with the terms of the order and expect the other parent to accept that. For example, the father cannot simply unilaterally decide to have a birthday dinner that coincides with the time that such a call is to take place and require the mother to change the time that he is to have the girls call her as a consequence. By further example, if the mother is not available to take the Skype call or the telephone call from the girls at 6:30 pm on the Wednesday or Sunday, she cannot unilaterally require a substitute call at an earlier or later time unless the father agrees to that in writing in advance. Of course, prior written agreement can be achieved by text messaging or email, even on the day the communication is to take place.
In determining the contravention of the shared parental responsibility order, I became quite concerned about the issue of the children’s regular attendance with their father at Sunday D Church services. Considering as I did at the time of the hearing that I might find there to have been a contravention of the shared parental responsibility order by the father in his actions around that issue, undertaken without consultation with the mother and obtaining her consent, I asked each of the mother and the father some questions about the matter.
The father told me that he wished to continue to be able to take the girls on a regular basis to the D Church. He said that was because the girl’s enjoyed going, enjoyed participating in the choir at those services, seeing school friends there and undertaking the activities that were made available to children during those services. He said that he enjoyed the sense of community that he gained from attendance with the children and the support he gained from other members of the congregation. He wanted to be able to continue to take the girls even if the mother did not give her consent.
The mother had to be pressed a couple of times to actually give an answer to my question, but she did eventually say that if I determined that the father’s actions were a contravention of the obligations of shared parental responsibility that she did not agree to him continuing to take the girls to regular Sunday church services at D Church. I asked if she could make specific submissions addressing the question of detriment to the welfare or well-being of the girls if the father continued to take the girls and she simply raised the fact that she and the father had previously agreed when together in their marriage that the girls would not be raised with an affiliation to a particular religious denomination. I did not understand her evidence or her submissions to assert any particular detriment to the girls in being permitted to continue to attend D Church services with their father, at least until final orders are determined in this matter. I gave the mother the opportunity to make submissions as to why the father should not be permitted to continue to take the girls to church on Sundays at D Church and she made no submissions that persuaded me that he should not be permitted to do so at this point in time, although he had not sought and obtained the mother’s agreement as I determined that the shared parental responsibility order obliged him to in the first instance.
Having determined as I have that it was a contravention of the shared parental responsibility order to decide to take the girls to church on a regular basis without the mother’s agreement, I do not want the father to be placed in a position of continued contravention in the light of the mother’s expectation that he cease taking the girls to church now. Nor do I consider it in the girls’ best interests for the father to immediately cease taking the girls to church on a regular basis simply because the mother does not want him to continue taking them. Accordingly, I will make an order, operative until further order, effectively varying the existing primary orders of the former PR by expressly permitting the father to continue taking the girls to regular church services at D Church, Suburb E, even without the mother’s agreement.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 2 May 2017.

Associate:

Date: 2 May 2017

[2017] FamCA 270

2 May 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness