KELSON & DELL

[2020] FamCA 795

FAMILY COURT OF AUSTRALIA

KELSON & DELL [2020] FamCA 795

FAMILY LAW – ORDERS – Contravention – Where final orders were made – Where the mother alleges the father has breached the orders by changing the schools of one of the children – Where the father admits the breach – Where it is considered a less serious breach – Where neither party seeks the retention of the final orders – Where the utility of the necessity for a penalty for future compliance with the final orders is therefore limited – Where it is the first time the father has breached an order – Where future breaches may be considered more serious – No penalty imposed. 

FAMILY LAW – ORDERS – Variation – With whom a child lives and spends time - Where final orders were made for the children to live with the father and spend time with the mother – Where the orders no longer reflect the current circumstances – Where one child now lives with the mother and the other lives with the father – Where the father and child living with him have relocated to Queensland – Where the mother seeks to spend time with the child in the upcoming school holidays – Where the father does not oppose time spending but opposes the amount of time the mother seeks – Where the child has expressed strong views that the time he spends with the mother be subject to his wishes – Where the child would not spend any time with the mother and his siblings if it is not ordered – Best interests of the child – Orders.

FAMILY LAW – INJUNCTIONS – Where the mother and the child’s siblings are participants in the B Church – Where the family consultant considered the child was concerned he would be pressured to accept the faith of the mother and his siblings if he were to spend time with them – Where the child is reluctant to spend time with the mother – Where the Court is not to prefer one religion to another – Best interests of the child – Orders.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 70NBA, 70NEA, 70NEB,

Litchfield & Litchfield (1987) FLC 91-840
Paisio & Paisio (1979) FLC 90-695
Rice & Asplund (1979) FLC90-725
Sandler & Kerrington (2007) FLC 93-323

APPLICANT: Ms Kelson

RESPONDENT: Mr Dell

FILE NUMBER: ADC 1766 of 2016

DATE DELIVERED: 23 September 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dillon

SOLICITOR FOR THE APPLICANT: Carlin Lawyers

COUNSEL FOR THE RESPONDENT: Ms Miller

SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

NOTING the finding that Mr Dell has contravened order 12 of orders made 24 September 2018 without reasonable excuse

Orders

1. In respect of the finding of a contravention of order 12 of orders made 24 September 2018, no penalty be imposed.

2. That each party shall bear their own costs of and incidental to the Contravention Application.

3. That paragraphs 5, 6, 7, 8, 9, 20, 21, 22, 23 and 24 of the orders made 24 September 2018 be suspended in their operation.

4. That X born … 2006 live with the mother.

5. That Y born … 2007 live with the father.

6. That X spend time with the father subject to his wishes.

7. That Y spend time with the mother for a period of five (5) days and four (4) nights at times to be agreed during the upcoming Queensland school holidays between 25 September 2020 and 5 October 2020.

8. That Y spend such further time with the mother as may be agreed between the parties.

9. That the parties will each pay one half of the costs of plane travel for Y from Brisbane to Adelaide and return PROVIDED that these orders shall be subject to any COVID-19 travel restrictions and shall not impose an obligation on Y to quarantine or self-isolate.

10. That the mother be restrained and an injunction is hereby granted restraining her from involving Y in:-

    (a)Any activity of the B Church, including Bible study, daily reading, meetings, services or conventions;

    (b)B Church field service including being present during or participating in door knocking and/or revisit;

    (c)Attending meetings of the B Church unless the child wishes to attend the meeting; and

    (d)Adult religious concepts including but not limited to Armageddon, Paradise, Heaven or Hell.

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 Kelson & Dell 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 ADELAIDE

FILE NUMBER: ADC 1766 of 2016

Ms Kelson

Applicant

And

Mr Dell

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Mr Dell (“the father”) and Ms Kelson (“the mother”) are the parents of X born … 2006 and Y born … 2007 (collectively “the children”) who are the subject children of the proceedings.

2. On 24 September 2018 the parties reached agreement in respect of the future parenting arrangements for the children.

3. The parties agreed to have equal shared parental responsibility for X and Y, that they live with the father and spend significant and substantial time with the mother.

4. The orders regulated the parenting arrangements until 9 September 2019 when X remained with the mother and Y returned to live with the father.

5. In the 2019 academic year the children were enrolled in E School.

6. Order 12 of the final orders provides as follows:-

   that each of the parties is restrained from changing the place of education of X and Y from E School without the prior written consent of the other or order of this honourable court.

7. On 19 December 2019 the father moved to D Town in Queensland and on 23 December 2019 Y joined him.  The mother was not aware of the father’s relocation of Y and it was on 5 February 2020 that the mother became aware of the father’s intention to permanently relocate Y to Queensland.

8. Y has been enrolled in C High School and the father contends that he is well settled.

9. X has remained in the sole care of the mother and spends no time with the father and any communication between them is limited.

10. The father asserts that the mother has influenced X to live with her and to sever his relationship with the father and Y.  The mother denies that she has in any way influenced X and argues that the father’s unilateral action in moving Y to live with him in Queensland could have no other explanation other than to separate Y from her and his siblings.

11. A significant focus of the proceedings is the extent of the father’s opposition to the children but now Y participating in the mother’s church.

12. As matters have transpired the final orders made 24 September 2018 no longer reflect the current circumstances of either of the parties.

13. On 8 April 2020 the mother filed an amended application alleging a contravention of order 12 in that on 29 January 2020 at 9.00am at E School, without reasonable excuse, the father removed Y from the E School.

14. On 11 September 2020 the father admitted the alleged breach of the order and judgment was reserved in respect of penalty and also the narrow issue of the interim arrangements for Y to spend time with the mother during the upcoming Queensland school holidays.

Initiating application

1. On 6 July 2020 the father filed an Initiating Application seeking to discharge the orders of 24 September 2018 and to seek orders that he have sole parental responsibility for Y who shall live with him, conceding that X should live with the mother.  X would spend time with the father subject to his wishes and Y would spend time with the mother subject to his wishes.

2. The interim orders sought are in the same terms as the final orders.

3. By Response filed 31 July 2020 the mother sought orders such that X and Y live with her and spend time with the father subject to their wishes.

4. The Court was assisted by the preparation of a family report dated 14 August 2020.

5. The report records the father’s concession that X should remain in the mother’s care and that any time he spend with the father should be subject to the child’s wishes.

6. The mother’s position in respect of Y remains uncertain.  Whilst her application is for Y to live with her, she concedes that he should remain in the father’s care in the interim.

7. For the purposes of the interim arrangements, the father agrees that despite opposition from Y, he should spend time with the mother during the upcoming Queensland school holidays.  The parties are not able to agree the duration of the period, with the father proposing a five day block and the mother seeking a ten day block to facilitate a family camping holiday.

The law

1. Division 13A of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) designates the legislative pathway concerning an Application for Contravention of orders made in respect of children.

2. Subdivisions C to F of Div 13A of Pt VII of the Act provides for the orders that are available to the Court that can be made in instances where:-

   (a)the contravention has been alleged but not established (sub-div C);

   (b)the contravention is established but reasonable excuse for the contravention is found (sub-div D);

   (c)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (sub-div E); and

   (d)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (sub-div F).

3. Following submissions as to whether sub-div E or sub-div F of Div 13A of Pt VII of the Act should apply, I find that the contravention should be treated as a “less serious” contravention.

4. Section 70NEA of the Act applies as to the application of the subdivision where the Court finds a “less serious” disregard for the obligations under the primary order.

Section 70NEB– Powers of Court

1. Section 70NEB sets out the power of the court where a contravention is “less serious” as follows:

   (1)If this Subdivision applies, the court may do any or all of the following:

   (a)       make an order directing;

   (i)     the person who committed the current contravention; or

   (ii)    that person and another specified person;

   to attend a post-separation parenting program;

   (b)if the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

   (c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

   (d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;

   (da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d) – impose a fine not exceeding 10 penalty units on that person;

   (e)if:

   (i)the current contravention is a contravention of a parenting order in relation to a child; and

   (ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

   (iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

   make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

   (f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

   (g)if the court makes no other orders in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

   Note 1:The court may also vary the primary order under Subdivision B.

   Note 2:Paragraph (1)(a) – before making an order under this paragraph, the court must consider seeking the advice of family consultant about the services appropriate to the person’s needs (see section 11E).

   (2)The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:

   (a)the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and

   (b)the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.

   (3)If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.

   (4)If:

   (a)the current contravention is a contravention of a parenting order in relation to a child; and

   (b)the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

   the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.

   (5)The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.

   (6)In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:

   (a)whether the primary order was made by consent;

   (b)whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;

   (c)the length of the period between the making of the primary order and the occurrence of the current contravention;

   (d)any other matters that the court thinks relevant.

   (7)The court must consider making an order under paragraph (1)(g) if:

   (a)the person (the applicant) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent) who committed the current contravention committed a contravention of the primary order or that other primary order; and

   (b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:

   (i)was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or

   (ii)was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.

Section 70NBA – Variation of parenting order

1. Section 70NBA sets out the Courts power to vary a parenting order where a contravention has been alleged as follows:

   (1)A court having jurisdiction under this Act may make an order varying a primary order if:-

   (a)proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and

   (b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:

   (i)The court does not find that the person committed a contravention of the primary order; or

   (ii)The court finds that the person committed a contravention of the primary order.

   (2)…

   (3)…

Consideration

1. I have found that sub-div E of Div 13A of Pt VII of the Act should apply.

2. Sub-div F which deals with more serious contraventions will only apply if the conditions in either s 70NFA(2) or s 70NFA(3) of the Act are satisfied. Subsection 70NEA(2) is applicable as this is the first occasion on which the father has been found to have contravened an order.

3. I am satisfied that sub-div E provisions will appropriately deal with the matter.

4. Whilst the father’s unilateral decision to relocate with Y to Queensland could be seen as egregious, the mother’s Application for Contravention was limited to a breach of order 12 which restrained the parties from changing the enrolment of X and Y from E School.

5. Neither child attends the school nominated in the order.  The mother does not complain as to the change of school for X.  The complaint in respect of the father’s actions in causing the change of school for Y is a likely reflection of the now fundamental dissatisfaction by each of the parties with the current orders.

6. The utility of the necessity for a penalty to be directed to future compliance with orders is of limited scope where neither party seeks the retention of the final orders which were the subject of the parties consent.  The following penalty options are available:-

   (a)That the father and/or the mother attend a post-separation parenting program (s 70NEB(1)(a));

   (b)To make a further parenting order that compensates for time the person did not spend with the child (s 70NEB(1)(b));

   (c)To adjourn the proceedings to allow the parties or each of them to apply for further parenting orders (s 70NEB(1)(c));

   (d)Order that the father enter into a bond in accordance with s 70NEC (s 70NEB(1)(d));

   (e)Make an order that the father pay some or all of the costs of the mother (s 70NEB(1)(f));

   (f)Order that the mother pay some or all of the costs of the father (s 70NEB(1)(g)).

7. I have given consideration to requiring the parties to attend a post-separation parenting program. I do not consider that it would be of assistance at this time. The parties have little or no relationship with each other and it is likely that at present the parties via their legal representatives are attempting to resolve their differences. The mother remains in South Australia whilst the father now resides in Queensland. The utility of a parenting course with the parties engaged remotely is likely to be of limited value and there has not been any consideration of s 11E and s 70NEB(2) of the Act.

8. I am obliged to consider the arrangements for Y to spend time with the mother during the upcoming Queensland school holidays.  The father’s concession with respect to X has limited the scope of the proceedings to the extent to which weight should be given to the views expressed by Y as to the extent of his engagement with his mother and siblings.

9. Accordingly, I do not propose to adjourn the contravention proceedings.

10. The contravention admitted by the father is his first contravention.  There have been no previous occasions where there has been an allegation of contravention or a finding that an order has been contravened.

11. In circumstances where the parties agree that the orders no longer reflect their separate circumstances and the mother accepts that X should be enrolled at a school different to the school nominated in the order, I do not consider that the contravention of the order would warrant the father being required to enter into a bond.

1. It is difficult to understand the utility of the Contravention Application in circumstances where the mother does not press for Y to spend time with her pursuant to the orders but rather accepts that the current arrangements for X and Y are in the children’s best interests.

2. Accordingly, I consider that no penalty should be imposed on the father and each party shall bear their own costs. Such an approach should not be considered as without consequences for the father. A second or subsequent finding that the father has breached an order without reasonable excuse may well be considered as a “more serious” disregard of an order pursuant to sub-div F of Div 13A of the Act.

Interim proceedings

1. As discussed, the immediate issue for determination is the extent to which Y spends time with the mother during the upcoming Queensland school holidays.

2. The mother proposes that Y spend time with her from 25 September 2020 to 5 October 2020 to give effect to the mother’s holiday plans for a camping holiday in the Flinders Ranges from 26 September 2020 to 3 October 2020.

3. The father proposes that Y spend five days and four nights with the mother and his siblings.

4. Variations of parenting orders made pursuant to s 70NBA of the Act are to be approached “no differently to any other application for parenting orders.”[1]

   [1]Sandler & Kerrington (2007) FLC 93-323 at [48]. .

5. Both parties concede that the current final orders no longer properly reflect the current circumstances of the children.  A consideration of the decision of Rice & Asplund (1979) FLC 90-725 requires a consideration to be given to the “sufficiency of any change in circumstance”[2] that would justify the alteration of existing orders.

   [2]Sandler & Kerrington (2007) FLC 93-323 at [49].

6. The competing applications of the parties must be considered pursuant to s 60B of the Act which outlines the objects and the principles underlying in Pt VII of the Act.

7. Section 60CA of the Act requires that in deciding whether to make a particular parenting order the best interests of the child is the paramount consideration. In order to determine what is in the best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

8. Whilst the application is not a “relocation” case, nonetheless I am obliged to take into account the practical realities of the child residing in Queensland and making orders that would see the child spending time with the mother in Adelaide.

9. The Court has the benefit of a family report by Ms G dated 14 August 2020.

10. A significant consideration that bears upon the competing applications of the parties is the weight that should be given to views expressed by Y.

11. The following extract from the family report places the dispute in stark focus:-

    52.Y once again presented as being keen to express his own thoughts and feelings to the Consultant, asserted his need for autonomy in a polite but frank manner, and to have a natural degree of self-confidence.  He also presented as an emotionally intelligent and bright young person who was quick to remind the Consultant that whilst he was 12 years old, he was “almost 13”…

    53.Y explained that it had essentially been his idea to relocate with his father to Queensland.  He explained that when X shifted into their mother’s care, she began to attend his school and basketball games causing him anxiety and embarrassment.  He also described feeling “harassed” and “scared what she’d do and talk about”.  He added that when he stopped spending time with his mother “she came into our house twice, and the last time she really harassed me but acted innocent and blamed dad, but it was my choice and I want my freedom.  I don’t want Court to tell me when I can see Mum, I want to see my brothers and sister when I want to”.  He added, “she’s always pushing the religion on me and she’ll never stop, that’s why I never want to see her”.

    54.Y stated that he chose Queensland because it was a good distance away from his mother and he found that Adelaide was not far enough.  He had thought that if he stayed in Adelaide that “the Court would (still) make me see Mum”.  He added that he always thought Queensland was a “nice country” and that D Town was very nice given it was a “top destination for tourists”…

12. Y told the family consultant that his father encouraged him to speak to his mother but he was adamant in his refusal to do so.

13. Y was suspicious of the mother’s motives and considered that her desire to see him was really to inculcate him into the B Church.

14. Y remained concerned that his two older siblings were very much aligned with the mother in their evangelical zeal and he was concerned that they would try to persuade him to remain in Adelaide and not return to the father’s care.

15. The family consultant considered that the issue of religious freedom was central to considerations affecting Y and that his resistance was based upon his fear that the mother and his siblings would place pressure on him to accept their faith.

16. The family consultant also considered that the views expressed by Y were deeply felt by him and not misguided.

17. Of concern is the suggestion by the family consultant at [70] of the report:-

    Y clearly expressed a firm preference for time spending with his mother to be subject to his wishes.  He implied that Court Ordered set time was not something he would comply with and that if such Orders were made then it would only lead to further conflict between the parties and further litigation with allegations of the father breaching the Orders. …

18. The family consultant considered her observations of Y interacting with his mother and siblings.  Whilst the interaction with the mother was restrained, there was significantly more willingness to engage with the siblings.

19. The family consultant opined that if the matter was left to be subject to Y’ wishes then it is likely no time would be spent with the mother.

20. The family consultant gave consideration to the likely extent that Y would tolerate an extended order for time and recommended that until Y turns 14 years of age he should spend five days and four nights during each of the school holiday periods.

21. Careful consideration of the matters raised by the family consultant and in particular her observation that the mother may well be wrong in her assessment that Y would easily settle back into the mother’s primary care suggests that a cautious approach needs to be undertaken.

22. It is an important consideration that X has not expressed a wish to spend time with the father or even engage in regular communication.  At age 12 Y’s views should be given weight but should not be determinative.  It is acknowledged that there is a significant chasm between the mother, the two adult children and X who all live with her and the father and Y.

23. The mother’s faith in the B Church appears to be central to the parenting dispute.

24. Section 4(1) of the Act acknowledges that religious upbringing of a child is considered a major long-term issue with decisions about such issues being an exercise of parental responsibility.

25. In Paisio & Paisio (1979) FLC 90-695 at 78,513 the Full Court considered the approach that the Court should take when issues of religion arise in parenting matters:-

    In approaching a dispute of custody or access which involved an examination of the system of beliefs or attitudes to religion (which may include agnostic or atheistic attitudes) in which the children are being brought up, the Court must still commence with and never lose sight of the principle that the welfare of the children is the paramount consideration. 

    An Australian Court cannot commence with any premise that as a matter of public policy one religion is to be preferred to another or that a “religious” upbringing is to be preferred to a “non-religious” one. …

26. In Litchfield & Litchfield (1987) FLC 91-840 the father sought unsupervised access to the parties’ youngest child. The mother opposed the father’s application and sought that he have no access to the child.

27. The child did not wish to spend time with the father.

28. His Honour dismissed the father’s application and noted that the child had an active and strong involvement in her church as did the mother and those close to her.  It was a cardinal principle of the child’s faith that she shun her father.  In his concluding remarks at 76,336 his Honour said:-

    To impose access on R will be against her wishes, will be contrary to basic principles of her faith and the faith of all those with whom she has close association and will therefore expose her to extreme stress and anxiety. 

    The access offers a chance to learn of (and perhaps enjoy) opportunities for cultural, educational and sporting activities which her beliefs would deny her, but such exposure would itself generate conflicts and stress for her, both personally and in her relationships with those to her.

    …

    This is not a normal situation.  The access would place unacceptable pressures on R.  Access can only continue in circumstances of conflict and stress for R. …

29. I am assisted by the opinion of the family consultant noting the child’s reluctance and possibly his refusal to spend time with the mother in Adelaide. I consider it to be to the child’s advantage to maintain some relationship and connection with his mother and siblings.

30. The cautious approach suggested by the family consultant is based upon a concern that if the time spending period is too long then the child may not comply with the order.

Conclusion

1. I appreciate that the mother has invested considerable energy in planning a camping holiday and that her motives are genuine in wishing to create a non-threatening atmosphere for the child.

2. In the circumstances as presented, I must consider matters from the child’s perspective and I find that the mother’s proposal would potentially place the child at risk of refusing to attend.

3. It may be a disruption to the mother’s careful plans but the more important consideration is to give effect to an outcome which would see the child being reunited with his mother and siblings.

4. I propose to further order in favour of the father’s application that the mother be restrained from involving Y in activities of the B Church.

5. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 September 2020.

Associate: 

Date:  23 September 2020