Hermann & Ritter (No 2)
[2023] FedCFamC2F 499
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hermann & Ritter (No 2) [2023] FedCFamC2F 499
File number(s): BRC 16120 of 2021 Judgment of: JUDGE COPE Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – Contravention – Ex tempore reasons for judgment – Allegations that respondent refused to allow the applicant to spend time with the child – Mental health issues – Weight of portion of document – Breach of Bond – Second signing of bond – Make up time – Costs. Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70 NAF, 70NAE, 70NFB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Dobbs v Bryson (2007) FLC 93-346
Kelly & Kobelnek (unreported, Family Court of Australia, Hannon J, 10 March 1998)
Stavros & Stavros (1984) FLC 91-562
Stevenson & Hughes (1993) FLC 92–363; [1993] FamCA 14
Division: Division 2 Family Law Number of paragraphs: 104 Date of hearing: 31 March 2023 Place: Cairns Counsel for the Applicant: Mr Jordan of Counsel Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Appearing on her own behalf ORDERS
BRC 16120 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RITTER
Applicant
AND: MS HERMANN
Respondent
order made by:
JUDGE COPE
DATE OF ORDER:
31 March 2023
THE COURT FINDS that the Respondent Mother has breached the Orders on five separate occasions being as follows:
(a)Count 1 – On 4 July 2022 to 11 July 2022, the respondent without reasonable excuse refused to allow the applicant to spend overnight time with the child, X, in accordance with Order 10.3
(b)Count 2 - On 3 March 2022, the respondent Mother without reasonable excuse prevented the applicant from exercising equal shared parental responsibility of the child, X.
(c)Count 3 - On 15 July 2022, the respondent Mother without reasonable excuse prevented the applicant from exercising equal shared parental responsibility of the child, X.
(d)Count 4 - On 22 July 2022, the respondent Mother without reasonable excuse prevented the applicant from exercising equal shared parental responsibility of the child, X.
(e)Count 5 - On 29 July 2022, the respondent Mother without reasonable excuse prevented the applicant from exercising equal shared parental responsibility of the child, X.
THE COURT FURTHER FINDS that the Respondent Mother had no reasonable excuse for breaching the Orders on each of those five occasions.
THE COURT FURTHER FINDS that the five contraventions fall within the category of more serious contraventions.
THE COURT IS UNABLE TO MAKE A FINDING that the Respondent Mother has breached the Orders on 11 separate occasions being as follows:(a)Count 6 - On 10 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
(b)Count 7 - On 12 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
(c)Count 8 - On 15 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
(d)Count 9 - On 17 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X
(e)Count 10 - On 19 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
(f)Count 11 - On 22 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
(g)Count 12 - On 24 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
(h)Count 13 - On 26 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
(i)Count 14 - On 29 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
(j)Count 15 - On 31 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
(k)Count 16 - On 2 August 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X.
THE COURT ORDERS PURSUANT TO SECTION 70NFB THAT:
Bond
1.Pursuant to section 70NFB(2)(b) of the Family Law Act 1975 (Cth) the Respondent Mother forthwith enter into a written bond without surety or security to be of good behavior and comply with all current Orders of this Court, and in particular that the mother do all acts and things to allow and facilitate the child to spend time with the father pursuant to the orders made on 31 July 2020 as amended on 31 March 2023 and further the mother do all acts and things to facilitate the exercise of equal shared parental responsibility in accordance with the orders made on 31 July 2020 and clarified on 31 March 2023, with such Bond to be in place for a period of two (2) years noting that the mother has consented to same.
2.The Mother is directed to forthwith attend upon a Registrar of the Federal Circuit and Family Court of Australia at Brisbane at 11:00am on 17 April 2023 and sign the Bond and upon that undertaking she may be released.
3.The Applicant has leave to notify the Chambers of Her Honour Judge Cope if the Respondent Mother does not attend at the Brisbane Registry to sign the Bond in accordance with Order 1 and 2 herein.
Make up time
4.Pursuant to section 70NFB(2)(c) of the Family Law Act 1975 (Qld), the child spend make up time with the Applicant Father from 12noon on 1 January 2024 to 12noon on 8 January 2024 with that time to follow without interruption the time spending in accordance with order 10.1 of the orders made on 31 July 2020.
Costs
5.That within 28 days of the date of this order the mother will pay to the father the sum of $11,775.33 being the sum ordered pursuant to Orders 13 and 14 of the Orders dated 23 June 2022 noting that payment had previously been suspended for 12 months conditional upon the mother’s compliance with court orders.
THE COURT ORDERS PURSUANT TO SECTION 70NBA THAT:
6.The Orders made on 31 July 2020 be varied as follows:
(a)Order 7 varied to add the following provisions:-
7(A)For the purposes of these orders, equal shared parental responsibility to be exercised in relation to major long term issues includes but it not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
7(B)With respect to the decisions referred to above, the mother and the father are to consult with each other about the decisions to be made as follows:
(i)they shall inform the other parent about the decision to be made via email and the other parent will use their best endeavours to respond in a timely manner;
(ii)they shall consult with each other via email on the terms that they agree;
(iii)they shall make a genuine effort to come to a joint decision; and
(iv)if they are unable to come to a joint decision, they shall attend at the family relationships centre for mediation.
(b)Order 10 be amended to add the words “On the father giving the mother no less than three (3) months written notice” prior to the words “[X] spend time with the father as follows:”.
(c)Order 10.3 varied to read as follows:-
For two (2) separate block periods each calendar year, each block consisting of two (2) uninterrupted consecutive weeks including overnight time, with the dates to be nominated by the father.
(d)Order 11 be varied to read as follows:-
That X communicates with each party at all reasonable times when she is not in that party's care by video call (namely Skype or such updated or replacement version of such service as exists from time to time) as agreed, and failing agreement, anytime from 5.00pm to 6.00pm AEST each Sunday, Tuesday, and Friday.
(f)Order 12 be varied to read as follows:-
For the purposes of Order 11 herein the parent with the care of X at the time of the call shall use their best endeavours to ensure that X communicates by video call with each party which will include ensuring:
A.X is available to receive the call and that the phone/IPad/computer provided to X is charged, turned on, nearby and not muted; and
B.the calls occur in a quiet room with X having privacy during her communication with the other parent.
(g)That an Order be added below Order 12 as follows:-
12A.That within seven (7) days of the date of this order the parties exchange skype addresses to be used for the purposes of the communication at order 11 and 12 above.
(h)The following orders be added above the heading “Family Dispute Resolution” as follows and the orders thereafter be renumbered to reflect the additions:
17AThat within seven (7) days of the date of this order the mother provide to the father a list with names and addresses of all past and current schools and care providers and past and current treating specialist, medical and allied health care providers, including any psychologists, therapists and psychiatrists, for the child X born 2016.
17BThat each party is authorised, and these orders alone are sufficient authority, for each parent to obtain information, documents and reports regarding the child X born 2016 from all past and current schools and care providers and from all past and current treating specialist, medical and allied health care providers, including any psychologists, therapists and psychiatrists, and to receive all relevant reports, newsletters, correspondences and all other documents relating to the child at the expense of the requesting parent.
17CThat within seven days of receipt of same each parent will provide to the other parent a copy of any reports from any specialist, medical or allied health care provider, including any psychologists, therapists and psychiatrists, and in particular the mother forthwith provide to the father a complete copy of the report about the child X, portions of which are annexed to her outline of case dated 27 March 2023 at pages 20 and 21 of 62.
17DThat each party be restrained and an injunction issue restraining each party from discussing with the child her views and wishes in relation to time spending and communication with the other parent, and further each party be restrained and an injunction issue restraining each parent from recording the child expressing any views or wishes about time spending and communication with the other parent.
17EThe parties are granted leave to provide to the child’s past and current schools and care providers and past and current treating medical and allied health providers, including any psychologists, therapist and psychiatrists, a copy of these orders, and the orders made on 31 July 2020 as amended by these orders.
(i)Notations be added as follows:-
B.It is the mother’s practice that prior to the child spending time with the father, she provides to the father a care plan for X and the father will give consideration to that plan in terms of X’s needs but it is noted that the care plan is not binding on the father but is provided to assist him in meeting X’s needs.
AND THE COURT ORDERS THAT:
For the purposes of ensuring clarity as regards upcoming time spending in accordance with the orders made on 31 July 2020 the court makes the following further orders:
7.The Father will spend time with the child X born 2016 from 3 April to 16 April 2023 in accordance with the orders made on 31 July 2020 and the requirement for three months written notice for this time is waived, noting the correspondence between the parties and the mother’s consent to this time occurring. The mother will deliver the child to the father’s care at 9:00am on 3 April 2023 at the B Venue in Suburb C and the father will return the child to the mother’s care at 1:00pm on 16 April at the B Venue at Suburb C.
8.In the event that the father proposes to spend time with the child in June /July 2023 school holiday the father will provide written notice to the mother within seven (7) days of the date of these Orders and the requirement for three months’ written notice is again waived.
AND THE COURT NOTES THAT:
A.A copy of the orders made on 31 July 2020, as amended by these orders, is annexed to these Orders.
B.The Orders made today are amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to reflect that during the hearing the court stated that there had been six breaches of the orders without reasonable excuse, however the court made it clear that no findings were made regarding the alleged communication breaches from counts 6 to 16, and therefore this order reflects that five breaches were found to have occurred without reasonable excuse.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE COPE
These reasons for judgment were delivered orally and have been corrected from the transcript.
BACKGROUND
This matter came before the Court today following a contravention application filed on 23 August 2022 by the father. The mother in this matter is Ms Hermann.
The parties were married in 2010 and separated in August 2019 with a divorce finalised in 2020. There is one child of this relationship, being X. X was born in 2015 and she is currently seven.
The father currently resides in Country D, where he is a professional, and the mother resides in Brisbane with X.
Court proceedings were originally commenced back on 4 October 2019 by the mother with final consent orders being made on 31 July 2020. Those orders specify that the parties have equal shared parental responsibility, the child live with the mother and spend time with the father for four consecutive nights in each calendar month as nominated by the father. There are also orders for holiday time and communication. Both parties were legally represented when those orders were made.
On 2 December 2021, the mother filed an Initiating Application seeking that she have sole parental responsibility, the child continue to live with her and the father have only supervised time with the child. The father filed a Response on 8 February 2022 seeking that the mother’s Initiating Application be dismissed. Those proceedings came before Judge Turner on 20 April 2022 on the threshold issue of Rice & Asplund, that is, whether there had been a significant change in circumstance. Orders were made by Judge Turner dismissing the mother’s Initiating Application so that that is now at an end.
The father has previously filed contravention proceedings on 16 February 2022. The father’s Contravention Application was then heard by a Senior Judicial Registrar on 23 June 2022. The Court found that the mother had contravened the final orders without reasonable excuse on eight occasions. The mother was required to enter into a bond without surety or security for a period of 12 months. It is conceded by the mother that although she complied with the order to sign the bond, she did so well outside the timeframe required.
The current application before the Court specifies some 16 contraventions and are set out in the below table. Count 1 is in relation to a failure to spend time. Counts 2 through 6 are in relation to failures to exercise equal shared parental responsibility and count 6 through to count 16 are in relation to failures to facilitate communication.
Count Specific Order Contravention Alleged 1 10.3 On 4 July 2022 to 11 July 2022, the respondent without reasonable excuse refused to allow the applicant to spend overnight time with the child, X, in accordance with Order 10.3. 2 7 On 3 March 2022, the respondent Mother without reasonable excuse prevented the applicant from exercising equal shared parental responsibility of the child, X. 3 7 On 15 July 2022, the respondent Mother without reasonable excuse prevented the applicant from exercising equal shared parental responsibility of the child, X. 4. 7 On 22 July 2022, the respondent Mother without reasonable excuse prevented the applicant from exercising equal shared parental responsibility of the child, X. 5. 7 On 29 July 2022, the respondent Mother without reasonable excuse prevented the applicant from exercising equal shared parental responsibility of the child, X 6. 11 & 12 On 10 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. 7. 11 & 12 On 12 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. 8. 11 & 12 On 15 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. 9. 11 & 12 On 17 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X
10. 11 & 12 On 19 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. 11. 11 & 12 On 22 July 2022, The respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. 12. 11 & 12 On 24 July 2022, The respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. 13. 11 & 12 On 26 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. 14. 11 & 12 On 29 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. 15. 11 & 12 On 31 July 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. 16. 11 & 12 On 2 August 2022, the respondent Mother without reasonable excuse prevented the applicant from communicating with the child, X. THE ISSUES FOR DETERMINATION
The issues for determination are as follows:
(a)Whether the mother on 16 separate occasions either did not breach the orders or, in the alternative, breached the Orders made on 31 July 2020 but had a reasonable excuse on each occasion. If that is established then that is the end of the matter aside from any considerations of make-up time and costs;
(b)If however I found that the mother breached the orders without reasonable excuse for one or more alleged breach, then I must turn to the issue of whether the contraventions fall within the category of less or more serious contraventions;
(c)Then in turn I must decide what penalty should apply; and
(d)In either event, I can also turn to consider the current orders and see if they need to be varied by some tinkering or tweaking to avoid further contraventions into the future.
MATERIAL RELIED ON
I have read the material filed by each of the parties. It is fairly voluminous.
The father relied on the following documents:-
(a)Application for Contravention filed 23 August 2022;
(b)Affidavit of Mr Ritter filed 23 August 2022; and
(c)Tender Bundle.
The mother relied on the following documents:-
(a)Affidavit of Mother filed 29 November 2022; and
(b)Affidavit of Mother filed 21 June 2022.
ORDERS SOUGHT
The father, if successful, seeks that the orders be varied, in order to avoid further breaches. He also seeks make-up time and that the mother undertake community service.
The mother will, no doubt, make submissions to me about what outcome she seeks in the event that she’s not successful in defending this application.
WITNESSES
The Father
The father was not cross‑examined by the mother.
The mother at the commencement of the hearing advised me that she was diagnosed with PTSD and she would not be able to conduct a cross‑examination of the father. Although he did not give evidence, he maintained his composure throughout these proceedings. The evidence that he has given in his affidavit material is detailed and thorough.
I note that in relation to the mother’s requirements that there be a care plan and introduction of time, his correspondence with her in relation to those proposals on his part have been appropriate and child-focused, and he has, in fact, agreed to a build-up of time in July 2022 such that he agreed to daytime only for a period of time before spending block time with the child, X.
The Mother
The mother was cross‑examined for about an hour. I was somewhat troubled by her presentation.
I hear what she tells me about her mental health struggles, but, certainly, she was very elevated at times through the hearing and at times became agitated with the Court. She found it difficult to stick to the point or answer a question, giving great reams of background material about why she did what she did.
She tells the Court that she has mental health issues and she has produced an email from a psychiatrist, which I had some difficulty reading, but which advises:
Hi, [Ms Hermann]. I have just returned to work this morning. I have just been on leave for a week, so have been unable to fulfil your request within such a short timeframe. I can confirm that I first reviewed you [in early] 2021 - 2022 and we have consulted together seven subsequent times, mostly in person, but also via Zoom phone consult twice. You told me you were seeing a subsequent psychologist also. Throughout my notes are references to a lot of your symptoms being trauma-related due to excruciating situation ex-husband, with elements of Complex Post-Traumatic Stress Disorder after. Diagnoses have been “generalised anxiety disorder” and “likely post-traumatic stress disorder”. I am sorry that this is not very comprehensive. Good luck with Court this morning.
That is dated 20 April 2022. The difficulty with that is it is unclear whether that doctor made the diagnosis or is repeating something she was told or some other documents, but it does give me an indication which confirms my own observations that the mother has struggled to engage in these proceedings and is, as I said, somewhat elevated at times.
The mother chose not to cross‑examine the father. She did not have the relevant Court documents to hand when she was asked to look at orders or affidavits. She did not have those easily to hand, but was able at times able to locate them.
She has been very opinionated in relation to her assessment of the father, the orders and, indeed, about her daughter’s needs. She has been extremely dismissive of the father and his role in their daughter’s life, both in Court and in her material. I was struck by a couple of incidences of that, and I note in particular in the communication with the school, which is in the tender bundle. There is an email from the mother to the school dated mid-2022 in which she says:
Hi, all. I don’t agree with [Mr Ritter’s] interpretation with day-to-day decisions of [X] and I do not consent to him attending the celebration on Thursday. Reasons: [X] believes I am her mum and dad. She’s aware of this and doesn’t have a daddy. Her biological father lives overseas and only sees her once a year at his choice. He left us. [X] does not say she loves him, nor wants to see him; however, we have to abide by law if applicable.
She also said something similar during her cross-examination - that she is the one who does all the parenting of X and that she continues to do everything for X. For example, she said at one point “I don’t care what the consent orders say. I’m the full-time primary carer for the child” and she then went on “I will continue to do a care plan every time”.
For example, her interpretation of the orders in relation to the father having two weeks. Order 10.3 says “For two separate periods of two consecutive weeks each calendar year such period to be nominated by the father”, and her interpretation of that is that because it does not say overnight that it does not include overnight time.
Towards the end of her cross‑examination when they were talking about the Skype calls, the mother said that “[Mr Ritter] and [X] have not had a relationship since June 2022.” She said “It’s been going on for about a year”. And she said “It’s the reason why [X] now doesn’t want to know him and that there’s nothing there”.
So, as I said, she was very dismissive of the father and his role in X’s life and how he should be involved. All of that aside, what I do know is I have two parents who love X very much, two parents who want the very best for X, but they have two very different views about how that should be achieved and how that should be addressed.
THE LAW
The relevant section of the Act that sets out the meaning of contravening an Order is found in s 70NAC(a) (i) and (ii). A person has contravened an Order if the person has intentionally failed to comply with the Order or made no reasonable attempt to comply with the Order.
There is significant case law surrounding contravention proceedings. Contravention proceedings are not an enquiry into the best interests of a child. They are quasi criminal in nature and serious consequences may follow for a person if the contravention is found to have occurred without reasonable excuse. The procedural requirements pertaining to contravention proceedings are strictly complied with due to the seriousness of the matter and the potential consequences.
Standard of Proof
The applicant bears the onus of proof to establish contraventions. The onus switches to the respondent if a contravention is found to have occurred and reasonable excuse is argued.
Section 70 NAF provides that subject to subsection (3), the standard of proof applicable to contravention proceedings is on the balance of probabilities – the civil and less onerous burden of proof.
Subsection (3) however provides that the more serious contraventions and therefore the more serious penalties will only apply if the Court is satisfied beyond reasonable doubt that the grounds for making the order exist.
Reasonable Excuse
Section 70NAE sets out the meaning of reasonable excuse, noting however that this is not exhaustive. The circumstances in which a party may be taken to have had a reasonable excuse includes:-
·the respondent did not understand the obligations imposed by the order and the court is satisfied that the respondent ought to be excused in respect of the contravention; or
·the respondent believed on reasonable grounds that the contravention was necessary to protect the health or safety of a party (including that party or the child) and the period of the contravention was no longer than was necessary to protect the health or safety of the party in danger.
In the case of Kelly & Kobelnek[1], guidance was provided to the effect that in order to successfully defend a contravention a party must establish that they had a reasonable excuse according to an “objective test namely, whether a reasonable person in the position of the (mother) would consider on reasonable grounds that (she) had a reasonable excuse for the contravention.”
[1] Kelly & Kobelnek (unreported, Family Court of Australia, Hannon J, 10 March 1998)
The defence of reasonable excuse requires the Court to examine the individual circumstances of each alleged contravention. The process does not involve an examination of the conduct of the parties over the entire history of their relationship and litigation in this Court.
There is significant case law in relation to what constitutes reasonable excuse.
I am assisted by reference to the Annexure to the Orders made on 16 December 2021 made in accordance with s 65DA (2) of the Act. In particular it is noted as follows:
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so…
I was also assisted by the cases of Stavros & Stavros (1984) FLC 91-562 and Stevenson & Hughes (1993) FLC 92–363 [1993] FamCA 14 (“Stevenson”). In the case of Stevenson at [25] it was said:-
…there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. 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.
Sanctions
Subdivision E of the Act deals with the less serious contraventions and the sanctions that are available whilst subdivision F deals with the more serious contraventions and the applicable penalties.
Where it is established that a contravention has occurred without reasonable excuse and is deemed to be a less serious contravention the Court may impose a number of penalties including:
·Order the defaulting parent to attend a post-separation parenting program;
·Make a compensatory parenting order compensating a parent for time lost with any child concerned;
·Adjourn the proceedings to allow either party to apply to the Court to vary the orders contravened;
·Order the defaulting parent to enter a bond;
·Make an Order for costs against the defaulting parent;
·Make an Order compensating the contravened parent for any expenses incurred as a result of the contravention in question — e.g. lost fares etc;
·An Order for costs.
Where it is established that a contravention has occurred without reasonable excuse and is a more serious contravention, then the Court has a greater range of penalties at their disposal including:
·Impose a community service Order or bond;
·Make an Order for compensatory time;
·Make an Order for compensation;
·Award costs;
·Fine or imprison the contravening parent;
The Full Court in Dobbs v Bryson (2007) FLC 93-346 considered the application of s 70 NAF. The Full Court concluded that the Court’s ability to make orders is dependent on whether the necessary findings can be made to the requisite standards. In doing so the Court will pay attention to the gravity of the established contraventions when determining what penalties are to be ordered, and the requisite standard of proof to be applied.
APPLYING THE LAW TO THE FACTS WITH REFERENCE TO EACH ALLEGED CONTRAVENTION
Count 1
The first count is the alleged breach of order 10.3, that on 4 July through to 11 July 2022 the respondent without reasonable excuse refused to allow the applicant to spend time with the child, X. The mother has admitted that breach, but says that she has a reasonable excuse.
In relation to the submissions that I heard from the parties earlier today, Mr Jordan took me to the tender bundle which includes the records for the attendance at outside school hours’ care. In particular, that shows that on the dates when the mother says she and X were waiting for the father in the coffee shop:
(a)on 6 July 2022 X was signed in at 8.49am; and
(b)on 7 July 2022 X was signed in at 8.44am; and
(c)on 8 July X was signed in at 9.29 am.
So when the mother says that she and X were having coffees and waiting for the father to turn up at that time, that is directly contradicted by the school records. The mother advised she did not do the sign-in, but the school itself attended to that on her behalf, due to her diagnoses of PTSD.
The mother attached to her outline of case document a bank statement showing that she had purchased four coffees, and said although they are all dated the one day, those are actually the four days where the father says there were the initial breaches. It was noted during the course of submissions that the dates of those do not match up with what the mother says. The dates are 1 July, 30 June and 3 July 2022, which are different dates again. So in all of those circumstances, it appears that evidence does not support what the mother says, and that is the independent evidence.
The mother denied that she ever contemplated a complete denial of overnight, but was simply looking at establishing a care plan, which was inclusive of X’s special needs. The mother’s evidence to this Court is that X has a diagnosis of ADHD and anxiety. She had provided some portions of a document, which is annexed to her outline of case document at pages 20 and 21 of 62, but it is only page 15 of a document and half a page, which I think is possibly a continuation of the next page, but I cannot be certain.
As I noted to the mother, I can place very little weight on that document, because it is part of a document. So I do not know that it is about X. It might be about some other X. I do not know who was involved in making the report, whether it is a psychiatrist or psychologist, an occupational therapist, a social worker or some other person. I do not know who had input into the assessments made. Usually when there is an assessment of ADHD, for example, assessments are taken from a parent, from a school from afterschool care, maybe from extracurricular service providers. I do not know where that information came from, though there is some indication there is at least some information from a parent and some information from a school, but it certainly indicates that that information was starkly at odds. So I am unable to place significant weight in relation to X having special needs that might be a valid excuse.
The mother’s position was that it does not matter what the day care records say and it does not matter what the coffee shop records say, the father has not established that he actually showed up at the coffee shop himself on those particular days. Now, the father’s evidence in relation to this particular aspect of the contravention application starts with the communications between the parties and then goes on through the build-up time, which he agreed to throughout his affidavit, moving to his agreement to further time.
And he says that he replied on 2 July 2022[2] that it is not up to the mother to decide about overnight time - that the orders provide for two consecutive weeks, that he does not have to agree to any itinerary or care plan. He proposed that the mother deliver X to his care at 9:00 am the next day, which would have been 3 July, and that she would stay with him. He gives evidence that he attended on 3 July 2022, but the mother did not provide an overnight bag for X, that he said he was coming back for the overnight bag for X and that that never occurred.
[2] Father’s affidavit at paragraph 33
His evidence[3] is that he attended changeover with X and his mother, and X said that she wanted to spend time with the father. I note for the record that this is denied that X said this; the mother does not accept that X said this at any time and certainly not in the presence of the father.
[3] Father’s affidavit at paragraph 37
The father says that on 4 July 2022 he went to the police station to speak to the police and spoke to somebody there and was told of the mother’s allegations. He also gives evidence that on 4 July 2022 his solicitors wrote to the respondent setting out the events of the weekend and advised that X was to be returned to his care from 6.30 pm that night, and that correspondence attached a copy of the orders.
His evidence [4]is that he then attended at the restaurant at 6.27pm for the changeover at 6.30 pm, waited there and that the mother did not attend. So his unchallenged evidence is that he did actually show up at the time he said he would in order to collect X and that X was not presented by the mother at that time.
[4] Father’s affidavit at paragraph 41
The information about changeovers at 9:00 am, as proposed by the mother, are to some extent a red herring. In any event, the child, X, was not delivered at those times. She was in outside school hours’ care at the time suggested by the mother, and at the time proposed by the father no one was in attendance.
I am, therefore, satisfied that the mother breached the orders in terms of count 1 and that she did so without a reasonable excuse.
Count 2 - 5
Moving onto counts 2 through to 5, which I will group together as the parties did themselves in dealing with it. The mother has denied each of those counts.
Mr Jordan for the father made submissions that the mother acknowledged she did not tell the father, she acknowledged there was a previous diagnosis, and she sought to take X for further diagnoses. He referred me to paragraph 50.1 of the father’s affidavit. His submission is to the effect that taking a child to a doctor or getting a diagnosis for a child is not a day-to-day matter, but is a matter that is covered under the umbrella of equal shared parental responsibility. He makes submissions that the father is not attempting to deny medical treatment, as might be suggested by the mother, but, rather, that he has a view that is fundamentally at odds with that of the mother.
The mother’s submissions were that the father has been neglecting his relationship with the child; that he does not acknowledge the child’s best interests or her mental health. She submitted that she sends care plans to the father, that she agrees to visits, that she is not trying to block his time with the child, but rather is trying to do it in a way that is appropriate for the child’s special needs.
The difficulty about all of that is that when I asked the mother for a full copy of the report in relation to X, she was only prepared to provide it to the court and not to the father, regardless of the orders for equal shared parental responsibility. She became somewhat agitated when I tried to explain the legal concepts of procedural fairness and also the concept of equal shared parental responsibility, which I have no doubt that she does in fact understand.
Her evidence is that she made the father aware, that the father cannot prove that she presented X for anything other than a standard check-up and that the father is blocking X’s care.
Now, these grounds are dealt with in the father’s affidavit material at paragraphs 50 through to 53 in some detail. In effect, X has been to GP appointments and had referrals from those GP appointments to a child development program and to Dr E, a paediatrician, in relation to the respondent’s concerns about ADHD, autism and anxiety. The father goes through those appointments and his communications and also notes that the mother made an appointment on 22 July 2022 with Dr E, the paediatrician, and an appointment on 29 July 2022 with Ms F, an occupation therapist. That is in addition to the child development program and the appointment with Dr G in relation to the referrals.
Equal shared parental responsibility covers a child’s medical matters. If you are taking a child just for a normal check-up, then it is not necessarily under the umbrella of equal shared parental responsibility. However once referrals are obtained and a child is taken onto other resources, such as a paediatrician or a child development centre or a psychologist or an occupational therapist, then it well and truly starts falling under that umbrella. So whilst the mother might have initially gone to a doctor simply to say, “How is my daughter doing?”, then that might be the case. The mother’s own evidence however is that she is concerned that her daughter has these diagnoses of ADHD, autism and anxiety, so that taking her to be checked out and assessed in relation to those matters would fall under the umbrella of equal shared parental responsibility.
Having considered all of those matters and the evidence provided by both parties in relation to those attendances, I am satisfied that making such appointments falls well within the umbrella of equal shared parental responsibility, that is, in relation to taking X to attend on a GP about concerns of autism, anxiety and ADHD, and then making those ongoing appointments with those specialists are all matters about which the father should have been consulted and informed.
Therefore, I am satisfied in relation to counts 2 to 5 that the mother has breached the orders of Judge Lapthorn and that she did so without a reasonable excuse on each of those four occasions.
Count 6 - 17
The last counts are in relation to the calls. Order 11 of the orders says:
[X] communicate with each party at all reasonable times when they are not in that party’s care by telephone or mobile or FaceTime, Skype as agreed and, failing agreement, from 5 pm each second day.
And order 12:
Each party must use their best endeavours to ensure that [X] communicates by telephone or mobile or FaceTime/Skype with each party.
The submissions made on behalf of the father were that the court should not accept the mother’s evidence and that she acknowledged on 12 and 15 July 2022 that she had told the father that X had panic attacks. This is denied by the mother and her position is that it was a misinterpretation of what she said. The mother’s position, in her affidavit material, and I think there was a convenient summary in her outline of case document, which I have found, which says:
On occasion, we have issues at new house with wi-fi, never before, because it’s so old or she doesn’t charge it and I instead call off my phone a few times as back-up. I am teaching her. I facilitated calls with her and the other parent every second time, or three times per week, as per consent orders dated 10 July, 12 July, 15 July, 17 July, 19 July, 22 July, 24 July, 26 July, 29 July, 31 July, 2 August for three weeks and so forth. Attached is evidence of calls facilitated as per consent order.
The mother has provided some records[5] which give dates that I can see down the side, and it says in another column “voice”, “ADJ voice” and another column a number. I do not know what any of that information means, because it is part of a document. I do not know what each heading is or what each number means, but it is the mother’s position that the document supports her position in relation to the phone calls having occurred.
[5] Mother’s outline of case at page 48 of 62
The father in his material has annexed what he tells me are logs for Skype, and there are several pages of that in his tender bundle.[6] It is called a “call log”, but the difficulty about that document, is I do not know from what number to what number. So it is unclear to me. All I can say, as with the mother’s evidence, is that the dates match up with what I am being told by each party, but, again, that information is incomplete, in that the detail is not there. Certainly, the father’s affidavit evidence in relation to those logs is quite detailed about the calls that he made and the response that he received or did not receive on each of those separate occasions.
[6] Tender Bundle at annexure G from about page 68 onwards
The father was not cross-examined and so I am urged to accept that his evidence is unchallenged. I have observed the heightened presentation of the mother and the difficulty she has at times had, but I also accept the submission of counsel that the mother conducted herself very well under cross-examination. She was able to engage and respond. She gave a lot of detail. She understood questions. She did not just accept what was put to her. She was very willing to argue the point when she felt that was the case, and she made very clear her views about the father and about X’s wellbeing and about what the role of the father should be and her views as regards X’s special needs.
Now, the mother’s position in relation to these phone calls is that the father cannot dictate that the calls must take place on Skype. The orders do say that it can be telephone or mobile or FaceTime/Skype. It does not mean that he can dictate it, but it means that he can choose it. The mother says that Skype does not work for them because it has been hacked or is corrupted in some way. Well, if a Skype address has been hacked or in some way corrupted, it is very easy to get another Skype address. It is not a difficult to process to go through, if indeed that is correct.
Mr Jordan says that I should make findings in favour of the father. This is based on the mother’s general views about the father, her views that the parties have moved on from the consent orders somehow, that were only very recently made, and that, in effect, at that time a five-year-old, should be able to decide when and if she speaks to her father. In fact, during the course of her cross-examination the mother said she had been talking to X about speaking to her father and telling her father what she is feeling and what she wants to do - that at five years old X should be able to have a voice. The mother went on to say that it is normal; that 100 % of children do not just do what you tell them to do, that her child is very special, that she is outspoken, that she is autistic and that she cannot control X and that, in fact, who could possibly control a five or a six-year-old.
I do not accept that the mother cannot control X - she gets X to school, she gets X to bed, she gets X to eat the food she should eat. The mother makes sure that X does not do things that are unsafe for X so she is able to exert her parental authority if she wants to do so. I am satisfied that the mother simply does not want to do so in this particular case, and that her own dislike of the father is being projected onto X.
All of that said, however, I am left with what I see as incomplete records to prove both parties’ positions. I have not seen the father in the witness box. I am unable to make any findings about him. I have seen the mother in the witness box and, although she is very heightened and very elevated, that does not necessarily mean she is not doing her very best to tell me the truth, because at times she has said things that are to her disadvantage, particularly in relation to expressing her views about the father.
In contravention matters where there is a doubt, and particularly where we are looking at the more serious contraventions, I am of the view that we do need to err on the side of caution. I do not want to make findings in a quasi-criminal matter where I cannot be completely satisfied that that is the case. So in this particular case, I intend to make a finding that I am unable to make findings that the mother breached the orders on those particular occasions.
CONCLUSION
I have made findings that the mother breached the orders without reasonable excuse in relation to orders 1, 2, 3, 4, and 5. Having made those findings, the next step is to move on to consider the appropriate penalties, and the variations to the orders.
I am satisfied that there will need to be some significant variations to these orders to ensure that there are no future breaches and to make sure that it is very clear to both of the parties what their requirements and obligations are moving into the future.
I am satisfied beyond reasonable doubt that the respondent has breached the orders on each of the five occasions and that she has done so without a reasonable excuse.
CONSEQUENCES
I have heard submissions from each of the parties in relation to the appropriate consequences. I am aware that the mother has very limited financial resources and I am also aware that the father has a greater level of financial resources than the mother.
The first order sought by the father is that the mother undertake community service. The mother does not seem to be troubled about undertaking community service. She tells me that she already does significant community service, that she does volunteer work for various community groups, and that she has been doing that community service for some time. I noted that the community service is meant to be a penalty, not something that she does of her own choice, but rather to punish the mother for the breaches which I have found have occurred. They are particularly serious breaches, as noted by Mr Jordan, because they follow on from findings made only on 23 June 2022 by the Senior Judicial Registrar that the mother had breached orders on eight occasions and ordered the mother to enter into a bond. Within less than half of that time I have found that the mother has again breached Court orders, so that they are very serious matters, indeed.
Now, what troubles me about the option of making a community service order is that the mother does not seem to be troubled about it. I do not know that the mother would perceive that as a penalty, so I am not persuaded that a community service order is the step to take in this particular case.
I am satisfied that this breach falls within the more serious category, simply because this is the second time around that this has happened. There were eight breaches found on the last occasion. There are six breaches found on this occasion. One of the breaches on each occasion has been a breach of time, which interferes with a child’s right to have a relationship with both parents, and those are serious matters, indeed.
What makes this serious is that it is in breach of a bond, it is in breach of the opportunity that the Senior Judicial Registrar gave to the mother. I agree with Mr Jordan that these orders were carefully crafted by the Senior Judicial Registrar, to give the mother significant opportunity to prove what she keeps telling this Court - that she wants to comply with orders and that she will comply with Court orders. Unfortunately, she has failed to do so.
In all of those circumstances, what I do propose to do, and I note that the mother has indicated that she will again sign a bond, is to get the mother to sign another bond to comply with the orders made on 30 July 2020 as they will be amended today, and the orders of 30 July 2020 and the orders that I am making today, and I will have that bond in place for a period of two years. I place the mother on notice that if she breaches his bond again, this will be the second bond breached, and she will be coming before this Court and there will be very serious penalties that will be considered at that point in time.
MAKE UP TIME
In relation to the father’s proposal for make-up time, that is one of the options that are available in the legislation. I propose to make the order that the father seeks pursuant to section 70NFB(2)(c) of the Family Law Act 1975 that the child spend make-up time with the applicant father from 12 noon on 1 January 2024 through to 12 noon on 8 January 2024.
That will run into the time that the father has with the child in accordance with order 10 of the orders of 31 July 2020, which means that the father will spend a 15-day block of overnights and day time. That is a consecutive block period from 24 December 2023 through to 8 January 2024 that she will be in the father’s care.
The orders will read that pursuant to section 70NFB(2)(c) of the Family Law Act 1975 the child will spend make-up time with the applicant father from 12 noon on 1 January 2024 to 12 noon on 7 January 2024 with that time to run immediately following the father’s time with the child in accordance with order 10.1 of the order of 31 July 2020 and that period of 15 days take place without interruption.
COSTS
Pursuant to section 70NFB(2)(g) and (h), because this is a more serious breach of the orders and because I have made those findings that I have made that the mother is in breach of the orders and it’s the second time that she has done so, I am required to consider making a costs order. Given that there are already orders made by the Senior Judicial Registrar when the matter came before him on 23 June 2022 that the mother pay $11,775.33 and given that I am now also going to make orders that that sum immediately become payable, I have considered the making of a costs order on this particular occasion, but I am not going to make it.
I am not going to make it for a number of reasons, not because the father has more money than the mother, but simply because the mother is the primary caregiver for the child, she does have limited financial circumstances, she is about to be ordered to pay the sum of $11,775.33 and if we put too much financial pressure on the mother, that will adversely impact the best interests of the child.
I will order that the sum ordered by the Senior Judicial Registrar on 23 June 2022 in the sum of $11,775.33 in accordance with orders 13 and 14 for two separate sums, being the sum of $8,690.33 and the sum of $3,085, that those two sums, amounting to $11,775.33 be payable by the mother within 28 days of the date of this order.
As noted already, I do not propose to make an order in relation to costs and I do not propose to make an order further reimbursing the father for the costs that he has spent. Can I say to the mother that she is very fortunate that I am not going to do so, but I am very conscious of her limited financial circumstances.
However I am also very aware that the father is paying significant funds to support of the child not only in the form of child support, but in the form of school fees and extracurricular activities. I have seen that from the material before the Court, so that there is a significant relief on the mother in relation to costs relating to the child as a consequence of those contributions.
VARIATION OF ORDERS
I propose to vary the orders significantly to attempt to avoid further contraventions. Because these are “tinkering” in terms of the precedents, I am not required to be satisfied that the changes I am making are in the best interests of the child. That consideration was already undertaken by Judge Lapthorn on 31 July 2020. So my role now is just to make sure that these orders are fully understood by both parents and that future breaches are minimised.
In relation to the order for equal shared parental responsibility, I will add two sub-provisions to order 7 as follows:
Order 7A: For the purposes of these orders, equal shared parental responsibility to be exercised in relation to major long-term issues, includes, but is not limited to (a) the child’s education, both current and future (b) the child’s religious and cultural upbringing (c) the child’s health (d) the child’s names and (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Order 7B: With respect to decisions referred to above, the mother and father are to consult with each other about the decisions to be made as follows: (a) they shall inform the other parent about the decision to be made via email, and the other parent will use their best endeavours to respond in a timely fashion (b) they shall consult with each other by email on the terms that they agree (c) they shall make a genuine effort to come to a joint decision and (d) if they are unable to come to a joint decision, they shall attend at the Family Relationship Centre for mediation.
Moving to order 10, holiday periods and special days. X is to spend time with her father, for eight consecutive nights, four nights or two consecutive weeks. I propose to put here a subparagraph that the father will give the mother three months’ written notice of his intention to spend time with X on specific dates. Given that the orders already set it out that it’s eight consecutive nights in the Christmas holidays in odd-numbered years, four nights at Easter and two consecutive two-week blocks otherwise, three months written notice is ample notice, particularly noting, as earlier indicated, that the mother is not currently working and that the provision of notice that she wanted was in order to prepare X to spend time with her father and to start talking to X about that time; therefore, the provision of three months is a sufficient amount of time.
I also proposed to vary order 10.3 so that it reads as follows:
For two separate block periods, each block being two consecutive weeks, including overnight time, that time to take place each calendar year with such period to be nominated by the father, noting that I have already made the order that it be on three months’ written notice.
In relation to orders 11 and 12, I propose to make the amendments as sought by the father in his outline of case document.
Order 11 will read as follows:
That [X] communicate with each party at all reasonable times when they are not in that party’s care by video call, namely, Skype or such updated or replacement version of such service as exists from time to time as agreed and, failing agreement, any time from 5:00 pm to 6:00 pm Australian Eastern Standard Time each Sunday, Tuesday and Friday.
Order 12 will read as follows:
The parent with the care of [X] at the time of the call shall use their best endeavours to ensure that [X] communicates by video call with each party, which will include ensuring (a) [X] is available to receive the call (I have deleted the word “telephone”) and that the phone, iPad, computer provided to [X] is charged, turned on, nearby and not muted; and (b) the calls occur in a quiet room with [X] having privacy during her communication with the other parent.
I will also add there a provision that each parent exchange Skype addresses for the purpose of these calls within seven days of the date of this order. So, indeed, if the mother has a corrupted Skype, she can establish a new one in that period of time.
I will then add additional clauses above the heading Family Dispute Resolution in the following terms:
These orders reflect both parents’ authorities to the child’s past and present school, day care, medical psychological and allied health providers to provide to each parent at that parent’s expense, any documents and information in relation to the child, [X].
That both parents are authorised and directed to provide a copy of these orders to each of [X’s] school, care providers and current and past treating health and allied service providers, including counsellors, psychologists and psychiatrists.
That within seven days of the date of this order, the mother is to provide to the father a list of all the child’s current and past allied treating medical and other health professionals, including full name, address and contact details and within seven days of the date of receipt of same, each parent is to provide to the other parent a copy of any reports, receipt from any medical, psychological or psychiatric or allied health service provider about [X], and that, in particular, within seven days of the date of this order, the mother is to provide to the father a copy of the report about [X], portions of which appear to be annexed to her outline of case document filed on 27 March 2023 at pages 20 and 21 of 62.
That each party be restrained and an injunction issue restraining each party from talking to the child regarding her wishes in relation to time and communication with the other parent and that each parent is further restrained and injunction issue from recording the child in relation to the arrangements for communication and time spending with each parent.
And I will make two notations, in addition to the usual notation. The first notation is in the following terms:
That it is the mother’s practice, prior to the father spending time with the child, [X], to provide to him a care plan in relation to [X] and her usual needs. It is acknowledged that the father will receive that care plan and consider that care plan, but it is noted that the care plan is not binding upon the father, but is provided in order to assist him in meeting [X’s] needs.
The second notation that I propose to make is in the following terms:
That a copy of these orders made on 31 July 2020 as amended by these orders made today is annexed to these orders for the purpose of clarity and assistance to the parties to ensure future compliance with both orders, and that the copy of the amended orders should be provided to the children’s schools and treating medical providers in accordance with these orders made.
I will make an order in addition to the orders already made that the father spend time with X from 3 April 2023 to 16 April 2023 in accordance with the orders made and 31 July 2020, and noting that the mother has agreed to those dates. The father will collect the child from the mother’s care at the B Venue at Suburb C at 9:00 am on 3 April 2023 and to return the child to the mother’s care at 1:00 pm on 16 April 2023.
If the father proposes to spend time with the child during the June 2023 school holidays, he is to notify the mother within seven days of the date of this order, noting that any time spending for April and June 2023 will be exception to the orders for three months’ notice within the proximity to the making of the orders.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Cope on 31 March 2023. Associate:
Dated: 25 May 2023
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