Lonsdale and Trevor

[2020] FamCA 825

FAMILY COURT OF AUSTRALIA

LONSDALE & TREVOR [2020] FamCA 825

FAMILY LAW – ORDERS – Contravention – Where the father alleges the mother has breached orders in relation to the time he was to spend with the children – Where the mother denies some of the alleged breaches and admits the balance but with reasonable excuse – Where two of the alleged breaches relate to a dispute as to when the school holidays commence – Where the mother asserts one of the children was refusing to attend on occasion – Where the mother asserts on one occasion she was protecting the emotional health of one of the children – Where the father alleges the mother prevented him from communicating with the children – Where the mother asserts she provided the children with a phone to facilitate contact – Where the father alleges the mother took one of the children to see a psychologist – Where the mother asserts it was not specifically for the child nor was it in relation to a major long-term issue – Where the father alleges the mother breached orders by using her surname on the children’s school items – Where the mother asserts that she is not required to use the father’s surname for the children – Where the mother is found to have contravened only one of the orders.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NEB, 70NEC

APPLICANT: Mr Lonsdale

RESPONDENT: Ms Trevor

FILE NUMBER: ADC 2815 of 2015

DATE DELIVERED: 29 September 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 14 and 20 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Tinning

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw Lawyers

UPON NOTING the finding that Count 5 (paras. 44 and 45) of the Contravention Application filed 13 January 2020 is proven

Orders

1. The sentencing of the mother is set down for hearing on 8 October 2020 at 9.15am.

2. The Contravention Application filed 22 April 2020 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lonsdale & Trevor 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 2815 of 2015

Mr Lonsdale

Applicant

And

Ms Trevor

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. Mr Lonsdale (“the father”) and Ms Trevor (“the mother”) continue to be in ongoing conflict concerning the parenting arrangement for B born … 2008 and C born … 2015 (collectively “the children”).

2. Following a contested hearing in 2018 the following relevant orders were made:-

   (1)That the mother and father have equal shared parental responsibility for the children.

   (2)That the children live with the mother.

   (3)That B shall spend time with the father as follows:-

   (a)For five (5) consecutive nights from the conclusion of school Thursday (or 3pm if a non-school day) until commencement of school Tuesday (or 9am if a non-school day); and

   (b)During the intervening week, from the conclusion of school Thursday (or 3pm if a non-school day) until the conclusion of B’s football training (or 6pm whichever is later).

   (4)That B spend time with each party for one half of all school holiday periods.

   (5)That C shall spend time with the father as follows:-

   (a)…

   (b)Commencing Term 1 2019:-

   (i)Each Thursday from 2pm until 6pm (or the conclusion of school until 6pm once C commences school); and

   (ii)Each alternate weekend from 9am Saturday until 6pm Sunday on the same weekend that B is otherwise in the father’s care pursuant to these orders.

   …

   (h)Commencing April 2019 C shall spend time with the father during school holidays each alternate weekend for two (2) consecutive nights from 3pm Friday until 6pm Sunday.

   ….

   (14)That the children shall communicate with the parties by way of Skype/Facetime or such other similar form of communication as may be requested, but in any event at least on each Monday and Wednesday at 6pm unless the parties have agreed otherwise.

3. On 13 January 2020 the father filed an Application for Contravention of orders made 7 March 2018, however, at the hearing the father elected to proceed only with the following counts:-

   (a)Count 1 (paragraphs 10 and 11 of the application) allege a contravention of order 3(a)(i);

   (b)Count 2 (paragraphs 14 and 15 of the application) allege a contravention of order 4(b)(ii);

   (c)Count 3 (paragraphs 24 and 25 of the application) allege a breach of order 5(b)(i);

   (d)Count 4 (paragraphs 34 and 35 of the application) allege a breach of order 5(b)(ii);

   (e)Count 5 (paragraphs 44 and 45 of the application) allege a breach of order 5(h);

   (f)Count 6 (paragraphs 52 and 53 of the application) allege a breach of order 14;

   (g)Count 7 (paragraphs 54 and 55 of the application) allege a breach of order 1.

4. A significant area of contention between the parties is their inability to agree when school holidays, but in particular the Christmas school holidays, should be deemed to commence.  The father considers that by reference to the information relevant to the school at which the children attend for the 2019 academic year, the last day of term was Friday 13 December 2019.  The mother considers that the last day of term was Wednesday 11 December 2019.  It is not controversial that the children were not at school on Thursday and Friday.  What is not necessarily agreed is whether their non-attendance at school occasioned by those days being designated as pupil free days should be considered as school holidays.

5. It is an unfortunate reflection of the degree of mistrust held by each of the parties towards the other that agreement was not able to be reached.

6. By Application in a Case filed 14 February 2020 the mother seeks a variation of orders made 28 August 2019 that sought to better particularise the time that the children would spend with the parties during school holidays and in particular the Christmas school holiday periods.

7. Even with those suggested amendments the dispute between the parties was not capable of resolution and the mother now seeks the following order:-

   for the purposes of the calculation of the school holiday period, the school holidays shall commence on the Friday of the last week of the term and in the event the children conclude the school term on different weeks, on the Friday of the last week of the term of the child who finishes last, with such period to conclude at 3.00pm on the day prior to commencement of school[1]

   [1] Application in a Case filed 14 February 2020 at [6(3)].

8. It is likely that the parties will reach a consent position either in respect of the order sought by the mother or an order in similar terms.

9. Count 1 alleges a breach of order 3(a)(i) of orders made 7 March 2018 in that the mother failed to comply with the orders and did not ensure that B was made available to the father at 3.00pm on 12 December 2019.  The uncertainty as to the commencement of the school holidays is a relevant consideration.  On the mother’s case, the school holidays have effectively commenced.  On the father’s case, the school holidays were not to commence until 3.00pm (if a non-school day) on the following Friday.

10. The father filed a second Contravention Application on 22 April 2020 asserting one count namely, that the mother did not comply with paragraph 21 of the orders made 7 March 2018 in that on 30 January 2020 she intentionally labelled both the children’s specific school items with the surname “Trevor” with the intention that the children be referred to as “B Trevor” and C Trevor” rather than their surname being “Lonsdale”.

11. Both applications were heard at the same time.

12. In respect of the first Contravention Application the mother denied that she had breached the order in respect of counts 1, 2 and 7 and whilst she admitted the breach in respect of counts 3 to 6 inclusive she did so asserting a reasonable excuse.

13. The mother denied the alleged breach in respect of the second Contravention Application.

THE LAW

1. It is Div 13A of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) that 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 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).

Section 70NAC – Meaning of contravened an order

1. Section 70NAC provides:

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)where the person is bound by the order – he or she has:

   (i)intentionally failed to comply with the order; or

   (ii)made no reasonable attempt to comply with the order …

Section 70NAE – Meaning of reasonable excuse for contravening an order

1. Section 70NAE provides:

   (1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   (2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

   (a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

Section 70NAF – Standard of proof

1. Section 70NAF provides:

   (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

   (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)The court may only make an order under:

   (aa)   paragraph 70NEB(1)(da); or

   (ab)   paragraph 70NECA(3)(a); or

   (a)     paragraph 70NFB(2)(a), (d) or (e); or

   (b)     paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exists.

2. Section 70NEB sets out the manner in which a court should deal with a contravention in circumstances where it is considered “less serious”.

Section 70NEB – Powers of the court

1. Section 70NEB sets out the power of the court 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.

2. Section 70NEC provides for the terms and conditions of a bond if a court requires a person to enter into a bond under s 70NEB(1)(d) of the Act.

CONTRAVENTION APPLICATION 13 JANUARY 2020

Count 1

1. Count 1 contains an error in that it alleges the date of contravention to be 13 December 2018 as opposed to 13 December 2019.  No point was taken in respect of the typographical error.

2. The father confirms correspondence from the mother’s solicitors regarding the commencement of the 2019/2020 Christmas school holidays.

3. The mother corresponded directly with the father by email dated 9 December 2019.  Exhibit “15” provides the email exchange between the parties commencing 2 December 2019.

4. The mother sought to clarify the handover arrangements by promoting the following proposal as contained in an email dated 2 December 2019:-[2]

   [2] Exhibit “15”

   B spend time with you as follows

   From 3p Wed 18/12 until 10a Wed 25/12

   From 3p Wed 1/1 until 3p Wed 8/1

   From 3p Wed 15/1 until 10a Thurs 23/1

   C spend time with you as follows

   From 3p Wed 18/12 until 6p Fri 20/12

   From 10a Tues 24/12 until 10a Wed 25/12

   From 3p Wed 1/1 until 6p Fri 3/1

   From 3p Wed 15/1 until 6p Fri 17/1

5. The father’s response was summarised in his email to the mother of 2 December 2019 in the following terms:-

   I think it’s pretty obvious that you are attempting to exclude the children from picking up [Ms Lonsdale] and their brother [Mr Q] from the airport on the 12^th.  I am not agreeing in any way to give up that standard time on Thursday and will not accept any proposal otherwise.  Just be understanding of the children’s needs and wants please, it is really important for them and their brother.[3]

   [3] Exhibit “15”

6. The father’s concern was to preserve the first two days of his time with the children as provided for in order 3(a)(i), namely, the Thursday and the Friday leading up to the commencement of the school holidays as asserted by him.

7. Exhibit “11” is a newsletter from the children’s school.  The document sets out the term dates and confirms that term 4 in 2019 finishes on Wednesday 11 December at 3.00pm.  Thursday is therefore considered by the mother to be the first day of the children’s school holidays.

8. Whilst it is an unfortunate consequence that the inability of the parties to reach an agreed position resulted in the children not spending time with the father, I do not consider that on the balance of probabilities the evidence supports the father’s contention that the mother is in breach of the orders.

9. It may well be necessary for the parties to consider a further amendment to the parenting orders that would provide for a period of time with the father during school term time to be suspended where the period coincides with school holidays either in whole or in part.

1. Count 1 is dismissed.

Count 2

1. The father alleges a breach of paragraph 4(b)(ii) of the orders made 28 August 2019, namely, that the mother did not enable B to spend time with the father during the 2019/2020 Christmas school holiday period commencing 3 January 2020.

2. The father asserts that even if the school holiday period commenced pursuant to the mother’s proposal being Wednesday 11 December 2019, as of Friday 3 January 2020 both children should have been in the father’s care.  Order 4(b)(ii) of the orders provide that the children be with the father for the second, fourth and sixth week of the holidays.

3. The parties remained in dispute as to when the school holidays started and therefore when the father’s time commenced.  The dispute arose during a period when the mother’s solicitors were on leave and the parties were communicating with each other.

4. The mother relies upon Exhibit “13” which is a letter from her solicitors to the father dated 17 December 2019.

5. The letter puts forward the following proposal in respect of B:-[4]

   1.From 3.00pm on Wednesday 18 December 2019 until 10.00am on Wednesday 25 December 2019;

   2.From 3.00pm on Wednesday 1 January 2020 until 3.00pm on Wednesday 8 January 2020;

   3.From 3.00pm on Wednesday 15 January 2020 until 3.00pm Wednesday 22 January 2020;

   4.From 3.00pm on Saturday 25 January 2020 until 3.00pm on Monday 27 January 2020.

   [4] Exhibit “13”.

6. For reasons that are not certain the father was not prepared to compromise his position and agree to the mother’s proposal which would have seen him enjoy three periods of one week.  It seems that the basis for the father’s refusal is that it required a concession that the school holidays commenced on Wednesday rather than Friday.

7. The evidence relied upon by the father is contained at [17] of his affidavit filed 13 January 2020. 

8. I do not consider that on the balance of probabilities the evidence supports a finding that the mother has breached the order.  It could not be said that the mother intentionally failed to comply with the orders, nor that she made no reasonable attempt to do so.

9. Count 2 is dismissed.

Counts 3 and 4

1. The father alleges that the mother contravened order 5(b)(i) of orders made 7 March 2018 in that the mother made no reasonable attempt to cause C to spend time with the father.

2. The mother’s position is that she admits that the order was not complied with but asserts that she had a reasonable excuse.

3. The father alleges that the mother withheld C on 11 separate occasions from 9 May 2019 over a two month period during which nine of the periods were consecutive.

4. The father allegedly attended the handover location being the McDonald’s restaurant but the mother failed to attend.

5. The father does not accept the mother’s assertion as set out in her correspondence to the father comprising Exhibits “5” and “6” and her oral evidence that C was displaying concerning behaviours and refused to leave the house such that the mother was not able to have the child attend the handover venue.

6. A similar explanation was given by the mother in respect of count 4 namely, a breach of order 5(b)(ii) of orders made 7 March 2018.

7. It is a relevant consideration that the parties attended upon Ms K (“psychologist”) on 4 June 2019 to explore strategies that might enable the mother to take C to the handover venue.

8. Whilst the father may well be suspicious of the mother’s conduct in taking the child to see a psychologist, in the absence of evidence to the contrary, it is difficult to find on the balance of probabilities that the child was not resistant to attending handover or that the mother did not do all that she could to comply with the order.

9. Counts 3 and 4 are dismissed.

Count 5

1. The father alleges that the mother contravened order 5(h) of orders made 7 March 2018 in that on 3 January 2020 she did not make C available to the father. 

2. The mother admits the breach but contends that she had a reasonable excuse.

3. The mother’s evidence was qualitatively different to her position in support of reasonable excuse of counts 3 and 4.

4. On this occasion the mother’s evidence was that she was trying to protect C’s emotional health and she decided that she would not allow C to attend with B.

5. She asserts that she did not know what to do but given her recognition that she had breached the order makeup time was offered in the last weekend of the school holidays.

6. I consider that the evidence of the mother does not support a finding of reasonable excuse and as such I find that on the balance of probabilities the mother breached the order and did so without reasonable excuse.

Count 6

1. The father alleges a breach of order 14 of the orders made 7 March 2018 in that on 6 January 2020 the mother intentionally blocked the father’s phone number thereby preventing him from being able to communicate with the children.

2. The order provides:-

   (14)That the children shall communicate with the parties by way of Skype/Facetime or such other similar form of communication as may be requested, but in any event at least on each Monday and Wednesday at 6pm unless the parties agreed otherwise.

3. The mother agrees that she had blocked the father’s phone number but only for the purpose of stopping the father from ringing her or the children.

4. The mother’s evidence was that on each Monday and Wednesday at 6.00pm she would give B the phone and he and C would go to B’s bedroom where they would speak privately with the father.  On the day of the alleged breach the mother’s evidence is that she gave B the phone but despite her best endeavours he refused to call the father.

5. Order 14 is not specific in that it does not require the father to initiate the call.  The mother contends that the practice is that she will give the children the phone and they will call the father.

6. The father’s allegation is that the mother blocked his number.  I do not consider that the mother’s actions constitute a breach of the order.

7. It may have been argued that the mother did not facilitate the children calling the father on 6 January 2020, however, that is not the basis of the alleged contravention.

8. I do not consider that on the balance of probabilities the evidence supports a finding that the mother contravened the order.

9. Count 6 is dismissed.

Count 7

1. The father alleges that without reasonable excuse the mother took C to consult with a clinical psychologist in breach of order 1 of the orders made 7 March 2018 namely, that the parties have equal shared parental responsibility for the children and that the mother should have consulted with the father about any proposal to involve the child with a health professional.

2. The mother denies the breach.

3. The mother’s evidence is that she had been consulting Dr R since 2017.

4. The father was aware of the involvement of Dr R and in particular it is the mother’s position that she did not seek professional intervention for C but rather that she sought assistance as to how she could better regulate and manage C’s irregular sleep patterns.

5. The father denies that in his home C displays any sleep difficulties or disturbance.

6. Exhibit “7” comprises a short letter from Dr R to the father dated 10 January 2020 confirming that she consulted with C on one occasion being 23 May 2019.  The mother argues that C attended with her but at no time was she a patient or client of Dr R but rather there was some ancillary involvement with C arising out of the child accompanying the mother to her appointment with Dr R.

7. It is further argued by counsel that if there was any formality to the consultation it was for a sleep related issue and therefore not to be considered as a major long-term issue that would require at least some consultation with a view to exploring an agreed position or consensus that the child needed some psychological assistance.

8. An order for equal shared parental responsibility does not require parties to consult in relation to issues that do not relate to major long-term matters (s 65DAE of the Act).

9. Whilst health may well be a major long-term issue, it is to be determined by reference to the particular circumstances in each case.

10. Even were it to be agreed that the child attended upon Dr R for a separate consultation, I accept the mother’s evidence that it related to dealing with the child’s sleep disorder and there is no suggestion that the child attended upon Dr R other than on 23 May 2019 and certainly not thereafter.

11. It could not be considered that the involvement of the child with Dr R, even taken at its highest, would represent a major long-term issue.

12. I am not able to find on the balance of probabilities that the evidence supports a finding that the mother contravened the order.

13. Count 7 is dismissed.

CONTRAVENTION APPLICATION 22 APRIL 2020

1. The second Contravention Application is limited to one count that alleges that the mother contravened order 21 of the final orders of 7 March 2018 in that on 30 January 2020 she intentionally labelled the children’s school specific items with the surname “Trevor”.

2. The relevant order provides:-

   (21)That the mother be restrained and an injunction granted restraining her from referring to either child by the surname “Trevor” or allowing any other person to do so.

3. The father does not allege that the mother referred to either child by the surname “Trevor” but rather included the surname “Trevor” on some of the children’s school items.  The parameters of dispute are reflected in pictures of the children’s school items forming Exhibits “8” and “10”.

4. The father’s concerns are set out in correspondence passing between the parties comprising Exhibit “9” but is summarised in the following extract from the father’s email to the mother dated 30 January 2020:-

   1.I am unsure why the children’s name is still an issue.  Why have you written Trevor on all the children’s school items?  What you are doing is causing major conflict with the children’s identity.  I have no problem with you writing your phone number but the children’s last name is LONSDALE.  Please refrain from referring to the children or label any of their items with TREVOR.[5]

   [5] Exhibit “9”.

5. The mother does not accept the father’s contention.  Exhibit “10” comprises photographs of a number of school items belonging to B which clearly display his surname as “Lonsdale”.

6. The photographs that the father tenders provide the children’s name but not the surname.  What appears in the photographs comprising Exhibit “8” is that the mother has used the children’s full Christian names but then has included the name “C. Trevor” and the mother’s telephone number.

7. The mother’s position is that she is not required to use the surname “Lonsdale” but is restrained from referring to the children as “Trevor”. 

8. The mother considers that it is reasonable for her to include her name and her telephone number should the items be misplaced or lost by the children.

9. In respect of one item being a school lunch box it discloses C’s name and then the name “C. Trevor” with the mother’s telephone number.  The father highlights that at a corner of the lunch box there is the name “Trevor”.  The mother’s response is that this was a lunch box that she had utilised and had included her name at a time when it did not represent a lunch box belonging to C.

10. Whilst I understand the father’s concern and his hypervigilance that the children continue to be identified by his surname as is reflected in order 21, I do not consider that the evidence supports a finding that the mother has contravened the order.

11. Count 1 is dismissed.

CONCLUSION

1. The proceedings will be listed for hearing to determine penalty in respect of count 5 of the first Contravention Application as being the only remaining matter.

2. I have given careful consideration to the evidence and I am satisfied that any penalty should be on the basis of a less serious disregard of the order breached.

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

I certify that the preceding ninety one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 29 September 2020.

Associate: 

Date:  29 September 2020