Harvey & Harvey
[2018] FamCA 516
•16 July 2018
FAMILY COURT OF AUSTRALIA
| HARVEY & HARVEY | [2018] FamCA 516 |
| FAMILY LAW – ORDERS – Contravention – Findings as to contraventions of parenting orders – order for a family report – appointment of an ICL preparatory to usual applications to vary parenting orders – requirement to hear the views of the children. |
| APPLICANT: | Mr Harvey |
| RESPONDENT: | Ms Harvey |
| INDEPENDENT CHILDREN’S LAWYER: | Ms A Altavilla |
| FILE NUMBER: | MLC | 2362 | of | 2014 |
| DATE DELIVERED: | 16 July 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 6 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cash |
| SOLICITOR FOR THE APPLICANT: | F D Mapleston |
| COUNSEL FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Altavilla Family Law |
Order One
IT IS ORDERED THAT:
(1)That pursuant to Section 68L(2) of the Family Law Act 1975 the children D born … 2003, E born … 2005 and F born … 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation urgently so that they may attend court as soon as practicable this afternoon and also future potential hearing dates.
(2)That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
(3)That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.
IT IS DIRECTED:
(4) That my Court Officer prepare a photocopy of the documents relevant to the Contravention Applications filed 7 May 2018 and 23 May 2018 respectively and inclusive of the mother’s affidavit in reply filed 4 June 2018 and make such copies available to the independent children’s lawyer on his/her arrival at Court.
(5)Additionally, the independent children’s lawyer be provided with a copy of:-
a) The reasons for decision of Justice Cronin delivered on 15 February 2018;
b) A copy of the Order made on 30 November 2015;
c) A copy of the Order made on 15 February 2018;
d) A copy of any report or updated report done by Ms K in this matter;
e) The reasons for decision of Senior Registrar FitzGibbon of 3 May 2018.
AND IT IS NOTED that there is an affidavit by Ms K written as Folio 32 on the Court file but it is not able to be located on the Court file.
Order Two
IT IS ORDERED THAT:
(1)I amalgamate the Contravention Application of the father filed on 7 May 2018 with the Contravention Application filed by him on 23 May 2018 and mark the counts referred to therein as Counts 1 to 22 NOTING THAT there is a Count 16A (“the Contravention Applications”).
(2)I give leave to the father to withdraw Counts 11 and 12 on the basis that he concedes that they are similar instances to that alleged in Count 14 and wishes to conserve Court time.
(3)I give leave to the father to withdraw Count 13 of the Contravention Applications.
IT IS DIRECTED:
(4)That a Registrar of the Court contact the Registrar of the Magistrates’ Court of Victoria at Suburb T and notify that in relation to Mr and Mrs Harvey who are parties to intervention order proceedings returnable on 7 June 2018 that there are ongoing proceedings in the Family Court of Australia in relation to the alleged contravention of orders, an independent children’s lawyer has been appointed to represent the interests of the three children of the marriage, that is Ms Altavilla of Altavilla Family Law who can be contacted at …. There will be a family report prepared by this Court by 1 August 2018 when the consequences of any found contravention of orders will be dealt with.
(5)The original affidavits of the father sworn 2 May 2018 and 23 May 2018 be annotated to reflect the paragraphs struck out by me on 6 June 2018.
IT IS FURTHER ORDERED THAT:
(6)This matter be adjourned for the consideration of any consequences of found contraventions to 1 August 2018 in the Judicial Duty List (“the adjourned date”) NOTING THAT I will take the matter from the list on that day.
(7)Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared as a matter of urgency. For that purpose the parties and children D born … 2003, E born … 2005 and F born … 2008 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced not before 16 July 2018 and be released by not later than 1 August 2018. AND IT IS REQUESTED that the independent children’s lawyer be afforded an opportunity to meet with the children in the company of the family consultant as part of the assessment process.
(8)The family report deal with the following matters:-
a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;
b) the matters set out in s60CC of the Family Law Act;
c) an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;
d) an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);
e) recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible;
f) what interim orders ought to be made in relation to the children spending time with the father and whether existing orders ought to be suspended or varied in relation to some or all of the children.
(9)For the avoidance of doubt the family consultant, Ms L, be and is hereby authorised to have reference to:-
a) all documents filed in these proceedings;
b) any documents produced on subpoenae and released for inspection by all parties;
c) any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;
d) any documents or things referred to in this Order.
(10)The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court and this injunction will remain in full force and effect following completion of the proceedings.
(11)IT IS REQUESTED THAT the family consultant be available for cross-examination on the adjourned date at 10.30 am.
(12)I otherwise reserve my decision in relation to the Contravention Applications to a date to be fixed and to be notified to the parties in writing.
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 Harvey & Harvey 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 MELBOURNE |
FILE NUMBER: MLC 2362 of 2014
| MR HARVEY |
Applicant
And
| MS HARVEY |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Introduction
The order for a family report to be prepared
The views of the children
Background facts
Intervention Orders
The law
The alleged counts of contravention and the evidence
Historical context
The failed holiday to Country H
The Commonwealth Games in Brisbane in 2018E’s school trip to New Zealand
Orders Sought
Appointment of an independent children’s lawyer
Alleged contraventions of orders
Count 1
Count 2
Count 3
Count 4
Count 5
Count 6
Findings for Counts 2 to 6
Count 7
Count 8
Count 9
Count 10
Counts 11, 12 and 13
Count 14
Count 15
Count 17
Count 22
Findings for Counts 15, 17 and 22
Count 16A
Count 16
Count 18
Count 19
Counts 20
Count 21
Findings for Counts 20 and 21
Conclusion
Introduction
These proceedings comprise two contravention applications brought by the father against the mother and filed respectively on 7 May 2018 and 23 May 2018 in which he alleges that the mother has, without reasonable excuse, contravened parenting orders on 20 occasions.
The father is represented by Mr Cash of counsel.
The mother appears in person, but I have granted her the assistance of a McKenzie friend, who is her sister, Ms M.
The mother admits some contraventions but alleges that she has a reasonable excuse and denies the other contraventions alleged against her.
The below reasons should serve to illustrate the unsatisfactory and psychologically harmful environment in which the children find themselves. Whereas I have made findings on the alleged contraventions, I find four counts proved and dismiss the remaining counts. I have not yet made any decision on the consequences of the contraventions which have been proved or what consequences should flow from those which have not been proved.
The order for a family report to be prepared
It is usually assumed (until proven otherwise) that the best interests of children are served by adherence to orders which have been made with the best interests of children as the paramount consideration. However, what I have heard thus far leads me to suspect that that the parental strife and extraordinarily high parental conflict present in this case may displace the ordinary assumptions about contravention proceedings or any efficacy there may be of apportioning blame between parents. From the preliminary and restricted perspective of contravention proceedings, it appears that the operative order of 30 November 2015 has come to be inconsistent with the legitimate needs of the children. It is not delivering certainty or predictability for the children. It is being used as weaponry by one parent against the other and eliciting a response in kind.
The mother says that the older children have been non-compliant with orders to spend time with the father for a considerable period of time. The father says that the mother invites and incites them to be non-compliant. In contravention proceedings it is presumed that if a parent considers that the parenting orders are no longer in the best interest of the child(ren), that parent will make application to the court for orders which are in the children’s best interests. In other words, it is not enough to say that the parenting arrangements are not satisfactory but do nothing to change them. In this case, and without in any way pre-judging whether or how the parenting orders should change, I am satisfied that there are reasons which mitigate against the usual presumption that, if the mother could not ensure compliance with parenting arrangements, she should have made application to the court for alternative orders. These are:-
a)The ages of the children. D is 15 years old, E is 13 years old and, without the benefit of a social science assessment, they appear to have minds of their own. Little has been done to spare the children, including F (who is 10 years old) from the high level of parental conflict between the mother and the father.
b)The mother is in full time employment. She also has a second part-time job. She has the primary care of three children. In her own words, she is “time poor”.
c)My understanding is that the father is in arrears of child support and, by letter to the mother dated 23 November 2017, he said he may “have little alternative but to declare voluntary bankruptcy.”
d)Correspondence indicates that, certainly as of 16 May 2018, the father would not accept any responsibility for fees for D’s attendance at N School. The mother is paying the fees and, I assume, money is in short supply; and her capacity to afford legal advice significantly limited.
e)The mother and children were very disappointed when the father thwarted a Christmas vacation for them to Country H. When the matter returned to court shortly thereafter, on 15 February 2018, the parents could have reasonably been left with the impression that significant resources would not be applied to their case as and when they did litigate. (see paragraph 46 of these reasons)
It is with the above matters in mind, and the historical context set out below, I would describe the circumstances of this case as unusual. Every case turns on its own facts. The early determinations of fact I make in relation to the alleged contraventions in this case would not be readily applicable to other cases.
Section 70NBA of the Family Law Act 1975 (“the Act”) provides that the court may vary a parenting order where contravention proceedings are brought and regardless of whether the court finds (or does not find) that the order has been contravened.
In my view, the appropriate way forward is for the court to have expert evidence by way of a s62G(2) report to inform its consideration of whether the current parenting arrangements should be changed and, if so, to what extent. The family report was not opposed by either parent. The assessment interviews for the family report will commence on 16 July 2018. It would be preferable for the family consultant to read these reasons after seeing the parents and the children but prior to writing her report and being cross examined.
The views of the children
An important aspect of the family report will be to record and assess the views of each child. The children should know that their individual and collective views will be considered and not lost in the mire of their parents’ conflict. This includes taking account of their views and opinions in a dynamic sense, not only when the views conveniently support a party’s proposal or to just tick off one of the numerous additional considerations which we are required to take into account when making a parenting order.
As Lady Hale (as she then was) said the following in an early international case, Re D (A Child):-[1]
[57] …As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants. […]But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.
I agree with those sentiments. These children are now aged 15, 13 and 10 years. I expect that the children may have quite a bit to say, if asked.
[1]Re D (A Child)(Abduction: Rights of Custody) [2006] UKHL 51.
Background facts
The mother is 43 years old and a health professional. She has formed a new relationship with Mr O. The mother’s household is at P Street, Suburb Q.
The father is 43 years old and a health professional. I am not aware of whether he has re-partnered. The father resides at R Street, Suburb S.
The parents commenced cohabitation in 2001 and married in 2012. They separated on 7 July 2013.
There are three children of the marriage:
·D, born in 2003, who is 15 years old, and attends year 9 at N School, a fee paying school. .
·E is 13 years old, having been born in 2005, and is a student in year 8 Suburb S Secondary College.
·F is 10 years old, having been born in 2008, and attends a community group.
D attends swimming at N School Campus.
F regularly attends her community group.
The station for Victoria Police at Suburb S is located at Suburb S Street, Suburb S.
The children have been assessed by a private family report writer, Ms K on two occasions. Ms K’s reports which were published respectively on 20 June 2014 and 31 May 2015. I have not read them.
Final parenting orders were made by consent on 30 November 2015. Relevantly the Order provides that:
4.The children live with the Mother and spend time with the Father as follows:
(a) During school terms:
(i)Each alternate Thursday night from the conclusion of school (or from after school care) until the commencement of school Friday (or 3:30pm if Friday is not a school day) (PROVIDED THAT on Thursday 3 December 2015 the Father shall ensure [E] attends her dance rehearsal and [D] shall attend her school Xmas Carols in the city) and;
(ii) Each alternate Friday night from the conclusion of school until the commencement of school on Monday morning (or the following school day if Monday is not a school day).
(b)For half of the term 1, 2 and 3 school holidays and long summer holidays as agreed between the parties in writing and failing agreement for the first half in even numbered years and the second half in odd numbered years;
[…]
(f)From 10am to 2pm on the children’s birthdays if they do not fall on a school day;
(g)From the conclusion of school until 6.30pm on the children’s birthdays if they fall on a school day;
[…]
(i)As otherwise agreed between the parties in writing.
5.That the children’s time with the Father be suspended at the following times:
(a)For half of each of the term 1, 2 and 3 and long summer school holidays as agreed and failing agreement the second half in even numbered years and first half in odd numbered years;
[…]
(c)From 10am to 4pm on Mother’s Day
(d)From 10am to 2pm on the children’s birthdays if they do not fall on a school day;
(e)From the conclusion of school until 6.30pm on the children’s birthdays if they fall on a school day; and
6. In relation to changeover:
(a)Where changeover occurs at the commencement or conclusion of school, changeover will take place at school; and
(b)For all changeovers that do not occur at the commencement or conclusion of school, the Father or his agent will collect the children from the Mother’s residence at the commencement of the children’s time with him and the Mother or her agent will collect the children from the Father’s residence at the conclusion of the children’s time with him.
[…]
8.In relation to any illness and medical issues, each party will notify the other:
(a)Immediately if the children suffer any serious injury while in their care;
(b)As soon as practicable if the children suffer any other injury or illness while in their care; and
(c)Of any appointments made for the children.
[…]
11.Each party be at liberty to attend any school functions or extracurricular functions that parents are invited to attend.
12.(a) Each of the parties shall ensure that the periods of time the children spend with each parents pursuant to these Orders, That parent shall cause the children to attend all training, matches or performances as are time tabled by the respective coaches/trainers of any extra-curricular activity undertaken by the children and each of them;
(b) Unless by prior agreement in writing;
(i) neither parent shall enrol the children, or any of them in any extra curricular activity that falls in the other parents time as provided for in these orders;
(ii) Each parent be and is hereby restrained from attending any extra-curricular activity of the children or any of them that falls within any period that the children, or any of them are living or spending time with pursuant to these orders.
13. In the event that either party seeks to travel overseas with any of the children, he or she give the other parent no less than 30 days’ notice in writing and provide the other parent:
(a)A copy of the Itinerary;
(b)A copy return e-ticket;
(c)Proof that the children have received any and all necessary vaccinations at least 7 days prior to the intended overseas travel;
(d)Particulars of the places and contact numbers at which the children are staying (as applicable); and
(e)A proposal for make-up time (if applicable).
The relevant paragraph of the Order made on 15 February 2018 is paragraph 8 which provides “BY CONSENT, paragraph 5(a) of the orders made on 30 November 2015 is varied specifically so that the wife have the children for the first half of the Term 1 school holidays in 2018.”
The parties currently have part-heard property proceedings before Johns J, which are to be relisted on a date to be fixed, pending the outcome of a special leave application to the High Court in by the Australian Taxation Office (the intervener in the property proceedings).
Intervention Orders
The parties have had or applied for a number for intervention orders under state domestic violence legislation. I have not seen the orders and am not sure of the chronology but I was informed from that:-
·In 2015, the mother obtained an intervention order against the father from the Magistrates’ Court at Melbourne principally to prohibit him sending emails. That order expired in 2016.
·In April 2017, the father filed an application for an intervention order against the mother in respect of which not orders had been made at the time of the hearing before me. The father’s application is returnable in early July, 2018.
·On 15 January 2018, the mother obtained an interim ex parte intervention order against the father which includes the children as affected family members. It was listed for hearing in early July 2018.
·On 29 March 2018, the father brought an application for an intervention order against the mother’s partner, Mr O including himself and the children (with whom Mr O lives) as affected family members but no orders had been made on that application when the father’s application.
·Mr O has applied for an intervention order against the father and may have obtained an interim order.
·Some proceedings were returnable at the Suburb T Magistrates Court on the day following the hearing before me.
It is the father’s perspective that the intervention order which the mother has obtained against him is causing an issue between him and the children. He says it leads the children to doubt whether they are allowed to see him and puts him at a significant disadvantage.
I expect that the independent children’s lawyer will be able to clarify the multiple applications and orders on the adjourned date. My understanding is that currently the father is prohibited from attending at or being within 200 m of the mother’s residence at P Street, Suburb Q.
The law
Division 13A of part VII of the Family Law Act 1975 (Cth) relates to contravention of orders made under the Act.
Pursuant to section 70NAC of the Act, a person is taken, for the purposes of this division, to have contravened an order under this Act affecting children if – and only if;
a)where the person is bound by the order that he or she has intentionally filed to comply with order, that he or she has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order or, otherwise, he or she has intentionally prevented compliance with the order, by a person who is bound by it, or has aided or abetted a contravention of an order, by a person who is bound by it.
Section 70NAE sets out the meaning of “reasonable excuse for contravening an order”. Subsection 2 provides that a person is taken to have had a reasonable excuse for contravening an order under the 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.
A respondent will be taken to have a reasonable excuse if they 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 the period during which, because of the contravention, the order was not complied with was not made longer than was necessary to protect the health or safety of the person whose safety the Court is satisfied was at risk (s70NAE(5)).
The circumstances specified in s 70NAE, in which a person is taken to have had a reasonable excuse for contravening an order, are not exhaustive.
THE ALLEGED counts of contravention and the evidence
The first contravention application of the father alleges 15 counts of contravention by the mother of the Order made on 15 February 2018 or the Order made on 30 November 2015.
The second contravention application, filed 23 May 2018, alleges eight contraventions of the Order made on 30 November 2015.
In order to facilitate the hearing of the matter, the counts were numbered one to 22 inclusive, including 16(a), and referred to in accordance with exhibit “C1”.
Hereafter I will refer to the final parenting order made on 30 November 2015 as “the primary Order” and to the Order made on 15 February 2018 as “the February 2018 Order”.
In support of the contravention application, the father swore an affidavit on 2 May 2018, and a second affidavit on 23 May 2018. The affidavit contained clearly inadmissible material, and I struck out some parts of each affidavit. Additionally, the considerable annexures to the father's material were not numbered consecutively.
The only document filed on behalf of the mother was an affidavit sworn by her on 4 June 2018. There is five pages of narrative and 83 pages of annexures. I directed that the annexures be photocopied and the pages numbered sequentially.
Both parties sought to rely on statements by the children, some relayed as oral statements and some by text messages. Section 67ZV of the Act provides that evidence of a representation made by a child about a matter that’s relevant to the welfare of that child or another child which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay. The court may give such weight to it as it thinks fit.
The applicant father has the onus of proving that the order was contravened. The respondent mother has the onus of proving that she had a reasonable excuse as and when she assets same.
Subject to s70NAF(3)[2], s70NAF provides that the standard of proof to be applied in determining matters in proceedings, including whether the respondent has a reasonable excuse within the meaning of s70NAE, is proof on a balance of probabilities.
[2] Section 70NAF(3) of the Act provides that if, eventually, I was satisfied of a contravention and considered making a consequential order which imposed a fine or a term of imprisonment, I would need to be satisfied to the higher standard, of beyond reasonable doubt, that the grounds for making that order exist.
In these reasons, a statement of fact is a finding of fact.
Both parties gave oral evidence and both were cross‑examined. Both parties gave evidence in a self-justifying manner. Each presented as self-righteous. I do not regard either parent as giving evidence which was totally reliable but neither do I find that either deliberately lied. Each parent is absorbed in their own perception of past and current events.
Historical context
It is necessary for me to make reference to some historical events which form part of the relevant context of a number of the alleged contraventions. The historical events are:-
·The failed holiday to Country H for Christmas 2017;
·The Commonwealth Games in Brisbane in 2018;
·E’s school trip to New Zealand;
The failed holiday to Country H
In the latter part of 2017 the mother purported to give the father notice pursuant to paragraph 13 of the final parenting orders that she was going to take the children on a trip to Country H. Instead of giving the requisite 30 days’ notice in writing, the mother gave only 20 days’ notice in writing. The father objected to the mother taking the children to Country H, he says, for reasons of their personal safety. The father informed me that he instituted proceedings in this court prior to the scheduled departure of the children, but the mother did not appear at court, and no orders were obtained precluding her taking the children overseas. The mother and the children duly left Australia consistently with the mother’s notification to the father. However, apparently the Government of Country H does not permit the travel of minor children without the consent of both parents and, upon arriving in Country H, the mother was unable to provide the requisite consent of the father.
The Country H authorities contacted the father, who said he was opposed to the children entering the country, as a consequence of which the mother and children were detained and then required to board the next plane returning to Australia. I refer to this instance because it forms part of the relevant context for a number of the alleged contraventions. It was been described by Cronin J on 15 February 2018 as:
…appalling conduct by the father in thwarting an overseas trip upon which the mother and children had embarked at Christmas to [Country H].
Most significantly, it appears to have had a consolidating negative impact upon the relationship between, at least, the girls and their father.
In the proceedings on 15 February 2018, six interlocutory applications, some of which involved the children and the fall out from the aborted trip to Country H were before the Court. All applications were dismissed. Notably, his Honour concluded reasons for decision as follows:
It is a fact of life that the court must deal with these sorts of cases but its ultimate focus must still be on the best interests of the children even if the parents’ interests are also seen as important. Here, I have no doubt there were problems in all of the matters argued but this still remains a court of law exercising the judicial power of the Commonwealth. It is not a mediation service and the parties need to seek assistance from the social science profession and obtain proper advice from the lawyers as to what can occur so that precious resources are not wasted. In my view, having now seen what has occurred in this case and without making any determination as to which of the two parents is responsible for the problems, this is not a case which justifies significant resources in the foreseeable future.
The Commonwealth Games in Brisbane in 2018
Also at the hearing on 15 February 2018 the mother made an oral application, which was granted, to alter the term 1 school holiday arrangements pursuant to the extant final parenting orders. As a consequence, orders were made whereby the father would have the second half of the first term school holidays so that the mother could enjoy the Easter period with the children.
Subsequent to obtaining the variation of school holiday arrangements from Cronin J, the mother learned that her sister had purchased tickets for her and the children to the Commonwealth Games in Queensland. The mother asked the father whether she could alter the school holiday arrangements again, but the father was not agreeable. At one point the mother said that she would facilitate the father being able to use the tickets for the Commonwealth Games with the children and told him so. However, the father did not follow up on this no arrangements was made in that respect. The mother alleged that the father said he would forgo time in the first school holiday for all of the second term school holiday and her discontinuance of intervention order proceedings against her. The school holiday period at the conclusion of term 1 in 2018 commenced on 30 March or thereabouts. The Commonwealth Games commenced in Brisbane on 4 April 2018.
The changeover point for the holiday time was 12 noon at the Suburb S Police Station. The mother drove the children to the location and they went into the police station to speak to the father. The children came out of the police station. The father walked one way and the children walked to and got into the mother’s car which was parked opposite the station and she drove off.
The mother took the children to Queensland and attended the Commonwealth Games with them. Shortly after the children did not accompany the father to Queensland, the father notified the mother and/or D and/or E that:-
c)He would withdraw any financial support for E’s school trip to New Zealand;
d)He attempted to un-enrol D in her elite swim squad.
E’s school trip to New Zealand
On 30 April 2018 a further application was made by the mother seeking orders to permit E to travel to New Zealand for a school trip during the school holidays. It was returnable before Senior Registrar FitzGibbon on 3 May 2018. The father said that he could not attend court due to work commitments and complained of short service. He then attended court. The Senior Registrar granted the wife’s application over the father’s request for an adjournment on the basis that he was satisfied that if arrangements were not made that day, E would have lost her place on the tour.
Orders Sought
Section 70NBA provides that where it is alleged that a person has committed contravention of a primary order, a court, having jurisdiction under the Act, may vary the primary order regardless of whether the court does or does not find that the person committed contravention of the primary order.
Apart from applying that the mother be dealt with for 20 counts of having contravened parenting orders, in his affidavit in support of the contravention applications, the father seeks the following orders:[3]
[3] Father’s affidavit sworn 23 May 2018, [41]
a) Ensure the children’s time spent with the father is immediately resumed.
b) That any and all lost time with the children (in particular due to the actions of [Ms Harvey], or her proxies) be made up at a time to be nominated by the father.
c) That [Ms Harvey] and her agents be restrained from attending the children’s schools and any activities that occur in relation to the children when they are in my care as set out in parenting order 4 made 30 November 2015 without prior written consent from the father.
d) That [Ms Harvey] notify me of any and all medical, school or educational activities in relation to the children, and in the advent that any of the children are absent from school for any reason, notify me no later than 9:00am on that day why the children are absent and the location of the children.
e) That [Ms Harvey] provide evidence that she has attended a post-separation parenting course in accordance with previous Court Notation, and if she has not done so, to complete a post-separation parenting course.
f) That [Ms Harvey] undergo complete and comprehensive behavioural and psychiatric assessments by (an) agreed specialist practitioner(s) and follow any therapeutic recommendations given at her own expense
g) That [Ms Harvey] enter into a bond of no less than $5,000 to ensure compliance with these orders of the Court in the future.
h) That the father be reimbursed for airfares (to the amount of $1,262.41) and accommodation (to the amount of $1,680) expenses associated with the April 2017 Queensland family holiday.
i) That [Ms Harvey] be required to pay any and all costs in relation to this application.
(original emphasis removed)
The mother seeks that the court order as follows[4]:
1. That the parenting orders for both [D] and [E] are set aside until they have their own independent legal representation. That an interim order be made that if both [D] or [E] do not attend his house and they have notified him that, [the father] be restrained from attending any events that the children may have on.
2.That [the father] be restrained from applying for any further applications for the children, in particular as he has found a legal way to continually abuse me.
[4] Mother’s affidavit sworn 4 June 2018, [28]
Appointment of an independent children’s lawyer
Having regard to the orders sought by the parents in these proceedings, I requested the appointment of an independent children's lawyer as a matter of urgency. This was not opposed by either of the parents.
I commend Victoria Legal Aid for the speed in which it allocated an independent children's lawyer to these proceedings, and note that Ms Altavilla, of Altavilla & Co, has been appointed the independent children's lawyer in the matter, and was in court for the entirety of the hearing.
The purpose of appointing the independent children's lawyer to appear on the contravention application was so that he or she would get a comprehensive idea of the matters in dispute between the mother and the father, and the inevitable degree to which it impacts negatively on all of the children of the marriage. The independent children's lawyer will be required to make submissions in the children's interests on the consequences which will flow from the contravention applications as well as on any subsequent consideration to vary the primary order.
In the applications to vary the primary order, the role of the independent children’s lawyer will be to form an independent view, based on available evidence, of what is in the best interests of each of the children and then act in these proceedings in what she believes those best interests to be.[5] Ms Altavilla is not a legal representative retained by the children and she is not bound by any instructions from them.[6] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by each of the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with parenting proceedings[7] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[8]
[5] Family Law Act 1975 (Cth) s 68LA(2).
[6] Family Law Act 1975 (Cth) s 68LA(4).
[7] Family Law Act 1975 (Cth) s 68LA(5)(d).
[8] Family Law Act 1975 (Cth) s 68LA(5)(e).
I also consider that it is the role of the independent children’s lawyer to keep the children advised, in general terms, of the progress of the proceedings which affect them and to do so in a timely way. For instance, the children may be appraised of the outcome of these contravention proceedings and, in due course, to give consideration to how the children are informed of the resolution of the parenting proceedings to vary the primary order. I do not want the children to be burdened with knowledge but also do not want them to be anxious because they do not know what is going on. Depending on the expert evidence of the Family Consultant, when it is finally tested, and whether the parents reach any agreement, the children may need to be advised of any arrangement to which their parents agree before the independent children’s lawyer can inform the court of her support or otherwise of any such arrangement.
Alleged contraventions of orders
Count 1
It is alleged that on 7 April 2018, at 12 noon, at Suburb S Police Station, the mother, without reasonable excuse, contravened paragraph 8 of the February 2018 Order by refusing to allow the applicant to spend time with the children, D, E and F. This was the commencement of the father's holiday time with the children during the term 1 school holidays. The mother admits that the children spent no time with the father. However, she says that she had a reasonable excuse.
The handover for time was Saturday, 7 April 2018, at 12 midday, at Suburb S Police Station. The father’s evidence was that[9]:
42. However, at the point of collection, I noted the children had not arrived with any of their usual personal items. I was then told by them that they had been told “not to go with you, because mum has orders” and the children then returned to [Ms Harvey’s] waiting car.
43. [Ms Harvey] then sped rather hastily down the road and disappeared.
44. Furthermore, the children have alleged that [Ms Harvey] had told them they were spending the April school holidays with her because I had “agreed to take them to the snow in July”; something I had never discussed with them, nor agreed with [Ms Harvey].
45. On Saturday 7 April 2018, [Ms Harvey] was notified by letter sent by email and text that unless all three children were delivered into my care prior to 8pm that night, I would be filing applications for contravention and contempt at the Family Court of Australia, seeking compensation for expenses, loss of time and amenity.
46. I received no reply and [Ms Harvey] failed to return the children and proceeded to withhold all three children without my consent for the entirety of the term 1 school holidays.
47. As a result of [Ms Harvey’s] actions, I was unable to make pre-arranged travel to Queensland with my children to watch the Commonwealth Games.
48. It is of great concern that [Ms Harvey] would make an application to have orders changed before a judge, and then immediately seek to undermine those orders. This demonstrates her complete and utter disregard and contempt for the Family Court of Australia and has been persistent behaviour with [Ms Harvey] since matters first appeared before the Family Court of Australia in April 2014.
(original emphasis removed)
[9] Father’s affidavit sworn 2 May 2018, [42]-[48]
Through cross-examination and reference to various exhibits, it is apparent that the children had stated to the mother that they wanted first to speak to the father about going to Queensland. The mother’s evidence which I am inclined to accept on this point, was that the children would not pack their bags before the changeover but, had they agreed to stay with the father, she would have delivered their possessions to them. The father’s evidence was that “Actually I wanted to take them to – because it was around about lunchtime. I wanted to take them to lunch, and sit down and talk to them about the trip further.”
Under cross examination, the father recalled E wanting to speak with him about the proposed holiday to Queensland but he could not recall if D had similarly wanted to speak to him. When shown documents, the father admitted to having a text conversation with D on the evening of 3 April (four days prior to the changeover) advising her that he had made arrangements for the second week of the school holidays and asking “Do I need to change them.” D responded “What arrangements” but the father did not reply. On 4 April 2018, the father sent a text to D at 7:29am saying “D, I have already booked flights to [U Town] for us. Was supposed to be a nice surprise for you guys. Dad.”
The father’s evidence was that he had purchased airline tickets and accommodation early on the morning of 4 April 2018. This strikes me as unusual give that his last communication to D the evening prior was a query about whether he should change his plans.
The father’s text conversation with E was in evidence[10]. It is as follows:-
[10] Mother’s affidavit sworn 4 June 2018 [20]
[[E] at 19:22 on 3 April 2018:]
Can we call you at 8:30 if that’s ok
[[E] at 20:55:]
Hi dad please call me
[[E] at 22:36:]
Hi dad,
Just to let you know I would like to go to Queensland to watch the commonwealth games I am happy to make up time in the next school holidays.
[the Father at 8:24 on 4 April 2018:]
Hi [E], Am happy to take you to the games and have already booked flights. Love, Dad
…
[[E] at 10:45 on 8 April 2018]
Hi dad it was my decision to stay with mum and also you knew we were not going to come
[the father at 10:49 on 8 April 2018]
Hi [E],
This is not what we discussed or agreed. I have booked flights, so need to collect all three of you before 12:00 midday.
[[E] at 10:50 on 8 April 2018]
No dad we didn’t discuss anything because you wouldn’t talk to me about it
[the father at 10:56 on 8 April 2018]
I don’t know what your mum has been telling you. We talked and agreed. If we are going to catch the flights to Queensland we need to pack ASAP.
Love, Dad
[the father at 16:43 on 8 April 2018]
Hi [E],
We have now missed the flights to QLD. I have had to contact the Police to check you are OK.
I can’t agree for you to go to NZ, and won’t be paying for any other activities. What you guys have done is disgraceful. Dad
The father complains that the mother did not facilitate the children spending time with him to go to Queensland during the remainder of the holidays.
Parenting orders impose positive obligations on the parties to genuinely comply with the order. That was established In the Marriage of Stavros[11] where the Full Court made it clear that there is an obligation on the custodial parent to take reasonable steps to make the child available for access.
[11] (1984) 9 FamLR 1025
Genuine compliance with an order involves encouraging a child to spend time with the other parent. In O’Brien & O’Brien[12], Smithers J considered that the mother’s obligations under the orders were to “tell the child that she must go on access, and to encourage her to go.” The child was nine years old. His Honour found that the mother had contravened the parenting orders as she had made it “quite clear to the child that it was a matter for the child as to whether she went on access or not. Furthermore…the child was led to believe by the mother that it was not the mother’s wish that she should go on access.” In Daly & Campbell[13], Dawe J had found that the mother had not taken reasonable steps to comply with the order and failed to take “an active role with an obligation to positively encourage access” between the father and the six year old child. On appeal to the Full Court[14], the mother was successful in establishing that the trial judge had not addressed a relevant consideration, that being her belief as to her obligations under the contact orders.
[12] (1993) FLC 92-396
[13] [2005] FamCA 237
[14] (2005) FLC 93-236
In Stevenson & Hughes[15], the child was 5 years old and the mother was found to have contravened orders for access and telephone communication. In relation to communication, the mother’s evidence was that she had written, in large letters on a piece of paper, the father’s first name and his phone number and attached it to the wall next to the phone at the home and then telling the child “this is [the father’s] number up here and anytime you want to you can ring it.” She also rang the father at the appointed time and asked the child if she was going to speak to her father, the child responded that she would not and after saying to the child “come on” three times, and on each occasion having received a negative response from the child, then hung up the telephone. The Full Court re-affirmed the custodial parent’s obligation to take reasonable steps to make a child available for time. Nygh J, with whom Fogarty and Gunn JJ agreed, found that the mother had invited the child to make a telephone call to her father in a manner which implicitly approves of the child’s refusal; and what was required was an invitation designed to persuade the child that contact was something which the mother encourages or approves of. The mother had taken the child to the father’s house and the child remained in the car and started to cry and said words to the effect “I don’t want to go”. The mother told the father, who was standing on the veranda of his home that “she does not want to come in” and after some discussion with him said, “[the child] does not want to come and I am not going to force her if she does not want to go.” The Full Court upheld the trial judge’s findings that the mother had not taken reasonable steps to ensure compliance with the orders for communication and access.
[15] (1993) FLC 92-363
With reference to Stavros, Nygh J said “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 of 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. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.
The above principle is correct, however how a primary carer discharges their positive obligation to encourage a child to stay with the parent entitled to time varies in accordance with the age and maturity of the child concerned. That is also likely to be impacted when young children are accompanied by older children whose lead the younger child may, understandably, follow. In the current case, the girls are significantly older that the children described in the authorities. With age comes autonomy, independent thought and individual actions. F was only 9 years (now 10 years) and I expect that he may follow his sisters’ lead. However, the possibility that he may not is a reason why I have ordered a family report. If F’s view differs from the views of his sisters, the Court must know that is the case.
All in all, I am satisfied that the children were not prepared to stay with the father for the holidays in April 2018 in the knowledge that they would be travelling to Queensland with him.
On 8 April 2018, the father wrote to D’s swimming club by email advising that “Until further notice, my daughter [D] is to be withdrawn from the swimming squad training and any associated events.” A copy of the father’s email was sent to the mother the next day, 9 April, 2018, at 10:30 a.m. asking for clarification and saying “We note that you have paid for [D] for Term 2 so the matter is confusing.” They asked, essentially, for the swimming club to be spared family disputes. D is a talented swimmer. It is difficult to imagine that she would have regarded the father’s attempt to withdraw her from squad as anything other than punitive.
I am not persuaded that the mother sabotaged the father’s time with the children notwithstanding that their refusal to accompany him enabled the mother to take them to the Commonwealth Games.
The mother fulfilled her obligation to deliver the children to the father. The fact that they would not stay with him was not something, on the particular facts of this case, for which the mother was responsible. The fact that the children did not see the father for the balance of the holidays is explained by the fact that they were in Queensland. However, given the father’s reprisals to E (refusing the pay for her New Zealand school trip) and D (unilaterally trying to withdraw her from squad) leaves me with the impression that they would not have wanted to spend time with the father even if they had remained in Melbourne.
I am not satisfied that the mother contravened the Order as alleged. Count one is dismissed.
Count 2
It is alleged that on 9 June 2017, at 3.30 pm, at the home of the mother, the mother contravened order 4(a)(ii) of the primary order by refusing to allow the applicant to spend time with the child E. The father’s evidence was:[16]
[…] on Friday 09 June 2017, [Ms Harvey] again refused to comply with the Parenting Orders. On this occasion, despite claiming to be ignorant of my daughter’s whereabouts, she had instructed [E] not to wait at her school, but to go to [Ms Harvey’s] residence at [P Street, Suburb Q] instead. [Ms Harvey] subsequently refused to allow [E] to be collected from the [Suburb S] property, despite multiple requests over that weekend.
[16] Father’s affidavit sworn 2 May 2018, [24]
Count 3
It is alleged that on 15 June 2017, at 3.30 pm, at the mother’s home, the mother refused to allow the father to spend time with the child E, in contravention of paragraph 4(a)(i) of the primary order. He alleges that[17].
[…] on Thursday 15 June 207, [Ms Harvey] again interfered with [E’s] collection from school. As a result, neither the school or myself, knew of [E’s] whereabouts and she was unaccounted for several hours. [E] subsequently told me that her mother had been instructing her not to wait at the school for collection, but to go and wait at [P Street]. [Ms Harvey] would then refuse to allow [E] to be collected. Similar events occurred as a result of [Ms Harvey’s] interference with the Parenting Orders on multiple occasions from mid through late 2017 (as outlined below) and would appear to have been orchestrated by [Ms Harvey] in an attempt to subvert and contravene the Parenting Orders, cause me distress, and damage my relationship with my children.
[17] Father’s affidavit sworn 2 May 2018 [25]
Count 4
It is alleged on 21 July 2017, at 3.30, from the mother’s home, the mother refused to allow the father to spend time with the child E, in contravention of paragraph 4(a)(ii) of the primary order. In support, the father deposes:[18]
26. Moreover, on Friday 21 July 2017, [Ms Harvey] again interfered with [E’s] collection from school and then prevented her from being collected that weekend.
[18] Father’s affidavit sworn 2 May 2018
Count 5
It is alleged that on 27 July 2017, at 3.30 pm, at the mother’s home, the mother refused to allow the father to spend time with E, in contravention of paragraph 4(a)(i) of the primary order. In support, the father deposed that:[19]
Further on Thursday 27 July 2017, [E] again mysteriously disappeared after school, only for me to be notified many hours later that she had been instructed to go to her mother’s residence. [Ms Harvey] then refused to allow [E] to be collected.
[19] Father’s affidavit sworn 2 May 2018, [27]
Count 6
It is alleged that on 24 November 2017, at 3.30 pm, at the mother’s residence, the mother refused to allow the applicant to spend time with E, in contravention of paragraph 4(a)(ii) of the primary order. In support, the father deposes:[20]
[…] on Friday 24 November 2017, [Ms Harvey] surresptitiously [sic], and without my consent again arranged for a third party to collect [E] from school immediately prior to my collection, and then subsequently refused to hand [E] over that weekend
[20] Father’s affidavit sworn 2 May 2018, [29]
Findings for Counts 2 to 6
In each of counts 2 to 6, the father was vague as to whether he was at the school at the appointed time. It is also alleged by the father that the contravention took place at the mother’s residence at P Street, Suburb Q because this is where the father assumes the children went rather than staying at school. However, paragraphs 4 and 6 of the primary order, when read together, provide that changeover “will take place at school” which, as I understand it, is located at V Street, Suburb S. There was no application to amend the particulars of the contravention. For that reason I find the primary order was not contravened by the mother, as alleged.
Before leaving these counts, the mother’s evidence in relation to Count 5 is noteworthy. The mother referred to text messages passing between the father and E[21]. They read:-
·On 23 July 2017, at 2.05 pm, E sent a text to the father saying, “I’m staying at mum’s tonight”, to which the father replied, “What does your mum say about this?” E said, “It is my choice”, to which the father responded, “Did she agree or not?” E stated, “This is my choice”, to which the father responded, “This is not what I am asking. Did your mum agree to this?” E said, “Mum has asked me to go, and I did not want to go”. To which the father said, “On what basis?”, “Does your mum agree with you or not?”
·Approximately three and a half hours later on 23 July 2017, the father sent E a text saying, “[E], this Thursday I will pick you up from school reception.”
·On 26 July 2017, at 5.09, the father sent a further text saying, “[E], I will pick you up from school reception tomorrow at 3.20 pm.”
·On 27 July 2017, at 3.20 pm, the father sent E a text saying, “I am waiting at reception.” To which E replied 15 minutes later, “I’m going to mum’s tonight.” The father immediately responded, “I did not agree with this. Where are you currently?”
·Five minutes later on 27 July 2017, the father sent a further text to E saying, “[E], you need to return to school reception.” To which E responded four minutes later, “I don’t need to and I’m safe and I’m fine at mum’s tonight.” Two minutes later she said, “I’m at mum’s right now and I’m fine.” And then approximately 50 minutes later, she sent her father a message saying, “If you are not going to be man [sic] to me, I will think about coming back to you.” I am satisfied that E’s message was supposed to be “If you are not going to be mean to me ….”
·The father responded at 7:24pm on 30 July 2017 saying “Hi [E], your mum is being a complete idiot tonight. I need to speak to you about school’s recommendation for counselling . Love Dad.”
[21] Mother’s affidavit sworn 4 June 2018 [14]
The gist of the mother’s case is that she makes the children available from school by reminding them of the time and not collecting them or arranging anyone else to collect them. When asked about Count 2 and whether E was at school to be collected at 3:30 p.m., the mother responded “How would I know because I guarantee I am so busy at work most days that I can assure you when it is [Mr Harvey’s] time, I have neither ever turned up to collect the children myself, sent a proxy or done anything else ...” When asked how she facilitates the collection, the mother stated “Well, he makes arrangements with his own children at the time – at the end of each day of school to pick-up time. I’m not involved in that.[…] I work a 9 to 5 job, Monday to Friday. The earliest most Fridays I leave work is 5.30 pm. How would I be able to deliver the children when our court order states very clearly that you are to pick the children up from school …”
The mother’s response to Counts 2 to 6 (inclusive) was that she complied by not interfering with the father’s collection of the children. Alternatively, that she had a reasonable excuse in that, if E or D, were not waiting at school to be collected, then it was because they did not wish to spend time with the father. One must be understandably cautious about the mother’s passive approach. However, there are a number of reasons why I would, if I had not already determined that the counts be dismissed, have accepted that the mother had discharged her duty. These are the ages of the children, the family dynamic and the fact that the oldest child said that she did not want to attend.
Count 7
It is alleged that on 10 January 2018, at 9 pm, at the mother’s residence, she refused to allow the father to spend time with E, in contravention of paragraph 4(b) of the primary order. In support, the father deposed:[22]
[22] Father’s affidavit sworn 2 May 2018
11. Order 4 b of these Final Parenting Orders stipulate that the time the children spend with myself is to be as follows:
“(b) For half of the term 1, 2 and 3 school holidays and long summer holidays as agreed between the parties in writing and failing agreement for the first half in even number years and the second half in odd numbered years;…”
12. On Friday 27 October 2017 it was confirmed by mutual written agreement that the Handover of the Children would be 9.00 pm in the evening of Wednesday 10 January 2018. [Annexure 2]
13. On Wednesday 10 January 2018 at 8.21 pm [Ms Harvey] sent me a text confirming that the Children would be ready for collection at 9 pm on that day [Annexure 3].
14. When my agent attended my ex-mother’s residence to collect at 9 p.m. the Children that evening in accordance with 6b, [Ms Harvey] told her that [E] was not coming and inexplicably refused to allow her to be collected.
15. At 7.:11 am on Thursday 11 January 2018, I sent an SMS to [Ms Harvey] stating:
“I do not consent to you withholding [E] in direct contravention of the Family Court Orders, and she needs to be delivered immediately.”
16. At 18:04 pm on Thursday 11 January 2018, as no reply had been received from [Ms Harvey], I sent a further SMS to [Ms Harvey]:
“Dear [Ms Harvey]. You have not arranged for [E] to be delivered, nor allowed for her collection. As of 9 pm yesterday you are in direct contravention of the Family Court Orders, and in breach of your previous agreement regarding handover. [E] needs to be delivered immediately with a proposal for make up time. Thanks you.” [Annexure 4]
17. On Friday 12 January 2018, [D] and [F] requested they be allowed to pick up items from their mother’s residence at [P Street, Suburb Q]. At approximately 3pm [D] and [F] entered the property, whilst I remained in the car. Upon their return, the children told me that [E] was alone in the property with [Ms Harvey’s] de facto partner [Mr O] and that [Mr O] had refused to let [E] leave with them and that they had to leave via the back door. As we were departing, I noted [Mr O] was standing in the doorway behaving in an aggressive manner, clearly blocking [E’s] exit. The children told me that [E] appeared to be “very upset”.
18. [excised from affidavit]
19. On Saturday 13 January 2018 at 8:28am in the morning, I sent a further SMS and email to [Ms Harvey]:
“Dear [Ms Harvey],
You remain in contravention of the Parenting Orders. If [E] is not delivered into my care by 12:00 midday today, I will have no alternative but to lodge an urgent Contravention Application with the Family Court of Australia and be seeking costs incidental to this application. Please comply with the Parenting Orders immediately.
Thank you.”
20. On 16 January 2018 an urgent Application in a Case was filed at the Family Court of Australia requesting the safe and immediate return of [E].
21. [E] was eventually returned to me on Saturday 20 January 2018 (10 days late) at the [Suburb S] Police Station. However, it became immediately apparent that [Ms Harvey] was merely using this as a convenient strategic maneuvrer [sic], as I was served with a vexatious application – contempt in front of my daughter. It should be noted that the entirety of [Ms Harvey’s] application (one of 5) was dismissed when heard on 15 February 2018 and done as a diversionary tactic to hide her contraventions of the orders.
The mother referred to several text exchanges between the father and E.
As indicated, E’s 13th birthday was in early 2018. At 9:27 p.m. on the day after the father sent a text message to the mother saying “Dear [Ms Harvey], please let [E] know that I will not be paying any further to her trip to New Zealand. Thanks, [Mr Harvey].” To which the mother responded one hour and twenty minutes later “Hi [Mr Harvey], can you text [E] yourself and explain why.” Under cross examination, the father said that he could recall whether he contacted E of the withdrawal of his financial support.
On 10 January 2018, and the first day time was to commence with the father, she sent a message to the father at 10:12pm saying “I am not coming to you tonight” to which the father responded promptly, “Okay. I gathered that. Let me know when you are ready to come over. Love Dad.”
Friday, 12 January 2018 was the day that the younger children returned to the mother’s home to collect some items. The following texts ensued between E and the father:-[23]
[23] Mother’s affidavit sworn 4 June 2018
[the Father at 16:10 on 12 January 2018]
Hi [E],
Is everything ok?
[Mr O] [the mother’s partner] came to the door and he wasn’t wearing much. Are you all alone with him? Can you get away if you need to? Please call me back and let me know you are safe.
Love, Dad[[E] at 16:23]
Dad, I’m fine[the Father at 16:42]
You know you can call me anytime if you need to.
Love, Dad :-)[[E] at 16:43]
I think that’s why I have a phone[the Father at 17:28]
Yes, but your phone is often flat/ don’t answer. And you don’t call when things are wrong – eg bullying at school, which makes me worried about you.[the father at 12:14 on 13 January 2018]
[Addresses for an online atlas][the father at 18:23]
Dear [E],
I have been told that you are “mad with me” although I do not know why. Whatever you may have been told by your mother or [Mr O] are lies solely to create conflict. I have notified your mother that I will not be paying any further for your New Zealand trip, since according to her this is entirely your own doing. I don’t believe this either, but you haven’t picked up your phone so I can’t find out the truth. Love, Dad[[E] at 18:27]
I don’t know what you are talking about[[E] at 18:27]
And also I didn’t think you were going to pay anyway[the father at 18:48]
[Address for online newspaper][the father at 18:48]
Hi [E],
Who told you this ?
Your mother?I agreed to pay for your trip only if there were no more issues or dramas. I trusted you.
And up until last Wednesday you were doing the right thing.
Then suddenly you were you weren’t coming and you were rude to [Ms W].
If you were influenced, tricked or manipulated into doing this by [Mr O] or your mother that is different.
But your mum is saying that this is ALL your doing.So unless you can explain otherwise, you need to accept the consequences.
I am willing to explain this when I see you next and hear what you have to say.
On 13 January 2018, the parents exchanged the following text messages:[24]
[24] Mother’s affidavit sworn 4 June 2018
[the Mother at 9:39am:]
Dear [Mr Harvey], it is not I That is refusing to allow her to come to you. She has made the choice herself. I have informed her that the parenting orders state she must go to you. But as you are aware this is not the first time [E] has refused to come, and I have informed you that I can not continually fight with her for her to come to you. As I suggested to you that we look at something that works for [E], not that this becomes a tug of war between you and I, more about what she needs.
[the father at 9:50am:]
Dear [Ms Harvey],
This situation had arisen as a direct result of your repeated flagrant disregard of the Parenting Orders, your undermining of parental authority and discipline and your ongoing attempts to damage my bond with the Children. These Orders are quite clear, and I will not consider changing them until such time as [E] is delivered into my care, where I will have a chance to speak to her without your unwanted influence and manipulation. Please ensure [E] is delivered to me by 12:00 midday today. I authorise you to take any disciplinary measures to ensure that this occurs. Thank you.
[the mother at 9:58am:]
[Mr Harvey], please do not tell me how I should parent. Speak to [E] herself and leave me out of it. I have done everything in my power to get her to come to you. Do not make aspersions [sic] you cannot prove. Cease attacking me.
[the mother at 10:09am:]
You have told me that I am in contravention which I disagree. Please cease with all the text messages.
The next message in the chain is one sent by the father on 15 January 2018 at 9:29am which states “Dear [Ms Harvey], I wish to advise you that I will be filing an urgent application with the Family Court of Australia today. Please ensure that you are available and contactable regarding service of documents.” The father filed an application on 16 January 2018 which was dismissed by Cronin J on 15 February 2018.
E had recently suffered the disappointment of the Country H trip and the father then withdrew his support for her school trip to New Zealand. The father’s statement that he did not know why E was “mad” with him is either indicative of no insight at all or disingenuous, I am satisfied that E did not want to attend time with the father and that, in the unusual circumstances of this case, her resolve constituted a reasonable excuse.
I am satisfied that the mother has a reasonable excuse. Count 7 is dismissed.
Count 8
It is alleged that on 6 June 2017 at 3.30 pm at the mother’s home, the mother refused to allow the father to spend time with the children, and did so I contravention of paragraph 4(f) of the primary order. The father deposes in support of this count that:[25]
Another example, occurred on … 2017, when [Ms Harvey] refused to deliver [D] and [E] on [F’s] Birthday, in contravention of order 5e and had arranged for E to be collected from school without my consent.
[25] Father’s affidavit sworn 2 May 2018, [23]
The mother denied the contravention and stated that the children had been made available. However, she then said that she was informed by the girls that they went to the shopping centre rather than to stay at school. I asked the mother why she did not tell the girls to leave the shopping centre and make their way to the father. She responded, “I was at work and I – honestly, it didn’t even occur to me to be forcing them to go to – I hadn’t organised anything. It wasn’t in my scope for them not to spend time. I’m very busy at work and I generally don’t have a lot of time to devote at this – in particular around 3.30 or 4 o’clock”. It was a less than satisfactory response but the count has technical difficulties which were not addressed by counsel for the father.
The father alleged a breach of paragraph 4(f) of the primary order which pertains to non-school days. It was common ground that this was a school day so the father’s entitlement to time derived from paragraph 4(g). There was no application to amend the particulars. Insofar as the father alleged that the contravention occurred at the mother’s residence, paragraph 6(a) of the primary order provided that changeover be from school. The particulars are incorrect.
I am not satisfied that the mother contravened the order as alleged. I dismiss count 8.
Count 9
It is alleged that on 19 April 2018, at 8 pm, at V Street, Suburb S, the mother refused to allow the father to spend time with the child, D, and did so in contravention of paragraph (4)(a)(i) of the primary order.
The father alleges:[26]
49. The next incident occurred on Thursday 19 April 2018 after [Ms Harvey] failed to notify me that my daughter [E] was quite unwell and unable to attend school.
50. Later that day [Ms Harvey] collected [D] from school in Contravention of the Orders and refused to allow her to speak to me.
51. [Ms Harvey] the failed to respond to texts or notify me of my daughter’s safety or whereabouts and [D] was still unaccounted for until [Ms Harvey] was contacted by Victoria Police at approximately 21:40 in the evening.
52. During my conversation with the Police Officer, I was notified that [Ms Harvey] had arrived at the Suburb S Police Station and had dragged [D] into the station with her and was behaving in a manner to possibly escalate matters or make unfounded allegations against me.
[26] Father’s affidavit sworn 2 May 2018
The father was entitled to collect D after swimming squad activities on 19 April 2018 at about 8:00 p.m. rather than from school. He could not remember speaking to anyone at the swim squad but relied on a number of texts to the mother demanding to know where D was. Under cross examination, the father acknowledged that on the previous night he had asked D to confirm “collection after school tomorrow”. D responded at 7:23 a.m. on 19 April 2018 “Hi dad, I am not coming tonight.” The father responded six minutes later with “I haven’t agreed to this” and then at 7:41 a.m. “I will collect you after school”. Twelve hours later, at 7:40 p.m. the father sent a message “Hi [D], I haven’t heard back from you. Please call me as ASAP.” She did not respond.
I am satisfied that D had advised the father that she would not see him on the evening on 19 April. It was approaching her 15th birthday. I am also satisfied that it was inappropriate for the father not to know where D was located, particularly as the mother says that she was at the community group.
I am satisfied that D’s refusal to attend and her failure to be at the changeover point was a matter of her own volition to the extent that it constitutes a reasonable excuse for the mother. Count 9 is dismissed.
Count 10
It is alleged that on 27 April 2018, at 8 pm, the mother refused to allow the father to spend time with D from the swimming centre of V Street, Suburb S and did so in contravention of paragraph (4)(a)(ii) of the primary order.
The father alleges:[27]
53. Then on Friday 27th April 2018 [Ms Harvey] instructed [E] to walk home from school unattended and arranged to collect [D] from school, again without notification.
54. At 20:36 and again at 21:36 that evening, I sent a text message to [Ms Harvey] asking her to “please confirm [D] and [E’s] whereabouts” without a reply. At 22:14, I contacted the [Suburb S] Police Station. However, the Police were unable to contact [Ms Harvey] until about 09:11 the following morning.
55. When I spoke to the Officer it became apparent that [Ms Harvey] has claimed that the Children and I were not allowed to communicate, and that she was not allowed to confirm the Children’s safety or whereabouts to me.
56. On Saturday 28th April 2018 a letter was sent to [Ms Harvey] reminding her of the Parenting Orders, her obligations and to request return of [D] and [E]. [Ms Harvey] failed to reply to this letter and refused to return the Children.
[27] Father’s affidavit sworn 2 May 2018
The mother maintains that D was available but refused to spend time with the father. In response to D being contacted by Victoria Police, she sent a message to the father at 8:57 p.m. saying “Hi dad I’m safe” to which the father responded immediately “Seriously? We need to talk. Who picked you up tonight? D did not reply. Seven minutes later the father wrote to her “Sorry, I couldn’t understand what you said.”
This was just prior to D’s 15th birthday. I am satisfied that she was not prepared to spend time with the father. In the unusual circumstances of this case, I am satisfied that the mother had a reasonable excuse within the meaning of the legislation.
I remain concerned, however, that the children’s avoidance of the father may lead them into misadventure or harm’s way, particularly as they are unsupervised.
Count 10 will be dismissed.
Counts 11, 12 and 13
Counts 11, 12 and 13 were withdrawn by the father.
Count 14
It’s alleged that on 14 December 2017, at 7 o’clock, at X Street, Suburb Y, the mother attended an extra-curricular activity during the father’s time with the children and without his consent, and did so in contravention of paragraph 12(b)(ii) of the primary order.
Count 15
It is alleged that on 2 October 2017, at 4 pm, at Z Park, the mother attended an extra-curricular activity during the father’s time with the children without his consent and in contravention of paragraph 12(b)(ii) of the primary order.
Count 17
It’s alleged that on 3 May 2018, at 7 pm, at the corner of X Street, Suburb Y the mother attended an extra-curricular activity of the children without agreement or consent of the father, and did so in contravention of paragraph 12(b)(ii) of the primary order.
Count 22
It’s alleged that on 17 May 2018, at 8.20 pm, that the respondent attended an extra-curricular activity of the children without the consent of the father, and did so in contravention of paragraph 12(b)(ii) of the primary order.
Findings for Counts 15, 17 and 22
The father’s evidence was that:[28]
17. It is apparent that [Ms Harvey] had in fact also been attending my son [F’s community] event on the evening of Thursday 03 May 2018. This is prohibited under the Parenting Orders.
[28] Father’s affidavit sworn 23 May 2018
He states:[29]
[29] Father’s affidavit sworn 2 May 2018
30. [Ms Harvey] continues to attend events when the Children are under my care; interrupting my time with the Children despite Order 12b)(ii) requiring that:
ii) Each parent be and is hereby restrained from attending any extra-curricular activity of the children or any of them that falls within any period that the children, or any of them are living or spending time with pursuant to these orders.
31. Despite this Order, [Ms Harvey] has turned up to the Children’s activities during my time with the Children without prior consent on the following dates at the following times and locations:
a) 16:00 on Monday 02 October 2017 at [Z] Park
b) 19:00 on Thursday 14 December 2017 at [Suburb Y]
c) 20:00 on Friday 12 January 2018 at [Suburb AA]
d) 19:00 on Thursday 08 February 2018 at [Suburb Y]
e) 19:00 on Thursday 22 February 2018 at [Suburb Y]It is common ground that the father delivered F to the community group and did not remain. The first, third and fourth counts were a usual meeting and the second count occurred during a community group event.
The mother contends that she had a reasonable excuse to be at the community group evening and the event because she is a senior member of the group. Her evidence was that an elderly member was resigning and, unless she stepped into fill the vacancy, the community group would not be able to continue. She expressly said in her evidence “I did not do it to be mean to [Mr Harvey].”
It was put to the mother that she had assumed a leadership role at the community group in the knowledge that doing so would jeopardise the father’s ability to deliver F to that activity due to an interim intervention order. The mother denied this and referred to discussions with the presiding Magistrate to the effect that the father could remain at least five metres away from her.
Whilst the mother asserted reasonable excuse, she maintained that she did not understand that the primary order prevented her from attending community group events in her capacity as a senior member. She stated “I have clearly said, time and time again that, yes, I am [a community group senior member]. I did not, in any intentional way, choose that to be an issue. I am a completely time-poor mother but I did it because the other lady needed to retire and [the community group] wouldn’t run without [a senior member].”
I cannot see any basis for reasonable excuse but nor can I accept that the mother did not understand her obligation to stay away. The mother is intelligent and professionally trained. I do not accept that she did not understand the order.
I find counts 14, 15 and 17 proved.
Count 16A
It’s alleged that on 13 May 2018, at 4 pm, at that the applicant’s residence, the mother failed without reasonable excuse to allow the father to spend time with the children, D and E, and did so in contravention of paragraph 5(c) of the primary order.
The father alleges:[30]
[30] Father’s affidavit sworn 23 May 2018
28. On Sunday 13 May 2018 (Mother’s Day), the children spent time with [Ms Harvey] in accordance with Order 5(c) made 30 November 2015. Inexplicably, and despite previous correspondence confirming that [Ms Harvey] was to return the Children to me at 16:00 on that day, only [F] was returned, albeit unexpectedly and an hour early. [F] then confirmed that [Ms Harvey] had arranged another activity (“they’re going to the park until 5:30”) and that neither [D], nor [E] were going to be returned to me.
…
[Mother at 10:07:] Have u left[Father at 10:10:] Dear [Ms Harvey], Please confirm that you have arrived and are now responsible for [F].
[Father at 10:11:] Also [D], [E] and [F] will need to be returned to me at 4pm. Thanks, [Mr Harvey]
29. As a result of [Ms Harvey’s] actions, neither [D], nor [E] spent time with me on the weekend of Saturday 12 May 2018 or Sunday 13 May 2018 in contravention of the Parenting Orders.
The mother’s response was that D and E decided to go roller skating in a park rather than to return to spend time with the father. She said: “At 3.15 on every Sunday I believe both [D] and [E] partake in roller-skating which is an extra-curricular activity at the [BB Park].” The father responded under cross examination that he had never given consent and “that’s something you’ve arranged and you didn’t notify me that the girls would be there.” The mother stated “You took them to their first roller-skating activity?” It transpired that the father had taken E to watch D roller skate at her first session.
I am not satisfied that the girls’ roller skating was an activity which took precedence over the father’s time. I find Count 16A proved.
Count 16
It is alleged that on 3 May 2018, at 4.30 pm, at P Street, Suburb Q, the mother refused to allow the father to spend time with the child, E, and did so in contravention of paragraph 4(a)(i) of the primary order.
The father alleges:[31]
[31] Father’s affidavit sworn 23 May 2018
13. On Thursday 03 May 2018, my daughter [E] again went missing after school due to [Ms Harvey’s] interference with the Parenting Orders. At 16:16 I sent the following SMS to [Ms Harvey]:
Parenting Orders
Dear [Ms Harvey],1. [F] has informed me that you are intending on turning up to [the community group] tonight in direct Contravention of the Orders. Please ensure that this does not occur, as it prevents him attending.
2. I do not consent to you withholding either [D] or [E] tonight in Contravention of the Orders. Please ensure that they are delivered and spend time with me in accordance with the Parenting Orders.
Thank you, [Mr Harvey]
14. When I attended [Suburb S] Secondary College at 15:20 to collect [E], neither the school, nor myself knew where [E] was. I tried several times to contact both [Ms Harvey] and [E] without success. At 19:23 I sent the following SMS to [Ms Harvey]:
Hi [Ms Harvey],
I have not heard back from you or [E]. It’s well after dark. I will be going to the Police Station to report her missing.15. Due to ongoing concerns for my daughter’s safety, at approximately 19:30 I attended the [Suburb S] Police Station to report [E] was missing. [Ms Harvey] also failed to return the calls of the Police Officer. The Officer fortunately managed to contact [E]. The conversation was audible over the phone speaker and I heard [E] say to the Police Officer “but mum told me not to call dad…” [E] then called me and I was able to confirm that [Ms Harvey] has been routinely telling the Children not to contact or speak to me.
16. As a result, [E] did not spend time with me in accordance with the orders.
The father omitted from his evidence the following interchange with E about and her decision not to spend time:- [32]
[32] Mother’s affidavit sworn 4 June 2018 [20]
[the Father at 15:34 on 3 May 2018:]
Hi [E],
I will need to speak to you about collection from school.
Please call me when you get this message.
Love, Dad[the Father at 15:34:]
Hi [E],
Will need to talk to you about the changes to the Holidays.
It’s best if you hear it from me first. Love, Dad[the Father at 17:54:]
[E], I need you to call me back. Love, Dad[[E] at 19:51]
Hi dad I am safe and I am staying at mums tonight[the father at 19:53:]
Did the Police Office speak to you ?[the father at 19:53:]
Officer [CC]?[the father at 20:10:]
Call me if you need to talk.
Love, Dad[the father at 19:43 on 4 May 2018:]
Hi [E],
Did you know your mum has been using your phone to take private photos of our talks ?
I am satisfied that E failed to spend time with the father of her own volition and that in the unusual circumstances of this case, that constitutes a reasonable excuse for the mother. Accordingly, I dismiss Count 16.
Count 18
It’s alleged that on 11 May 2018, at 8.30 pm, at the swimming centre, the mother refused to allow the applicant to spend time with D, in contravention of paragraph 4(a)(ii) of the primary order.
The father alleges:[33]
[33] Father’s affidavit sworn 23 May 2018
22. Later, at approximately 19:50 on Friday 11 May 2018, I attended [the Swimming Centre] with my son [F] to collect [D] after swimming.
23. We noticed, somewhat unexpectedly, [Ms Harvey] sitting at the side of the pool. [Ms Harvey] was wearing a black and light brown stripped top. [Ms Harvey] saw me and then leaned backwards attempting to hide her presence behind the lady sitting next to her.
24. I was surprised to see [Ms Harvey], as she had sent me a text earlier that evening claiming she would be at work. Her presence at the [Swimming Centre] was a further contravention of the Court orders.
…
[Father at 17:02:]Dear [Ms Harvey],
I do not consent to you either collecting [D] or [E] tonight, and will call the police if I see you there[Mother at 17:29:]
Dear [Mr Harvey], I am unsure what you are talking about ? I am currently at work25. At 20:03 I sent a text message to Ms Harvey stating “I have spoken to Police. Please leave immediately and do not interfere with [D’s] collection.”
[Father at 20:03]
I have spoken to the Police. Please leave immediately and do not interfere with [D’s] collection.
[Father at 22:29]
Dear [Ms Harvey],
Both [D] and [E] will need to be delivered tomorrow.
26. Several minutes later, [Ms Harvey] got up, walked around the swimming pool and proceeded to go the Office at the Swimming Centre. There, I believe she spoke to the committee members for about 15 minutes. I saw [Ms Harvey] leave at approximately 20:28.
27. Subsequently, I learnt that when she was in the office, [Ms Harvey] made allegations to the [Swimming Centre] staff that I was abusive, she had got an intervention order against me, that I should not be allowed to collect [D] and the staff should call the Police. An associate of [Ms Harvey] (“[Ms DD]”) who was present then refused to allow me to collect [D] unless [Ms Harvey] agreed. [Ms Harvey] refused to allow [D] to be collected or deliver [D] or [E] over the weekend.
The mother’s affidavit evidence is that[34]:-
On Friday 11th May [Mr Harvey] attended [D] swimming, which on this occasion was a Personal Best Night, where all the swimmers and families are invited to see if the swimmers can beat their best times. As per our court orders I can attended as their [sic] was a special occasion. I had left work at approx. 6:30pm and arrived at the swimming pool around 7:15pm, I sat at the end of the pool. I saw [Mr Harvey] come into the swimming pool and go straight to one of the coaches with court orders and then the head coach became involved. I was then made [sic] what was going on and stating this is not the time or the place and even though [D] had been swimming at [the Swimming Centre] for over 6months they did not know who he was. I left the pool area and contacted the police as [D] had told me she did not want to go to her dads and they [sic] she was scared, I am also aware that coincidentally her tute teacher was onsite and was involved in speaking to police. I was then called by the police and told to pick up my daughter. Her swimming is not the place for [Mr Harvey] to make statements, again this further embarrasses her and impacts their relationship.
[34] Mother’s affidavit sworn 4 June 2018 [14]
The mother deposes to parents being invited to attend the Personal Best Competition night. She could not provide proof of the invitation but, on balance, it seems to be a night that parents would be invited to attend. The father says he did not receive an invitation. The mother stated that it was on the swim club, Swimming Centre’s “app” which the father says he does not use. I accept the mother’s evidence in relation to the invitation.
The father’s contention was that it was the mother’s phone call to the police and the police advising the father to leave the pool area which frustrated his ability to spend time with D. I do not accept that Victoria Police acted as agent for the mother or are gullible to the point of doing her bidding without question. The involvement of Victoria Police was an intervening factor.
I am not satisfied that the order was contravened as alleged and count 18 will be dismissed.
Count 19
It’s alleged that on 11 May 2018, at 8.30 pm, at the mother’s home, the mother refused to allow the father to spend time with E, and did so in contravention of paragraph 4(a)(ii) of the primary order.
The father alleges:[35]
18. On Friday 11 May 2018 I again attended [Suburb S] Secondary College to collect [E] from school. [E] was not at the designated collection point outside the front of the school. It was quite cold, wet and raining. When I attended the Reception Office, the staff there confirmed that [E] had been at school in the morning but could not tell me whether [E] had been at school in the afternoon (as a roll had not been called in the afternoon).
19. At 15:30 the school made an announcement over the loud speaker asking [E] to come to the reception office. As no response was received, the school then called [Ms Harvey] (who did not answer) and then called [E].
20. As I was leaving the school to collect [F], I received call from [E] who said: “mum has said we are not to call you or tell you where we are” and that she ([E]) had been told: “not to wait but to go to ([Ms Harvey’s]) home” and that she “didn’t know that mum had got (hacked) things from my phone.”
21. This last comment refers to me asking [E] whether she had agreed for [Ms Harvey] to access her (E’s) mobile phone and then taking and using downloads of all private correspondence I have had with [E] from 26 May 2017 to date, (as well as private correspondence I have had with my daughter [D] over a period of 6 months).
[35] Father’s affidavit sworn 23 May 2018
Like counts 2 to 6 inclusive, the point of collection was the school whereas the particulars with which the mother is charged nominates her residence. No application was made to amend. Accordingly Count 19 will be dismissed.
Counts 20
It’s alleged that on 17 May 2018, at 4 pm, at the mother’s home at P Street, Suburb Q, the mother refused to allow the father to spend time with the child, E, and did so in contravention of paragraph 4(a)(i) of the primary order.
Count 21
It’s alleged that on 17 May 2018, at 8.20 pm, at V Street, the mother refused to allow the applicant to spend time with the child, D, and did so in contravention of paragraph 4(a)(i) of the primary order.
The father alleges:[36]
30. On Thursday 17 May 2018 I attended [Suburb S] Secondary College to collect my daughter [E]. However, she could not be found, but fortunately the school reception was eventually able to track down [E]. At 15:45 I received a call from [E] who told me “Mum’s said I’m not supposed to speak with you” and “I have to stay here (at her mother’s house) tonight.” [Ms Harvey] did not notify me that this was occurring, nor that [E] would not be spending that night with me.
31. On Thursday 20 May 2018 at approximately 20:20, [Ms Harvey] collected [D] from the [Swimming Centre], without my knowledge or consent. The staff at the [Swimming Centre] had seen [D] go into the change rooms at approximately 20:10 at the end of her training session but had not seen her after that time. At thorough search of the pool change rooms and surrounding area was conducted by pool staff and myself but [D] was nowhere to be found. Neither [D], nor [Ms Harvey] answered their phones.
32. At 20:30 I sent an SMS to [Ms Harvey]: “[Ms Harvey], did you pick up [D]?”, but I received no response.
[…]
33. At 20:45 I attended the [Suburb EE] Police Station. The Constable ([FF]) attempted to contact [Ms Harvey] several times, and finally spoke to [Ms Harvey] at about 21:15. [Ms Harvey] confirmed to the Police Constable that she had taken [D] from the [Swimming Centre] in direct violation of the Parenting Orders.
34. As a result of [Ms Harvey’s] actions, neither [D], nor [E] were able to spend time with me on the evening of Thursday 20 May 2018 in contravention of the Parenting Orders.
[36] Father’s affidavit sworn 23 May 2018
Findings for Counts 20 and 21
As to count 20, the father conceded to the date of the alleged contravention being incorrect. There was no application to amend the particulars of the application although the father did refer to the date of 20th May being incorrect in paragraph 30 of his second affidavit. It should have been Thursday 17th May 2018. I dismiss count 20.
The mother’s evidence in relation to Count 21 was that she was the senior member at the community group until 8:30 p.m. that evening and made no arrangements with D. The mother deposes to also having been contacted by police but with a request to arrange for D to be collected from the pool. The parent’s versions conflict. The father relies on admission allegedly made by the mother to a police officer and relayed by the police officer to him which is hearsay and not admissible. The mother’s evidence is straightforward. She says she was at the community group so could not have “taken [D] from the [Swimming Centre]” as alleged.
This is a further disturbing instance of D, who had just attained 15 years, potentially being put in harm’s way because of the lack of cooperative or safe parenting practices of her parents.
I am not satisfied that Count 21 is made out and it will be dismissed.
Conclusion
As to the contraventions alleged, I find counts 15, 16A, 17 and 22 are proved.
As to parenting generally, there needs to be far less recourse to Victoria Police and far fewer occasions when the whereabouts of the girls, or either of them, is not known. They are vulnerable and the current parenting arrangements appear to be potentially dangerous.
I will deal with consequences of the contraventions found proved and those found not to be proved on the adjourned date, by which time the family report will be to hand.
I certify that the preceding one hundred forty eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 June 2018.
Associate:
Date: 16 July 2018
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