Humphrey & Humphrey (No 5)
[2025] FedCFamC1F 73
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Humphrey & Humphrey (No 5) [2025] FedCFamC1F 73
File number(s): BRC 4211 of 2019 Judgment of: HOWARD J Date of judgment: 27 February 2025 Catchwords: FAMILY LAW – CONTRAVENTION APPLICATION – PARENTING – where the teenage son lives with the father – where there has been strong resistance displayed by the son to spending time with the mother – reasonable attempts to comply with the orders – reasonable excuse – application for contravention dismissed – interim parenting orders made Legislation: Family Law Act1975 (Cth) Cases cited: Childers v Leslie (2008) 39 Fam LR 379
Stamp v Stamp [2014] FCCA 1269
Stevenson & Hughes (1993) FLC 92-363
Division: Division 1 First Instance Number of paragraphs: 128 Date of hearing: 26 November 2024; 10, 11, 12 December 2024; 9 January 2025; 6, 7 February 2025 Date of last submissions: 7 February 2025 Place: Brisbane Counsel for the Applicant: Mr Matthews MBE KC Solicitor for the Applicant: Evans Brandon Family Lawyers Counsel for the Respondent: Mr Christie (26 November 2024; 10, 11, 12 December 2024); Mr Jones (9 January 2025) Solicitor for the Respondent: Murdoch Lawyers (26 November 2024; 10, 11, 12 December 2024); Hofstee Lawyers (9 January 2025); Litigant in person (6, 7 February 2025) ORDERS
BRC 4211 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HUMPHREY
Applicant
AND: MR HUMPHREY
Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS ON A FINAL BASIS:
1.That the Mother’s Contravention Application filed on 9 October 2024 be dismissed.
THE COURT ORDERS ON AN INTERIM BASIS:
2.That all previous parenting orders in relation to the child Z, born 2011 (‘the child’) are suspended pending the commencement of the final parenting trial before Justice Baumann (or before another Judge of this Court).
3.That the child live with the father.
4.That the child shall spend time with the mother (and the father shall do all acts and things necessary to cause the child to spend time with the mother) as follows:
(a)Each Thursday, Friday and Saturday evening from 5.00pm to 8.00pm; and
(b)On Mother’s Day, 11 May 2025, from 10.00am until 5.00pm.
5.That changeovers for the purposes of Order 4 above shall occur at Suburb AA McDonalds, with the father to do all acts and things necessary to ensure that:
(a)The child is in attendance at the changeover location at the commencement of his time with the mother.
(b)The child is not in possession of any of the following items:
(i)Any bicycle;
(ii)Any scooter;
(iii)Any helmet;
(iv)Any electronic device
6.That the father shall ensure that the parties’ daughter X does not attend the changeover location within 10 minutes before or during the scheduled changeovers.
Self-Executing Mechanism to Address a Defaulting Event
7.That in the event that any of the following events occur (“a Defaulting Event”), which shall be evidenced for the purpose of these Orders by the mother deposing to the occurrence of a defaulting event by way of affidavit filed and served on the Father via his representatives and sent by email to Associate to the Honourable Justice Howard (at …@... and also to …@...), Orders 3 to 6 (inclusive) shall be suspended and Orders 8-11 (inclusive) below shall apply:-
(a)The child does not spend time with the mother for any part of the blocks of time set out in Order 4 above; or
(b)The child fails to attend the changeover location at the due time for his time with the mother to commence as required by Order 4 above; or
(c)The child attends the changeover location with one of the items referred to in Order 5(b) above; or
(d)The parties’ daughter attends the changeover location within 10 minutes before or during a scheduled changeover.
Recovery Order and other Orders following a Default Event
8.That pursuant to s 67U and s 67Q of the Family Law Act 1975 (Cth), a Recovery Order issues addressed to the Marshal, all officers of the Australian Federal Police and all officers of the State and Territory police forces and:
(a)Such persons are authorised and directed to find and recover the child Z, born 2011, and for that purpose, with such assistance as they require:
(i)To stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found;
(ii)To enter and search the premises or places situated at and known as K Street, Suburb E and L Street, Suburb M (save for any business records and client information relating to the father’s business);
(b)That the child is to be delivered to the mother, MS HUMPHREY born 1973, with whom the child shall live until further order of the Court;
(c)MR HUMPHREY born 1973, is prohibited from removing or taking possession of the child for the duration of the Recovery Order;
(d)If MR HUMPHREY born 1973, removes or takes possession of the child prior to the making of any further relevant Court order (except for the express purpose of immediately returning the child to the mother) he may be arrested without a warrant; and
(e)The Recovery Order remains in force from the date of the Recovery Order issuing until further relevant order of the Court.
9.That all Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order.
10.That the Recovery Order herein is to lay in the Registry and will be considered if the mother (via her legal representatives) approaches the Court by email to the Associate to the Honourable Justice Howard, copying in the other party, deposing, by way of affidavit, to the failure of the father to comply with the Orders contained herein.
11.That in the event that a defaulting event occurs, evidenced as required by Order 7 of these Orders, then the child shall live with the mother and spend no time with the father until further relevant order of the Court.
12.That the father has leave to explain the seriousness of the situation associated with the making of these Orders and the force and effect of the Orders to the child and to the parties’ daughter X.
13.That the mother’s solicitors (Evans Brandon Family Lawyers) send a copy of these Orders and these Reasons for Judgment to Murdoch Lawyers and to Mr Christie of Counsel.
THE COURT NOTES:
A.The parenting orders contained herein are made pursuant to section 70NBC of the Family Law Act 1975 (Cth).
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
BACKGROUND
On 9 October 2024 the applicant mother, Ms Humphrey (“the mother”), filed an Application for Contravention against the respondent father, Mr Humphrey (“the father”). There are 10 Counts of contravention alleged.
There is a long history of family law litigation between these parents. After a parenting trial Justice Baumann delivered judgment on 31 August 2022. The 31 August 2022 Orders are the subject of Counts 4, 6, 7, 8, 9 and 10 in the mother’s contravention application.
The mother initially brought an Application for Contravention before Justice Jarrett. On 6 June 2024 His Honour made Orders reflecting the fact that the father had admitted contravening orders without a reasonable excuse. Certain other interim parenting orders were made on that date. The 6 June 2024 Orders are the subject of Count 5 in the mother’s current contravention application.
Justice Baumann made further interim parenting orders on 12 September 2024 and those Orders are the subject of Counts 1, 2 and 3 of the mother’s contravention application.
In respect of this particular contravention application (filed 9 October 2024) – the only child involved is Z born 2011.
The parties have another child, X born 2007. X was (along with her brother) the subject of the 31 August 2022 Orders made by Justice Baumann. X remained the subject of parenting orders (along with Z) (with the consent of the parties) in the Orders of Justice Jarrett made on 6 June 2024.
By Order 5 of the Orders made by Justice Baumann on 12 September 2024 – all previous parenting orders relating to X were discharged – at least insofar as those parenting orders prescribed time for X to spend with the mother.
The 10 Counts of alleged contravention are as follows:
(1)Count 1: In contravention of paragraph 1 of the Orders of 12 September 2024, and without reasonable excuse, the Father prevented the parties' son from spending time with the Mother between 12.00pm on Friday 13 September 2024 and 4.00pm on 13 September 2024 by failing to attend the changeover location at the time at which Z was due to commence spending time with the Mother. Paragraph 1 of the interim orders of the Honourable Justice Baumann made 12 September 2024.
(2)Count 2: In contravention of paragraph 1 of the Orders of 12 September 2024, and without reasonable excuse, the Father has made no reasonable attempts to cause the parties' son to spend time with the Mother between Saturday 14 September 2024 and 6.00pm on Sunday 15 September 2024 by not positively encouraging Z to spend time with the Mother and facilitating Z not spending time with the Mother, when Z was due to spend time with the Mother. Paragraph 1 of the interim orders of the Honourable Justice Baumann made 12 September 2024.
(3)Count 3: In contravention of paragraph 1 of the Orders of 12 September 2024, and without reasonable excuse, the Father has made no reasonable attempts to cause the parties' son to spend time with the Mother between Monday 16 September 2024 and Friday 27 September 2024 by not positively encouraging Z to spend time with the Mother and facilitating Z not spending time with the Mother when Z was due to spend time with the Mother. Paragraph 1 of the interim orders of the Honourable Justice Baumann made 12 September 2024.
(4)Count 4: In contravention of paragraph 4(a) of the Orders of 31 August 2022, and without reasonable excuse, the Father prevented the parties' son from spending time with the Mother between 24 June 2024 and 12.00pm on Wednesday 3 July 2024 by failing to attend the changeover location during the school holiday period and retaining the parties' son Z in his care when Z was due to spend time with the Mother. Paragraph 4(a) of the final orders of the Honourable Justice Baumann made 31 August 2022.
(5)Count 5: In contravention of paragraph 1 (a) of the Orders of 6 June 2024, and without reasonable excuse, the Father prevented the parties' son from spending time with the Mother between 12.00pm on Wednesday 3 July 2024 and 16 July 2024 by failing to attend the changeover location during the school holiday period and retaining the parties' son Z in his care when Z was due to spend time with the Mother. Order alleged to have been contravened Paragraph 1(a) of the orders of the Honourable Justice Jarrett made 6 June 2024.
(6)Count 6: In contravention of paragraph 3(a) of the Orders of 31 August 2022, and without reasonable excuse, the Father has made no reasonable attempts to cause the parties' son to spend time with the Mother between Thursday 18 July 2024 and Tuesday 23 July 2024 by not positively encouraging Z to spend time with the Mother and facilitating Z not spending time with the Mother, when Z was due to spend time with the Mother. Order alleged to have been contravened Paragraph 3(a) of the final orders of the Honourable Justice Baumann made 31 August 2022.
(7)Count 7: In contravention of paragraph 3(a) of the Orders of 31 August 2022, and without reasonable excuse, the Father has made no reasonable attempts to cause the parties' son to spend time with the Mother between Saturday 17 August 2024 and Sunday 18 August 2024 by not positively encouraging Z to spend time with the Mother and facilitating Z not spending time with the Mother, when Z was due to spend time with the Mother. Order alleged to have been contravened Paragraph 3(a) of the final orders of the Honourable Justice Baumann made 31 August 2022.
(8)Count 8: In contravention of paragraph 3(b) of the Orders of 31 August 2022 and without reasonable excuse, the Father prevented the parties' son from spending time with the Mother between the conclusion of school and 9.00pm on 22 August 2024 by failing to attend the changeover location and retaining the parties' son Z in his care when Z was due to spend time with the Mother. Paragraph 3(b) of the final orders of the Honourable Justice Baumann made 31 August 2022.
(9)Count 9: In contravention of paragraph 3(a) of the Orders of 31 August 2022, and without reasonable excuse, the Father has made no reasonable attempts to cause the parties' son to spend time with the Mother between 5.00pm and 6.45pm on Sunday 1 September 2024 by failing to attend the changeover location with Z and retaining Z in his care, when Z was due to spend time with the Mother. Paragraph 3(a) of the final orders of the Honourable Justice Baumann made 31 August 2022.
(10)Count 10: In contravention of paragraph 3(b) of the Orders of 31 August 2022, and without reasonable excuse, the Father has made no reasonable attempts to cause the parties' son to spend time with the Mother between the conclusion of school and 7.00pm on 5 September 2024 by failing to attend the changeover location with Z and retaining Z in his care, when Z was due to spend time with the Mother. Paragraph 3(b) of the final orders of the Honourable Justice Baumann made 31 August 2022.
On 10 December 2024 the father was required to enter a plea in respect of the 10 Counts of contravention alleged.
In respect of each of the 10 Counts of contravention alleged – the father denied that he had contravened the orders. Having denied that the orders had been contravened the father reserved the right, should it become necessary, to lead evidence of a reasonable excuse.
Section 70NAC(1) of the Family Law Act1975 (Cth) (“the Act”) contains the meaning of the term “contravened a child-related order”. Section 70NAC(1)(a) relevantly provides:
“70NAC Meaning of contravene a child‑related order
(1) A person contravenes a child‑related order only if:
(a)the person is a person (other than a child) to whom the order applies and:
(i) the person intentionally fails to comply with the order; or
(ii)the person makes no reasonable attempt to comply with the order…”
Section 70NAC also contains subsection (2). Section 70NAC(2) states, inter alia:
“without limiting subsection (1), the following table sets out circumstances in which a person contravenes a child related order.”
There is then included in the legislation a table. Item 2 contained in the table is applicable to the case at hand. In the present case the orders in question provide for:
“with whom the child is to spend time”
It is said that a person contravenes such an order if the person intentionally:
“hinders or prevents another person from spending time with the child in accordance with the order.”
The table in section 70NAC(2) is unhelpful and is apt to mislead. Intentionally hindering or preventing another person from spending time with a child is not the only way that a person can be said to contravene an order. Section 70NAC(1)(a)(ii) also includes a situation where a person makes no reasonable attempt to comply with an order.
The mother’s primary affidavit in respect of the contravention application was filed on 9 October 2024. The mother was cross-examined for more than a day by Counsel for the father (at that stage - Mr Christie).
Mr QQ (the mother’s partner) was cross-examined. The mother’s brothers Mr RR and Mr OO were also cross-examined - albeit briefly. Mr SS was not required for cross-examination. I have considered all of the mother’s evidence.
At the conclusion of the mother’s case Mr Christie, on behalf of the father, accepted that in respect of each Count of contravention a prima facie case had been made out – or he at least accepted that there was a case to answer. This admission did not, however, relate to Count 6.[1]
[1] Note transcript of 11 December 2024 at pages 138 and 139.
The terms of the admissions were such that they did not amount to an acceptance that contraventions had taken place. Rather, the admissions were couched as an acceptance by the father that the mother had adduced sufficient evidence such that the father could (not should) be found to have contravened the orders.
The father filed an affidavit on 12 December 2024. He relied on that affidavit for the purpose of the proceedings. He also filed an affidavit on 9 January 2025. Subject to certain objections that were upheld – the father relies upon that January 2025 affidavit also. In addition to the mother’s October 2024 affidavit - the mother also filed an affidavit on 9 January 2025. I have considered all of the relevant evidence in this case – including the evidence contained in the exhibits tendered in the proceedings and I have considered the affidavits of both parties and their witnesses along with those annexures[2] which are relevant. I will only make specific references to the evidence to the extent necessary to dispose of the matters in issue in these contravention proceedings.
[2] Notwithstanding the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – I have, in this case, accepted the annexures to the parties’ affidavits as evidence.
In section 70NAD of the Act the meaning of the expression “reasonable excuse for contravening a child-related order” is included. That section lists certain specified examples of reasonable excuse. None of the circumstances contained in sections 70NAD(1), (2) or (3) are applicable in the present case. That leaves section 70NAD(4) which merely states:
“This section does not limit the circumstances in which a person may have a reasonable excuse for contravening a child‑related order.”
Section 70NADA of the Act makes it clear that a person who claims to have a reasonable excuse for contravening a child-related order has the legal burden of proving the excuse.
The standard of proof to be applied in determining matters in contravention proceedings is proof on the balance of probabilities (section 70NAE of the Act).
By reason of section 70NBA, the Court has the power to vary a parenting order as a part of contravention application proceedings. There was such an order made on 12 December 2024. That order required that each week, on Thursday, Friday and Saturday evening between 5.00pm and 8.00pm – the child Z shall spend time with the mother. As at 7 February 2025 – those Orders that I made on 12 December 2024 had been complied with by the father.
The facts and circumstances of each case are different. In the context of this complex parenting litigation there are many factors to take into account when the court is considering whether or not the father has made a reasonable attempt to comply with the orders. Z’s age (he was 13 years old at the time of the first alleged contravention); Z’s expressed views and wishes; the views and wishes of Z’s older sister, X. There are also the events of 30 July 2024 – where an attempt was made at the Court in Brisbane for Z to transition into the care of the mother with the assistance of Mr PP. On occasion, my conclusions concerning these contravention allegations will be based on inferences drawn from the evidence.
It is helpful to make reference to the decision of the Full Court in Stevenson & Hughes (1993) FLC 92-363 at [25]. At paragraph 25 in Stevenson & Hughes, Nygh J stated, inter alia:
“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.”
In Stevenson & Hughes the relevant child was 5 years old.
In Stamp v Stamp [2014] FCCA 1269 at [22] Judge Riethmuller,[3] provided the logical steps to be followed in a contravention application. At that paragraph His Honour stated:
“If satisfied that the (father) contravened an order, either intentionally or by making no reasonable attempt to comply, the court must then consider whether the (father) has a reasonable excuse for the contravention.”
[3] As His Honour then was.
It is convenient for the Court to deal with Count 4 and Count 5 at the outset.
COUNT 4 AND COUNT 5
In Count 4 it is alleged that the father contravened the order of Justice Baumann dated 31 August 2022 – in particular paragraph 4(a) of those Orders. It is said that the father did this without a reasonable excuse. The dates of the alleged contravention are between 24 June 2024 and 12.00 noon on Wednesday 3 July 2024.
As at 24 June 2024 – paragraph 4(a) of the Orders of 31 August 2022 related to “the children”. This included both Z and X. The contravention, as alleged, relates only to Z and relates only to the first half of the June/July school holidays 2024. The combination of paragraph 4(a) of the Order of 31 August 2022 and paragraph 1(a) of the Order of 6 June 2024 meant that both children were to spend time with the mother for the entirety of the June/July school holidays 2024. That is why it is convenient to deal with Counts 4 and 5 together. Count 5 alleges that the father contravened paragraph 1(a) of the Order of 6 June 2024. This relates to the period of time between 12.00 noon on 3 July 2024 and 16 July 2024 (the second half of the June/July school holidays 2024).
The lead up to this school holiday period is relevant. The children had not stayed overnight at their mother’s residence for some time. There was a flurry of activity in the lead up to 24 June 2024. I accept the father’s evidence that between 6 June 2024 and 20 June 2024 he made attempts to ensure that X and Z spent time with their mother on the nights that they were meant to be in her care. I accept that X and Z refused to cooperate – apart from a very short period of time on the evening of 6 June 2024. The father says (and I accept) that X and Z took matters into their own hands and stayed with friends. One thing is clear, neither X nor Z wanted to spend that time with their mother.
Furthermore, in the lead up to 24 June 2024 one or both of the children spoke to a counsellor at school. The children’s school (LL School) contacted the Department of Child Safety and in this regard, I note paragraph 603 of the father’s affidavit filed 12 December 2024. Discussions then took place between the children and a lady named Ms TT from the Department. This occurred on 18 June 2024. The father had a discussion with Ms TT from the Department on 19 June 2024.
I have had regard to the evidence of both the mother and the father in relation to these contravention allegations and the events surrounding the dates as pleaded in Count 4 and Count 5. One of the difficulties for the mother in proving these contraventions is Exhibit 15. The first two pages of Exhibit 15 contain an email from the child X to the mother dated 16 April 2024. The email is instructive because X had just turned 17 years of age. X made it clear in that email that she had no interest in seeing or speaking to the mother. I will include the contents of that email here in these reasons. The email states (emphasis as per original):
I am sick and tired of your fake emails.
Dad made me speak to you on the 4th of April […].
Dad told me on the 5th of April that you wanted to speak to me and that you called him multiple times.
I REFUSED TO SPEAK TO YOU as I did not want you to ruin my [day] again like you did [in the past].
I DON'T CARE WHETHER YOU ARE MY MOTHER YOU VOIDED THE RIGHT TO HAVE A RELATIONSHIP WITH ME AND [Z] WHEN YOU (and some of your friends and members of your family) BEGAN MISTREATING, ABUSING AND CONTROLLING ME AND [Z].
Stop trying to call dad. Calling him multiple times is unreasonable, uncalled for and I CONSIDER IT TO BE HARASSMENT.
I DO NOT WANT TO SEE OR SPEAK TO YOU. STOP ASKING TO SEE OR SPEAK TO ME OR ACTING LIKE YOU ARE GOING TO SEE [Z] AND I SOON WHEN YOU ARE NOT.
I DO NOT WANT TO AND I SEE NO BENEFIT FOR ME HAVING A RELATIONSHIP WITH YOU. THEREFORE I AM NOT GOING TO SEE OR SPEAK TO YOU ANYMORE. [Z] has also told me that he does not want to see or speak to you.
Also, I am not being forced by anyone to reject you or your family like that stupid little photo in your email says.
The only reason I spoke to you on the 4th of April was because dad asked me to, otherwise that would not have happened. The only reason you have been able to speak to [Z] and I at all is because dad has had to spend insane amounts of time trying to convince [Z] and I to speak to you. The only reason those phone calls happen is because of dad. And all you do on those phone calls is criticise, defame and tell lies about Dad, [Z] and me!
I DO NOT WANT TO HAVE ANY SORT OF RELATIONSHIP WITH SOMEONE (YOU) WHO ABUSES, CONTROLS AND MISTREATS ME OR MY BROTHER. The fact that you are [Z’s] and my mother does entitle you to be able to mistreat us in this way and get away with it. We will not be forced to put up with your bad behaviour!
Yes, I am now 17 and that is all the more reason that you as an adult should respect the fact that I (not dad or anyone else!) have made the decision to not have a relationship with you anymore.
I DO NOT WANT TO RECEIVE ANOTHER EMAIL FROM YOU ON MY SCHOOL EMAIL (this email) OR MY PERSONAL EMAIL […] DO NOT EMAIL ME AGAIN (to any of my emails)!
I DO NOT WANT YOU TO COME TO ANY OF MY SCHOOL EVENTS OR FUTURE EVENTS OUTSIDE OF SCHOOL. DO NOT COME TO ANY OF MY FUTURE EVENTS (in or out of school)!
I DO NOT WANT YOU TO CONTACT ANY OF MY FRIENDS, MY FRIENDS FAMILY, OR MY FAMILY ON DAD'S SIDE! DO NOT ATTEMPT TO CONTACT ANY OF MY FRIENDS, THEIR FAMILY OR MY FAMILY ON DAD'S SIDE!
I DO NOT WANT YOU TO POST ANY NEW OR OLD PHOTOGRAPHS, VIDEOS OR CLIPS OF ME OR [Z] ONLINE OR ON SOCIAL MEDIA OR SEND THESE TO OTHER PEOPLE. DO NOT POST ONLINE OR ON SOCIAL MEDIA, OR SEND ANY PHOTOS, VIDEOS OR CLIPS WITH ME OR [Z] IN IT! (as you know it is illegal to post/distribute photographs of other people without their consent)
[I ALSO DO NOT WANT YOU OR ANY OF YOUR FAMILY MEMBERS OR ANYONE ELSE ON YOUR BEHALF TO FOLLOW, STALK, PHOTOGRAPH OR RECORD ME AGAIN IN PUBLIC! DO NOT FOLLOW, STALK, PHOTOGRAPH OR RECORD ME AGAIN IN PUBLIC OR ASK/ALLOW ANYONE ELSE TO DO SO ON YOUR BEHALF! If this continues I will be considering these actions stalking and harassment and I will be reporting these to the police.]
I am sick and tired of being abused, controlled and mistreated by you and other people on your behalf.
For the last time I DO NOT WANT A RELATIONSHIP WITH YOU, STOP TRYING TO CONTACT ME AND STOP SENDING PEOPLE TO FOLLOW, PHOTOGRAPH AND RECORD ME. THIS IS CONTROL, STALKING AND HARASSMENT AND IT NEEDS TO STOP NOW!
As I am now 17 you and your associates can no longer try to manipulate, control or mistreat me. If this behaviour continues, I will be going to the police!
DO NOT RETURN THIS EMAIL OR EMAIL ME AGAIN!
YOU WILL BE BLOCKED AND WILL NOT RECEIVE ANY RESPONSE FROM ME!
[X]
I note X’s comments that the father:
“…has had to spend insane amounts of time trying to convince [Z] and I to speak with you.”
It is impossible in a hearing of this kind to ascertain how it is that a 17 year old became so unhappy with her mother that she would write such a vitriolic email. In the context of a contravention hearing – it is not the role of the Judge to finally determine how it is that the children have developed such strident views against the mother. That requires a parenting trial with full cross-examination and extensive expert evidence.
Counts 4 and 5 of the application for contravention relate to the child Z. But the matter cannot be decided in a vacuum. The actual orders alleged to have been contravened did in fact require that both children spend time with the mother. It is apparent that X exerts influence over Z. X was leading the charge. There was no way that X was going to spend the ordered time with the mother in the June/July holidays 2024 and she undoubtedly had persuaded Z to her point of view.
CONCLUSION IN RELATION TO COUNTS 4 AND 5
Having regard to the totality of the evidence relating to that June/July school holiday period I have come to the conclusion that the father did make a reasonable attempt to comply with the order – in particular insofar as it related to Z. I accept that the children, at that stage, were working as a team and it would have been extremely difficult for the father to achieve a changeover - even of Z alone.
I am not satisfied that the applicant mother has proved on the balance of probabilities that the father “intentionally” failed to comply with the Order. Nor am I satisfied that, on the balance of probabilities, the father made no reasonable attempt to comply with the order. In my view the father did make a reasonable attempt to comply with the order. I note the father’s evidence at paragraphs 668 and 669 of his December affidavit. These paragraphs state:
“668. After speaking to [Ms TT] I called [X] again and told her what [Ms TT] had said to me.
669. [X] said to me that she and [Z] didn't want to tell me where they were, but she agreed to meet with me later that evening as long as I would assure her that I would let her and [Z] stay at home with me until a proposal was received that they could stay somewhere neutral for the holidays, like at her grandmother's home […] which was what she discussed with [Ms TT]. [X] said to me "Ok, but if you or our mother try to force us into another changeover we will just leave and stay with our friends again."”
The children (with X as a spokesman) made their position clear. They were not going to a changeover voluntarily. The children were working together. There does not appear to have been any way – from a practical perspective – that the father could have extricated Z from that joint position with X. In relation to Counts 4 and 5 – the father was in an impossible position. School counsellors were involved; the Department of Child Safety was involved and, most importantly, X was involved.
The contravention has not been proved.
Even if I had been satisfied that the father had contravened these orders, which I am not, the father has a reasonable excuse. The reasonable excuse is apparent from the reasons already provided. In particular I would highlight the involvement of X and her influence on Z.
Count 4 and Count 5 are both dismissed.
COUNT 6
In Count 6 it is alleged that the father contravened paragraph 3(a) of Justice Baumann’s Orders of 31 August 2022 without reasonable excuse. This relates to a 5 night stay that Z was ordered to spend with the mother between Thursday 18 July and Tuesday 23 July 2024. As at the date of the alleged contravention (Count 6) the operative orders included both Z and X. It is apparent from annexure E (pages 87 and 88 of the mother’s October 2024 affidavit) that the mother was requesting (via her lawyers) that the father drive both the children directly to the mother’s house on 18 July 2024 in order to effect a changeover. It seems to be a text message sent by the mother’s lawyers directly to the father. The lack of insight displayed by the mother on this occasion is noteworthy. The mother had received X’s email in April 2024 (Exhibit 15). The mother was well aware of X’s and Z’s conduct in June and July 2024 – noting that the school holiday time did not go ahead. How did the mother consider that it would be possible for the father to get the child X into a motor vehicle and drive her to the mother’s residence on 18 July 2024? The child was 17 years old. The child’s views were well known. The child’s influence over Z is apparent to the Court. The siblings have a close relationship. The siblings have a shared view in relation to the mother and the mother’s family. How the siblings came to hold these views is not a question that I am in a position to answer.
I have no doubt that on 18 July 2024 X would have been expressing her strong negative views at the prospect of spending time with the mother. Further, I have no doubt, that Z will have been present during conversations between X and the father – where X expressed those negative views. This will have reinforced in Z’s mind the correctness of his own decision not to go and spend time with the mother. I have no doubt that Z would have been strongly resisting going to spend time with the mother alone - without X. The children had it in their heads that they were not safe at the mother’s residence. There are a number of photographs that appear to show scratches on the children. These photographs are annexed to the father’s December 2024 affidavit. I note annexure MRH-7. Scratch marks can be seen on X and Z in photographs taken in mid-2023.
At MRH-6 of the father’s affidavit there is also contained progress notes for Z from Dr UU. This is dated some years before. The date is mid-2020. The doctor listed injuries during a long consult that took place. The father had taken the child to the doctor. The doctor wrote:
“long consult
Reason for contact:
Skin – Abrasion
pt presents with father
pt states previously ‘thrown against wall, scratched, called names’ by mother
pt allegedly thrown against wall by mother yesterday […]
Injuries sustained:
2 x 1cm bruise […]
2 x 3cm abrasion […]
5mm abrasion […]
5mm abrasion […]
discussed injuries with father
advised regarding need for mandatory reporting
case discussed with regional intake child and family services – report completed
intake officer recommended patient present to police child protection unit for assessment – father advised via phone call”
The doctor noted that he was required to report the injuries to the Department of Child Safety. I do not have the precise details of what occurred in mid-2020 or in mid-2023. There was no detailed cross-examination in relation to those incidents. But what I do know is that in 2024 both children were complaining that they were at risk of harm in the mother’s care.
There was simply no way X was going to agree to attend at a changeover on 18 July 2024. Z, no doubt encouraged by his older sister, was also refusing to comply. The father had a mutiny on his hands. I am quite certain that if the father had delivered X and Z (as required by the orders in place at the time) to the mother on 18 July 2024 that it is highly likely that X would have taken Z and both of them would have left the mother’s residence. I note paragraph 721 of the father’s December 2024 affidavit. The children made their position very clear to the father. I accept the father’s evidence also, at paragraph 722 where he stated that X said the following words to him:
“We are not going to come near you if you are going to try and take us to our mother!”
At 7.22pm that evening (18 July 2024) X and Z sent a text to the father stating:
“we are safe”
The further allegation in Count 6 is that the father made no reasonable attempt to cause the child Z to spend time with the mother from 18 July to 23 July 2024 by not positively encouraging Z and facilitating Z not to spend time with the mother.[4] The view that I have formed is that the father did make a reasonable attempt to comply with the order. The very great difficulty for the father is that Z was with X. X was 17 years old. X was not having a bar of it. Z was well and truly under the influence of X. Z was actually in the care of X. X had no intention of spending that time with the mother. Z followed his sister’s lead. The contravention has not been proved.
[4] This is a summary of the contravention alleged in Count 6.
Even if I had been satisfied that the father had contravened the order, which I am not, the father has a reasonable excuse. The reasonable excuse is apparent from the reasons already provided. Once again I highlight the involvement of X and X’s influence over her younger brother.
Count 6 is dismissed.
COUNT 7
Before considering Count 7 (relating to 17 and 18 August 2024) it is important to consider the events of 30 July 2024. On that day there was an attempted changeover involving Z at the Commonwealth Courts Building in Brisbane. Mr PP attempted to effect a changeover of Z from the father’s care to the mother’s care. Subsequently, on 22 August 2024, Mr PP interviewed the children. Mr PP prepared a Specific Issues Report dated 4 September 2024 (Exhibit 12). Mr PP gave oral testimony at the contravention hearing on Friday 7 February 2025. He had been subpoenaed by the father.
At the Court on 30 July 2024 Mr PP was not able to convince Z to leave the Court with the mother. However, the boy did leave the Court with the mother’s brother - Z’s Uncle. Z expressed very firm views to Mr PP. Mr PP attempted for three hours to convince Z to leave the Court with the mother. Z would not agree.
Count 7 deals with events that occurred only a matter of weeks after the attempted changeover on 30 July 2024.
Between Thursday 15 August 2024 and Tuesday 20 August 2024 Z did in fact spend time with the mother. I note the father’s December affidavit at paragraph 748. In the middle of that timeframe (on Saturday 17 August 2024 and Sunday 18 August 2024) Z left the mother’s residence on his bike. The father located the child at about 10.15pm on the evening of 17 August 2024. The child did not want to go back to the mother’s residence. The father was able to get the child to agree to a changeover at 12.00 noon on 18 August 2024.
Count 7 relates to a 26 hour period of time between 9.52am on Saturday 17 August 2024 and 12.15pm on Sunday 18 August 2024. Frankly, having regard to the recent history involving this family (including the evidence of Mr PP as to Z’s state of mind as at 30 July 2024) I consider that the father had done well to get the child to spend time with the mother between Thursday 15 August 2024 and Tuesday 20 August 2024 (apart from that 26 hour period to which I have referred).
The father had obviously made the child available to spend time with the mother. The child was at the mother’s residence. The father must have encouraged the child sufficiently to get him to the mother’s residence on 15 August 2024. I agree that it is not helpful that the child did have a mobile phone with him. I infer (at the least) from the father’s evidence that Z would not have agreed to go to the mother’s on 15 August 2024 without a mobile telephone. Order 6 of the Orders of Justice Baumann dated 31 August 2022 does permit telephone communication at all reasonable times – when initiated by the child. My attention has not been drawn to any other order which would countermand that particular order.
The child took off on his bike from the mother’s residence on 17 August 2024. I am not sure what the father could have done to prevent that situation from arising.
The father found the child at 10.15pm on 17 August 2024. I agree with the father’s view that it was too late at night to effect another changeover. The child would have been agitated (to say the least). The child was expressing strong negative views about returning to the mother’s residence. Notwithstanding those views as expressed by the child the father did not manage to effect a changeover into the mother’s care at 12.15pm on 18 August 2024. I consider that the father did make a reasonable attempt to comply with the order on 17 and 18 August 2024. Getting Z to spend any time with the mother was a very difficult task. This much is apparent from the evidence of Mr PP.
The father made a reasonable attempt to comply with the order. The contravention has not been proved.
Even if I had been satisfied that the father had contravened the order (as alleged), which I am not, the father has a reasonable excuse. Once again – the reasonable excuse is discernible from the reasons already provided. Noting Z’s attitude towards the idea of spending time with the mother as confirmed by the evidence of Mr PP (as at 30 July 2024 and 22 August 2024) - I do not see what further steps the father could reasonably have taken in respect of the events on 17 and 18 August 2024.
Count 7 is dismissed.
COUNT 8
In Count 8 it is alleged that the father contravened paragraph 3(b) of the 31 August 2022 Orders. By that order the children (including Z) were required to spend time with the mother from after school Thursday to before school Friday (in week 2). On Thursday 22 August 2024 the father had taken the children to Brisbane for an interview with Mr PP. Exhibit 12, the Specific Issues Report, was prepared by Mr PP following his interview with the children on that day. The Specific Issues Report is dated 4 September 2024. In that report both children made their views of the mother very plain. So far as Z is concerned I specifically note paragraph 23 where Mr PP states that:
“[Z’s] views in relation to spending time with his mother were expressed by him in an adamant and forthright manner.”
Mr PP went on to state that Z’s comments indicate that Z holds:
“…strong negative feelings towards his mother…”
Z told Mr PP that he could see no benefit in spending time with his mother.
I am not certain precisely when the interviews finished. Mr PP could not be sure – but it does seem to be the case that they were likely finished by 11.30am or 12.00 noon at the latest. If the family had travelled straight back to Region VV it is the case that the father could have effected a changeover at the McDonald’s at Suburb AA by 3.00pm.
The father’s evidence is that the children were upset after the interviews. The father decided to take the children to lunch in Brisbane with the paternal grandfather. I have no doubt that the repeated questioning of these children in relation to their views concerning their mother would be upsetting for them. As I have stated more than once in these reasons for judgment, I am not in a position to reach a conclusion as to precisely how it is that these children came to be in such a state. But what I do know is that they have been exposed to the conflict between their parents for a very long period of time. This much is clear from the Court record – including by reference to the reasons for judgment delivered by Justice Baumann on 31 August 2022.
In relation to Count 8 I have come to the conclusion that the father did contravene the order. He did not make a reasonable attempt to comply with the terms of the order.
However, given my observations concerning the day in question, and the father’s evidence (which I accept) that the children were upset and that the father decided to take the children for lunch with their grandfather following interviews with Mr PP – I have come to the conclusion that the father has a reasonable excuse for contravening the order on that day. I note that the father did manage to get Z to a changeover at 9.00pm that evening with the mother. In light of Z’s comments to Mr PP on the morning of 22 August 2024 – the view that I have formed is that the father did well to get Z to a changeover at all on that date.
Count 8 is dismissed.
COUNT 9
Count 9 relates to Sunday 1 September 2024. I accept the mother’s evidence that Z had spent time with her between Thursday 29 August 2024 and Sunday 1 September 2024 – without any issues. 1 September was Father’s day. The mother took Z to McDonald’s at Suburb AA at 9.00am so Z could spend the day with the father. Z was supposed to return to the mother’s care at 5.00pm that day. In this regard I note paragraph 5(b) of the Orders of 31 August 2022. That paragraph has to be read in conjunction with paragraph 3(a) of those orders.
The father said he was having trouble getting Z to agree to go back to a changeover. That was contained in a text message sent by the father at 4.39pm on 1 September 2024. The mother maintains that she received a text message from a friend at 5.18pm to the effect that he (the friend) had just seen the father and Z riding past (note paragraph 254 of the mother’s October 2024 affidavit).
It is possible that both of those pieces of evidence are correct. The father may have had difficulty talking Z into going back to the mother’s residence. I note paragraph 877 of the father’s affidavit. The father states as follows:
“877. [Z] became very angry and said to me “I don't care what the Orders say, if [X] doesn't have to go, then I shouldn’t have to go either. Why do I have to go back there and get hurt?" [Z] then took off on his bike and started riding away from me.”
The comments ascribed to Z by the father do ring true. At that stage X was still obligated to attend the mother’s residence (this incident occurred before the Order of 12 September 2024). X was not going to spend time with the mother – but the father was insisting that Z return to spend time with the mother.
Z’s views were well known at this time and it is not surprising that, on occasions (perhaps even on every occasion) the father has had to convince, persuade, and cajole Z to get him to a changeover with the mother. The changeover was effected 1 hour and 45 minutes late.
I have come to the conclusion that the father did make a reasonable attempt to comply with the order. In my view the order has not been contravened by the father.
Even if I had been satisfied that the father had contravened the relevant order, which I am not, the father has a reasonable excuse. The reasonable excuse is apparent from the reasons already provided. Z’s negative attitude towards spending time – especially overnight time – with the mother is well documented in the evidence.
Count 9 is dismissed.
COUNT 10
In Count 10 it is alleged that the father contravened paragraph 3(b) of the 31 August 2022 Order. It is alleged that this contravention occurred between approximately 3.00pm and 7.00pm on 5 September 2024.
I note the father’s December 2024 affidavit – in particular at paragraphs 908 and 909. These paragraphs (referencing text messages) display a small snapshot of the pathetic state of the conflict between the father and the mother. Z was unwell. The father showed up at a changeover with him approximately 4 hours late.
The father did not make a reasonable attempt to comply with the order. In my view the father contravened the order. However, given the child was unwell – the view that I have formed is that the father had a reasonable excuse for not effecting a changeover until 7.00pm on the evening of 5 September 2024.
Count 10 is dismissed.
COUNT 1
On 12 September 2024 Justice Baumann delivered reasons and made orders after an interim hearing. Count 1 relates to the Order of 12 September 2024. It is said that the father contravened paragraph 1 of those orders by preventing the child from spending time with the mother between 12.00 noon on Friday 13 September 2024 and 4.00pm on 13 September 2024.
Justice Baumann had decided that the child Z was to spend the September 2024 school holidays with the mother – from 12.00 noon on 13 September 2024 until before school on 1 October 2024. The father says that the child was distressed when informed of the Court order. The child did not want to spend that period of time with the mother. That is the evidence of the father. Having regard to the other evidence of Z’s attitude towards the mother – this comes as no surprise. Z expressed his clear views to Mr PP on 22 August 2024. That was approximately 3 weeks prior to the day on which the child was told (on 12 September 2024) that he was required by Court order to spend the September holiday period with his mother. Once again I state that I do not know the precise reasons why the child holds the views that he seems to hold. However – the independent evidence of Mr PP confirms what the father has been saying. The child made it very clear to Mr PP that he does not wish to spend time with the mother.
As to the particular allegation of contravention contained in Count 1 – it is not surprising to the Court that the father took extra time to convince the child to attend a changeover. It must be kept in mind that when the child did attend that changeover the child understood that he was to be attending for the entirety of the September school holidays with the mother. The fact the changeover was effected 4 hours late is not surprising. The good news is that it was effected at all.
In my view the father made a reasonable attempt to get the child to a changeover on time. I accept his evidence in this regard. The father has made a reasonable attempt to comply with the order.
Even if I had been satisfied that the father contravened the order, which I am not, the father has a reasonable excuse. Once again, the reasonable excuse is discernible from the reasons already provided. The overwhelming weight of the available evidence tends to corroborate the father’s evidence that Z was distressed when told about the Order of 12 September 2024.
Count 1 is dismissed.
COUNT 2
The saga involving this family continues with Count 2 of the Contravention Application filed 9 October 2024.
Justice Baumann had ordered (paragraph 1 of the Orders of 12 September 2024) that the child spend time with the mother from 13 September 2024 until 1 October 2024. The mother’s evidence is that the child had a reasonably happy evening on Friday night 13 September 2024 (after changeover had been effected at 4.00pm). I also note the mother’s evidence that the child seemed to have a happy Saturday morning on 14 September 2024. On the Saturday morning the child rode his bike (the child’s bike which is kept at the mother’s house) away from the mother’s residence and did not return. The mother contacted the father. The mother and her partner (Mr QQ) attempted to find the child. The father and X also went looking for the child. At 4.32pm the father sent a text message to the mother confirming that X had found Z and had taken Z to the father’s residence. X found Z in Suburb E. The child told the father that he was not going back to the mother’s residence. This is the type of thing the child has been saying repeatedly – to the father and to Mr PP. It has to be kept in mind that the child’s views were expressed to Mr PP both on 30 July 2024 and 22 August 2024. I do not consider that the father can be said to be at fault for the fact that the child left the mother’s residence on Saturday morning 14 September 2024. The child took off on his bike and was not located until 4.32pm that afternoon.
A good deal of time was spent during the course of the contravention hearing with allegation and counter-allegation between the parents relating to the events of 14 September 2024 and 15 September 2024. Given Z’s often stated views – I am not surprised that it took the father from 4.30pm on the afternoon of 14 September 2024 until 6.00pm on Sunday 15 September 2024 to effect a successful changeover back into the mother’s care. There was, I note, a changeover on the morning of 15 September 2024 at about 11.00am at McDonald’s Suburb AA. This is the occasion when the father took X along to the changeover. X apparently wanted to talk with the mother. Given X’s views of the mother it was not a wise decision by the father to take X to that changeover on the morning of 15 September 2024. It was very unhelpful. Changeover was effected at about 11.00am that day. But by 11.15am that day Z had run away from the mother. Z eventually arrived back at the father’s residence about 4 hours later on foot. The father says (and I accept) that the child was quite distressed, upset and hungry. Z had walked more than 8km. Z told the father that the mother had dug her fingernails into his hand to try and get the bike helmet off the child. I am not surprised that the mother was trying to get the helmet off the child. The child had earlier been hitting the mother’s vehicle with the bike helmet.
The child was eventually returned to the mother at 6.00pm on 15 September 2024.
Given all of the drama that took place involving this family (particularly involving Z) on 14 September 2024 and 15 September 2024 – as I stated previously, I am not surprised that it took the father until 6.00pm on Sunday 15 September 2024 to effect a successful changeover of Z back into the mother’s care.
I consider that the father made a reasonable attempt to comply with the order. It is apparent that he was dealing with a very difficult situation on 14 September 2024 and 15 September 2024. On both of those dates Z, of his own volition, left the mother’s residence. The father eventually got the boy to return to the mother’s residence at 6.00pm on 15 September 2024.
In my view the father did make a reasonable attempt to comply with the order.
Even if I had been satisfied that the father contravened the order, which I am not, the father has a reasonable excuse which is apparent from the reasons already provided. Apart from anything else – this 13 year old boy took off on his bike from the mother’s residence (on 14 September 2024) and walked home from his mother’s residence on 15 September 2024.
Count 2 is dismissed.
COUNT 3
This Count relates to a significant period of time between Monday 16 September 2024 and Friday 27 September 2024. It is said that the father contravened paragraph 1 of the Orders of 12 September 2024 without reasonable excuse. Z stayed the night of Sunday 15 September 2024 with the mother.
The child took off from the mother’s residence on the morning of Monday 16 September 2024. The child left the mother’s residence on a scooter.
Before examining the events of 16 September 2024 I would note paragraphs 100 and 101 of the mother’s affidavit which relates to late in the afternoon of 15 September 2024.
“100. [Z] walked alongside my car as I drove to my home.
101. As I was trying to drive my car into the garage, [Z] grabbed his scooter which was in the garage and [Z] hit the front of my car with it. [Z] said, "Fuck you!" [Z] then rode around the garage on his scooter. I reversed out and moved my car to a visitor carpark [nearby]. I walked inside the garage at 6.13pm. [Z] asked me where I put his bike. He said, "Are you going to shut the garage? Are you going to shut the garage, or do you want me to smash your car again?"”
I accept the mother’s evidence that this is the way which Z speaks to her. It is completely unacceptable for Z to speak to his mother this way.
The mother indicates that when Z awoke on 16 September 2024 he was still angry towards the mother. At 9.15am the mother sent a text to the father to say that the child had left the mother’s residence on his scooter and had taken the mother’s house keys and car keys. The father and X went looking for Z. The mother had not heard anything by 9.50pm and so she attended at the police station and reported Z as missing. At 10.00pm the mother received a text from the father saying the child had arrived at the father’s house with the scooter. The child was sunburned and exhausted. The father (in his text message to the mother at 10.00pm on 16 September 2024) alleged that the child told him that his wrists and arms had been forcefully grabbed and that the mother had dug her fingernails into the child. The police conducted a welfare check at the father’s premises on that night.
Exhibit 14 contains the records of the Queensland Police Service. The relevant police notes state, inter alia:
“Aggrieved had no visible injury and was non-descriptive about actions of Respondent other than grabbing and squeezing his wrists/forearms. Possible domestic discipline incident.”
If the mother did grab the child by the arms or wrists – there was no lasting injury.
A further changeover was attempted on Tuesday 17 September 2024 at about 11.00am (note paragraphs 133, 134 and 135 of the mother’s October 2024 affidavit). The father left the changeover scene – but before the mother could get out of her car Z rode off on his scooter. The child did not spend any other time on 17 September 2024 with the mother. The child did not spend time with the mother on 18 September 2024.
On 19 September 2024, a changeover was arranged at WW Contact Centre in Suburb XX for a supervised handover.
The child left the contact centre, hopped on his scooter and took off. The mother informed the father of this fact at 1.53pm on 19 September 2024.
On 20 September 2024 the parents made arrangements with YY Contact Centre at Suburb M in order to try to line up a date to effect changeover. On 22 September 2024 (a Sunday) a changeover was arranged at YY Contact Centre. The mother sent a text message to the father at 11.45am stating:
“[Mr Humphrey] please let [Z’s] scooter and helmet at your place and don’t bring them to handover today. I will collect them after the holidays.”
Obviously, the mother was again concerned that the child would just take off on his scooter. Notwithstanding that text message, the father sent the child to that changeover with his scooter.
The child left the contact centre on his scooter that day (22 September 2024) at about 2.20pm.
At about midnight on 22 September 2024 the father texted the mother informing her that he had found Z a couple of streets away from the father’s residence.
The mother’s evidence is that she had not seen or spent time with Z between the evening of Sunday 22 September 2024 and the date that she swore her affidavit on 27 September 2024 (that is the affidavit that was filed on 9 October 2024).
The father should not have sent the child to any of the changeovers with his scooter. This is certainly the case after the occasion on which Z first used the scooter as a getaway.
But at the heart of the matter, relating to the September school holidays in 2024, is the fact that the child was implacably opposed to spending such long periods of time in the care of the mother. The child was big enough to use his scooter to make good his getaways. Even though I have stated that the father should not have sent the child to changeovers with the scooter – I don’t believe it would have made any difference so far as the September school holidays 2024 were concerned. This is so because even when the child did not have a scooter (for instance on 15 September 2024) – he merely walked home to the father’s residence. The child was adamant that he would not be spending that holiday period with the mother. This outcome is consistent with the strident views expressed by the child (Z) to Mr PP on 22 August 2024.
I made an Order on 12 December 2024 that the child was to spend time with the mother – each Thursday, Friday and Saturday evenings from 5.00pm until 8.00pm. Between 12 December 2024 and 6 February 2025 – these orders were complied with by the father. It was put to the father that – if he could convince the child to comply with those orders then why wasn’t he able to convince the child to spend the time with the mother as required by the Orders of 31 August 2022, 6 June 2024 and 12 September 2024? The father (essentially) stated in the witness box that this is because the December 2024 Orders are for a much shorter period of time – and no overnight stay is required. Because of the fact that there are no overnight stays required by the December 2024 orders, the father maintained that it was possible to get Z to spend time with the mother.
The father has obviously sufficiently encouraged and persuaded the child to spend time with the mother in accordance with the December 2024 orders.
It is no doubt the case that it is easier to convince Z to spend time with the mother – that does not involve overnight time.
In relation to Count 3 – I have come to the conclusion that the father made a reasonable attempt to comply with the relevant orders. There were many attempts to effect a changeover. It is true that the father did send the child with his scooter but – noting the child’s previous history of walking home – I am convinced that the child would have made good a getaway one way or another. The child was a wilful 13 year old boy who was determined not to spend that holiday period with his mother. The contravention has not been proved.
Even if I had been satisfied that the father contravened the orders as alleged in Count 3, which I am not, the father has a reasonable excuse. The 13 year old boy was adamant that, one way or another, he was not going to spend the September 2024 school holidays with the mother.
Count 3 is dismissed.
CONCLUSION
The mother had sought different orders as part of the contravention application. The mother sought, as part of her submissions at the conclusion of the hearing, that an order be made for the change of residence of the child Z. An order was sought that a changeover be effected at the Court – to be facilitated by Mr PP. There was already one unsuccessful attempted changeover at the Court involving Mr PP on 30 July 2024. Unsuccessful in the sense that Z would not actually leave the Court building with the mother. There is no evidence before the Court that would convince the Court that it was in the child’s best interests to order another changeover at the Court and nor is there any or any sufficient evidence to convince the Court that a change of residence is in the best interests of the child Z at this point in time.
As long ago as 2008, Justice Warnick in Childers v Leslie (2008) 39 Fam LR 379 (‘Childers v Leslie’), when hearing an appeal involving an application for contravention, stated that the facts in the case then before the Court:
“…(involved) features typical of a great many applications that assert contravention of an order that a child spend time with a parent: the complaint, even if correct, seems a heavy handed, even obsessive reaction — yet, if the incident is the latest in a series (about which there will commonly be mainly subjective comment, irrelevant to the particular proceeding) perhaps any exasperation of the complainant is at least understandable; second, the “excuse” offered by the respondent will seem “fair enough”, at least not to be behaviour that ought attract punishment; and finally, whatever the outcome, it will seem unlikely to contribute to any real diminution in the particular family’s conflict.
Time has not diminished the wisdom evident in Justice Warnick’s comments. The mother in the present case (like so many applicants in contravention proceedings) has tried to achieve more from the process then it can properly yield.[5]
[5] Again, I give credit to Justice Warnick - having slightly varied and adapted the words of His Honour from paragraph 2 of His Honour’s decision in Childers v Leslie.
It is apparent to the Court that the father has been complying with the orders that I made on 12 December 2024. In order to assist this family I will remake those orders in relation to Thursday, Friday and Saturday evening. The Enforcement Mechanisms contained in those orders have also served a useful purpose. The father, I infer from his evidence, has been able to explain the gravity of those Enforcement Orders to Z and this has undoubtedly assisted the father to successfully comply with the spending time orders. I will also remake the Enforcement Mechanism Orders. I note that those orders also formed part of the mother’s final submissions. I will also include all necessary interim parenting orders relating to Z in this one order. Because it has been the case in the past – I will also include an order for time on Mother’s day. And because it reflects the current reality – there will be included an interim order that Z live with the father. It is apparent from the evidence that the current combination of orders (the Orders made on 12 December 2024) is achieving the desired outcome – namely the child is spending the ordered time with the mother. In my view the orders that I will make today (which largely reflect the 12 December 2024 Orders) are in Z’s best interests. To the extent that I am required to consider the provisions of Part VII of the Act – I have done so.
I also note that in considering the relevant evidence my attention was drawn to documents contained in Exhibit 11 (the mother’s tender bundle). Certain documents from the Department of Child Safety, Seniors and Disability Services are included in that tender bundle. There are numerous serious allegations contained in those documents relating to both parents and including allegations of, inter alia, coercive control and systems abuse. As I have stated several times already in these reasons for judgment – the scope of contravention proceedings is narrow. A parenting trial is the appropriate forum for a consideration of the broader issues.
There is one more matter to which reference should be made. On 12 December 2024 the Court heard evidence from the father that the child Z was missing and the father had not seen him since 28 November 2024. Apparently the child was with friends – but the father did not know which friends. The father had not contacted the police. I had indicated that I wanted a response from the father’s then Counsel, Mr Christie. I told Mr Christie that I would hear his response on 9 January 2025 – the adjourned date of the hearing. On 9 January 2025 Mr Christie did not attend at the Court. By then the father had withdrawn his instructions from his previous solicitors (Murdoch Lawyers) and from Mr Christie. But my view should be placed on the record in relation to this issue. The contravention hearing proceeded on 10 and 11 December 2024 – but the Court was not told in clear terms that the child was then missing. The father maintained that the mother had been told by text message. I am not in a position to make a finding about that. The mother’s Counsel (Mr Matthews MBE KC) was not aware that the child was missing. The Court should have been told by the father’s Counsel or by the father’s solicitor or by the father that the child was missing. The Court should have been told this at the commencement of the hearing on 10 December 2024. This information should have been stated to the Court on the record and in unequivocal terms. Ambivalent statements buried in the evidence or in text messages (between the parents) was not sufficient. I do not need to add anything further in relation to this issue.
The mother’s Application for Contravention filed on 9 October 2024 is dismissed.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 27 February 2025
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