Hertwig and Hertwig (No 2)

[2021] FamCA 286

FAMILY COURT OF AUSTRALIA

HERTWIG & HERTWIG (NO. 2) [2021] FamCA 286

FAMILY LAW – ORDERS – Contravention – Application dismissed

Family Law Act 1975 (Cth) s 70NAE
Family Law Rules 2004 (Cth) r 10.12
Agreement on Judicial Assistance in Civil and Commercial Matters and Cooperation in Arbitration between Australia and the Kingdom of Thailand [1998] ATS 18

Bretton & Bondai [2013] FamCAFC 168
Gilbert & Gilbert [2019] FamCA 927
Pelerman v Pelerman (2000) FLC 93-037
Recognition and Enforcement of Judgments in Civil and Commercial Matters (edited by Amselmo Reyes, Hart Publishing, 2019)

APPLICANT: Mr Hertwig

RESPONDENT: Ms Hertwig

FILE NUMBER: BRC 2437 of 2016

DATE DELIVERED: 10 May 2021

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20 & 27 May 2020 and 16 July 2020;  Orders made 30 April 2021;  Reasons published 10 May 2021

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

Orders

1. The Application for Contravention filed 10 December 2019 is dismissed.

2. The Application in a Case filed 8 May 2020 is dismissed.

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 Hertwig & Hertwig has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2437 of 2016

Mr Hertwig

Applicant

And

Ms Hertwig

Respondent

REASONS FOR JUDGMENT

1. By Application for Contravention filed 10 December 2019 the father sought that findings be made that, without reasonable excuse, the mother contravened certain particularised provisions of final parenting orders made by consent on 28 May 2019.  The May 2019 Order sought to regulate the parenting arrangements for the parties’ three children:  X (born in 2006), Y (born in 2008) and Z (born in 2011).

2. The May 2019 Order was made in circumstances where the parties and the children have lived in Thailand since 2007. Y and Z were both born in Thailand, but are not citizens of that country. All three children are Australian citizens. On the father’s evidence, both parents and the children reside in Thailand on temporary non-immigration Visas. His evidence was that his Visa was to expire sometime in 2020.

3. During the various appearances associated with this proceeding, the Court learned that, on 14 March 2020, the father was evacuated from Thailand as a consequence of the COVID-19 pandemic. Consequently, he has lived in Australia since that time, whilst the mother and the children remain living in Thailand.[1]

   [1]The practical consequences of this geographic separation on the implementation of whatever orders are made to determine the father’s Application for Contravention is the reason that priority has been given to the finalisation of matters other than the current application.   

The mother’s complaints about service

1. The mother asserted that the father had not caused her to be served with the Contravention Application and supporting affidavit/s in the manner prescribed by the Agreement on Judicial Assistance in Civil and Commercial Matters and Cooperation in Arbitration between Australia and the Kingdom of Thailand,[2] being a bilateral treaty in existence between Thailand and Australia (the Treaty). Given this and the nature of the Contravention Application itself, she submitted that the Court should not proceed to consider the application until the father complied with the manner of service prescribed by the Treaty.

   [2][1998] ATS 18.

2. There is no evidence to suggest that the father has caused the mother to be served with the Application for Contravention and supporting affidavit in the manner prescribed by the Treaty. Consequently, I accept that he has not done so.

3. In essence, the father sought to explain this failure to abide the terms of the Treaty by alleging that, in the past, neither party abided its terms when purporting to serve the other with documents relating to proceedings initiated in Australia; he also submitted that, previously, both parties accepted that they had been served with the other’s documents despite a mutual failure to comply with the terms of the Treaty. For the purposes of this application, I accept that neither party has, in the past, insisted on the other complying with the terms of the Treaty.

4. However, I am not persuaded that the manner in which the parties have previously approached the implementation of the terms of the Treaty when accepting documents associated with their earlier parenting proceedings irrevocably binds either of them into the future in respect of proceedings of a different nature. I consider it open to parties to seek to enforce the rights accorded to them by the Treaty vis-à-vis service of documents in some circumstances and, in essence, to waive such rights for practical purposes in others.

5. The nature of an application for contravention and the range of consequences for a party, if found to have contravened an order of the Court without reasonable excuse, are such that I consider the mother entitled to rely upon the terms of the Treaty and to require the father to serve her with the Application for Contravention and supporting affidavit in the manner prescribed by the Treaty.

6. I am not persuaded that, by submitting that the Court dismiss the father’s Application for Contravention on the basis, in essence, that there is no reasonable likelihood of success associated with the same and/or that the Court has no jurisdiction to determine it given that she commenced proceedings in Thailand relating to the children’s parenting arrangements prior to the father filing the Application for Contravention, the mother has acquiesced in relation to the issue of service on her of the Application for Contravention and supporting affidavit if it proceeds to a contested hearing. 

7. Her position though, has persuaded me that the most appropriate course is to consider, first, whether the father’s Application for Contravention should be summarily dismissed: if the mother’s position in this respect is accepted, then there is little point in requiring the father to comply with the terms of the Treaty vis-à-vis service of the Application and supporting affidavit; if she is unsuccessful in relation to this submission, then I intend to require the father to serve her in the manner prescribed by the Treaty.

Does the Court have jurisdiction to determine the Application for Contravention?

1. I do not accept that, because the mother had commenced proceedings in D Town Provincial Juvenile and Family Court (which I will respectfully refer to as the D Town Court) on about 3 November 2019, this Court does not have the jurisdiction to determine the father’s Application for Contravention by which he alleged there have been various contraventions of the May 2019 Order.

2. Other aspects of the mother’s submissions may also have advanced, in essence, that the Court should decline to exercise its jurisdiction because the parents are now engaged in proceedings in Thailand in relation to the children’s parenting arrangements. I am not persuaded of this, particularly given that it seems to me that there is no expert evidence to establish that the May 2019 Order is in fact enforceable in Thailand, noting:  that the father’s evidence in this respect is that he has received legal advice in Thailand that the May 2019 Order cannot be registered and enforced; the mother’s submissions, at least, were to the contrary and included the assertion that the May 2019 Order could be registered in Thailand and that the existence of the Treaty does not mean that the May 2019 Order is recognised or enforceable in Thailand.[3] References to the existence of the May 2019 Order in various documents issued by the D Town Court does not, of course, mean that the same is capable of being registered or has been registered or is capable of being enforced in that jurisdiction.

Should the Application for Contravention be dismissed because the parties ‘gave’ the Thai Court jurisdiction to enforce the May 2019 Order?

[3]See also: Recognition and Enforcement of Judgments in Civil and Commercial Matters (edited by Amselmo Reyes, Hart Publishing, 2019)

1. The mother submitted that the Application for Contravention should be struck out because, by the terms of the May 2019 Order, the parents agreed that the Thai Court would enforce the same.

2. The mother’s reference to the parties according jurisdiction to the Thai Court rests upon the contents of Clause 20 of the May 2019 Order, which is in the following terms:

   That the Mother and the Father intend these Orders to be final in respect of all matters relating to the children AND FOR THIS PURPOSE the Mother and Father shall do all things and sign all necessary documents in order to register these parentings Orders with the appropriate Court in Thailand or Thailand Government Authority, if possible, to enable their enforceability in that jurisdiction where necessary and given these Orders were made in the Family Court of Australia it is intended that any issues of dispute/interpretation be determined in accordance with the Family Law Act 1975 (Cth) of Australia.

3. Despite the interpretation contended for by the mother, it seems to me that all that the parents agreed to do in Clause 20 of the May 2019 Order was to “do all things and sign all necessary documents to register the parentings Orders with the appropriate Court in Thailand or Thailand Government Authority, if possible, to enable their enforceability in that jurisdiction where necessary” – that is, to act, by executing documents or otherwise, in such a manner that, if it was possible to do so, the May 2019 Order would be registered with the appropriate Thai Court or government authority to facilitate the enforcement of the same in Thailand.

4. Obviously, the fact that the parents intended to seek to enforce the terms of the May 2019 Order in Thailand does not mean that the Court/s of that country will recognise and enforce the same: that, equally obviously, is a matter for Thai law.

5. In the absence of expert evidence to establish that the relevant Thai Court/s will recognise and enforce the terms of the May 2019 Order, any parental agreement about this or intention that this occur is clearly not determinative of the issue.

Should the Application for Contravention be summarily dismissed on the basis that there is no reasonable likelihood of success?[4]

[4]Rule 10.12 Family Law Rules 2004.

1. In considering whether a particular claim, howsoever brought, has no reasonable likelihood of success, the Court should, always remember that the relief of summary dismissal “is rarely and sparingly provided” and that the power to terminate proceedings summarily is a discretionary one which should be exercised with caution and not unless it is clear that there is no real question to be tried.[5]

   [5]See for example: Pelerman v Pelerman (2000) FLC 93-037 at [46]; Bretton & Bondai [2013] FamCAFC 168 at [59] to [60] and [119] to [124]; Gilbert & Gilbert [2019] FamCA 927 at [36] to [44].

2. In order to determine whether the father’s allegations that the mother contravened the various terms of the May 2019 Order in the manner particularised in the Application for Contravention should be summarily dismissed on the basis that there is no reasonable likelihood of success, it is important to have regard to the following:

   a)as the Applicant, the father must discharge the onus of establishing that the mother intentionally failed to comply with the relevant aspects of the May 2019 Order or made no reasonable attempt to comply with the same[6] and so contravened the order; and 

   b)if the mother is found to have contravened the order, the Court must then consider whether she had a reasonable excuse for doing so (about which she bears the onus of proof), with such circumstances to include, but not be limited to, those prescribed by ss 70NAE(2), (4), (5), (6) and (7) of the Family Law Act 1975 (Cth) (“the Act”).[7]

   [6]Section 70NAC Family Law Act 1975 (Cth).

   [7] Section 70NAE(1) Family Law Act 1975 (Cth).

3. An appreciation of events in Thailand prior to the father filing the Application for Contravention on 10 December 2019 is, I think, also relevant to the determination of whether the allegations contained within the same have no reasonable likelihood of success.

4. On the evidence before me, I accept that the following is established.

5. On 1 November 2019, the mother emailed the father to indicate she would not return the children to him on the basis that they had made allegations of child abuse and that investigations into the same were underway by the Thai welfare authorities. After this date, various orders have been made in the D Town Court (either in its welfare protection jurisdiction, or its civil jurisdiction) that relate to the children – for example:

   a)on 5 November 2019, in a welfare protection case:  the Court restrained the father from approaching the mother and children’s residence and, by order, prevented him from collecting the children from school for one month and accorded the mother sole parental power for the children for that one month period; and

   b)on 3 December 2019, in the Court’s criminal jurisdiction: an order (said to be by way of emergency order) was made to prohibit the father from approaching the mother’s residence or taking the children from school or doing anything to disrupt their normal peaceful living during the trial in that jurisdiction.

6. I accept that a trial was originally listed to occur in June 2020 but then adjourned to November 2020. I note and accept that the father has participated in the various proceedings in Thailand and has been legally represented in the same. 

Count 1: Alleged contravention of Clause 4 on 31 October 2019

1. Relevantly, Order 4 of the 28 May 2019 Order is as follows:

   Living Arrangements

   (a)That the children shall live in Thailand.

   (b)That the children shall live with the parents for equal time on a week about arrangement in D Town for the time that both parties are in Thailand, save for Order 7 hereof with changeover to be effected on Monday after school if on a school day or Monday morning at 10.00 am if not on a school day.

   (c)That the time provisions in Orders 4(b) and 6 shall continue to roll over as if no suspension shall have occurred pursuant to Order 7.

2. In summary, the father alleged that the mother contravened this aspect of the May 2019 Order at 1.00 pm on 31 October 2019 when she, without reasonable excuse, took Y and Z into her care when they were supposed to be in his care pursuant to the terms of the May 2019 Order and thereafter retained them.[8] As noted earlier, in an email he received from the mother on 1 November 2019, she told him: that she would not return the children because of the allegations of child abuse; that investigations into the same had been started by welfare authorities; that she would not let the children visit or speak to him by phone while he was in “penal detention”[9].

   [8]Application for Contravention filed 10 December 2019 at page 2.

   [9]Affidavit of the father filed 10 December 2019 at [22].

3. Given the fact of the allegations of abuse which are the subject of investigation and proceedings in the D Town Court, I consider that this allegation that the mother contravened the May 2019 Order without reasonable excuse has no reasonable likelihood of success.

Count 2: Alleged contravention of Clause 4 on 28 November 2019

1. Relevantly, Order 4 of the 28 May 2019 Order is as follows:

   Living Arrangements

   (a)That the children shall live in Thailand.

   (b)That the children shall live with the parents for equal time on a week about arrangement in D Town for the time that both parties are in Thailand, save for Order 7 hereof with changeover to be effected on Monday after school if on a school day or Monday morning at 10.00 am if not on a school day.

   (c)That the time provisions in Orders 4(b) and 6 shall continue to roll over as if no suspension shall have occurred pursuant to Order 7.

2. In summary, the father alleged that, at 10.00 pm on 28 November 2019, the mother, without reasonable excuse, took X into her care when he was supposed to be in the father’s care pursuant to the terms of the 28 May 2019 Order and thereafter retained him.[10] He said that the mother told him the next morning that X was at her home and that the child was not returned to his care thereafter.

   [10]Contravention Application filed 10 December 2019 at page 3.

3. Given the fact of the allegations of abuse which are the subject of investigation and proceedings in the D Town Court, I consider that this allegation that the mother contravened the May 2019 Order without reasonable excuse has no reasonable likelihood of success. 

Count 3: Alleged contravention of Clause 19 on 14 November 2019

1. Relevantly, Order 19 of the 28 May 2019 Order is as follows:

   That the children shall attend at K School, D Town.

2. The father alleged that, on 14 November 2019, the mother without reasonable excuse frustrated X’s continued enrolment at the K School and instead enrolled him in a different school without his knowledge and consent.[11] He also alleged that, without reasonable excuse, the mother acted in such a manner as to preclude the children from being offered re-enrolment at the K School.[12]

   [11]Contravention Application filed 10 December 2019 at page 4.

   [12]Contravention Application filed 10 December 2019 at page 4.

3. The father’s evidence in support of these allegations included that:

   a)on or about 13 September 2019, X was temporarily suspended from K School; and

   b)on 12 November 2019, K School informed him that the children would not be offered re-enrolment at that school; and

   c)the mother told him on 14 November 2019 that X had been enrolled in a school other than K School; and

   d)X’s enrolment at a school other than K School occurred without his knowledge or consent.

4. Whilst the father’s evidence also included a number of assertions about the mother’s behaviours[13] and interactions with the K School[14] which, in essence, he alleged were designed to ensure that the school did not agree to the children’s continued enrolment and attendance there, there is nothing in the May 2019 Order which requires either parent to act in a particular way toward the school or which regulates the manner in which either of them is to attend to matters such as the children being assessed in order to address matters or meet preconditions to enrolment imposed by the school.

   [13]For example: allegedly acting to prevent him having X participate in a dyslexia assessment; allegedly preventing X from obtaining an educational assessment that the school required before it would allow him to return.

   [14]For example: threatening legal action against the school; spreading rumours that he was having an affair with X’s married teacher; alleging that X had been bullied and singled out by his teacher

5. Given X’s suspension and the school’s subsequent decision to refuse his re-enrolment, I consider that this allegation that the mother contravened the May 2019 Order, without reasonable excuse, has no reasonable likelihood of success.

Count 4: Alleged contravention of Clause 2 on 2 October 2019

1. Relevantly, Order 2 of the 28 May 2019 Order is as follows:

   That except as otherwise provided in these Orders, Ms Hertwig (the Mother) and Mr Hertwig (the Father) shall have equal shared parental responsibility with respect to decisions about major long-term issues in relation to:

   (a)X, born … 2006 (X);

   (b)Y, born 13 October 2008 (Y); and

   (c)Z, born 25 October 2011 (Z);

   referred to collectively in these Orders as the children. For the avoidance of doubt, major long-term issues are issues about the care, welfare and development of the children which are of a long-term nature and include, but are not limited to:

   (a)the children’s education, both current and future;

   (b)the children’s religious and cultural upbringing;

   (c)the children’s health;

   (d)the children’s names; and

   (e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

1. The father alleged that, on 2 October 2019, the mother blocked his efforts to have X attend counselling and that, by doing so, she contravened Order 2 of the May 2019 Orders (which provides that the parents have equal shared parental responsibility in respect of the children’s health) without reasonable excuse.[15]

   [15]Contravention Application filed 10 December 2019 at page 4.

2. The gravamen of the father’s complaint, as I understood it, was that the mother opposed his proposal that X attend on a child counsellor or psychiatrist; actively opposed the steps he had taken to engage “L Counsellors” (a counselling service); explicitly informed “L Counsellors” that she did not consent to X receiving services from that service and subsequently failed to provide him with a list of potential therapists despite telling him that she would do so.

3. A consequence of the order according the parents equal shared parental responsibility for major long-term issues such as the children’s health is that decisions about such issues are required to be made jointly by the parents;[16] a further consequence of such an order is that the parents are required to consult each other in relation to the decisions to be made about the issue and to make a genuine effort to come to a joint decision about the issue.[17] What it does not impose on either parent is the obligation to simply accept the resolution of the issue suggested by the other without challenge.

   [16]         Section 65DAC(2) Family Law Act 1975 (Cth).

   [17]Section 65DAC(3) Family Law Act 1975 (Cth).

4. On the evidence before me, I consider that this allegation that the mother contravened the May 2019 Order, without reasonable excuse, in the manner particularised has no reasonable likelihood of success.

Count 5: Alleged contravention of Clause 8 from 4 June 2019

1. Relevantly, Order 8 of the 28 May 2019 Order is as follows:

   That each of the Mother and the Father shall be at liberty to communicate via telephone/Skype/other electronic means with the children at all such times which are suitable to the children’s routines and the parent with whom the children are then spending time shall facilitate that communication and afford the children privacy during that communication.

2. The father alleged that, between 4 June 2019 and the filing of his Contravention Application, the mother, without reasonable excuse, failed to facilitate communication from him to the children as provided for in the 28 May 2019 Order.[18] His evidence included that he believed that, since the May 2019 Order was made, the mother had only facilitated him having a single call with the children. He said she had refused to provide him with X’s mobile telephone number.[19] Insofar as the last assertion is concerned, I consider that there is nothing specific in Order 8 to compel the mother to provide the father with such number.

   [18]Contravention Application filed 10 December 2019 at page 5.

   [19]Affidavit of the father filed 10 December 2019 at [42].

3. The father said that, before the May 2019 Order was made, when he called the children whilst they were in the mother’s care, the calls were answered.[20] He alleged, though, that, since 3 June 2019, the mother has blocked or diverted his calls to her mobile, has failed to respond to his text messages, instant messages or emails and that, even on special occasions such as birthdays, he has been unable to speak with the children. He also said that he has not spoken with the children since the mother retained them in her care on 28 and 31 October 2019 respectively.[21]

   [20]Affidavit of the father filed 10 December 2019 at [43].

   [21]Affidavit of the father filed 10 December 2019 at [41].

4. I consider that the terms of Clause 8 of the May 2019 Order impose on each parent the obligation to facilitate the telephone/Skype or other electronic communication between the other parent and the children provided that such communication occur during a time that is suitable to the children’s routines. I am not persuaded that the obligation to facilitate communication is “at large” or that the order in its terms imposes on either parent the obligation to facilitate the children communicating with the other parent at times that are not suitable to the children’s routines. Unlike the terms of some orders, there is no prescriptive requirement for either parent to facilitate communication at a particular time, or to return a call or communication if missed or to ensure that communication occurs on specified occasions. Rather, the children’s routines are accorded paramountcy; it is only when a communication occurs at a time which is suitable to the children’s routines that there is imposed on the parent with whom the children are then spending time the obligation to facilitate the communication and afford the children privacy during it.

5. Given these conclusions and on the evidence before me, I consider that this allegation that the mother contravened the May 2019 Order, without reasonable excuse, in the manner particularised has no reasonable likelihood of success.

Count 6: Alleged contravention of Clause 14 on 5 June 2019

1. Relevantly, Order 14 of the 28 May 2019 Order is as follows:

   That during the time the children with either the Mother or the Father, each parent respectively shall:

   (a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;

   (b)Speak of the other parent respectfully;

   (c)Not denigrate or insult the other parent, the other parent’s partner or the other parent’s family in the presence or hearing of the children and shall use their best endeavours to ensure that others do not do so;

   (d)Not physically discipline the children;

   (e)Ensure the children have independent sleeping arrangements;

   (f)Shall not leave a child unattended before the age of 12; and

   (g)Neither parent will record the telephone/skype/FaceTime conversations between the parties and/or the children.

2. Whilst the father alleged that, between 4 June and the time of filing of his Contravention Application, the mother, without reasonable excuse, denigrated him in a manner designed to interfere with the quality of the relationship between the children and himself and to effect the operation of the May 2019 Orders,[22] it seems to me that the allegation really is that, during the nominated period, the mother, without reasonable excuse, denigrated him in the children’s presence or hearing and/or failed to speak of him respectfully and/or failed to respect his privacy.

   [22]Contravention Application filed 10 December 2019 at page 6.

3. The father’s evidence in support of this alleged contravention of the May 2019 Order[23] may be summarised as follows:

   [23]Affidavit of the father filed 10 December 2019 at [45].

   a)on 3 June 2019: after he raised his voice to direct Z to pick up a rubbish bin he had knocked over, Z responded with words to the effect: “you are not allowed to yell at us, the court said so, you will go to jail” and, when asked, said he had been told this by the mother; and

   b)on 3 June 2019 or 18 June 2019: during a play-fight, Y said words to the effect “that’s child abuse, you can’t do that, you will be locked up” and whispered to him “you’re not our legal guardian”; and

   c)on 6 June 2019: Z said, with a strange tone of voice, words to the effect of “what’s that sticky stuff on your pants”; and

   d)on 9 June 2019: whilst the father was tickling him during a play-fight,  Z said “stop, stop, I will tell the court on you”; and

   e)on 29 July 2019: when collected by the father, Z said that he had been promised three rabbits as compensation for going to his Dad’s and X made some comments about the cats but would not speak any more about this when asked; and

   f)on 9 September 2019: when he was explaining the parental control app ‘screentime’ which had been installed on the children’s tablets to the children, X said “this is illegal because it tracks people”; and

   g)on 14 September 2019: Y and Z complained about dinner plans with X’s teacher, her husband and children in a manner allegedly matching false claims about the teacher made by the mother to the school and the father; and

   h)on 14 September 2019: the children said things like “Dad is always screaming at us”; “Dad you are drinking every night and getting drunk”; “Dad you are starving us every night” and Z commented about fleas on kittens and said he could not touch them anymore because they are “dirty and dangerous”; and

   i)on 16 September 2019: the mother used X to remove private documents from his house so she could copy them and then had him return them and alleged that he (the father) had stolen her partner’s phone and encouraged X to yell too; and

   j)later in September 2019: he was told by parents of the children’s classmates that the mother had created a rumour, spread amongst the students, that he was having an affair with X’s teacher.

4. The father also said that he had also noticed Y behaving in a “concerning manner” and said it appeared (to him) that she had been told to “protect” her brothers from him and to play a “parenting” role, as if he was a violent parent from whom they needed to be protected.

5. Noting that the father is required to discharge the onus of establishing that the mother intentionally failed to comply with the relevant Clause of the Order, on the evidence before me I consider that this allegation of contravention has no reasonable likelihood of success.

Count 7: Alleged contravention of Clause 24 from 4 June 2019

1. Relevantly, Order 24 of the 28 May 2019 Order is as follows:

   That Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

2. The father alleged that, between 4 June 2019 and the time of filing of his Contravention Application, the mother, without reasonable excuse, failed to meet her legal obligation to take reasonable steps to ensure the effective operation of the 28 May 2019 Orders.[24]

   [24]Contravention Application filed 10 December 2019 at page 7.

3. Whilst his evidence includes numerous complaints about the mother’s asserted behaviours, I consider that this allegation that the mother contravened the May 2019 Order, without reasonable excuse, in the manner particularised has no reasonable likelihood of success.

The mother’s application for order restraining the father from commencing parenting proceedings

1. I note that the mother sought an order restraining the father from commencing further parenting proceedings without first obtaining leave of the Court. It seems to me that the power to make such an order is found in s 102QB(2) of the Act. On the evidence before me, I am not persuaded that the mother has established the matters required by s 102QB(1) of the Act to be established and, consequently, I decline to make an order in the terms sought.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 May 2021.

Associate:     

Date:              10 May 2021