Gustz & Denniston
[2024] FedCFamC2F 823
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gustz & Denniston [2024] FedCFamC2F 823
File number(s): CAC 1371 of 2023 Judgment of: JUDGE COPE Date of judgment: 22 March 2024 Catchwords: FAMILY LAW – CONTRAVENTION – Where final parenting orders were made in 2019 – Where respondent mother found in breach of ten contraventions of parenting orders – Where one alleged contravention was dismissed – Where contraventions fall into more serious contravention category – Where costs order made against respondent – Respondent ordered to enter into a Bond - Variation of final order
FAMILY LAW – COSTS – Costs ordered against respondent
Legislation: Family Law Act 1975 (Cth) ss 60CC, 65N, 70NAC, 70NAF, 70NBA, 70NEB, 70NFA, 70NFB
Family Law Amendment Act 2023
Federal Circuit and Family Court of Australia (Division 2) Rules 2021 rr 4.01, Sch 1, Sch 3
Federal Circuit and Family Court (Family Law) Rules 2021 rr 12.17, 12.18, Sch 3
Cases cited: Dobbs v Bryson (2007) FLC 93-346
Kelly & Kobelnek [1998] FamCA 296
Rice & Asplund [1978] FamCA 84
Roffe & Hule [2016] FamCAFC 166
Stevenson & Hughes (1993) FLC 92–363; [1993] FamCA 14
Vilner & Vilner (No 4) [2022] FedCFamC1F 1060
Division: Division 2 Family Law Number of paragraphs: 177 Date of last submission/s: 22 March 2024 Dates of hearing: 27 February & 22 March 2024 Place: City GG Counsel for the Applicant: Mr Othen Solicitor for the Applicant: C Law Firm Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Foster Johnson Lawyers ORDERS
CAC 1371 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DENNISTON
Applicant
AND: MS GUSTZ
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
22 MARCH 2024
THE COURT FINDS that the Respondent has breached the Orders on ten separate occasions being as follows (noting that Count 1 was dismissed on 27 February 2024):
(a)Count 2 – At 3:30pm on 5 April 2023 at CC School, City DD, the Respondent, without reasonable excuse, failed to cause the child to spent time with the Applicant from after school on Wednesday until 4pm on Thursday, by collecting the child from school on a day that the child was to be in the Applicant's care and failing to handover the child to the Applicant.
(b)Count 3 – At 3:50pm on 6 April 2023 at CC School City DD, the Respondent, without reasonable excuse, failed to cause the child to spent time with the Applicant With the Applicant for the first half of all school holiday periods commencing in years ending in an odd number, by collecting the child from school on a day that the child was to be in the Applicant's care and failing to handover the child to the Applicant.
(c)Count 4 – At 4:00pm at 1 April 2022 at EE Street, Suburb FF, the Respondent, without reasonable excuse, failed to cause the child to spend time with the Applicant from after school (or 4pm) on Friday until before school on Monday, by failing to handover the child on a day that the child was to be in the Applicant's care.
(d)Count 5 – At 7:06pm at 26 December 2022 via video call, the Respondent, without reasonable excuse, denigrated the Applicant to the child during the video call with the child.
(e)Count 6 – At 4:00pm on 27 August 2020 at K Street, Suburb A, the Respondent, without reasonable excuse, denigrated the Applicant to the child in the child’s presence.
(f)Count 7 – At 3:30pm on 9 August 2023 at CC School City DD, the Respondent, without reasonable excuse, failed to cause the child to spend time with the Applicant from after school on Wednesday until 4:00 pm on Thursday, by taking the child from school on a day that the child was to be in the Applicant’s care and failing to handover the child to the Applicant.
(g)Count 8 – At 3:55pm on 23 August 2023 at CC School City DD, the respondent, without reasonable excuse, failed to cause the child to spend time with the applicant from after school on Wednesday until 4:00 pm on Thursday, by collecting the child from school on a day that the child was to be in the Applicant’s care and failing to handover the child to the Applicant.
(h)Count 9 – At 3:56pm on 25 August 2023 at CC School City DD, the Respondent, without reasonable excuse, failed to cause the child to spend time with the applicant from after school (or 4:00 pm) on Friday until before school on Monday, by collecting the child from school on a day that the child was to be in the Applicant’s care and failing to handover the child to the Applicant.
(i)Count 10 – At 4:28pm on 6 September 2023 at CC School City DD, the respondent, without reasonable excuse, failed to cause the child to spend time with the applicant from after school on Wednesday until 4:00 pm on Thursday, by collecting the child from school on a day that the child was to be in the Applicant’s care and failing to handover the child to the Applicant.
(j)Count 11 - At 4:05 pm on 20 September 2023 at CC School City DD, the respondent, without reasonable excuse failed to cause the child to spend time with the applicant from after school on Wednesday until 4:00 pm on Thursday, by collecting the child from school on a day that the child was to be in the Applicant’s care and failing to handover the child to the Applicant.
THE COURT FURTHER FINDS that the Respondent Mother had no reasonable excuse for breaching the Orders on each of those ten occasions.
THE COURT FURTHER FINDS that the ten contraventions fall within the category of more serious contraventions.
THE COURT ORDERS PURSUANT TO SECTION 70NA AND 70NFB THAT:
Costs
1.The court finds that an order in accordance with s 70NFB(2)(g) is not in the best interests of the child.
2.In accordance with s 70NFB(2)(h) the Respondent will pay the Applicant’s costs of and incidental to the Contravention Applications filed on 7 August 2023 and 17 October 2023 in accordance with Schedule 3 of the Federal Circuit and Family Court (Family Law) Rules 2021 and the following provisions apply:
(a)The Applicant will provide a schedule of costs to the Respondent in accordance with Schedule 3 within 28 days from the date of these Orders; and
(b)The Respondent will notify the Applicant in writing whether she agrees with the schedule within 14 days of receipt of same; and
(c)In the event that the Respondent does not accept the Applicant’s schedule of costs, then the parties will forthwith refer costs to be as assessed; and
(d)the Respondent will pay the Applicant’s costs as agreed or as assessed within three months of the date of the agreement or assessment.
NOTING THAT the schedule is not to include costs of and incidental to the Initiating Application filed 12 October 2023.
3.For the purposes of this costs order, I certify for Counsel for one and a half days.
Bond
4.Pursuant to section 70NFB(2)(b) of the Family Law Act 1975 (Cth) the Respondent forthwith enter into a written bond to comply with all parenting orders made and to be made under the Family Law Act 1975 (Cth).
5.The Respondent is directed to forthwith attend upon one of the Registrars of the Federal Circuit and Family Court of Australia at Canberra at 9:15am on 3 April 2024 and sign the Bond and upon that undertaking she may be released.
6.The Applicant has leave to notify the Chambers of Her Honour Judge Cope if the Respondent does not attend at the Canberra Registry to sign the Bond in accordance with Order 4 and 5 herein.
IN ACCORDANCE WITH SECTION 70NBA AND BY CONSENT THE COURT ORDERS THAT:
7.Paragraph 19 of the Final Order made 3 May 2019, be varied to read as follows:
That both parties be and are hereby restrained from denigrating each other to or in the presence of the child, including telling the child that the Applicant is not a real parent of the child.
8.The parties be restrained from providing the Child with devices (including watches) which can remotely monitor the Child and others who are in his presence without the prior written consent of the other parent and in the event that the child has such a device in his possession on a day that handover is due to occur, the parent who has the child in their care will remove it from the child before the child leaves their care.
9.Within 24 hours of these Orders the Respondent destroy all copies of the child’s previous Birth Certificate in her possession that do not contain the Applicant’s name and the Respondent is restrained from showing to the child copies of the child’s previous Birth Certificate that do not contain the Applicant’s name.
IN ACCORDANCE WITH SECTION 70NBA THE COURT FURTHER ORDERS THAT:
10.For the purpose of the Child spending time with the Applicant, unless otherwise agreed in writing:
(a)the Respondent be restrained from approaching the Child, inviting or encouraging the Child to go to her (including but not limited to by sending messages to the Child or via third parties), and
(b)the Respondent be restrained from attending the Child’s classroom or the outside area behind the Child’s classroom at the Child’s school, between 2:00pm and 3.30pm on days that the Child is to spend time with the Applicant, save and except that the Respondent may attend in the area as directed by the principal but must forthwith notify the Applicant by text message of the requirement to attend, and
(c)in the event that the Child approaches the Respondent in this period, she will return the Child to the front office of the Child’s school to ensure he is ready for collection by the Applicant or the Applicant’s nominee, and she will encourage the Child to go with the Applicant and will then immediately leave the area out of the Child’s line of sight.
11.The Contravention Applications filed on 7 August and 17 October 2023 are otherwise dismissed.
AND THE COURT NOTES THAT:
A.A copy of the transcript of the findings will be ordered and will be placed on the Court file.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE COPE
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been amended from the transcript to correct grammatical errors, to add citations and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
BACKGROUND
I am asked to decide two Contravention Applications filed by the applicant mother, Ms Gustz on 7 August 2023 and 17 October 2023. Ms Denniston is the respondent mother.
The parties met in 2014, commenced living together in early 2016 and separated in March 2017. The child of the relationship is B. He was born in 2015 and is currently aged eight years though at the time of some of the alleged breaches, he was seven.
The parties were involved in proceedings about B’s parentage, his care and living arrangements which led to final parenting Orders being made on 3 May 2019.
Contravention Applications
The first Contravention Application relates the breach of those final Orders made on 3 May 2019 and consists of six counts.
The second application filed on 17 October 2023 relates to alleged breaches of the same Orders and comprises of five counts.
PROCEDURAL BACKGROUND
By way of procedural background, on 22 January 2019, Justice Gill declared that the applicant mother was a parent of the child, B, in accordance with the Family Law Act 1975 and the Parentage Act 2004. That was in the lead-up to the consent orders that were then made on 3 May 2019.
On 13 October 2023, the Contravention Application filed 7 August 2023 was referred to the National Assessment Team. In the meantime, on 12 October 2023, the respondent mother filed an Initiating Application, and that application has been progressing towards a Rice & Asplund hearing with interim orders being made recently.
Procedural orders were made in these proceedings on 31 October and 10 November 2023. On 15 December 2023, Judge Hughes made an order listing the Initiating Application for a Rice & Asplund hearing on 24 January 2024 and made directions for the filing of material. On 20 December 2023, Judge Hughes released material from the City DD Child and Youth Protective Services.
On 24 January 2024, Judge Hughes made consent orders in accordance with a minute provided by the parties. In summary, those orders are:
By court order
(a)The proceedings be adjourned to 15 April 2024 for mention or interim hearing, and presumably, that will be dependent on the release date of the family report.
By consent
(b)The orders in relation to the child’s time with the applicant mother in these proceedings, Ms Gustz was suspended until further order.
(c)A family report was ordered to be prepared privately and upon completion of the report, the applicant was to use reasonable endeavours to ensure that the child spends time with the respondent each Saturday between 10:00 am and 3:00 pm with handover facilitated by HH Contact Service. The parties were to meet the costs of that equally.
(d)Orders were made for the parties to attend at family therapy.
(e)The applicant was to ensure the child was not in possession of any device and when I say the applicant, I mean the respondent in these proceedings, was not in possession of any device that can remotely monitor the child or others in the child’s presence when the child is spending time with the applicant in these proceedings or during family therapy.
(f)The Initiating Application was adjourned for determination of the Rice & Asplund threshold issue and pending the receipt of the family report.
In the respondent mother’s material in these proceedings, much was made of Judge Hughes’ comments on the day. However, I note that Her Honour did not have the benefit of seeing cross-examination of the parties or all the material that is now before the court.
As a consequence of those orders made by Judge Hughes, the child B is not currently spending time with the applicant.
CONTRAVENTIONS ALLEGED
In relation to the contraventions alleged, the contravention application filed on 7 August 2023 alleges six breaches of the orders made by Justice Gill on 3 May 2019. Those six counts, are as follows:-
Count Specific Order Contravention Alleged 1 2.5.1(a)(ii) At 1:55pm on 3 February 2023 at CC School City DD, the Respondent, without reasonable excuse, failed to cause the child to spend time with the Applicant from after school (or 4pm) on Friday until before school on Monday, by collecting the child from school on a day that the child was to be in the Applicant’s care and failing to 2 2.5.1(a)(ii) At 3:30pm on 5 April 2023 at CC School City DD, the Respondent, without reasonable excuse, failed to cause the child to spent time with the Applicant from after school on Wednesday until 4pm on Thursday, by collecting the child from school on a day that the child was to be in the Applicant’s care and failing to handover the child to the Applicant. 3 2.5.2(a) At 3:50pm on 6 April 2023 at CC School City DD, the Respondent, without reasonable excuse, failed to cause the child to spent time with the Applicant With the Applicant for the first half of all school holiday periods commencing in years ending in an odd number, by collecting the child from school on a day that the child was to be in the Applicant’s care and failing to handover the child to the Applicant. 4 2.5.1(a)(ii) & 7 At 4:00pm on 1 April 2022 at EE Street, Suburb FF, the Respondent, without reasonable excuse, failed to cause the child to spend time with the Applicant from after school (or 4pm) on Friday until before school on Monday, by failing to handover the child on a day that the child was to be in the Applicant’s care. 5 19 At 7:06pm on 26 December 2022 via video call, the Respondent, without reasonable excuse, denigrated the Applicant to the child during the video call with the child 6 19 At 4:00pm on 27 August 2020 at K Street, Suburb A, the Respondent, without reasonable excuse, denigrated the Applicant to the child in the child’s presence.
The contravention application filed on 17 October 2023 alleges a further five breaches of the orders made by Justice Gill on 3 May 2019. Those five counts, are as follows:-
Count Specific Order Contravention Alleged 7 2.5.1(a)(i) At 3:30pm on 9 August 2023 at CC School City DD, the Respondent, without reasonable excuse, failed to cause the child to spend time with the Applicant from after school on Wednesday until 4:00 pm on Thursday, by taking the child from school on a day that the child was to be in the applicant’s care and failing to handover the child to the applicant. 8 2.5.1(a)(i) At 3:55pm on 23 August 2023 at CC School City DD, the respondent, without reasonable excuse, failed to cause the child to spend time with the applicant from after school on Wednesday until 4:00 pm on Thursday, by collecting the child from school on a day that the child was to be in the applicant’s care and failing to handover the child to the applicant. 9 2.5.1(a)(ii) At 3:56pm on 25 August 2023 at CC School City DD, the Respondent, without reasonable excuse, failed to cause the child to spend time with the applicant from after school (or 4:00 pm) on Friday until before school on Monday, by collecting the child from school on a day that the child was to be in the applicant’s care and failing to handover the child to the applicant. 10 2.5.1(a)(i) At 4:28pm on 6 September 2023 at CC School City DD, the respondent, without reasonable excuse, failed to cause the child to spend time with the applicant from after school on Wednesday until 4:00 pm on Thursday, by collecting the child from school on a day that the child was to be in the applicant’s care and failing to handover the child to the applicant. 11 2.5.1(a)(i) At 4:05 pm on 20 September 2023 at CC School City DD, the respondent, without reasonable excuse failed to cause the child to spend time with the applicant from after school on Wednesday until 4:00 pm on Thursday, by collecting the child from school on a day that the child was to be in the applicant’s care and failing to handover the child to the applicant.
By way of completion of the contravention summary document the respondent denied each count, being the nine counts of failing to facilitate time and the two counts of denigration.
THE ISSUES FOR DETERMINATION
The issues for determination are:
(a)Whether the respondent has not breached the orders on the 11 occasions alleged or she did breach the orders but had a reasonable excuse. If that is determined, then the contravention applications are dismissed, aside from any submissions I might hear about costs and variations;
(b)If, however, the court finds that the respondent has breached the orders and did not have a reasonable excuse for doing so on one or more occasion, then the court will turn to the issue of whether the contraventions fall within the less or more serious category, which is relevant to the penalties this court will impose;
(c)Then in turn, the court will determine what powers to exercise; that is what consequences should flow from those determinations; and
(d)The court will also consider whether the order of Justice Gill made on 3 May 2019 should be varied under the powers invoked by s 70NBA of the Act. Noting, however that in making any substantive changes to orders, this court must be satisfied that they are in the best interests of the child and that the legislative pathway set out in the legislation is followed.
MATERIAL RELIED UPON
The material relied upon by each party is as set out in the Case Outline documents and the material tendered. The applicant relies on the Case Outline document filed on 22 February 2024 and the documents listed therein.
The respondent was not required to file material however she did so and relies on a Case Outline filed on 26 February 2024 and the material set out in that document. She also indicates her plea to the alleged contraventions by completing the Contravention Summary Sheet which was filed on 22 February 2024.
ORDERS SOUGHT
In the case summary document filed on 22 February 2024, the applicant sought that the court make orders for compensatory time, variation of orders, and costs. In particular, she proposed that there be orders for a week about arrangement that included all holidays, save for the Christmas holidays in which she proposed some block time.
She proposed to vary the order as to time with the child on the child’s birthday, changeovers, who can conduct changeovers and the like, and she has sought a number of other orders including, in particular, a change to the child’s school, restraints on the provision of watches and devices, noting that Judge Hughes has already dealt with that, destruction of the child’s original birth certificate, and restraints on the respondent approaching or contacting the child at handovers.
The written submissions filed on 21 March 2024 sought by the applicant are indeed different from the orders sought now. She no longer seeks orders in relation to time spending, presumably waiting until the family report is to hand, but otherwise seeks variations to the current orders as previously proposed. In addition, she seeks a bond be imposed on the respondent mother for two years with a security of $10,000.
The respondent on the other hand seeks dismissal of the contravention applications and that the applicant pay her costs.
WITNESSES
I have addressed each alleged contravention and the evidence in both parties’ material and under cross-examination under the appropriate headings for each count later in these reasons. To avoid repetition, I will not go through that in detail but I have read the affidavit material, and I have had the benefit of seeing each of the parties cross-examined.
The Applicant Mother
The applicant was an impressive witness. I am not saying that I think she would be an easy person to co-parent with, but I am satisfied as to her honesty and the correctness of the detail of what she says occurred. I formed the view that she is meticulous in her attention to detail and that her attachment to her notes was borne out of this determination to be correct.
I note the submission made on behalf of the respondent that the failure to produce the source documents, being her notes, obliges or even requires this court to accept the evidence of the respondent over that of the applicant. I do not accept that the exclusion of the notes on the basis that they were created for the purpose of these proceedings, created any procedural unfairness for the applicant. This is particularly so when the affidavits are prepared very close in time indeed to these proceedings, noting that the first affidavit was filed on 7 August 2023 and was dealing with events that took place in 2023, with one event for time spending in 2022 and two historical denigrations. The second affidavit was filed on 17 October 2023 dealing with events which occurred in the previous months and sometimes the previous weeks, such that I am satisfied that the notes at that time would have been more of an aide memoir rather than necessary for the preparation of that material.
I am satisfied that if the applicant said something happened or was said, then it did happen or was said; and I am talking there about the changeovers and the events that are the subject of these contravention proceedings.
I am satisfied that the applicant got out of her car on every occasion that she was attending to collect B, other than the occasions where B was already outside waiting for her, such as demonstrated in the video that was provided.
I am satisfied that the applicant checked the gate into the respondent’s property, both visually and by feel on every occasion she did get out of the car to collect B and that on every occasion it was locked with a padlock, and that B had to get the key to unlock it and come outside.
I also accept the applicant’s evidence that she had not heard the respondent say the words of encouragement as alleged by the respondent in her affidavit as regards the second count.
The Respondent Mother
The respondent was a less impressive witness. At times during her cross-examination, she smiled or laughed, while at other times, she was crying. During her evidence, the respondent mother repeatedly said that she has done everything she can to comply with court orders. I do not agree.
For a start, the evidence is that B refers to the applicant by her given name, as does the respondent. While neither party made much of this in their material, the fact that he does not call the applicant “mother”, “mum” or “mummy” sends a clear message and is reflective of how the respondent talks to the child about the applicant, as that is reflected in her text messages.
In the many pages of affidavit material filed by the respondent, there is limited evidence that she speaks positively of or about the applicant to B. Her affidavit material rarely says exactly what she said or did to encourage B, giving some very sweeping statements.
I must admit to being flabbergasted by her evidence of “[B]’s anger, threats of running away, his fears of my death, and to generally get [B] help in coping with having separated parents and living in two very different households.” No reason or explanation for such extreme reactions from B are provided by the respondent, but I am of the view they are to be found in the applicant mother’s evidence.
The respondent gives evidence about encouraging B to spend time with the applicant, but the tendered documents give the opposite message. In her text message to the applicant she says “You need to talk to him. It’s got nothing to do with me” and “What do u want me to do? He’s refusing to go with u. U tell me.”
In the video of mid-2023, the respondent states in front of the child, B “I’m trying to make him available, please take him” in what I can only describe as an unfriendly tone. And then she doesn’t go inside and shut the door but oddly wanders up the street carrying something.
I accept the applicant’s evidence that the respondent referred to her as “creepy” when she walked with them, when B and the respondent were walking to the car park.
In cross-examination, the respondent expressed the belief that the applicant was attempting to manipulate her to “physically force” B to go with her. B is eight years old, and at the time of some of the contraventions he was seven years old. Such children are very capable of persuasion without the need for physical force, and they are incredible mimics. The fact that his parents clearly dislike each other is no doubt a large part of his problem.
Whilst I am somewhat comforted that the parties reached interim consent orders to attend family therapy, unless the respondent starts to take some responsibility for what is occurring, the progress there is a likely to be doomed.
A significant issue which affects my judgement of the respondent, is her failure to produce the text messages between herself and B. I am astounded that a seven and now eight year old child has a smartwatch. I am further astounded that he is allowed to take that to school. But worst of all is why the respondent is texting him or responding to texts from him when he is in his mother’s care.
I do not accept any of the excuses provided by the respondent, as to why she passes backwards and forwards when B is with the applicant at her school.
I have no doubt that each mother feels hard done by and blames the other completely for the situation. I do not suggest that the applicant is blameless as she too could have improved her communications with the respondent. For example, I hold each of the parties responsible for their refusal to provide the other with their own household routines and their communications from January 2023. It was the respondent who first sought information about the applicant’s home routine, but she did not indeed, provide her own routine and failed to do so when the applicant sought it – instead pointing the finger back at the applicant.
The respondent does not seem to be surprised that B is going to these enormous lengths not to spend time with the applicant, and yet she has given me no reason that would justify her taking the conduct of a seven or eight year old quite as seriously as she appears to do.
Wherever the evidence of the applicant and the respondent is at odds as to the child’s relationship with the applicant, what is occurring at changeovers and what has been said or done to encourage the child to spend time with the other parent – I will always accept the evidence of the applicant.
There are ways to undermine a relationship and prevent handover occurring without being physically present and I am persuaded that this is what the respondent does.
THE LAW
On 6 May 2024 the Family Law Amendment Act 2023 came into effect. As the trial of this matter was completed prior to that date, the amendments to the legislation are not relevant to this determination.
The relevant section of the Act that sets out the meaning of contravening an Order is found in s 70NAC. A person has contravened an Order if the person has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.
There is significant case law surrounding contravention proceedings. Contravention proceedings are not an enquiry into the best interests of a child, unless I am asked to vary orders significantly. They are a quasi-criminal proceeding and serious consequences may flow for a person if the contravention is found to have occurred without reasonable excuse. The procedural requirements pertaining to contravention proceedings are strictly complied with, due to the seriousness of the matter and the potential consequences for the respondent.
Standard of Proof
The standard of proof is borne initially by the applicant and then switches to the respondent if a contravention is found to have occurred and reasonable excuse is argued. Section 70NAF provides that subject to subsection (3), the standard of proof is, on the balance of probabilities - the civil and less onerous burden. Section 70NAF(3) provides that if I am going to impose some of the more serious penalties, I must be satisfied beyond reasonable doubt.
Reasonable Excuse
Turning to reasonable excuse in the circumstances of time spending in particular, reasonable excuses include that:
·the respondent did not understand the obligations imposed by the order and the court is satisfied that the respondent ought to be excused in respect of the contravention; or
·the respondent believed on reasonable grounds that the contravention was necessary to protect the health or safety of a party (including a child) and the period of the contravention was no longer than was necessary.
The case of Kelly & Kobelnek [1998] FamCA 296,[1] provides that in order to successfully defend a contravention application, a party must establish that they had a reasonable excuse according to an “objective test namely, whether a reasonable person in the position of the (mother) would consider on reasonable grounds that (she) had a reasonable excuse for the contravention”. The defence of reasonable excuse requires the court to examine the individual circumstances of each alleged contravention. The process does not involve an examination of the conduct of the parties over the history of their relationship. There is significant case law in relation to what constitutes a reasonable excuse.
[1] Kelly & Kobelnek unreported decision of Justice Hannon, Family Court of Australia delivered 10 March 1998.
I am assisted by the Annexure to the Orders made on 3 May 2019 and in particular it is noted as follows:
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so…
I am also assisted by the case of Stevenson & Hughes (1993) FLC 92–363 [1993] FamCA 14 (“Stevenson”) where the court said at [25]:
…there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it.
Powers of the Court
Subdivision E of the Act deals with the less serious contraventions and the powers that are available to the court whilst subdivision F deals with the more serious contraventions and the applicable power.
Where it is established that a contravention has occurred without reasonable excuse and is deemed to be a less serious contravention the Court may impose a number of options available to the court including:
·Order the defaulting parent to attend a post-separation parenting program;
·Make a compensatory parenting order compensating a parent for time lost with any child concerned;
·Adjourn the proceedings to allow either party to apply to the Court to vary the orders contravened;
·Order the defaulting parent to enter a bond;
·Make an Order for costs against the defaulting parent;
·Make an Order compensating the contravened parent for any expenses incurred because of the contravention in question — e.g., lost fares etc; or
·An Order for costs.
Where it is established that a contravention has occurred without reasonable excuse and is a more serious contravention, then the Court has a greater range of powers at their disposal including:
·Impose a community service Order or bond;
·Make an Order for compensatory time;
·Make an Order for compensation;
·Award costs; and
·Fine or imprison the contravening parent.
When the court is considering either a fine or imprisonment the burden of proof required shifts to beyond reasonable doubt. The Full Court in Dobbs v Bryson (2007) FLC 93-346 considered the application of s 70 NAF. The Full Court concluded that the court’s ability to make Orders is dependent on whether the necessary findings can be made to the requisite standards. In doing so the court will pay attention to the gravity of the established contraventions when determining what powers should be exercised and the requisite standard of proof to be applied.
Varying Orders
The court can vary orders, regardless of the outcome of the contravention application. However, where it is proposed to vary orders to living arrangements, I must be satisfied that the best interests of the child in this case, will be met by doing so.
APPLYING THE LAW TO THE FACTS WITH REFERENCE TO EACH ALLEGED CONTRAVENTION
Aside from count one, the court was satisfied that the applicant had established a prima facie case as regards each alleged contravention. As a consequence, the onus shifted to the respondent.
Count 1
What was particularly troubling was the failure of the respondent to produce the text messages between herself and the B as earlier noted. While she initially prevaricated about that failure, she later conceded that it was possible she had not caused her solicitor to respond to the request sent by the applicant on 11 October 2023. She also conceded, again, after some prevarication, that while some of the messages between herself and B were quoted in her affidavit, certainly not all of them were referenced.
As noted earlier, this count was struck out as a prima facie case was not established.
Count 2
This is the alleged breach as to time spending on Wednesday, 5 April 2023. These events occurred at the school. The applicant conceded that she arrived at the school at about 3:00 pm to collect B and that the respondent was not present for about the first 15 minutes. Ultimately however, the respondent left the school with B.
It was apparent from cross-examination of the applicant, that the position of the respondent was that either she was not present at the time of changeover was due to occur, and that when she was present later, it was in advertent or unavoidable as school day pick-ups occur at the child’s school where the respondent also works.
I do not accept that the obligation for compliance with court orders somehow shifted to the applicant at the stated changeover time, or indeed that the wording of Order 2 means that there is a shared obligation. We are dealing with a contravention application about the respondent’s conduct and that must be the focus of the inquiry. Just because the respondent may not have been physically present at 3:00 pm on the dot, does not mean that she did not hinder time occurring.
I was referred to s 65N, which makes it clear that the obligation is not for a finite period, but throughout the time of the time spending order. Section 65N(1) states:
(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
Section 65N(2) states:
(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child benefiting from spending time with each other under the order.
As regards the applicant’s evidence that B received text messages from the respondent on his smartphone after he was due to be in the applicant’s care, after some vague answers to the effect of, “I know there would’ve been”, “I’ve sent messages to him” and I can’t recall…”, the respondent ultimately conceded that messages had been sent. She gave evidence that she would have been checking on B to see that he was okay. As the messages were not produced, despite a request for disclosure, the respondent had to concede that the court could not be satisfied of her evidence about the content of the messages. And in any event, I am unsure why she would be texting the child when he was in the applicant’s care in a way that suggested that he might not be okay.
The respondent denied that the applicant had attended at her home to collect the child later that day. She produced a text message for the following day and based on that, she argued that the applicant was mistaken. I prefer the evidence of the applicant about this attendance for the following reasons:
·Firstly, the applicant’s affidavit evidence is detailed and precise, and as noted earlier it was done within a few months of the events;
·Secondly, the text message by the respondent is taken out of context; and
·Thirdly, the text in and of itself does not mean that the applicant did not attend at the respondent’s home on 5 April 2023, as well as on 6 April 2023.
The respondent’s evidence about these events was very different from that of the applicant. She specifically denied telling B to come to her in the messages she sent to him when they were still at the school. But because she has not produced those texts, despite a request, the court will not know.
The respondent accepted that she had a legal obligation on that day to make B available. She also conceded that she unlocked her car, that B got in her car and that she left the school with B in her car. Her evidence was that B was screaming and that she got into the car to talk to him. This is at odds with the evidence of the applicant.
The respondent conceded that she did not get back out of the car, that she did not open B’s door. She conceded that she did not tell B to get out of the car and that she did not tell him to go with the applicant. Her evidence given later in the proceedings was that she always waited in the car for the applicant to come over and get B out of the car. She does not however, give any evidence of inviting the applicant to do so or even getting out of the car herself and saying to the applicant “let’s make this happen together”. The appearance to the court and no doubt to B, is that he and the respondent were working together against the applicant. The respondent shows little insight into her own behaviour and the impact on B.
The respondent gave evidence about the child’s distress, but no explanations about why he would be suffering such a degree of distress about the very thought of spending time with his mother. The applicant’s affidavit evidence is that the child has been told that she is not his family and not his real mother. This was not dealt with in cross-examination.
The suggestion that the applicant chose not to leave the school is not accepted. It was suggested, during submissions, that by the applicant staying at the school and choosing not to exert parental authority and leave with the child, that somehow the burden shifted to her and that she was the one who was failing. This submission discounts the fact that the respondent concedes that she sent text messages to the child during some of those periods of time, that she walked past where B and his mother were on some of those occasions, and also that this was her workplace and B knows very well that she is somewhere on the premises.
Regardless of the truth of what was said and done on this occasion, the respondent left the school grounds with the child in her car at a time when he was meant to be with the applicant, and she also later failed to deliver the child to the applicant when the applicant attended at her home for that purpose.
There is no evidence provided by the respondent as to any basis for B to be vehemently opposed to time spending or to be in any danger in the applicant’s care.
For those reasons, I find the respondent did contravene the order on this occasion and that she did so without a reasonable excuse.
Count 3
This is the alleged breach of time spending on 6 April 2023 regarding the commencement of the school holiday time. This alleged breach again occurred at the school and later, at the home.
The respondent alleges that she encouraged the child to spend time with the applicant, quoting herself saying “Hun, I can’t just take you home. [Ms Gustz] needs to agree” and “sorry [B], you need to go with [Ms Gustz]” and “you need to go to [Ms Gustz]” and “please [B], you need to go, you can’t decide what you want to do sometimes this is just part of growing up, please, and I promise when you get back we will go get ice cream or something else, anything, I just need you to give this a go, [Ms Gustz] is trying and I think you need to try too”.
None of this is encouragement. It suggests to the child that he must go, not that she wants him to go or even that there is no reason why he should not go. There is only one line in this portion of the affidavit which suggests encouragement which is “you’ll have so much fun, I am sure [Ms Gustz] has so many plans for you these holidays” but when that is said in the context of the other remarks, I doubt that the child was very much reassured. All that I hear from these quotes is a reluctant mother being forced to do what she does not want to do – that is to deliver a child to spend time with his other mother.
The applicant remained consistent in her evidence, though I acknowledge that she referenced her affidavit material throughout. She saw the child at about 2:30pm and the respondent at about 3:41pm. Her evidence is that B was refusing to leave with her, and they had remained in his classroom. During that time, her evidence is that B was receiving messages on his phone watch. I accept that those messages were from the respondent and in fact, she concedes that she did send some messages. I simply cannot understand why she would do so.
I accept the applicant’s evidence that the child told her that he would not leave with her whilst the respondent’s car was still there. The problem is that the respondent works at the child’s school. The respondent’s evidence was that she could not leave the school an alternative way. The respondent’s subsequent evidence, however, was that there are three entrances to the school, but that she was unable to leave by alternative entrances at the end of the school day as they were locked, and she was concerned that she would be responsible for them being unlocked after hours. She gave no evidence of any attempts to make alternative arrangements, to leave a different way or evolving any sort of plan to leave without B seeing her or indeed, parking her car elsewhere on changeovers days. I cannot imagine that would be very difficult – to simply seek to make some sort of arrangement, so that she was not interfering in any way with handover.
I acknowledge the respondent’s evidence that she wanted to avoid embarrassment, however quite clearly what has been occurring must be embarrassing for all concerned. The applicant is unable to leave the school with the child for long periods of time. They stay in the child’s classroom or in the school office and then ultimately the child leaves with the respondent after protracted standoffs in the car park. That all sounds rather embarrassing to me.
I accept the applicant’s evidence that she consistently attempts to encourage B to leave with her and tell him that he needs to go with her, that it is their time. Her evidence is that when she says that in the presence of the respondent, the respondent scoffs and laughs. I accept that evidence as at times, during the hearing, the respondent did smile or laugh at what was far from amusing evidence. It may be a coping mechanism for her, but nonetheless, it occurred and if it occurred at attempted changeovers, as the applicant alleges and as I accept, then it would be open to the child to interpret that as denigration and disrespect of the applicant and a lack of support for what the applicant was saying or trying to do.
As to messaging the child whilst he was in the care of the applicant, this was conceded by the respondent. She also conceded, after a significant pause, that there may have been more messages than those set out in her affidavit. When it was put to her that she only included messages that she thought would assist her case, she did not give a straight answer. She first said that she sent through all messages, and then said she was aware the affidavit could only be so long. This discounts the request for disclosure made in October 2023, and which was never answered.
While she denied encouraging B to come to her so that she could take him home with her, the applicant conceded that B walked to her car, that she unlocked her car, and that they both got in. She conceded that she knew B was meant to be in the applicant’s care.
When it was put to the respondent that she facilitated B getting into her car, her evidence was that she had no way of knowing that he would do so, and that it was her intention to leave the child in the car park with the applicant. I am not sure what she expected the child to do when he followed her to her car.
She conceded that B was in the back of the car, and that she got in the car with him. She also conceded that she said to the applicant in the presence of the child “why don’t you ask him why he doesn’t want to come with you”. I do not accept her evidence that this was to initiate conversation. Certainly, my interpretation of this and quite likely B’s interpretation, was that this was telling the applicant that B did not want to go, that he had good reasons for that and that she supported him in that position.
The respondent gave evidence that B was extremely heightened, that she was trying to calm him down and to stop him from screaming. The applicant denied that B was screaming. As noted earlier, I prefer the evidence of the applicant around these events. I expect that if a child was screaming on school grounds ten steps would be taken by the school to intervene, as they have intervened with this family on other occasions.
The respondent conceded that in hindsight, she should not have driven off with the child in the car; that was a sensible concession.
The respondent and her partner later drove the child to the applicant’s home, having made some elaborate plan and pinky swearing with the child not to leave him there without his permission. I am of the view that all this tells B that what he feels is understandable and rational. In fact, no rational explanation had ever been provided for B not wanting to spend time with his mother.
Whilst B got out of the car and was talking to the applicant outside her home, the respondent and her partner remained, despite twice being asked by text message to leave.
In all this drama, it appears to be completely forgotten that B was at the time either seven or eight years of age, that there are no allegations of abuse or violence, and that there are no reasons known to this court why this child should not be spending time with his mother or why he wouldn’t want to spend time with her.
I was interested to note that in her explanation, the respondent stated that her partner works with vulnerable children. I am not sure how this is relevant to B or if she was suggesting that B was a vulnerable child. If indeed she is, the court is of the view that what makes B vulnerable is not the respondent, but the conflict. These protracted handovers at the school, where the respondent works can only be unhealthy for him.
Whilst the respondent conceded that on two occasions on that day, she had driven away from the applicant, taking the child with her, she did not concede that she had breached the orders on either occasion. I do not agree.
I am of the view that the respondent has made no real effort to facilitate time and that her conduct is sending a very clear message to the child that it is completely understandable that he does not want to spend time with the applicant and that she supports him in that.
For those reasons, I find the respondent did contravene the order without reasonable excuse on this occasion.
Count 4
This is the alleged breach that occurred on 1 April 2022. On this occasion, the applicant attended at the respondent’s home as respondent had collected B from school earlier in the day. Whilst the respondent’s evidence was that she had collected the child because he was sick, the message she sent to the applicant was that she took him home because he was “quite upset”, that’s a very different explanation. She conceded that.
On the applicant’s evidence she stood in the driveway, having got out of her car because the gate was locked. She did not accept the respondent’s version as to what B said or did on that occasion. I prefer the evidence of the applicant about what occurs at these handovers.
The respondent conceded that the applicant was outside, and she saw her there waiting to collect B. She also conceded that she went outside and did not dispute that she did not speak to the applicant on that occasion. In fact, her evidence was “we don’t speak to each other”. I was incredibly disappointed to hear that. The failure of the applicant and the respondent to speak to each other, but particularly the respondent as the primary caregiver, sends a clear message to the child that they do not like each other. The respondent conceded that she did not take B out for handover that afternoon, although her evidence was that she was inside trying. I do not accept that she made any genuine effort to facilitate the handover.
I have formed the view on reading the respondent’s evidence and seeing her in the witness box that she does not know how to encourage, and certainly does not demonstrate to B, encouragement of the relationship with the applicant and nor does she genuinely attempt to comply with the court orders.
Encouragement is speaking positively of the other parent, telling the child, not only that they must go, but that you want them to go. Whilst the respondent gives evidence of occasionally saying such things, her evidence seems to be focussed on the obligation and the worry for the child. I am of the view that her actions speak louder than her words, and her actions clearly indicate that she does not want B to spend time with the applicant and thinks that there is something wrong or risky about him doing so. This is through continuing to her car when B is following her rather than stopping and saying no, through unlocking her car door and allowing B to enter her car, when changeover occurs at home not packing his bag, not walking him out, not getting him ready, not encouraging him and walking him out the front. The child is not heading to the guillotine; he is off to spend time with his mother.
In all of this I am not suggesting that the applicant is perfect or blameless – but this is a contravention application looking at the respondent’s conduct and her conduct reflects her failure to comply with court orders.
I was particularly struck by the video that was shown. Whilst this did not relate to an alleged breach, being events in mid-2023, on this occasion the respondent conceded that she and the child were outside waiting when the applicant arrived. What the video shows is that the respondent initially said words to the effect of “you take him” and then wandered off up the road carrying something, leaving the child standing beside the car. She did not open the car door. She did not place the child in the car or place the child’s bag in the car or do anything in that video that indicated encouragement and support of the child going. And further, she did not re-enter her home, but she wandered off up the street. If the court was confused about what the respondent was doing, no doubt B was also. I am aware that the respondent thinks that this video shows the applicant in a poor light, in that she does not get out of the car as she said she always does, and thus is not seen to do anything to encourage B. I am of the view however, that is much more damning evidence against the respondent.
I am satisfied that the respondent breached the orders on the occasion, by failing to take B outside and deliver him to the applicant and that she had no reasonable excuse for doing so.
For those reasons, I find the respondent did contravene the order without reasonable excuse.
Count 5 & 6
This is the breach alleged to have occurred on 26 December 2022 being an alleged denigration, where the applicant says that the respondent said “she’s so embarrassing” when referencing the applicant. On the second occasion there was another alleged denigration that was made some three years prior.
In relation to the first and indeed the second, this is a straightforward, “she said/she said” situation. Each of them has completely opposing evidence, each of them appears to have some recollection of the events.
When the respondent was asked about the first text message, sent by the applicant telling her not to denigrate her, her response was that she gets lots of threatening messages from the applicant, that she sees what the applicant would like us to think happened, and that they have a long history of nasty messages, back-and-forth. Her evidence was that she wouldn’t denigrate the applicant, that her family were present, and they know not to do that.
I prefer the evidence of the applicant in relation to the alleged denigration. I am of the view that the respondent’s dislike, and indeed contempt of the applicant is blatantly obvious to the child, and that she would be unable to contain herself. That view is based upon the evidence of the respondent in the witness box, the text messages that were tendered and the video recording tendered.
Despite the age of the alleged denigrations, I did not dismiss them. The reason for that is that if the applicant is correct, it is this sort of denigration which is the foundation of B’s resistance to spending time with the applicant.
For those reasons, I accept the contraventions were not frivolously brought, that they were brought by the applicant in the holistic sense of the contraventions that are being made by the respondent.
I am satisfied that on each of the occasions in relation to each alleged denigration, that the respondent breached the orders. I prefer the evidence of the applicant over that of the respondent. I find that the respondent breached the orders on both those occasions, and that she had no reasonable excuse for doing so.
Count 7
This alleged breach occurred on 9 August 2023. This was another occasion when the applicant attempted to collect the child from school, but the respondent left the school with the child in her care.
The applicant was consistent and reliable in her evidence. I am satisfied as regard these events at changeovers that she was truthful in her account of the events.
The respondent conceded that the applicant and B spend a fair amount of time in the school main office on changeover days. When it was put to her that she walked past the office after 30 minutes, she initially said that she did not recall and then said that she did not accept that happened. When it was clarified to have been on a Wednesday her evidence was that she “would have been in a staff meeting at that time”. So, she was not relying on her recollection, but rather that there was usually a staff meeting that took place on a Wednesday.
The details of the applicant’s evidence around these events was put to her. She did not recall a discussion with B about “having a plan” however she gave evidence that she had asked B to talk to the applicant. She also conceded that she did walk past the office at some point. She denied that she grabbed B by the hand and that they walked towards the car park.
The respondent denied having a conversation with B as alleged by the applicant. She conceded that B again jumped into her car when she unlocked it. She conceded that B was eight years old at the time. She conceded that she did not open the door for B to get out, her evidence was that she waited to see if the applicant would open the door or do something. The respondent’s evidence was that she did not think she needed to give permission to the applicant to open her car door. I accept none of the evidence of the respondent. I prefer the evidence of the applicant. The suggestion that somebody would approach somebody else’s car and open the door without invitation is just unacceptable.
The respondent’s evidence was that on numerous occasions she had pleaded with the applicant to join forces with her. However, a review of the respondent’s affidavit evidence and the text messages is that in fact she keeps telling the applicant that it is her responsibility. She appears to think that raising her arms or looking at the applicant is a request for the applicant to become involved or take some sort of action. There are rare occasions when she reports saying anything encouraging and it is usually in the context of circumstances or behaviour and her words say otherwise - as is the case in this example.
The affidavit evidence of the respondent is that she does not know why she is responsible to bring B to the applicant if the applicant is “unable to take him into her care at 3:00 pm, when I am nowhere in sight.” I do not accept that being out of sight is enough. The respondent has conceded sending text messages to the child on his smart watch at times when he is in the applicant’s care on various occasions, she has conceded walking past on various occasions. She has made no effort to make alternative arrangements to leave the school.
I do not accept that the respondent’s responsibility ends at 3:00pm or whatever time the changeover might be scheduled to take place. That completely discounts her communications and her presence at the school. B knows she is there, and he is, in my view, very much aligned with the respondent.
The respondent’s affidavit material is littered with comments about not “forcing” the child to go with the applicant. He was seven and eight years old at the time of the alleged breaches. There is no evidence or suggestion of abuse. There should be no question of force. There is simply a question of persuading a child that you are happy, that you are delighted, that you look forward to them spending time with the other parent. Instead, there has been a traumatic series of events for B where he is agonising about changeovers to the point where there were four such events of failed handovers in a month.
The suggestion by the respondent, during her evidence that she is attempting to avoid embarrassment at school, is contradicted by her conduct. Again, on this occasion, she left the school grounds with B in her care during the time he was meant to be in the applicant’s care.
I am satisfied that the respondent was in breach of court orders and that she had no reasonable excuse for that breach.
Count 8
This alleged breach took place on 23 August 2023, again at the child’s school. This is the occasion where B said that he and the respondent had plans to go out to a restaurant that night.
The applicant again stood up well to cross-examination. I accept her evidence that B said to her that he was not sure what to do. I accept her evidence that B feels torn between his parents. The applicant conceded that B may have made up the story about the restaurant. I was struck by her evidence that whether B was making it up wasn’t the biggest issue in her eyes.
In her eyes, the issue is that B currently believes that she is not his parent. During the hearing, I was initially puzzled that neither party was cross-examined about this aspect of the applicant’s case but of course it is not directly relevant to these contravention applications. This is a significant issue, and it will no doubt be a significant issue in the substantive proceedings, as to whether the respondent has indeed shown B the original birth certificate and told him that the applicant is not his real mother. That is a matter for another day.
This is again an occasion when they respondent concedes driving away from the school with the child in her car. She denied that she drove off straight away. Her evidence was that she “always” sits there, waiting and thinking “he’s right here, take him”. She gave evidence that she put her arms up to show that she is not interfering, and asking, without words, for the applicant to help her. I do not accept that anything about her described conduct indicates that she is asking the applicant for help or that she is supporting changeover in any way. Asking for help would involve asking for help, opening the car door, getting out of the car, getting the child out of the car, and speaking to the applicant directly. Again, the respondent left the school with B in her car.
For the reasons set out above, I find that the respondent is in breach of the orders on the occasion, and that she had no reasonable excuse for that conduct.
Count 9
This is an alleged breach on 25 August 2023, and again these events took place at the school. Changeover was due to occur at the school and again the respondent left the school grounds with the child in her car.
In cross-examination the applicant conceded that she arrived at school at 3:00 pm, saw B at about 3:05 pm and saw the respondent at about 3:48 pm for the first time, more than 40 minutes later. The applicant specifically denied that the respondent said to B “that’s enough”, or that she had asked him not to carry on or that she was going home, and he was going with the applicant. Interestingly, it was put to the applicant that the respondent “looked to you to join in”, again, presumably, without saying anything. I am uncertain how the respondent thinks the applicant knows what is in her mind and it is certainly nothing that B would perceive as encouragement or his parents working together.
I accept the applicant’s evidence that she said to B that it was not okay, and that it was a matter for the grown-ups to figure out how he spent his time. I accept the applicant’s evidence that the respondent started to record her as they were walking to the car, or at least appeared to do so. The respondent gave evidence that she was faking the video recording, which makes no difference whatsoever. She does not seem to have considered what B would think of her recording his mother in such circumstances. Certainly, the message it sends to the court is that she thought the applicant was doing something wrong or that she could scare the applicant off by such tactics.
When the respondent was challenged, under cross-examination, she gave answers such as “I would’ve said, yes, I want to go home” and “I would’ve told him to talk to [Ms Gustz]”.
This is very general evidence; it is not evidence of what she did or said but what she thinks she may have said or done. So, I accept the submission that she has no actual recollection of these events, but is saying what she thinks will assist her in court. At the end of the day the respondent again left the school taking B with her.
During cross-examination, it was put to the respondent that it would be better if B changed schools. She did not support that and gave evidence that she saw school as a safe and consistent place for B. Unfortunately, I don’t agree. B’s school is anything but safe and consistent because of these disasters that have occurred in 2022 and 2023. B’s school has become a place of trauma and distress on changeover days simply because both his parents are there and expose him to their conflict.
The respondent gave evidence that she feels like she complies with the orders, and that is a matter for the respondent at 3:00 pm to take B home. I do not agree. I find that the respondent has breached the orders, and she had no reasonable excuse for doing so.
Count 10
This was an alleged breach occurring on 6 September 2023. Again, this was a time when pick up was due to occur at school.
The applicant’s evidence is that she arrived at 3:00 pm saw the child at about 3:03 pm. The applicant’s evidence is that she messaged the respondent at 3:05 pm asking her to leave and then at 3:18 pm, the respondent came to the office, motioned for B to go with her and took him into the staffroom, and that he came out with a container of food, which she presumed was given to him by the respondent. The respondent denies this occurred. I prefer the evidence of the applicant over the respondent about these events at changeovers.
The applicant’s evidence was that she then saw the respondent at 4:30 pm when she came back. The respondent conceded under cross-examination that this was the fourth time in one month that she had left the school with B, when B was meant to be leaving with the applicant.
In relation to the applicant’s request that she leave by a different entrance, it was put to her that this was to avoid a repeat of previous dramas and not intended to boss her around. The respondent smiled at the question and said that was not how it felt to her, but conceded that the applicant was attempting to get the child to leave with her. I am not sure how the respondent finds it amusing that on four occasions in one month, this child has been subjected to parental conflict at changeovers.
The respondent denied that she entered the area again at 4:25 pm and went through B’s schoolbag, her answer being “no, I don’t remember this. I’m going to say no”. I prefer the applicant’s recollection of these events to the respondent’s vague denials.
In relation to leaving with B, the respondent’s evidence was that she left the building to go to her car and B followed her. She remained consistent in her evidence that this was the only way out. Interestingly as noted earlier, she appears to have made no alternative arrangements despite there being three exits from the school and no doubt other places she could choose to park her car on those days. I formed the view that it is the respondent’s belief that after changeover time, the responsibility shifts to the applicant, and she can wave her hands in the air. I do not agree with the respondent.
The respondent’s evidence was words to the effect “no, I would have tried everything possible. I know I’ll get in trouble, I’ll do anything to limit court threats”. The evidence of the respondent was that she does not enjoy the situation, and that on this occasion that there “would have been words”. What she gave was again general sweeping evidence. This was not persuasive evidence. People who genuinely want their children to spend time with the other parent, pack a bag with toys and speak positively and happily about time.
The salient issue is again that the respondent left with the child in her car when she well knew that the child was meant to be in the applicant’s care. I am again persuaded that the respondent has breached the orders and that she has no reasonable excuse.
Count 11
This is the alleged breach as to time on 20 September 2023. Again, changeover was to occur at the school. I accept the evidence of the applicant that the respondent had not told her that she had duties at the school that day that required her to mix with families at the end of the school day. I accept the applicant’s evidence that B had gone towards the respondent and that she was then told by B’s teacher and the executive teacher that B was in the care of the respondent. I accept the applicant’s evidence that as she left, she saw that the respondent’s car was no longer in the car park.
The respondent gave evidence that she again sent messages to B. When asked about these messages, noting that it was put to her that several messages were sent, she said she wasn’t sure. Her evidence was then that she knew she sent messages asking for his bag, as she didn’t realise the applicant was coming to the school, and she wanted to get B’s bag without coming across the applicant. So, it seems that the focus of the respondent was avoiding the applicant, and in doing so she had repeated contact with the child via text messages, during the sensitive time of handovers at school.
This messaging the child to make sure he’s okay and to make arrangements with him when he should be in the care of the applicant, sends a message to the child that I have already noted. I am of the view that the respondent’s dislike of the applicant and the parental conflict has created a terrible dichotomy for B. I am satisfied that the respondent’s conduct again amounted to breach of court orders and that she had no reasonable excuse for doing so.
FINDINGS AS TO ALLEGED BREACHES
B gets a lot of attention through these changeovers with both of his mothers and his mother’s partner and teachers from the school getting involved from time to time.
I don’t accept the respondent’s evidence that by sitting in a car with B she is any way inviting the applicant to open the car door and take the child. B is in her car; it is her responsibility to get him out. He is in her car during the time he is meant to be in the applicant’s care. I am of the view that the respondent has escalated the situation - whether deliberately or inadvertently is unclear.
I do not accept that the respondent is attempting to facilitate time. I do not accept that the respondent encourages the child in a meaningful way.
I often say to separated parents that their job is to be good actors. By that I mean that their child must not know that they do not like each other, that their child thinks that their parents get along well enough. It is not too late for them, particularly the respondent as the primary carer, to change their behaviour and just start greeting each other like normal human beings. They have a business relationship now and their business is B. And that business means they must act like grownups when they are around B.
To denigrate someone is to defame, sully or blacken that person. That can be done directly by calling somebody names, it can be done indirectly, it can be done with words or with actions or by lack of words or actions. Every time the respondent calls the applicant “[Ms Gustz]” she is telling B that she is not his mother. Every time she waves her arms, uses tone, fails to speak, turns her back or walks away, she is telling the child that she does not like or respect his mother. The tone that was used in the video recording of mid-2023 was disappointing to say the least. It tells the child that the respondent does not want to speak to the other parent, that she does not think that person worthy of being spoken to. This appears to be a fault of both parties.
I find on the balance of probabilities that the respondent has breached the Orders on ten separate occasions that she has does so without reasonable excuse. Those breaches consist of eight counts of failing to facilitate time and two counts of denigration.
CONSEQUENCES
Section 70NFA of the Act says the subdivision applies if a primary order has been made, a court having jurisdiction is satisfied that the person has before or after the commencement breached the order, committed a contravention. The person does not provide that he or she had a reasonable excuse, and either ss 70NFA(2) or 70NFA(3) applies.
Section 70NFA(2) applies if no court has previously made an order imposing a sanction or taking action in respect of contravention of the order, or under s 70NEB(1)(c) adjourned proceedings, and the court dealing with the current contravention is satisfied the person has behaved in a way that showed a serious disregard. So even though it is the first time around, if I am satisfied as to a serious disregard, then it falls within the more serious range.
I need to find that there has been a serious disregard. There are two contravention applications, being dealt with simultaneously. The case law talks about conduct being deliberate, premeditated non-compliance with Orders and a continued and protracted breach of Orders.
I am satisfied that this matter falls within the more serious range because:
(a)There are two contravention applications before the court, one which deals with six counts and one which deals with five counts.
(b)Of those 11 counts, 10 were established to have occurred without a reasonable excuse.
(c)Eight of those counts relate to time spending and two relate to denigration, which I have taken very seriously as possibly being the basis of the child’s opposition to time spending.
(d)The breach is exacerbated by what I found was the respondent washing her hands of it, saying “you have to fix this” and “this is up to you now”, rather than actually working cooperatively with the applicant.
(e)Cross-examination of the respondent reflected that she really did not understand the seriousness and the obligations on her of complying with court orders and, more importantly, the impact on the child of what he has been exposed to through these numerous breaches.
(f)That she did not file an application seeking to vary the orders until after the contravention application had been filed.
In all those circumstances, I do find that it is a more serious breach. I am satisfied that each of those 10 breaches has been proven beyond reasonable doubt. I am satisfied that they are established beyond reasonable doubt for the reasons that I previously stated, but in particular, in relation to the removal of the child from school by the respondent on the days when the changeover was to take place at the school, and also by her failure to deliver the child into the care of the applicant on the day that she was collecting the child from the respondent’s home. In relation to the denigrations, because I have accepted the applicant’s evidence over and above that of the respondent.
VARIATION IN ACCORDANCE WITH S 70NBA
The court having indicated to the parties the limitations as to varying orders, in particular that the court would need to be satisfied that any changes were in the best interest of the child, the parties consented to variations being made to the orders to include a non-denigration clause, that each party would ensure that B would not have electronic devices when he moved between households and that his original Birth Certificate (that did not include the applicant’s name) would be destroyed.
The outstanding issue was the respondent’s presence at changeovers. She was unwilling to agree to a restraint on her attendance at changeover based on practical difficulties; that her commitments at the school may require her to be at or near the applicant and the child at those times. The court is satisfied that the respondent’s presence at the school and the child’s knowledge that she is present at the school, is a large part of the problem. As a consequence, I am satisfied that an order should be made controlling the respondent’s attendance in those areas on changeover days. I propose to make an order that the respondent must notify the applicant if her work requires her to go there.
ORDERS MADE IN ACCORDANCE WITH POWERS
Section 70NFB sets out the powers of the court where I have found there has been a serious disregard, as in this case. And if this subdivision applies, the court must in accordance with s 70NFB(1), in relation to the person who committed the current contravention:
(a)make an order under paragraph (2)(g) (which is to pay all of the costs), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and
(b) if the court makes an order under paragraph (2)(g) (that is for the respondent to pay all of the costs) - consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and
(c)if the court does not make an order under paragraph (2)(g) (which is an order to pay all of the costs) - make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
Section 70NFB(2) sets out the various orders that the court can make and that includes a bond and at ss (g), to make an order that the person who committed the contravention pay all of the costs of the other party. I am assisted by the reference given to me by Counsel of the decisions of the Full Court in Roffe & Hule [2016] FamCAFC 166 (“Roffe”) and the decision of Justice Brasch in Vilner & Vilner (No 4) [2022] FedCFamC1F 1060 (“Vilner”). Indemnity costs does not include legal fees incurred in other proceedings, such as the substantive proceedings under the initiating application or proceedings in another court.
Section 70NFB(2)(f) states that I can also make an order that the person who committed the current contravention pay some of the costs of another party or parties to the proceedings under this division. I must consider whether to make an order that the respondent pay all of the costs of the applicant, and I must make that order unless I am satisfied that it would not be in the best interest of the child to do so.
I have been assisted by the submissions that have been made by the parties. I now turn to look at the parties’ cost notices. The applicant’s cost notice, as noted by Counsel, consists of four amounts, which tells me the amount paid, the amount owing, the unbilled work in progress, and the estimate for the court event. That totals $119,465.72, with the source of funds being stated to be from personal savings and income.
Turning to the cost notice for the respondent, that is a similarly short document, and that tells me that the actual costs to date for the respondent are $50,597.80 and that the estimated costs up to 26 February were $15,460, and it tells me that the respondent obtained a loan to pay for the current and future legal fees in the proceedings before the court.
The decision of Brasch J in Vilner was of assistance. Her Honour references May J in the matter of Roffe, which provides that in considering whether to make a cost order when hearing a contravention application the assessment of the child’s best interests is based on s 60CC. Brasch J looked at s 60CC(3)(f), which is capacity to provide for the child, and she also referred to ss 60CC(2)(a) and 60CC (3)(ca), which are the primary considerations of a meaningful relationship and the extent to which parties have fulfilled or failed to fulfil their obligations to support.
The difficulty that I face here is I have literally no information about each party’s financial circumstances. What I know about the respondent is that she is an educator. I do not know her salary. I know from the cost notice that she is borrowing money to pay her legal fees. So, I presume that she is on a budget and manages those things carefully. I am conscious that this is not somebody who has a significant amount of money lying around, that she is already going into debt to engage in these proceedings and the substantive proceedings.
But against that, I must weigh that the best interests of a child are met, and one of the primary considerations are met, by ensuring that a child has a meaningful relationship with both parents. That means that court orders for time must not be breached, and the child must spend time with that other person in accordance with those orders, unless there are any factors which fall into the second primary consideration, which is the need to keep a child safe from harm.
There is no evidence that this child is at risk of harm in the applicant mother’s care. There was an earlier disclosure to Child Safety, but they were satisfied that the matter need go no further in relation to some suggestion that he was being hit by the applicant, but there is no current evidence in relation to that. The current complaints to Child Protection seemed to be more about what is going on now, being the difficulties with changeover and the dispute between the parents and the impact on this child.
I accept the submission that the cost notice for the applicant reflects the cost solely in relation to these proceedings, but I do not have a schedule itemising what it is or where the costs went or how they were calculated, which makes it very difficult for me to apply any sort of forensic lens to whether that is an appropriate figure in all the circumstances. I know that there are two contravention applications. I know that this matter has been before the Court on a number of occasions, and that the matter is being finalised today, so I am not saying that the costs are necessarily unreasonable, but I have to balance the need to ensure that orders are complied with, against the need to ensure that the respondent can meet the needs of the child, particularly as she is currently the only person who is spending time with the child. I do not know what child support she is receiving although I did see something about child support in the material.
I required to consider a cost order on an indemnity basis, but I can move away from that if I am satisfied that it is not in the best interests of the child concerned to make that order. Now, the submission was made that the sum of $120,000 or thereabouts would most likely be close to the annual salary of an educator.
I do not know the respondent’s actual income. I know that there is a range of incomes that educators receive. I presume that the respondent is a more senior educator and that she is on a level of income somewhere around $120,000 or more, but it is purely guesstimate. If I make an order that amounts to a year’s salary to be paid by way of costs to the other party, then I have no doubt that will have a dramatic impact on the respondent’s household and the ability to provide for the child. But if I do not make an order for costs of some sort, then I am not sending the message to the respondent that court orders must be complied with.
Having considered those matters, I am satisfied that it is not in the best interest of the child to make an order that all of the costs be paid under ss 70NFB(2)(g), but I am satisfied that it is appropriate that an order be made that some of the costs of the applicant be paid by the respondent.
Now, I have no information about what those costs would be on either the schedules under the Federal Circuit and Family Court of Australia (Division 2) Rules 2021 (“Division 2 Rules”) or Sch 3 of the Federal Circuit and Family Court (Family Law) Rules 2021 (“Family Law Rules”). Schedule 3 of the Family Law Rules is for the itemised form. I have the power, to make orders for a particular sum. Rule 12.17(3) of the Family Law Rules sets out the factors which a court may consider when ascertaining the quantum of costs. Rule 4.01 of the Division 2 Rules provides that the court may apply either the scale of costs in Sch 3 or the scale of costs in Sch 1 of the Division 2 Rules. The scale of costs in the latter rules provide for set amounts on a stage-by-stage basis and are of a far lesser quantum than the Sch 3 outcome, overall.
Rule 12.17 of the Family Law Rules provides for various methods of calculating costs, those included under r 12.17(1)(a), that the court can fix upon a specific amount, or in r 12.17 (1)(b), in order for the cost to be assessed on a particular basis, or in r 12.18 (1)(c), cost to be calculated in accordance with the method stated. I have not seen an assessment on either scale, but I am of the view, given the fact that I have found that these fall in the more serious breach, that Sch 1 is not sufficient in this particular case.
I therefore propose to make an order that the costs payable by the respondent to the applicant be calculated in accordance with Sch 3 of the Rules, limited to the contravention proceedings, and make provision for the applicant to provide a schedule of costs within 28 days. I shall put in place a regime for allowing the parties to reach agreement and failing that costs on Sch 3 will be as assessed with a time frame for payment of three months of date of agreement or assessment.
I shall also order that the respondent enter into a Bond to comply with all current and future orders of the court in relation to parenting matters for a period of two years. Given that the costs order on Sch 3 is likely to be high, that Bond will be without surety or security.
It was indicated to the court that the respondent was willing to enter into the Bond. The court then explained to the respondent what it meant to enter into the Bond and the consequences of breaching the Bond.
IN CONCLUSION
I propose to order a copy of the transcript be placed on the court file to be available in the substantive proceedings.
I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Cope. Associate:
Dated: 22 March 2024
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