Luchetti & Miller
[2023] FedCFamC1F 38
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Luchetti & Miller [2023] FedCFamC1F 38
File number: MLC 2857 of 2020 Judgment of: CARTER J Date of judgment: 8 February 2023 Catchwords: FAMILY LAW – CONTRAVENTION – previous final orders made – children’s agreed extracurricular activities – where parents dispute the children’s agreed extracurricular activities – whether the mother consented to the children’s participation in extracurricular activities – where the children failed to attend their extracurricular activities when in the mother’s care – where the mother asserts she had a reasonable excuse – mother found to have contravened orders – where the mother failed to establish a reasonable excuse in relation to two counts – where the court is satisfied on the balance of probabilities that two contraventions are established – variation of primary order – imposition of a penalty or action – adjourned for further hearing. Legislation: Family Law Act 1975 (Cth) Division 13A, ss 70NAC, 70NAE, 70NBA Cases cited: Hale v Hale [2011] FMCAfam 1107 Division: Division 1 First Instance Number of paragraphs: 116 Date of last submissions: 29 November 2022 Date of hearing: 25 and 29 November 2022 Place: Melbourne Counsel for the Applicant: Mr George Glezakos Solicitor for the Applicant: Doyle’s Family Law & Mediation Counsel for the Respondent: Ms Jeanette Swan Solicitor for the Respondent: Partners in Family Law Pty Ltd ORDERS
MLC 2857 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MILLER
Applicant
AND: MS LUCHETTI
Respondent
order made by:
CARTER J
DATE OF ORDER:
8 february 2023
THE COURT DECLARES THAT:
1.The respondent mother has without reasonable excuse contravened Order 8 of the Orders made by the Federal Circuit and Family Court of Australia on 21 March 2022 as follows:
(a)on 15 May 2022; and
(b)on 2 June 2022.
THE COURT ORDERS THAT:
2.Counts 1, 2, 3 and 6 contained in the Contravention Application filed on 8 July 2022 (“Contravention Application”) are withdrawn.
3.Counts 4, 5, 8, 9, 10, 11 and 13 contained in the Contravention Application be dismissed.
4.Order 8 of the orders made 21 March 2022 be discharged.
5.In relation to the children’s extracurricular activities:
(a)the parents use their best endeavours to ensure that each of the children attend any agreed extracurricular activities.
(b)an agreed extracurricular activity is an activity in relation to which the parents have both provided their written consent to the other parent prior to the children’s enrolment for each new term or season of that activity.
(c)in the event that one parent enrols the children or either of them in an extracurricular activity without first obtaining the other parent’s written consent, the other parent is under no obligation to take the child/ren to that activity.
(d)save in relation to finals, and special presentation, which both parents are at liberty to attend, neither parent may attend either child’s extracurricular activities when the children are scheduled to otherwise be in the care of the other parent, without the prior written consent of the other parent.
Adjournment
6.The Contravention Application be adjourned to 2 March 2023 at 10.00 am for further hearing before the Honourable Justice Carter.
THE COURT FURTHER ORDERS BY CONSENT THAT:
International travel
7.The parents be and are hereby permitted to travel internationally with the children:
(a)X born … 2009; and
(b)Y born … 2012
(“the children”) upon the giving of not less than 42 days’ notice in writing by the travelling parent to the other parent.
8.For the purpose of any proposed travel:
(a)such travel do occur during the time the child/ren are ordinarily in the care of the travelling parent, unless otherwise agreed in writing by the parents;
(b)such travel not occur to a location which the Department of Foreign Affairs and Trade (“DFAT”) has issued a travel advisory of “reconsider your need to travel” or “do not travel”;
(c)the travelling parent shall cause the children to be removed as soon as practicable from any location for which the DFAT travel advisory becomes “reconsider your need to travel” or “do not travel” during any period of travel; and
(d)not less than 42 days prior to any proposed travel (or as soon as practicable if such cannot occur 42 days prior to travel) the travelling parent advise the non-travelling parent, in writing, as to:
(i)who the child/ren will be travelling with;
(ii)the country/countries to which the child/ren will be travelling;
(iii)details of accommodation for the child/ren;
(iv)contact telephone number on which the child/ren can communicate with the non-travelling parent whilst overseas;
(v)the airline/s the child/ren will travel on; and
(vi)the dates child/ren will depart and return to Australia.
9.The travelling parent do ensure that the child/ren are covered by appropriate travel insurance and provide particulars of such insurance to the non-travelling parent not less than 28 days prior to proposed travel.
10.Not less than 28 days prior to any proposed travel the child/ren’s passports be provided to the travelling party, to be returned to be held pursuant to Order 18 of the final orders dated 21 March 2022 (as amended) within 72 hours of the travelling parent’s return to Australia.
11.Not less than 14 days prior to any proposed travel the travelling parent provide to the non-travelling parent the airline flight numbers and copy of the travel itinerary (including any change thereto within 24 hours of notification by the airline of the change).
12.Within seven days of receipt of either of the children’s passports, the parent receiving such passport do ensure that the other parent is provided with a hard copy certified copy of each of the children’s passports.
AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION
A Contravention Application was initiated by the father on 8 July 2022 (“Contravention Application”), with respect to asserted breaches by the mother, of the final parenting orders made by consent on 21 March 2022 (“the primary order”). The parties were able to reach an agreement about orders providing for overseas travel and the holding of the children’s passports, which I now make by consent. However, the Contravention Application was unable to be resolved between them.
The parties have two children together, X who is 13 (“X”) and Y who is 10 (“Y”). Following two years of litigation, the primary order provided inter alia that the parties have equal shared parental responsibility, that the children live with the parties on a ‘week about’ basis and that there be a provision for time on special occasions.
Relevantly, Order 8 of the primary order provides as follows:
8The parents use their best endeavours to ensure each of the children attend any agreed extracurricular activity in which they are enrolled (including, but not limited to, those in which they are currently enrolled) and in the event that they cannot facilitate such attendance, they give not less than 48 hours’ notice to the other parent and afford that parent the opportunity to take the children to any such extra-curricular activity.
On 15 February 2022, the father enrolled both boys with the B Sports Club (“the B Sports Club”) for the 2022 season. They had been enrolled by him annually in each of the previous eight or so seasons. The 2022 season with the B Sports Club required the boys to attend for two training sessions during the week, and games on Sundays. The children were also enrolled in 2022 in compulsory school sport. That required both boys to train with their school teams after school one evening per week and to play games on Saturdays. In addition, the father enrolled Y into another sport on Fridays.
As outlined in his Contravention Application, the father alleged that on 13 different occasions between 30 March 2022 and 15 June 2022 the mother breached Order 8 of the primary order.
When the matter came before me for final hearing, I was informed by counsel for the father that counts 1, 2, 3 and 6 of the Contravention Application were not being proceeded with. On some occasions the father had included the wrong dates. On other occasions he conceded the children were in COVID-19 isolation.
Accordingly, the alleged contravention counts which proceeded to trial can be summarised as follows:
(a)three counts of the mother failing to provide the father with 48 hours’ notice that she would not be facilitating X attending sports training, between 18 May 2022 and 15 June 2022;
(b)four counts of the mother failing to provide the father with 48 hours’ notice that she would not be facilitating X attending sports games, between 20 April 2022 and 29 May 2022;
(c)one count of the mother failing to provide the father with 48 hours’ notice that she would not be facilitating Y attending sports training on 2 June 2022; and
(d)one count of the mother of the mother failing to provide the father with 48 hours’ notice that she would not be facilitating Y attending the sports game on 15 May 2022.
It is accepted by the mother that she did not provide the father with notice, nor did she take the children to each of those training events or games.
There is no dispute that, as a matter of fact, at the time the primary orders were made, the boys were enrolled with the B Sports Club whose training and games are those not attended by the boys in each of the alleged contraventions.
However, there is a dispute as to whether the parties had “agreed” that the children would be so enrolled.
The mother said she did not know, and had not consented to the children being enrolled at the time the primary order was made. She said, accordingly, their enrolment with the B Sports Club could not fall within the ambit of Order 8 of the primary order, as it could not be described as an “agreed extracurricular activity”.
The father asserted the children had been enrolled with the B Sports Club for the preceding eight or nine years, which the mother knew about and consented to. He said the children’s enrolment by him in the new season in 2022 did not constitute a new activity, and the mother’s consent, previously given, effectively rolled into the 2022 season.
There was also a dispute as to whether the reference in parenthesis in Order 8 to activities including but not limited to “those in which they are currently enrolled” is a reference to:
(a)activities in which they were enrolled with the parties’ agreement as at the date of the primary order; or
(b)any activity in which they were enrolled as a matter of fact as at the date of the primary order, irrespective of whether that enrolment was agreed between the parties.
The matter proceeded to final hearing before me on 25 and 29 November 2022.
For the reasons that follow, I am of the view there was no agreement that the boys would be enrolled with the B Sports Club as at the date of the primary order. I am also of the view that the activities captured by the parenthesis is limited to activities in which the parties had agreed the children would be enrolled. As the mother did not agree to X being enrolled with the B Sports Club, each of the asserted contraventions in relation to X must fail.
In relation to the two counts involving Y, I am satisfied that as of around 10 April 2022, the mother had provided her consent to him being enrolled with the B Sports Club. That meant on 15 May and 2 June 2022, the mother was obliged to take Y to his commitments, or provide the father with the option to take him. It is agreed Y did not attend on either day, and the mother did not advise the father she would not be taking him. For the reasons that follow, I do not accept the mother had a reasonable excuse on either of those occasions. However, whilst I have formed a view that the mother’s explanations do not amount to a reasonable excuse, I am concerned that the father’s response to Y’s non-attendance on those days in by including them in the Contravention Application was disproportionate and unnecessary.
THE EVIDENCE
The father relied on his Contravention Application filed 8 July 2022, and his affidavit filed that same day.
The mother relied on her affidavit filed 10 November 2022, as well as on an affidavit filed by Ms C (“Ms C”) on 11 October 2022.
I have also had regard to Mr D’s (“Mr D”) two reports prepared in this matter dated 27 May 2020 and 24 January 2022, both filed under cover of an affidavit on 16 November 2022.
Both parents attended at court, in person. They were subject to cross examination. Both parents clearly regard themselves as ‘in the right’, and the other parent as deficient. They were both rigid and inflexible in their views of the other parent, and in relation to what the children want and need. They both struggled to consider points of view other than their own.
Ms C and Mr D were not required for cross examination.
In relation to Ms C’s reports, it is unclear when she treated the children or when she last saw them. She was engaged post separation, unilaterally by the mother. The father was not notified of her involvement for a number of months afterwards. The mother acknowledged she did not inform the father about Ms C as she did not believe he would agree to the children’s attendance upon her. The father only attended a few appointments with Ms C.
It does not appear Ms C has seen the boys for some considerable period. Her reports are of limited value, as a result of the father’s substantial non-participation in the children’s attendance upon her. Accordingly, much of the information Ms C has received is information provided by the mother. Additionally, Ms C does appear to me to make observations and draw conclusions that fall outside the ambit of what she can meaningfully comment on.
I note at the outset of the hearing before me, there was some suggestion that it might be appropriate for a Specific Issues Report to be prepared at least in relation to X and his attitude towards playing with the B Sports Club. Whilst at first blush that option seemed attractive, I declined to make an order to that effect. After reading Mr D’s reports it became abundantly apparent that X struggles significantly with being caught up in the conflict between his parents, and feels distressed and deeply uncomfortable about having to express views that one or other parent will be hurt by or disappointed in. In those circumstances, I formed the view that subjecting X to yet another interview with a professional, and requiring him to effectively declare a ‘side’ with one parent would not be in his best interests.
BACKGROUND
The parties have been engaged in a highly acrimonious parenting dispute, no doubt at enormous financial and emotional cost to them both. The circumstances of the parties’ separation was fraught – and both parties at times have acted immaturely, and failed to be child focussed. Each blames the other for the lack of parental co-operation, and neither parent seems willing or able to reflect on their behaviours or contribution to the devastation they have caused to their boys’ childhoods.
The parties have frequently clashed over multiple issues regarding their children, including what dental work is required, where the children should attend dental appointments, what school sports they should play, the mechanism by which the children’s school sports should be chosen, the wearing/not wearing of orthotics for X, the obtaining of passports, other issues regarding the children’s medical and psychological treatment, as well as an ongoing dispute regarding the children’s participation in extracurricular activities both in sport and music. It is also apparent that the boys are both aware of these contravention proceedings, which is unacceptable.
The stress and strain of the ongoing conflict was, and remains, quite clearly deeply troubling and distressing for the boys. That much is obvious from the two Family Reports prepared by Mr D.
In his report dated 27 May 2020, Mr D implored the parties to step aside from their conflict, and reflect upon the significantly negative impact their ongoing dispute was having on the children, and the likely long-term consequences that this would have on the boys.
In that report, Mr D wrote:
[X] told me that he thought the prognosis for his parents relationship was poor, that he didn't think that they would ever be able to sort things out, that they remained extremely angry with each other and it was his opinion, they would never get over it. More importantly, he told me he didn't believe his parents understood how he felt, the impact of their actions upon him, that they were so consumed by their negative feelings for each other, that they ignored how he felt, that their negative feelings had an intrusive, negative, emotional transfusing effect upon him, and that he had lost trust in their ability to keep the family safe and protected. [X] told me that even though his parents reassure him that things will be different one day, that he doesn't trust that they will, that his parents are unable to elevate above their feelings and negativity towards each other for his sake and that of [Y], and he commented on how his parents behaviour and the history of the conflict so negatively affected [Y]. [X] was particularly burdened by the intensity of his mother's negativity, seemed unable to defend against the intensity of her ill feeling towards his father, feeling the need to defend his father against her criticism and being uncertain about how to respond to statements such as that she would never be with him again, that they will never like each other and that she doesn't want to be anywhere near him.
According to [X], his parents speak badly about each other, but more importantly, that he knows that they feel badly about each other. He feels defenceless against their criticism and attack; he told me that he does not like hearing about what has happened, that he is not interested in their story, that he does not want to live in the past and that he has heard a great deal about what has happened, and especially so from his mother, because she is the more stressed, annoyed and angry. He explained that it makes him feel very sad and feel very burdened when his mother goes over it again and again, that he worries about what this means for the future, amidst a sense of foreboding that something will inevitably go wrong. [X’s] fear for the future is that his parents will not be able to stop the conflict, that their negative feelings for each other will continue, and that inevitably, that will infuse him and his brother, and that he will not be able to have a relationship with both parents.
…
When asked what he thought was important for the Judge to know about him, he told me that he was worried that his parents were going to be in trouble with the judge but, he also wanted everything that they were doing to change, that they need to calm down, that they need to move on, and that they need to stop being so annoyed, aggressive and angry with each other. [X] pleaded for his parents to make peace, to understand how upset he and his brother were, and understand how their actions were affecting him. He complained that rather than solve their problems, they were just getting more angry all the time, that he felt stressed all the time, that he worried about their fighting, and that their behaviour had changed his perspective of them; he told me that he no longer felt that they were really good people and that that saddened him.
Mr D went on to record that X:
… wanted [his parents] to understand that when they become upset that he feels irrelevant, unimportant, even invisible. [X] told me that his parents needed to understand just how unhappy they were making both him and [Y], that it was really negatively affecting him, and that he felt anxious that he was starting to judge and evaluate his parents so negatively. He told me that they make him sad, and that their stress is passed on to him. He is worried about the future, worried what will happen, is fearful that things will continue to escalate negatively, and that there will be no resolution or peace.
In relation to Y, Mr D described him as emotionally restricted, immature, entitled and over-empowered. Mr D opined this presentation was consistent with children whose parents are unable to provide them with a coherent set of parental rules and limits. Mr D commented:
A particularly worrying feature of [Y's] presentation was his level of impulsivity, obvious emotional dysregulation, and his sense of emotional entitlement. He impressed as a boy who has a range of significant emotional problems, including difficulties with self organisation [sic] and executive functioning. The social science and neuroscience in this regard present a particularly sobering picture. There is a growing body of neuroscience that suggests that children who are exposed to extensive, prolonged and escalating parental conflict, have compromised brain architecture, and that the parts of the brain that deal with threat and danger are over active, whilst those parts of the brain that deal with emotional control, inhibition, planning and organisation are compromised; these children struggle with emotional control, impulsivity, behavioural regulation, concentration, are more prone to having learning problems, have difficulty with social judgement and are often controlling in the extreme. I draw in particular attention to the apparent contradiction in [Y's] presentation, that he is angry, aggressive, controlling, demanding, and yet anxious and fearful. What is the most concerning about his presentation is that even though he seeks his parents out for comfort and reassurance, that their efforts to comfort and reassure him do not have an enduring effect. [Y] is not able to trust that his parents can keep him safe, and even though demanding, and demanding of his parents’ reassurance, comfort, physical presence and affection, that combined, neither parent is able to reassure him in the manner that he needs.
…
It is important to see past [Y’s] bravado in order to understand what a sad, anxious, frightened and worried little boy that he is. [Y] is at extreme risk of developing significant behavioural and psychological disturbance. He has lost trust and confidence in his parents, and does not enjoy from them the benefits of a stable, predictable and containing environment…
…
The presentation of both boys is as sobering as it is concerning. [Y] is a boy who is at extreme risk of later problems. If his behaviour difficulties start to generalise and become apparent at school and/or in his social group, then the prognosis is significantly worse. He needs assistance, and the assistance needs to come from his parents. It is my very strong recommendation that they reflect not upon the behaviour of the other but upon themselves and what they can do in order to assist their son. It is in my view extremely likely that if [the parties] continue down this path, and if they are unable to come together, elevate above the conflict, regain some semblance of parental cohesion and protect their children from their conflict, that the outcome for both boys will be significantly compromised, and in particular for [Y], who is likely to develop severe disorder of conduct.
It should be highlighted to all concerned that the social science research states clearly and unequivocally that children whose parents separate, physically share their care, and maintain high levels of conflict, have children who do significantly worse than any other group, and that this group of children is at significantly heightened risk of problems of anxiety, depression, drug and alcohol abuse, and at very heightened greater risk of having trouble sustaining adult intimate relationships…
Children whose parents separate and who embroil them in their conflict create for children an impossible middle ground, in the midst of which children learn that it is not possible to have an integrated sense of self. Issues of truth and trust become prominent. Children learn that their parents’ inability to elevate their needs above their conflict invites of them an alignment to one parent. The risk is that they are unable to sustain a relationship with both parents because of the inherently conflicting nature of their experience, and that the constant exposure to the parallel universe of their parents’ experience creates an untenable middle space. This dissonance invites a fractured, unstable emotional experience, the impact of which is likely to endure significantly. By the time children are splitting and dividing their parents, trying to manage their parents and their conflict, they are already in crisis. I cannot emphasise enough the extent to which [X] and [Y] need their parents to behave differently, to parent together, to communicate a sense of calm and containment, and to help them.
Regrettably, the parties were apparently unable to change their behaviours and interactions, and their dispute continued.
Mr D prepared a second Family Report in January 2022. Both parents continued to complain vociferously about the other to Mr D, and demonstrated no ability for self-reflection. The situation for the boys had not improved at all. Again Mr D outlined the serious risks to the children if the parental conflict continued, including that they might reject one or other parent. Mr D said again that if the shared care arrangement was maintained, he considered the children to be at a “significantly heightened risk of problems of anxiety, depression, drug and alcohol use and difficulty sustaining intimate relations in their adult lives.” Mr D continued:
…[the parties] agree on nothing, their every interaction is driven by conflict and either they view each other from the worst possible vantage point first, or the actions of one parent continuously invites conflict and wreaks havoc upon the parental relationship and seeks to cause to the other parent maximum harm.
At that time, the parties were in conflict regarding the children’s sports. The mother did not take X to sports on ‘her’ weekends, which X was very upset about. X told Mr D that it was tremendously unfair that she did not take him, that he was passionate about playing sports, and that she would not agree that the father could take him on the weekends he was otherwise with his mother, so he did not miss out. X said he had not told his mother about his preferences, as he was worried she would be angry or upset.
X went on to tell Mr D:
… he did not believe that his parents understood what their conflict was like for him, that he feels unable to express his problems or his worries, that he is reluctant to talk or to tell his parents how he really feels because he knows that one or other will be angry, blame the other parent, or generally embroil him in the conflict. In this regard, he explained that it is equally difficult with both parents. He explained that he does not tell either of them how he feels and what he wants because he knows that by so doing will inevitably create conflict and that in this regard that they would use his sentiments, his words and his concerns as a weapon against the other parent. He described his parents constantly retaliating against each other, that when he is at one house that parent inevitably starts talking negatively about the other parent, about all the things that parent has done and all their shortcomings. From [X's] perspective, he is confronted with a negative diatribe of conflict and aggression, and he shared with me his observation that his mother is more inclined to engage in this negative behaviour, although it does happen at both homes.
...
…they create for him an impossible dilemma when they literally take a diametrically opposite position on every single matter.
Y reported:
… his parents still did not like each other, that they had conflict at every opportunity and that he was hopeful that things would improve. According to [Y], his parents do not argue like they used to, but still there is continuous discord between them. His expectation was that things would remain largely unchanged, that he would continue to reside with his parents equally, but that he is hopeful that his mother would better accommodate his attendance at extracurricular activities and in particular allow him to play [sports]. Y told me that he did not understand why his mother became so angry about his wish to play [sports], that he felt he missed out, that he thought this was unfair.
Mr D concluded:
Regardless of the relative contribution of either parent to this dispute, the prognosis for both boys is poor. They are very much embroiled in their parents’ conflict, they have been exposed to their parents’ negativity, and in this regard, both parents’ denial that they have contributed to the problems simply does not align with the level of the conflict, the escalation of that conflict, and the incumbent difficulties with which the children are been presented. The difficulties experienced by [the parties] have so escalated in a symmetrical manner that it invites an inevitable split and alignment by the children to their parents, with this family being at particular risk of fragmenting the children's relationship such that they reject one parent, possibly their mother, in favour of a single unified experience in the care of the other parent. The children confronting this kind of continuous parental conflict and dissonance creates a particular dilemma; they are confronted with confusing stories, contradictory parental accounts, and a level of uncertainty and disruption that undermines their sense of stability, confidence and trust in their parents. Some children find the dissonance associated with such conflicting parents to be so overwhelming that it is not possible for them to maintain a relationship with both parents and they split off and reject one parent in favour of the other. In this splitting process one parent is portrayed as all good and the other is portrayed as all bad...
Mr D outlined the options for the boys as either leaving them in a shared care arrangement, with the hope that the parties’ attitudes and behaviours would improve, or acquiescing to what he described as the inevitable conclusion of the boys having primary care with one parent, and limited time with the other.
Following that report, the parties entered into the primary order by consent. As indicated, the parties agreed to continue the shared care arrangement.
Notwithstanding the desperate pleas from their children – and Mr D’s clear outline as to the potentially devastating consequences of their behaviours – the making of the primary orders has not provided the children with respite from the conflict. Rather, the parents have apparently remained entrenched in their views and attitudes. They have remained negative, bitter, angry, unable to move on, stuck in their perspective and unable to put their children first, instead, finding further fertile ground upon which to continue their battle.
I note that the conflict has not just continued in this court. Each of the parties has an intervention order against the other. Each of them has recently obtained an extension of those orders. Both of the parties asserted that they were seeking the extension as the other parent had also sought an extension, and referred to the ‘ongoing conflict’ between them.
THE ASSERTED CONTRAVENTIONS
I now set out the contraventions of the primary order that were pursued, and the mother’s plea in relation to each of those counts:
(a)Count 4 – that on 20 April 2022, the mother did not provide the father with notice to enable him to take X to the B Sports Club training. The mother admitted X did not attend. She asserted X’s enrolment was not by agreement and accordingly, there has been no breach of Order 8. Alternatively, she said if the court found that Order 8 did apply, she said she had a reasonable excuse for the non-attendance. That reasonable excuse, she said, was that X did not want to attend B Sports Club.
(b)Count 5 – that on 1 May 2022, the mother did not provide the father with notice to enable him to take X to the B Sports Club game that day. The mother admitted X did not attend. As in relation to count 4, she asserted X’s enrolment was not by agreement and accordingly, there had been no breach of Order 8. Alternatively, she said if the court found that Order 8 did apply, she said she had a reasonable excuse for the non-attendance being the same reasonable excuse proffered in relation to count 4.
(c)Count 7 – that on 15 May 2022, the mother did not provide the father with notice to enable him to take Y to the B Sports Club game that day. The mother admitted Y did not attend. As at that date, according to the mother’s evidence, she had provided her consent for Y’s enrolment with the B Sports Club. Accordingly, I am of the view that Order 8 applied. However, the mother asserted she had a reasonable excuse not to take Y that day, and not notify the father so that he could take Y. She said Y had used her personal electronic device to view a sex site. She said she prevented him from attending the B Sports Club game on 15 May 2022 by way of discipline for Y having breached a clear household rule.
(d)Count 8 – that on 15 May 2022, the mother did not provide the father with notice to enable him to take X to the B Sports Club game on that day. The mother admitted X did not attend. She said there had been no breach of Order 8 for the reason asserted in relation to count 4. Alternatively, she said if the court found that Order 8 did apply, she had a reasonable excuse for the non-attendance being the same reasonable excuse proffered in relation to count 4.
(e)Count 9 – that on 18 May 2022, the mother did not provide the father with notice to enable him to take X to the B Sports Club training on that day. The mother admitted X did not attend. She said there had been no breach of Order 8 for the reason asserted in relation to count 4. Alternatively, she said if the court found that Order 8 did apply, she said she had a reasonable excuse for the non-attendance being the same reasonable excuse proffered in relation to count 4.
(f)Count 10 – that on 29 May 2022, the mother did not provide the father with notice to enable him to take X to the B Sports Club game on that day. The mother admitted X did not attend. She said there had been no breach of Order 8 for the reason asserted in relation to count 4. Alternatively, she said if the court found that Order 8 did apply, she had a reasonable excuse for the non-attendance being the same reasonable excuse proffered in relation to count 4.
(g)Count 11 – on 1 June 2022, the mother did not provide the father with notice to enable him to take X to the B Sports Club training on that day. The mother admitted X did not attend. However she said there had been no breach of Order 8 for the reason asserted in relation to count 4. Alternatively she said if the court found Order 8 does apply, she had a reasonable excuse for the non-attendance. That was a day the children were scheduled to be with their father. However, X did not attend school that day as he was unwell and for the same reasons he did not attend sports training that day. It did seem to me that the father appeared to accept this explanation when giving his evidence.
(h)Count 12 – that on 2 June 2022, the mother did not provide the father with notice to enable him to take Y to the B Sports Club training on that day. The mother admitted Y did not attend. As at that date, according to the mother’s evidence, she had provided her consent for Y’s enrolment with the B Sports Club. Accordingly, I am satisfied that Order 8 applied. However, the mother asserted she had a reasonable excuse not to take Y that day, and not to notify the father so that he could take Y. She said on that day she had been able to arrange a two hour session with a personal dog trainer to assist the mother and the boys with their new puppy. She said that was the only day that they could all attend with the trainer;
(i)Count 13 – that on 15 June 2022, the mother did not provide the father with notice to enable him to take X to the B Sports Club training on that day. The mother admitted X did not attend. She said there had been no breach of Order 8 for the reason asserted in relation to count 4. Alternatively, she said if the court found that Order 8 did apply, she had a reasonable excuse for the non-attendance being the same reasonable excuse proffered in relation to count 4.
THE LEGAL PRINCIPLES
Division 13A of the Family Law Act 1975 (Cth) (“the Act”) deals with the consequences of failure to comply with orders and other obligations affecting children.
Pursuant to s 70NAC of the Act, a person will be taken to have contravened an order if and only if a person bound by an order has intentionally failed to comply, or made no reasonable attempts to comply with the order.
Accordingly, the first question to be determined is whether the provisions of Order 8 applied to the children’s engagement with the B Sports Club. If their enrolment with the B Sports Club did not attract the operation of Order 8, then the mother was not bound by the terms of that order in so far as the children’s engagement with the club was concerned.
If I am satisfied that the mother was bound by Order 8, and the father is able to satisfy the court that she intentionally failed to comply with it, or made no reasonable attempts to do so, it then falls to the mother to establish that he or she has a reasonable excuse.
Pursuant to s 70NAE of the Act, a reasonable excuse includes – but is not limited to:
(a)that the respondent did not understand the obligations imposed by the order; or
(b)that the respondent believed on reasonable grounds that the contravention was necessary to protect the health or safety of a person, including the child, and that any period of contravention was not longer than necessary to provide that protection.
If there is any ambiguity in the order that gives rise to a contravention application, any such ambiguity should be resolved in favour of the respondent.
If a respondent is asserting they had a belief that it was necessary to contravene the orders to provide protection, they must satisfy the court both that they actually held that belief and that their belief was reasonable.
Whilst s 70NAE of the Act does not set out a complete list of what amounts to a reasonable excuse, the tenor of the matters that will constitute a reasonable excuse as enumerated informs what other circumstances might be considered to amount to a reasonable excuse. What might be considered to be a reasonable excuse will depend on the circumstances of each individual case.
The case law makes it clear that a subjective view by one parent that an order is not in a child’s best interests does not amount to a reasonable excuse.
In this matter, the standard of proof is the balance of probabilities.
WAS THE MOTHER BOUND BY ORDER 8 IN RELATION TO THE CHILDREN’S ENROLMENT WITH THE B SPORTS CLUB
Was there an agreement for enrolment with B Sports Club?
It is apparent there has been a long standing disagreement between the parties over the children’s engagement in community sports. Whilst the children have been enrolled with the B Sports Club in each season for about the last eight or nine years, the mother has not consistently facilitated their attendance. The father acknowledged in his oral evidence that post separation, he continued the boys’ enrolments with the B Sports Club, but that the mother took them to training and games infrequently.
It is common ground that Y is a talented player, and very enthusiastic about the sport. In relation to X, the mother said he only plays to please his father, who she described as being overly invested in the boys’ sports. She said X complains to her about having to train and then play sports with the B Sports Club on Wednesdays and Sundays in addition to his school training on Wednesdays and games on the Saturdays. She said X does not want all his weekends during playing seasons consumed with sports. Additionally, she said X is not a particularly good player, and has some issues with his feet that impacted on his ability to play so much sport. In relation to any medical or physical impediment to X’s sports playing, I note the evidence was not compelling.
Conversely, the father said both boys are deeply committed to the game, and wish to train and play with the B Sports Club. He said whilst X may not be an outstanding player, he gained considerably from participating in a group sport, and being part of a team. He said X told him that he wanted to play with the B Sports Club.
As set out, X was clear with Mr D that he wanted to play sports, as was Y. However, I note that to Ms C – who had been engaged by the mother - X previously expressed that he did not really want to play sports, and that he felt forced to do so, and that he would upset his father, who would feel let down if X said he did not want to play.
The mother’s reluctance to the boys’ engagement with sports is long standing. In 2019, the mother advised the father that X was suffering leg pain after playing sport. In early 2020, the mother communicated with the father further concerns about the boys playing sports. She communicated again with the father in mid-2020, asserting X had told her he did not want to play sports anymore, and that he had leg pain which she said meant he should not be playing.
By the end of 2020, the parties no longer communicated directly with each other. At that time, the parties had intervention orders against each other. The father advised the mother that any direct communication by the mother to him would be reported as a breach of the intervention order, “…unless the boys are injured or it’s life threatening”. It appears that all communication from that time was through their lawyers.
Despite the mother’s opposition at least regarding X, the father again enrolled both boys to play with the B Sports Club in 2021. There was a communication by the mother to the father in May 2021 in which she indicated she was prepared at that time for the boys to play with the B Sports Club. However, I note that by the date of Ms C’s report in 5 November 2021, X appeared to be expressing strong opposition to playing with the B Sports Club.
X’s participation in sports remained a contentious issue into early 2022. In January 2022, X told Mr D he was passionate about sports and wanted to play. However, it was also clear from that report that the mother did not support that arrangement.
Notwithstanding that this was a contentious issue, the father again registered both boys with the B Sports Club in February 2022 for the 2022 season.
The mother said she had no direct communication from the father about them being enrolled with the B Sports Club before he unilaterally registered them in February 2022. Further, she said the father did not communicate his intention to enrol the boys in the 2022 season at any time prior to the primary order being made. Nor did he provide her with any confirmation that he had already enrolled them prior to the primary order being made. The mother deposed that she did not, at any stage prior to or after the primary order was made, agree to the children being so enrolled, although I note she also advised the club on 10 April 2022 that she was “happy to support [Y’s] involvement in the game”. However, in that communication the mother made it clear to the club that she expressly disagreed that X should be enrolled to play with the B Sports Club.
The father agreed that the mother received no communication from him about the boys’ enrolment with B Sports Club for the 2022 season until 24 March 2022. That was two days after the primary order was made. The parties at that stage started to communicate with each other via the Our Family Wizard app.
As set out, on 24 March 2022, the father wrote to the mother seeking confirmation that the children were attending sports training whilst in her care. The mother responded saying that she had not been informed that the children were enrolled and accordingly, the children had not attended. She also wrote that “I do not agree for [X] to play sports this year”. She did not indicate her attitude or view on Y’s enrolment at that time.
On 30 March 2022 the father communicated with the mother, advising that the children were to attend the B Sports Club pursuant to the orders. The mother responded reiterating that clause 8 referred to activities that were agreed. She wrote “[i]n [X’s] case it is not ‘agreed’ by me”.
On 10 April 2022, the mother wrote to the B Sports Club advising she did not consent to X’s enrolment with the team. However, she said she was happy to support Y’s involvement in the game.
On 14 April 2022 the father wrote the mother again, advising he would take the children when the children were otherwise in her care if she was not prepared to do so. There was no agreement to that course, and subsequently the mother advised she would not be taking the children during the time they were in her care.
In his evidence, the father conceded that he completed the enrolment process the boys for the 2022 season with the B Sports Club. He conceded the club liaised with him alone and that he did not forward their correspondence to the mother. He further conceded that he did not seek the mother’s consent prior to enrolling the boys with the B Sports Club for the 2022 season. He agreed there was no letter from him, or his lawyers advising the mother prior to the making of the primary order advising or confirming the boys had been enrolled with the B Sports Club by him in February 2022.
However, the father said he had enrolled the children with the B Sports Club for each of the preceding eight or nine years. He said the mother knew that history, and accordingly, he regarded the boys’ re-enrolment with the B Sports Club in February 2022 by him as a continuation of an existing activity, and therefore captured by Order 8. He said the intention of the parties at the time of the making of the primary order was that if the children were engaged in activities at the time the order was made, they would continue to engage in those activities. He said that was the purpose of the reference to activities in the parenthesis. It was part of the father’s case that in the circumstances, the mother ought to have provided a clear withdrawal of her consent, given her earlier agreement as set out in her communication to him in May 2021.
I do not accept that the mother’s consent was implied as a result of the children’s previous enrolment, or that her agreement provided in May 2021 continued into the next season. Whilst the mother had indicated her agreement to the boys playing with the B Sports Club in May 2021, that is not a provision by her of enduring consent. It could not be taken to be everlasting consent for the boys to be enrolled in every season until they are 18 years old. The boys’ needs and wants will change. Family circumstances will change. Consent does not endure indefinitely.
I therefore do not accept that the mother was under any obligation to positively communicate to the father that she had withdrawn her consent. That is particularly so in relation to the children’s enrolment with the B Sports Club, given that it was quite clearly an area of dispute between the parties as at the time the orders were made.
Nor am I satisfied that as the children were only enrolled in two sports at the time the primary orders were made the words in parenthesis in order 8 must have been referring to those activities. It may be that the father intended to capture the boys’ enrolment with the B Sports Club in the wording of Order 8. However, I am not satisfied that the mother also intended that activity to be included. There was no ‘meeting of the minds’. My view is that the parties need to clearly and unambiguously reach an agreement each new year, or new term or new season, before enrolling in each activity for that activity to be an “agreed activity”.
Accordingly, I do not accept that the parties had agreed to enrol the boys with the B Sports Club for the 2022 season when the father undertook the enrolment process in February 2022. Further, I am satisfied that as at the day the primary orders were made, there was no agreement that the boys would be enrolled with the B Sports Club.
Was there an obligation to ensure the X’s attendance at B Sports Club despite no agreement?
In relation to the interpretation of Order 8, my view is that the reference in parenthesis to activities including but not limited to “those in which they are currently enrolled” must be referring to agreed extracurricular activities. That is, the word “those” is referring back to the activities to which the parties have agreed as to enrolment.
I do not accept that the mere fact of enrolment is sufficient. If “those” activities “in which they are currently enrolled” included non-agreed activities then had either parent, unbeknownst to the other, enrolled the children in any activity, anywhere, for any frequency and duration, the non-enrolling person would have been obligated to take the children, or allow the other parent to take them. That could not have been the parties’ intention.
It is deeply regrettable that the parties did not, when the primary orders were made, take the time to simply list what activities they both agreed the children were enrolled in. Had that occurred, at least part of these proceedings could have been avoided.
Y’s enrolment with the B Sports Club
As indicated, it is my view that at the time the orders were made the mother had not consented to either boy being enrolled with the B Sports Club. However, whilst she has at no time provided her consent regarding X, and made that clear in her communications with the father in March 2022, she did not indicate that she similarly did not provide consent for Y.
Further, I note that according to her own evidence, as at 10 April 2022 she wrote to the club and advised she did not consent to X playing sports, “but that I was happy to support [Y’s] involvement in the game”. The mother then sought to withdraw X’s enrolment with the club, but was not able to as she had not enrolled him. She does not appear to have also sought Y’s enrolment be withdrawn.
I take it from that evidence, that upon being made aware the children had both been enrolled with the B Sports Club for the 2022 season, the mother implicitly, and then explicitly provided her consent to Y’s participation.
Accordingly, Y’s enrolment was an agreed activity, and therefore Order 8 – and the obligations arising from that order – applied when Y did not attend his sports game on 15 May 2022, and training on 2 June 2022.
HAS THE FATHER ESTABLISHED THE CONTRAVENTIONS?
For the reasons I have just set out, I am not satisfied that the children’s enrolment with the B Sports Club was captured by the operation of Order 8, in so far as the counts regarding X are concerned. All counts in relation to X must therefore fail.
However, I am satisfied that Y’s enrolment was by consent, at least by April 2022. The mother knew she was bound by the terms of the order, and she made no reasonable attempts to comply with the order regarding Y’s attendance at his commitments on 15 May 2022 and 2 June 2022.
DOES THE MOTHER HAVE A REASONABLE EXCUSE
By way of completeness, even if I am wrong in relation to whether the children’s enrolment with the B Sports Club was captured by the operation of Order 8, in so far as the counts regarding X are concerned, I am satisfied the mother did not understand the obligations imposed on her.
It will be clear from the parties’ dispute and these reasons that there is, at best, some significant ambiguity around the operation of Order 8. In those circumstances, any ambiguity is to be resolved in the mother’s favour. It is, of course, fundamental that a respondent to a contravention application can only be responsible for an omission if they understood precisely what was required of them pursuant to the order, as was set out by Federal Magistrate Dunkley (as he was then known) in Hale v Hale [2011] FMCAfam 1107.
Absent clear and direct communication, it was not, in my view, tolerably clear that the boys’ enrolment with B Sports Club was captured by the terms of Order 8. Indeed, given the lack of parental communication and the ongoing dispute regarding sports, in my view it was reasonable that the mother did not regard the boys’ 2022 enrolment with the B Sports Club as an agreed activity.
Accordingly, I am satisfied that if the mother was bound by the order in relation to X, she did not understand she was so bound, and ought be excused in respect of any contravention.
In relation to the two counts regarding Y, the mother asserted:
(a)on 15 May 2022, Y accessed the mother’s personal electronic device. She said he used that device and accessed sexually explicit material. The mother said it is a clear rule in her house that the boys are not to use her electronic devices. The mother said as Y had breached that rule, she did not allow him to play his sports game that weekend. She said that was proportionate and appropriate discipline for his misbehaviour.
(b)on 2 June 2022, Y did not attend sports training, as the mother had arranged that evening for a puppy trainer to attend her home to assist with her new dog. The mother felt it was appropriate that both boys be in attendance with the trainer. She said this was the only day convenient to the trainer, the mother and the boys.
The mother, accordingly, conceded she did not make any attempt to comply with Order 8 on those two occasions. She maintained, however, that the proper and efficient management of her household meant it was appropriate that Y missed the game and the training on those two occasions.
I note the father’s concession that since April, other than those two occasions, and possibly one occasion in August 2022, the mother has ensured Y has attended all his training and games throughout 2022.
The father did not accept that Y had accessed sexually explicit material on the mother’s device. Y told him that he used the mother’s device to look up puppy related topics, and discovered the mother had accessed pornography on her device. Apparently, Y told the father that he then went into the mother’s search history and saw multiple sexual websites, which Y reported made him sad, angry and disgusted. Y said the mother told him not to tell the father that she accessed pornography, and threatened to prevent Y from playing the game on the upcoming weekend if he told his father. Apparently, Y then telephoned his father and gave his version of events.
I accept the mother’s explanation. It is a plausible explanation and consistent with the family dynamic of significant parental mistrust and a willingness to readily accept the children’s complaints about their other parent. I accept Y may have given his father the explanation as claimed. However, it seems to me far more likely that Y – perhaps inadvertently – accessed an explicit site, and then blamed his mother in an attempt to avoid getting into trouble.
It is troubling that the mother did not raise the issue with the father herself. It is also troubling that the father was utterly unable to contemplate that Y’s explanation may not be accurate. Further, on his own evidence, he did not appear to reassure Y, or make any attempt to assuage Y’s asserted anger, sadness or disgust at the mother.
It is also deeply troubling that the father did not reprimand Y for accessing his mother’s search history. It is highly problematic that one parent apparently tolerates, if not embraces, the children ‘evidence gathering’ against the other. That behaviour is not just limited to the father. In her oral evidence the mother referred to one of the children having taken a photograph of the father’s landline telephone, apparently to provide evidence he had one when there was some disagreement over that issue.
The May 2022 incident is an obvious example where the parents ought to have communicated with each other, reached an agreement as to an appropriate consequence for Y, or at least backed up the rules and boundaries imposed by one parent on the children. I note that Mr D expressed very significant concern about the impact on the boys as a result of their parents’ failure to implement a coherent set of parental rules and limits.
Having heard and considered the evidence, however, I am not satisfied that the mother had a reasonable excuse to contravene the primary order on 15 May 2022 or 2 June 2022. Whilst the mother has provided explanations, given the tenor of the matters enumerated at s 70NAE of the Act as circumstances in which a reasonable excuse may be established, I am of the view that her explanations fall short. She could have imposed an alternate consequence for Y that did not also breach her obligations under an order of this court. She could have arranged the puppy training for a date that would not have breached an order of this court. In both cases, she chose not to do so, notwithstanding she must have anticipated the furore that would eventuate as a result of the missed practice and game.
VARIATION OF THE PRIMARY ORDER
Pursuant to s 70NBA of the Act, the court has the power to vary the primary order following the bringing of a contravention application. In determining this issue, the children’s best interests are the paramount consideration.
It is in my view abundantly clear that the primary order regarding extracurricular activities needs to be varied. The parties are unable to sensibly resolve disputes between themselves. They are unable to genuinely listen to their boys, and come to an agreement as to what activities the children should do. X in particular appears reticent to express his views to either parent, telling each of them what they want to hear, and wanting his parents arguing and conflict to stop.
Unsurprisingly whilst both parties sought Order 8 of the primary order be varied, they could not agree on the terms of that variation.
The father proposed that the order permit him to take the children to any extracurricular activity in with they are enrolled, irrespective of who has the care of the children. His proposal did not limit this to activities the parties agree upon. Accordingly, if I made the variation as sought by him, he would be able to enrol the children in whatever activity he chose, without consultation with the mother, and he would then take the children to those activities regardless of who had the care of the children. He did not appear to see how such an arrangement could impinge on the manner in which the mother wished to run her household and the weeks the children are in her care. Whilst he also said the mother could enrol the children in activities she chose and he would take the children to those activities when the children were in his care, it is obvious that this would not resolve the situation. Rather, it is foreseeable that there would be future conflicts, if for instance, both parents enrolled the children in different activities on the same night and at the same time. Given the history of this matter is it doubtful that the parties would be able to resolve that impasse.
In his closing address, counsel for the father proposed that Order 8 should include direct reference to the children remaining enrolled in school sport, with the B Sports Club and another sport. I do not agree that is an appropriate resolution. The boys’ may want to stop playing sports outside of school. They may want to take up other activities instead. I have concerns about the ability of the parents to embrace any activity changes advocated by the children if those proposed changes did not also accord with the views of the parent. Accordingly, if I amended Order 8 as proposed, unless the parents agreed otherwise, both children would have to remain engaged in those activities even if they did not want to do so.
In my view, the children’s best interests will be met by requiring the parents to provide written consent to the children’s participation in each activity at the commencement of each new season or new term. That way, there can be no debate as to whether or not the parents have agreed. If an activity is so agreed, each parent is to use their best endeavours to deliver the children to that activity.
I am not prepared to require one parent to notify the other parent and allow them to take the children to an activity if the parent with the care of the children cannot do so. That arrangement, in my view, is intrusive and likely to cause further conflict. Having said that, I certainly expect that each parent would ensure the boys’ attendance at any agreed activity, as it would no doubt be difficult for the boys and for their team members if their attendance was sporadic or unreliable.
Each parent is otherwise at liberty to enrol the children in extracurricular activities without the other parent’s written consent. However, there is then no obligation on the non-enrolling parent to take the children to those activities. That provides each parent with the ability to choose the activities for the children in that parents’ time. It will be up to each parent whether they do or do not take the children to the activities arranged for the children by the other parent. I understand this may mean that the boys may end up playing sport, or engaging in an activity each alternate week. It likely means X will only attend to play with the B Sports Club when he is with his father. I accept that is an unfortunate consequence, but I am satisfied that this is in the children’s best interests. Given the inability of each of the parent’s to act responsibly and make sensible, child focused and joint decisions, it is the only solution that will end the parties’ tug of war over this aspect of their children’s lives.
Whilst ideally both parents would ordinarily attend all extracurricular activities in which their children are enrolled, save in relation to finals and special presentations, that does not appear to be feasible. The parties have intervention orders against each other. If the father attends training or games when the boys are otherwise in their mother’s care, they must both be mindful regarding where they are in the venue in relation to the other, so as to ensure there is no breach of the intervention orders. I note that both parties have been charged with breaching intervention orders. The charges against the father were withdrawn. The mother entered a diversion program in relation to the charges against her.
I note the terms of the intervention orders include allowing the parents to do anything permitted by a Family Law Act order. However, the reality is that the hostility and tension between the parents is palpable, and likely to make the children feel worried and stressed when their parents are in reasonable proximity of each other. Indeed, that observation was made by Ms C, regarding reports X made to her about his levels of stress when his parents are near each other.
Having made that observation, however, it does seem to me that it would be in the children’s best interests that each parent can attend the less frequent, but very important finals, or special presentation events.
I note the mother sought restraints on the father enrolling X in B Sports Club, and on each party being limited to one extracurricular activity outside their school commitments. I am not prepared to make those restraints. Each parent can determine an appropriate level of extracurricular activity in his or her household.
CONCLUSION
Having found the mother contravened the orders on 15 May 2022 and 2 June 2022, I will now have to hear from the parties as to what consequences – if any – should flow from those breaches.
It may be that the imposition of any penalty or action as contemplated in the Act is not appropriate. Whilst the contraventions are proved without reasonable excuse, the inclusion of the two relatively insignificant breaches in a contravention application seems to me to be somewhat unnecessary and disproportionate.
It is plain that X in particular finds it extremely difficult to express his feelings and beliefs. It seems to be overwhelmingly likely that X tells each of his parents what he believes will make them happy, leaving him feeling unable to express his true desires. This reflects extremely poorly on the parents. It is tragic that X’s views on playing community sports have become so politicised.
The father was unable to consider the possibility that X may not want to play with the B Sports Club. He insisted that X genuinely wants to play and train with the B Sports Club, as the father has spoken with him about it on many occasions. He also said he spoke with the children at length about whether they wanted psychological support, but the boys told him they did not want to attend a counsellor. That is in the context of the mother wanting the children to continue to attend upon Ms C and the father being opposed to that.
The father did not seem to have any insight into how those conversations embroil the children into the parental conflict, and subject them to further pressure and stress. Of course, it might be X’s genuine view that he wants to play community sports. However, it is troubling that the father could not even contemplate any other explanation for what X tells him, or see the implications of such discussions from X’s perspective.
Whilst the mother was also insistent X did not want to play with the B Sports Club, she was at least able to consider that he may be telling her what she wants to hear. The mother should ensure she makes it abundantly clear to X that she will support his decisions and choices, including if he wishes to play sports, and give him clear permission to do so.
Like the father, the mother has also embroiled the boys in the parental dispute. For instance, in her letter to the father dated 18 January 2020, she referred to having a “meeting with the children to explain the circumstances of their health care being in [the father’s] control”. She said without a copy of the Medibank private health care card that the father had not provided her, she was not comfortable taking the children to sports, in case they were injured and she did not have access to private health insurance. The subtext of that conversation appears to me to be to blame the father for the children missing out on sports activities. The mother maintained this was an appropriate discussion to have with the children, and would not concede she was exposing the children to the parties’ disagreements.
Neither parent should read this judgment and think they have won or been vindicated somehow. It is, in my view, appalling that court resources have been taken up with this dispute. It should have been resolved between the parties. They are the only parents the children have, and they should start acting responsibly. That includes changing their hateful and blaming narratives in relation to the other parent.
For all of the foregoing reasons, I will make the orders as are set out.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 8 February 2023
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