Humphrey & Humphrey (No 5)

Case [2025] FedCFamC1F 73

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…

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Humphrey & Humphrey (No 5) [2025] FedCFamC1F 73
Case
[2025] FedCFamC1F 73
Decision Date

CaseChat Overview and Summary

In the matter of Humphrey & Humphrey (No 5), the Federal Circuit and Family Court of Australia (Division 1) addressed a contravention application filed by the mother, Ms Humphrey, against the father, Mr Humphrey, concerning parenting arrangements for their two children. The central issue was whether the father had intentionally failed to comply with the existing parenting orders, particularly regarding the older child, Z, who had resisted spending time with the mother. The mother argued that the father intentionally contravened the orders, while the father claimed he made reasonable attempts to comply despite the children’s strong resistance.

The court examined the evidence and found that the father did make reasonable attempts to comply with the parenting orders, particularly regarding Z. The resistance from Z and the influence of the older sibling, X, made it extremely difficult for the father to facilitate the changeover as ordered. The court concluded that the father’s efforts, including attempts to negotiate with the children and involve school counsellors and child safety services, constituted a reasonable attempt to comply with the orders. Consequently, the contravention allegations were dismissed. Additionally, the court found that the father had a reasonable excuse for not complying with the orders due to the children's unified resistance and the involvement of X.

The court further issued interim parenting orders to ensure the child Z spent time with the mother under specified conditions, with changeovers occurring at a designated location to mitigate potential issues. A recovery order was also issued to enforce the interim orders, authorising law enforcement to locate and return the child to the mother if the father failed to comply. The court also noted that the parenting orders were made under section 70NBC of the Family Law Act 1975 (Cth).

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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