Macks & Gambrell
[2023] FedCFamC2F 635
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Macks & Gambrell [2023] FedCFamC2F 635
File number: MLC 12029 of 2019 Judgment of: JUDGE MCGINN Date of judgment: 25 May 2023 Catchwords: FAMILY LAW – Contravention – contraventions conceded – reasonable excuses not established – compensatory time – bond – variation of orders - costs Legislation: Family Law Act 1975
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021
Federal Circuit and Family Court of Australia (Family Law) Rules 2020
Cases cited: B & W (No 1) [2003] FMCAfam 101
Baker & Bond (No 2) [2023] FedCFamC1A 26
Black & Black [2005] FMCAfam 567
Childers & Leslie [2008] FamCAFC 5
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Gaunt & Gaunt (1978) 4 FamLR 305
H & V [2005] FMCAfam 519
Lenova & Lenova (Costs) [2011] FamCAFC 141
Mitty & Mitty [2012] FamCA 329
Taikato v R [1996] HCA 28; (1996) 186 CLR 454
Division: Division 2 Family Law Number of paragraphs: 121 Date of hearing: 17 April 2023 Place: Adelaide Counsel for the Applicant: Ms Tiernan Solicitor for the Applicant: Jellie McDonald Respondent: Self represented ORDERS
MLC 12029 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GAMBRELL
Applicant
AND: MS MACKS
Respondent
order made by:
JUDGE MCGINN
DATE OF ORDER:
25 May 2023
UPON NOTING:
A.That the respondent mother has contravened the following orders without reasonable excuse:
a.order 3.1 of the orders of 19 May 2021;
b.order 5.1 of the orders of 19 May 2021; and
c.order 5.3 of the orders of 19 May 2021.
B.That there have been no previous orders with sanction or the taking of an action for breach of the parenting order of 19 May 2021 and there has been no adjournment of any pending application for variation, suspension or discharge of the said parenting order or revival of an earlier parenting order.
IT IS ORDERED:
1.That pursuant to section 70NEB of the Family Law Act 1975 (Cth) (“the Act”):
(a)the respondent mother is required to enter into a bond pursuant to section 70NEC of the Act for a period of 20 months upon condition that she complies with all parenting orders made and to be made under the Act and that in the event that she breaches the condition of that bond she shall then forfeit to the Commonwealth of Australia the sum of $1,000;
(b)the respondent mother do give to and the applicant father do take compensatory time with the child X born in 2019 pursuant to subsection 70NEB(4) of the Act from 11.00am to 6.00pm on each of;
(i)10 June 2023;
(ii)24 June 2023;
(iii)8 July 2023;
(iv)22 July 2023; and
(v)5 August 2023;
(c)the respondent mother do pay the applicant father’s costs in relation to the Application – Contravention filed 9 September 2022 fixed in the sum of $4,460 (inclusive of GST) within eight (8) months.
2.This matter is adjourned to 9:30am on 4 July 2023 (half an hour allowed) (South Australian time) for the purpose of an explanation being provided by the Court to the respondent mother pursuant to s 70NEC(5) of the Act in relation to the bond.
3.That the respondent mother do attend the Melbourne Registry at 2:00pm on 5 July 2023 (Australian Eastern Standard Time) to sign the bond in the presence of a Judicial Registrar or other judicial officer of this Court.
4.That for the purposes of clarity that the orders of 19 May 2021 do otherwise stand confirmed and that the orders of 18 November 2022 shall be deemed to have lapsed as at the date of these orders.
5.That the Application – Contravention filed 9 September 2022 do otherwise stand dismissed.
6.That pursuant to s 65DA(2) and s 62B of the Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
7.Pursuant to s70NBA of the Act that the parenting orders of 19 May 2021 be varied by the addition of the following orders to the orders of 19 May 2021:
9.That the parents, their servants and agents shall be and are hereby restrained from denigrating each other in the hearing or presence of the child, including by discussing these proceedings with, or within the hearing of, the child.
10.That changeover for the purposes of the father spending time with the child pursuant to these orders shall, subject to the parties otherwise agreeing in writing, occur:
(a)at the commencement of the father’s time with the child,
(i)if on a day and at a time when the child is attending day care, kindergarten or school from that place of day care, kindergarten or school; or
(ii)otherwise at the [McDonald’s] complex in [City B]; and
(b)at the conclusion of the father’s time with the child, at the [C Store] at [Town D].
11.That the mother do all things necessary to direct and permit the child’s child care centre to activate and maintain the father’s access to the childcare portal.
12.That the father shall communicate with the child by electronic videoconferencing twice per week between 7:30am and 8:00am or between 4:00pm and 4:30pm on Tuesdays and Thursdays.”
8.That pursuant to s 70NEB(1)(f) the respondent mother do pay within eight (8) calendar months the father’s costs of the Application – Contravention filed 9 September 2022 fixed in the sum of $4,460 inclusive of GST.
9.That the Application – Contravention sealed 9 September 2022 do otherwise stand dismissed.
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 Macks & Gambrell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN
Before the Court are counts 1 to 8 contained in the Application – Contravention of 9 September 2022 filed on behalf of the applicant father of the child X born in 2019.
The respondent is the mother of X.
The Application deals with alleged breaches of parenting orders made 19 May 2021 in relation to X. X is aged three years and is due to turn 4 years in 2023.
By the Application it is alleged that there were contraventions without reasonable excuse of orders made 19 May 2021 on various dates between the 6 February 2022 and 3 June 2022. The 19 May 2021 orders were made with the consent of the parties.
The orders of 19 May 2021 which are alleged to have been contravened are identified by the application to be orders 3.1, 5.1 and 5.3 which read:
“3The Father shall spend time and communicate with the child [[X] born 2019] as follows:
3.1Commencing as and from the weekend of 21 May 2021, from 3:00 pm on Friday afternoon until 3:00pm on the immediately following Sunday (or until 3 PM on the immediately following Monday, if the Monday be a public holiday), and each alternate weekend thereafter;
…
5 The Mother and Father shall:
5.1keep the other advised at all times of their respective residential addresses and landline telephone and mobile telephone numbers, and any email contact address for the purposes of contact between the child and the Father;
…
5.3authorise any medical practitioner or counsellor and/or allied health professional upon whom the child may attend from time to time, to communicate with the other in respect to the child’s medical condition and/or requirements;”
In breaching order 3.1 it was also alleged in the Application that there was a contravention of order 3.2 of the orders of 19 May 2021. Those orders provided as follows:
“3 The Father shall spend time and communicate with the child as follows:
…
3.2By electronic videoconferencing twice per week at times to be agreed between the parties, and failing agreement, between 4:00pm and 4:30pm on Tuesdays and Thursdays each week, commencing 20 May 2021;”
The date of the contraventions of orders 3.1 and 5.3 occurred on 6, 11 and 26 February 2022 and 8 and 23 April 2022 and 6 May 2022 and 3 June 2022.
The date of the contravention of order 5.1 occurred on 25 March 2022.
The Court was told that the father’s time with X would in the usual course of circumstances pursuant to order 3.1 was next due to occur following the hearing of the contravention application on 21 April 2023.
Relevantly for the purposes of this judgment, it is to be noted that each of the parties consented to orders being made before a Senior Judicial Registrar of this Court on 18 November 2022 which orders were to operate until further order.
In giving their evidence each of the parties made a reference to “illicit drugs’ which was understood by the Court to be a reference by each party to illicit drugs.
Those orders of 18 November 2022 provided that X was to live with his mother and spent time with his father on 3 December 2022, 17 December 2022, Christmas Day 2022, 31 December 2022, 14 January 2023 and 28 January 2023. The time during that period for the initial four occasions was to be on a day time basis only and thereafter on an overnight basis. In addition, those orders of November 2022 provided for electronic videoconferencing twice a week between 7:30am and 8:00am or between 4:00pm and 4:30pm on Tuesdays and Thursdays each week commencing in November 2022.
Those November 2022 orders also provided that handover would be effected by the mother delivering X to the father at the McDonald’s complex in City B and at the conclusion of time the father would deliver X to the mother at the C Store (understood to be a supermarket) at Town D.
Those orders also went on to provide:
(1)that the mother and direct the childcare centre to activate the father’s access to the childcare portal; and
(2)that within 72 hours each party undertake a supervised urinalysis test and provide the results within 24 hours.
It was a term of the orders of November 2022 that the final orders made on 19 May 2021 were otherwise to remain in full force and effect.
In respect of the Application the father was legally represented.
The mother represented herself at the hearing after having been represented between October 2022 and February 2023.
It is of note for the purpose of these proceedings that the mothers telephone number and email address but not her residential address were disclose in the Notice of Ceasing to Act filed by her previous solicitor on 15 February 2023 whilst the mother’s Notice of Address for Service completed and filed by her on 8 February 2022 disclosed all three (3) contact details.
A Senior Judicial Registrar made orders on the 9 February 2023 which, amongst other things, referred the Application to the National Assessment Team for listing. Each of the parties were represented at that hearing and those orders were amended on 13 February 2023 to give the parties notice in relation to section 102NA of the Family Law Act 1975 (“the Act”).
On 6 March 2023, this matter was listed for a hearing before the Court on 17 April 2023 at 10:00am for those counts which remained active as a result of the orders of the Senior Judicial Registrar made 9 February 2023.
At the hearing on 6 March 2023 each of the parties were self-represented.
In all the circumstances, given the length of time that the Application had been on foot and that the Application had been case managed by the Court in referring the matter to the National Assessment Team for the purposes of listing and with this Court then listing the matter for hearing, the Court considered that the mother has had sufficient opportunity to make any application that may be necessary to either adjourn the hearing so as to obtain legal representation or to make an application pursuant to 102NA to enable her to undertake the cross examination of the father by legal representation.
The issue of the possible application of section 102NA funding had been brought to the parties’ attention by the orders of 18 November 2022 and 9 February 2023 (as amended on 13 February 2023). The issue of section 102NA funding was also raised with the Court at the commencement of the hearing of the Application on 17 April 2023. It appeared to the Court that the raising of that issue was nothing more than cautionary and the Court was not then satisfied that section 102NA in the circumstances of this matter was satisfied or should be regarded as otherwise satisfied.
The father relied upon his Application - Contravention and his affidavit filed in support of that Application affirmed 7 September 2022 (insofar as certain paragraphs of those documents had not been struck out pursuant to the orders made by the Senior Judicial Registrar on 9 February 2023) which came before the Court in evidence.
The father was cross-examined by the mother. That cross-examination did little if anything to cause the Court to not adopt the applicant father’s evidence in terms of both his affidavit and oral evidence.
The mother called herself and her partner a Mr E to give evidence as to facts establishing the existence of reasonable excuse in relation to each of what were admitted contraventions.
Each of the allegations were put to the mother at the outset of the hearing. The respondent mother initially admitted each of the contraventions asserted in each of the counts contained in the Application without saying that there was any reasonable excuse. It, appeared however, that while she then admitted contraventions of the orders, she in fact maintained that there was a reasonable excuse in relation to each of the contraventions.
The matter proceeded on the basis that the contraventions were conceded but there allegedly existed a reasonable excuse for each of the contraventions.
In considering the evidence led in this matter it has become apparent to me that despite the mother admitting a contravention of count 2 being a contravention of order 3.1 of 19 May 2021 that no such contravention in fact occurred. Rather order 3.10 was contravened on that occasion. As order 3.10 was not set out in the Application I am not prepared to find that count 2 has been made out for the reasons set out below.
There is no doubt in the circumstances of this matter that the parties knew of the effect of the terms of the orders that have been made on 19 May 2021 which give rise to the Application for Contravention. The confirmation of such orders by the Court with the consent of the parties by reason of the orders made 18 November 2022 only confirms this. There was no argument on behalf of the mother that she did not know of or understand the effect of the orders of 19 May 2021. Further, the orders made on 18 November 2022 were made whilst the respondent mother had the benefit of legal representation and gives rise to the inference (which I draw) that such confirmation was provided with the benefit of legal advice and knowledge and understanding of the May 2021 orders.
Section 70NAE of the Act sets out a non-exhaustive definition of what might constitute a reasonable excuse for contravening an order.
Whilst a “reasonable excuse” in respect of a contravention is not capable of any exhaustive definition[1], it can include a lack of understanding of the obligations imposed by the order which in the Court’s view ought to be excused, or a belief on reasonable grounds that the contravening action was necessary to protect the health or safety of a person and for a period that was no longer than necessary to protect the health or safety of the person.
[1] Family Law Act 1975 (Cth), s 70NAE.
The requirement for "reasonableness" can entail a consideration of the following principles which are to be regarded, in my view, as non-exhaustive:
(1)not simply whether, when viewed from some ill-defined concept of fairness or reasonableness, the respondent's actions were excusable;
(2)a party’s subjective view of the rights and wrongs of an order cannot be relied on as a "just cause or excuse" or a "reasonable cause"; and
(3)reasonableness depends not only on the circumstances of the individual case but also on the purpose of the provisions for which the defence of "reasonable excuse" is an exception.[2]
[2] Childers & Leslie [2008] FamCAFC 5 at [28]; Gaunt & Gaunt (1978) 4 FamLR 305, 308; Taikato v R [1996] HCA 28; (1996) 186 CLR 454 at 464; Mitty & Mitty [2012] FamCA 329 at [15].
In seeking to establish a "reasonable excuse", the enquiry is not directed towards the reasonableness of any belief held by the respondent, but whether the belief held was actually based on reasonable grounds.
It was necessary for the respondent to establish on the balance of probabilities a reasonable excuse for each of the contraventions.
The father’s evidence, which came in through his affidavit, was not successfully or meaningfully challenged and I accept his evidence in that affidavit except where it is contradicted by any documentary record.
When cross-examined, the mother was at times non-responsive to the questions asked of her where there was a conflict in her evidence and that of the father.
The mother’s partner Mr E’s evidence did not take matters that were to be determined by this Court in respect of this Application any further. Mr E has a poor opinion of the father and his evidence was suggestive of Mr E having the view that the father in these proceedings was a poor parent and underserving of that title. His evidence was however notable in that he confirmed that X calls Mr E “father” and “dad” and X refers to his father as a “friend”. Where there was a conflict between the evidence of the mother and the father, the father’s evidence subject to the exception noted above, was to be preferred.
The evidence in this matter enables the following facts to have been established on the balance of probabilities:
(1)on 19 May 2021, the parties consented to final parenting orders. At that hearing the mother, who was the applicant in those proceedings, appeared on her own behalf and the father did likewise. There was an Independent Children’s Lawyer in the proceedings who was represented by counsel;
(2)each of the parties were of aware of and understood the terms of those orders which ran for some two pages;
(3)in mid 2021, the father understood that the mother relocated to City B;
(4)the mother said that she had moved to City B in January 2021;
(5)between May and November 2021 the father had time with X in May, June, July, August, September, October and November;
(6)at some time in late 2021, the father forwarded text messages to the mother which appear to be a request for the mother to obtain drugs for him on the basis that the father was testing as to whether the mother or her new partner were involved with drugs. The mother agreed that having received such a message, she should have then ceased all time with the father if she was reasonably concerned but did not do so. The mother said that she couldn’t stop time. Her answer given in evidence causes me to draw the inference that that the mother’s concerns about the father were then accepted by her as not being sufficient cause or serious enough (perhaps because they were not regarded as genuine) to cease the father’s time under the orders. In other words, that her then concerns did not constitute reasonable grounds or a reasonable excuse for not complying with orders;
(7)in November 2021, the father also moved to City B so, that he might be closer to X and took up new employment at F Company where he undertook an afternoon shift which required the parties by agreement to vary the time that he spent with X or spoke to X;
(8)between 8 and 10 January 2022, the father looked after X at the mother’s residence as she wished to go away for the weekend with her new partner;
(9)on 2 January 2022, X spent overnight time with his father at the G Centre location as was agreed between the parties;
(10)in mid January 2022, as the result of a COVID outbreak and the father testing positive for COVID on 17 January 2022, it was agreed between the mother and father that the father’s time with X would stand suspended until the COVID wave had passed;
(11)on 5 February 2022, the father requested that his time with X be reinstated in accordance with the orders of 19 May 2021. The mother refused both X being available for the following weekend of the 11 February 2022 and the father having video conferencing time as provided for in the orders;
(12)on 6 February 2022, the father sent a text-message to the mother requesting details as to X’s health situation and the details of his general practitioner and paediatrician. There is no evidence of any response to that request;
(13)the mother agreed this lack of response constituted a contravention of paragraph 5.3 of the orders of 19 May 2021;
(14)on 9 February 2022 the father sought, by a letter from his lawyer details about X’s health situation and his general practitioner and paediatrician, time with X from 1:00pm Saturday, 12 February 2022 to 5:00pm Sunday, details as to where X was currently attending day care, details of the mother’s proposed new address and for the father to be noted as an emergency contact at day care. The mother’s response appears to be confined to her proposing that X have only day time with his father. Her proposal was agreed. Time was to take place on the 19 February 2022 from 11:00am to 6:00pm;
(15)on 11 February 2022 the father was due to spend time with X but the mother had informed the father by text on the 5 February 2022 that she would not make X available for collection and X did not spend time with his father on that weekend. The mother conceded that the failure to provide time on that weekend constituted a contravention of order 3.1 of 19 May 2021 but that she had a reasonable excuse for doing so;
(16)on 19 February 2022 the father was half an hour late in arriving to collect X to spend the agreed time with him from 11:00am until 6:00pm. The mother’s partner had taken X to the handover place and waited from 11:00am to about 11:25am before returning home with X. At about 11:40 the father informed the mother he was late to handover and that there was a misunderstanding on his behalf about the handover time. However, no effort was made by the mother to hand X over to his father later that day and X ended up accompanying the mother and/or her partner to their work instead;
(17)it is important to note that the failure for time to take place on 19 February 2022 was a failure to give effect to agreed time which is provided for in paragraph 3.10 of the orders of 19 May 2021. However, this understanding of this aspect of the matter is of little significance because that is not a date about which a contravention is alleged nor admitted. Where this fact assumes significance is in it being part of the constellation of facts which discloses the mother’s attitude about the importance of X spending time with his father. The mother said that she resumed time with the father as she, after having had the benefit of legal advice, accepted she had to resume the father’s time with X even if it was not consistent with order 3.1 but rather order 3.10 of the May 2021 orders. This evidence of the mother permits me to infer that her then concerns did not constitute on reasonable grounds a reasonable excuse for not complying with orders on other occasions;
(18)the mother agreed, when it was put to her under cross examination, that she then ceased X spending time with his father and having any telephone or video contact for some months until the Contravention Application was brought in September 2022. This was not consistent with the father’s affidavit evidence which is otherwise preferred;
(19)on 26 February 2022 the father by agreement spent time with X from 11:00am until 6:00pm;
(20)at the end of February 2022 the mother moved from near Town H to an address then unknown to the father at Town J;
(21)on 26 February 2022, the father requested in person the mothers new address but she refused to give it to him as she did not wish for him to have the address and risk passing it on to her former partner who was asserted by the mother to be violent;
(22)the mother agreed that the failure to then advise the father of her address was a contravention of order 5.1 of 19 May 2021 but that she had a reasonable excuse for doing so;
(23)on 12 March 2022 the father spent an agreed period of time with X from 11:00am until 6:00pm;
(24)on 16 March 2022, a letter was forwarded from the father’s lawyer to the mother requesting details as to the health situation, general practitioner and paediatrician in relation to X. It appears there was no response to that correspondence;
(25)on 17 March 2022, the father in his affidavit states that he instructed his solicitors to forward a further letter to the mother requesting that his time with X increase to overnight time from Saturday until Sunday and that she provide information with respect to her address, X’s general practitioner and day care.[3] However, the annexures to the father’s affidavit indicate otherwise.[4] There is no evidence of a response by the mother to that correspondence;
[3] Applicant father’s affidavit affirmed 7 September 2022, [17].
[4] Applicant father’s affidavit affirmed 7 September 2022, annexure G/3, page 2 below the heading “Intention to issue proceedings” referring to repetition of proposal dated 17 March 2022 appearing to be each alternate Saturday and Sunday 11am to 6 pm; that is, not overnight.
(26)on 19 March 2022, the mother denied the father a video call with X and sent a message to the father saying it was up to “the courts [sic] and lawyers” and she would not be permitting any further time to the father.[5] The father says this occurred shortly after the Department of Families, Fairness & Housing visited the mother’s residence in relation to matters concerning X’s long-term health issues;
[5] Applicant father’s affidavit affirmed 7 September 2022, [18].
(27)on 23 March 2022 the mother forwarded an email to the father’s solicitor advising that her lawyer would be in contact and sought an extension of seven days to respond to the father’s solicitors’ letter of 17 March 2022 (which was seeking overnight time and information with respect to X’s general practitioner, day-care and address). The father’s solicitors responded to this letter enquiring as to who was acting on the mother’s behalf. The mother in response requested that the father undergo a drug test and that there would be no contact between him and X until there was a negative result;
(28)on 24 March 2022 the mother’s solicitor forwarded a letter on behalf of the mother advising that they were acting for her, alleging that the father was taking “illicit drugs” and requesting a hair follicle test. That letter alleged that the father had resumed taking “illicit drugs”, that the father was very drunk and that the father had asked the mother to get him some “gear”;
(29)the mother in her oral evidence admitted that despite the request a hair follicle test she had no faith in the result and that there was no basis for her asking for the test;
(30)the father was due to spend time with X from 3:00pm on Friday 25 March until 3:00pm on 27 March pursuant to order 3.1 of 19 May 2021. The mother agreed that she contravened order 3.1 on that weekend but that there existed a reasonable excuse for her doing so;
(31)on 1 April 2022, the father through his solicitor wrote to the mother’s solicitors seeking that his time with X resume and consented to a hair follicle test if the mother paid for the same. In that letter the father through his solicitors conceded that he had forwarded text messages late in 2021 with respect to drugs being procured as he was testing the mother as to whether she or her new partner were involved with drugs. Other allegations as to the father being very drunk and taking “illicit drugs” were denied. That letter also enclosed a report of a supervised urine drug screen test said to have been completed on 25 March 2022 and which was “clean” for illicit drugs. A similar result was said to have been had from a drug test sought the same day by his employment provider. The letter concluded seeking, amongst other things, time with X on a daytime basis each alternate weekend on each of the Saturday and Sunday from 11:00am to 6:00pm;
(32)on 8 April 2022 the father underwent a hair follicle test;
(33)the father was due to spend time with X pursuant to order 3.1 of the orders of 19 May 2021 from 3:00pm Friday, 8 April 2022 until 3:00pm Sunday, 10 April 2022. The mother agreed that she contravened order 3.1 of the orders of 19 May 2021 in not permitting the father’s time on that weekend but that there existed a reasonable excuse for a doing so;
(34)on 10 April 2022 the father was permitted by the mother to have a video conference with X;
(35)on 14 April 2022 the father requested and underwent the provision of a sample for a hair follicle drug test;
(36)on 17 April 2022, the father was permitted to have a video conference call with X;
(37)on 22 April 2022 the father was to spend time with X from 3:00pm Friday 22 April 2022 to 3:00pm Sunday, 25 April 2022 pursuant order 3.1 of 19 May 2021. The mother declined to provide time on that occasion because she required a negative hair follicle test. The mother agreed that she contravened the order on that occasion but that there existed a reasonable excuse for her doing so;
(38)on 24 April 2022 the father was permitted to have a video conference call with X;
(39)on 1 May 2022, the father was permitted of a video conference call with X;
(40)on 6 May 2022, the father was not allowed to see X on that weekend. The father was due to spend time with X from 3:00pm Friday 6 May 2022 until 3:00 pm Sunday, 8 May 2022 pursuant order 3.1 of 19 May 2021. The mother agreed that this constituted a contravention of the order but that she had a reasonable excuse for doing so;
(41)on 8 May 2022, the father was permitted have a video conference call with X;
(42)on 17 May 2022, the father received hair follicle tests by way of pathology report dated 3 May 2022 confirming that he was drug-free. The father by way of his solicitors then wrote to the mother’s solicitors seeking that his time with X be reinstated by way of time from 10:00am Saturday until 5:00pm Sunday;
(43)on 20 May 2022 the mother’s solicitors informed the father’s solicitors that the mother was not opposed to time resuming however, would not agree to overnight time if it were to occur at G Centre. The father’s solicitor responded claiming the mother was in breach of orders and requesting information in relation to X’s general practitioner and his health situation;
(44)on 21 May 2022, the father spent time with X on Saturday from 10:00am to 5:00pm with handover occurring at Town J;
(45)the mother asserted in her evidence that X had returned home from having spent time with his father on 21 May 2022 with a soiled nappy. The implication was that the father had been neglectful in changing X’s nappy and that this constituted a reasonable excuse or part of a reasonable excuse for thereafter not complying with parenting orders which she admittedly had contravened. The mother said she had available but did not produce photo evidence in that regard. I do not consider that the return of X (who was then not quite two years old) in a soiled nappy constituted a reasonable excuse for subsequently withholding X from spending time with or otherwise interacting with his father as there is no evidence that X’s general health or well-being was put at risk in being so returned. Rather, his return with a soiled nappy is to be understood as nothing more than what might be expected to occur in the course of usual parenting of a child of his age;
(46)on 23 May 2022, the father through his solicitor forwarded a written request to the mother’s solicitors requesting resumption of overnight time with X;
(47)on 26 May 2022, the father received a text from the mother requesting that he stop contacting day care to check on X’s progress alleging that the day care centre felt threatened by being asked questions about a X’s care and also alleging that X said he’d been hurt by his father;
(48)on 26 May 2022, the father’s solicitors wrote to the mother’s solicitors denying that X had been harmed and that X had complained about his older brother hitting him and again requesting that overnight time resume;
(49)on 29 May 2022, the father spoke with X for 1 ½ minutes by way of video conference;
(50)on 2 June 2022, the father’s solicitors were advised by the mother’s solicitors that they were no longer acting for the mother. Subsequently, the father’s solicitors forwarded an email directly to the mother and she advised that she would engage a solicitor who would be in contact by 14 June 2022;
(51)on 3 June 2022, the father was due to spend time with X from 3:00pm Friday, 3 June 2022 until 3:00pm Sunday, 5 June 2022 pursuant to the order 3.1 of 19 May 2021. The mother agreed that she contravened the orders on that weekend by not allowing the father time with X but said that she had a reasonable excuse for doing so;
(52)on 3 June 2022, the father did not get to spend time with X that weekend and had not done so on any alternate weekend thereafter;
(53)in July 2022, the father requested for the police to undertake a welfare check on X. The police did so and advised the father at that time that the mother was no longer residing at the address that the police knew of;
(54)on 7 September 2022, the father confirmed by his affidavit that he had not received any further contact with the mother nor had his solicitors since 2 June 2022 and that he had been blocked from communicating with the mother by phone or email;
(55)on 7 September 2022 the father instituted the contravention application in this Court;
(56)on 18 November 2022, the Application came before a Senior Judicial Registrar who made orders by consent until further order;
(a)that X live with his mother;
(b)that X spend time with his father on 3 December 2022, 17 December 2022, Christmas Day, from 31 December 2022 to 1 January 2023 overnight, from 14 January 2023 to 15 January 2023 overnight, from 28 January 2023 to 29 January 2023 overnight, by electronic video conferencing on 18 November 2022 and by electronic video conferencing twice per week between 7:30am and 8:00am or alternatively 4:00pm and 4:30pm on Tuesdays and Thursdays;
(c)that changeover occur at the commencement of time at the McDonald’s complex in City B and at the conclusion of time the father to deliver the child to the mother C Store at Town K;
(d)that the mother direct X’s child care centre to activate the father’s access to the childcare portal; and
(e)other orders were also made that day;
(57)the father has not spent any time with X despite the making of orders on 18 November 2022 since 21 May 2022 and had no contact at all from the time of the video conference of 29 May 2022 until at least orders were made with the consent of the parties in the course of these proceedings on 18 November 2022;
(58)as at the date of the contravention hearing of 17 April 2023, the orders of 18 November 2022 were not being complied with in that X was not seeing his father; and
(59)X has started to refer to his father in the presence of the mother and her partner Mr E and each of the mother and Mr E have started to refer to the father as a “friend” rather than as “Dad”, “daddy” or “father”.
The mother in her evidence said that she had a reasonable excuse for not complying with the orders of 10 May 2021 on each occasion between February 2022 and June 2022 on account of a number of matters which, either individually or in combination, constituted a reasonable excuse for contravening the orders.
The mother articulated these matters in her evidence as comprising:
(1)the father being drunk in January 2022;
(2)the father abusing the mother and her partner when they enquired as to whether the father wished to speak to X and he replied with the words “Why the “F” would I want to do that?”;
(3)in December 2021 the father asking the mother and her partner to get drugs for him;
(4)the father ringing DHS (understood to be a government department) multiple times for reasons that were not really relevant;
(5)the last time that the father had X in May 2022, the father sent X home in a soiled nappy that leaked and of which the mother took photographs;
(6)in January 2023, the father sent the mother text messages asking for Centrelink payments so that he could quit his job;
(7)the father ringing X’s day care multiple times each week when the mother thought there was no need for it;
(8)that X was sick the nine or 10 days last year (2022) and DHS was called about this. X was very sick at the time as a result of which X was put on a list to have his tonsils out and have grommets put into his ears due to infections;
(9)that X comes home crying [understood from having spent time with his father] asking his mother not to speak about his “friend” [that is his father] like that and that X calls his father his “friend” because X does not really know his father; and
(10)the mother’s main concern was drugs and in particular the use of “illicit drugs”.
The mother also articulated other grounds when giving her evidence under cross-examination which she said were reasons as to why she had contravened certain orders.
DISCUSSION – COUNT 1
In relation to count 1, being the contravention for failing to authorise a medical practitioner upon whom X had attended to communicate with the father by withholding the identity of the medical practitioner from the father, the mother conceded under cross examination that she simply considered that the father in having had little or nothing to do with X was not entitled to access such information. The mother eventually conceded under cross examination that she had no reasonable excuse for withholding that information. I find that the mother’s attitude in withholding that information from the father was unreasonable and did not and still does not constitute a reasonable excuse for the contravention set out in count 1 of the Application.
DISCUSSION – COUNT 2
The first of the contraventions as to time spending, which is found in count 2, relates to that period due to have occurred, but which did not, on 11 February 2022.
The mother’s evidence as to the existence of a reasonable excuse on that weekend under cross-examination was that, the father had rung up drunk and had asked the mother and, what I understood to be her partner, to go to the bottle shop for him whilst he had COVID. This event must have taken place, if at all, in the period on and from 17 January 2022 when the father tested positive for COVID.
As at 11 February 2022 the father’s behaviour as known to the mother must only have been understood by her to have taken place about 2 to 3 weeks before whilst the father was ill with COVID.
The mother did not put these matters to the father and so he did not have the chance to deny them or otherwise explain or place the allegations in any sort of context.
I found the manner in which the mother gave this evidence to be vague and so general that I am not persuaded on the balance of probabilities that the mother had any reasonable basis to preclude the father from spending time with X on the weekend commencing Friday, 11 February 2022. I find no reasonable excuse in relation to count 2.
However, the father’s own evidence[6] is that on that weekend he was not seeking the whole weekend time in accordance with order 3.1 of May 2021 but rather only Saturday, 12 February 2022, overnight and that the father would attend not at the time identified in order 3.1 (that is Friday 3.00pm) but rather at 1.00pm on the Saturday at the mother’s property to commence that time. There existed the ability to agree with an alternate time pursuant to the orders as located in order 3.10 (not order 3.1) of the 19 May 2021 orders.
[6] Applicant father’s affidavit affirmed 7 September 2022, annexure G/2, page 2.
Despite the contravention having been admitted I hold that there is no contravention because the contravention is of order 3.10 not order 3.1 as stated in the Application.
DISCUSSION – COUNT 3
In relation to count 3 being the failure of the mother as at 26 February 2022 to inform the father of her current residential address, the mother’s evidence was that she had kept her and X’s address unknown from the father for a year because the mother had been in an abusive relationship (not the relationship with the father). The mother’s evidence under cross-examination was that the father, being aware of the nature of that previous relationship of the mother, would be conscious of the need to preserve and guard against the mother’s address being made known to that former partner at least for X’s sake. The mother acknowledged in her evidence under cross examination that the obligations created by the orders of May 2021 required for her regardless of her then concerns, to make the residential address of herself and X known to the father. The mother has disclosed her address in completing, filing and serving a Notice of Address for Service on 8 February 2023. By reference to the Court record, a residential address of the mother was also disclosed previously on 26 April 2021 in a “Notice of Withdrawal as Lawyer” filed by lawyers previously acting for the mother. The father’s solicitor’s letter of 9 February 2022 impliedly, by its reference to the father attending at the mother’s property at 1.00pm on 12 February 2022, indicates that the mother’s residential address was known to the father then and he was aware that there was going to be a change in that address.[7]
[7] Applicant father’s affidavit affirmed 7 September 2022, annexure G/2.
In all the circumstances, I find that the contravention asserted in count 3 of the Application – Contravention is without reasonable excuse. I further note that this contravention has now been redressed in that the mother’s address has been disclosed both in the Notice of Address and at the contravention hearing of 17 April 2023.
The evidence discloses that the mother’s and X’s address became unknown to the father in about late February 2022 and remained so until no later than February 2023.
The withholding of address can be understood to have caused the father to rely upon those authorities that he can approach such as the day care centre, government departments and the police to check on X’s welfare during those periods when the father was unable to otherwise communicate with the mother. However, in the circumstances of this matter the evidence discloses that the father has throughout been able to communicate with the mother either directly or through legal representatives (whilst the mother had such representation). The withholding of address however means that the father is deprived of knowledge of surrounding circumstances by which he could place into context any information that would be provided by the mother as to X’s welfare.
Further, in finding that the mother’s withholding of residential address information is not reasonable, I also find that in so far as the mother complains that it was no necessary for the father to use government agencies to make enquiries after X’s welfare, she can only be regarded as having caused such enquiries by her withholding of that information.
There is no evidence that otherwise satisfies me on the balance of probabilities that the enquiries made by government authorities were made with any particular frequency or that they were otherwise unreasonably intrusive or detrimental to X’s welfare.
It can be presumed that if any of the types of bodies I have referred to were to consider the father’s requests unmeritorious or unnecessarily frequent or persistent then they could act on their own behalf to limit or even preclude receiving or acting upon requests made by the father.
DISCUSSION – COUNT 4
The mother admitted that the father did not spend time with X on the weekend of Friday, 25 March 2022 to Sunday, 27 March 2022 as a result of her contravening the orders of May 2021.
In 2022 and by 25 March 2022 the father had had time with X on 2 February 2022 overnight and between 11:00am and 6:00pm on each of 26 February 2022 and 12 March 2022. In addition, the mother had been prepared to provide the father time with X from 11:00am on 19 February 2022 but which did not then occur as the father was late. There were no conditions stipulated by the mother for any of that time to have occurred upon any condition other than for it to be confined to day time after 2 February 2022.
The mother introduced a new condition through a letter from her lawyers on 24 March 2022 alleging that the father had resumed taking “illicit drugs”, was very drunk and had asked the mother to get some “gear”. As stated above, the father answered those allegations by letter through his solicitors of 1 April 2022 including the results of a supervised drug screen undertaken on 25 March 2022 which was “clean” for illicit drugs. Apparently a drug screen from the father’s employment provider of the same day provided the same result.
I am not satisfied that the mother has established a reasonable excuse to have contravened the order for the father to spend time with X on 25 March 2022.
In considering the question of sanction, if any, the Court notes that regard is to be had to the evidence found in the father’s annexures “G/2” and “G/3” to his affidavit of 7 September 2022 that shows that the time the father was then seeking was from Saturday to Sunday on the weekend and not the full weekend time of Friday to Sunday as provided for in order 3.1.
DISCUSSION COUNTS 5, 6 AND 7
The mother admitted that she contravened order 3.1 of the orders of 19 May 2021 in that the father did not come to spend time with X from 3:00pm on Friday, 8 April 2022 until 3:00pm Sunday, 10 April 2022.
The mother’s reasons for that time not taking place had by that date been articulated on her behalf through her solicitor’s letter of 24 March 2022.
The father by his solicitor’s letter of 1 April 2022 was then seeking that time resume with X each alternate Saturday and Sunday from 11:00am to 6:00pm and not for the Friday to Sunday time as provided for in order 3.1 of the orders of 19 May 2021. To repeat what is stated above, the correspondence of 1 April 2022 also enclosed the results of the supervised urine drug screen test which was “clean” for the presence of illicit drugs. There was also a report about similar drug testing results being produced to the father’s employer on 25 March 2022 when the supervised drug screen test was completed.
Having received the negative hair follicle test result which the mother had sought the mother did not then resume X’s time with the father in accordance with the orders. The mother admitted that after the receipt of the test results she was not prepared to allow the father’s time with X to restart despite the provision of negative hair follicle drug test results as she had requested. The mother said in her evidence “you don’t know him” betraying, in my view, in the context of her evidence as to the request of a hair follicle test in the first place, that she had no intention of complying with orders for X to spend time with his father.
I find that the mother has no reasonable excuse for contravening the order 3.1 of 19 May 2021 in respect of time that X was to spend with his father on weekends of 8 April 2022, 23 April 2022 and 6 May 2022.
DISCUSSION – COUNT 8
The mother admitted that she did not comply with order 3.1 of 19 May 2021 for X to spend time with his father on the weekend commencing Friday, 3 June 2022.
The mother just prior to that time agreed she had left her old solicitors and was to engage new solicitors and was stopping time.
At that time the mother also blocked the father from contacting her.
The mother did this knowing that the father wanted to resume overnight time.
The mother told the father not to contact X’s day care as she had received complaint from day care and that the day care centre would not provide her with a letter for these proceedings as the day care centre did not want to get involved. Even if what the mother says about the day care centre’s complaint were accurately reflected by the mother’s statement, I find that the day care centre would be able and entitled to conduct their affairs in dealing with the father in whatever way they saw fit and consistent with their legal obligations in respect of X and each of the parties, including limiting or precluding the father’s methods of communication with that centre.
However, the complaints of the day care centre, as made known to the mother, do not constitute a reasonable excuse for contravening orders.
The mother also made reference in relation to this count that she had had to obtain a recovery order earlier in the proceedings and did not want to go through that again. A recovery order was made with consent of the parties on 11 October 2019 which was to operate in default of the father’s failure to then immediately return X to the mother.
That want on behalf the mother does not constitute a reasonable excuse for contravening orders on 3 June 2022 nor am I satisfied that a reasonable excuse has otherwise been established by the mother as to the contravention of 3 June 2022.
SUMMARY AS TO THE COUNTS OF CONTRAVENTION
A summary of the findings I have made are set out below:
Count number Date of alleged contravention Contravention Reasonable excuse established on the balance of probabilities 1 6 February 2022 Yes No 2 11 February 2022 No Not relevant 3 26 February 2022 Yes No 4 25 March 2022 Yes No 5 8 April 2022 Yes No 6 23 April 2022 Yes No 7 6 May 2022 Yes No 8 3 June 2022 Yes No
The Court is satisfied that on the balance of probabilities that the respondent mother has contravened orders 3.1, 5.1 and 5.3 made 19 May 2021 without reasonable excuse in respect of seven of the eight counts that remained to be determined of those set out in the Application - Contravention dated 9 September 2022.
As a result of those findings the Court must consider whether sanctions should be imposed upon the respondent mother in respect of the contraventions.
The applicant father sought that a series of sanctions be imposed and orders made as a consequence of the contraventions being:
(1)findings be recorded of contraventions without reasonable excuse in respect of orders 3.1, 3.2, 5.1 and 5.3 of the orders of the Court of 19 May 2021;
(2)that order 3.1 of the orders of 19 May 2021 be varied to provide that the father spend time with X each alternate weekend from 12:00noon Saturday until Monday at commencement of school or 9:00am as and from 22 April 2023 and as otherwise agreed in writing between the parties including by text message;
(3)that the father be entitled to spend 15 days of additional time with X by way of “make up time” with such times to take place upon providing 7 days’ notice to the mother with such time to be in blocks of no more than 48 consecutive hours;
(4)that changeover take place at X’s day care centre, kindergarten or school or on a non-school day, at the McDonalds, City B;
(5)that each of the parents, their servants and agents be restrained from denigrating the other in the hearing or presence of X including the discussion of the proceedings;
(6)that the respondent mother be restrained from relocating more than 50 km from the town of Town D in the State of Victoria;
(7)that the mother enrol in and complete a post separation parenting course and provide evidence of enrolment and completion of the course to the father’s solicitors;
(8)that pursuant to s 70 NEC(4)(d) the mother enter into a bond for a period of 24 months, without surety on condition that she be of good behaviour with condition of such bond to include a compliance with a with all orders of the Court; and
(9)that within 30 days, the mother pay the father’s costs on an indemnity basis of the Application – Contravention fixed at $9,293.
The mother opposed the imposition of any sanctions. In particular, the mother did not want the father taking X to day care and that that she needed to retain the ability to move residence. The mother did not object to orders about non-denigration of parties and stated that she is currently participating in an L Course in person on Wednesdays, and that costs might mean selling a vehicle which was otherwise required for transport of the children.
The question of what sanctions are to be imposed is ultimately a matter for the Court.
The father sought that sanctions be imposed under Part VII, Div 13A, Sub-div F, on the basis that the contraventions were without reasonable excuse and ought to be regarded as “more serious” despite the orders sought in writing, in relation to the bond that were agitated under the “less serious “provisions of Subdivision E.
There was no evidence as to sanctions having been previously imposed in respect of the orders of 19 May 2021 nor has there been any adjournment of these contravention proceedings to permit the processing of an application in relation to the orders of 19 May 2021.
No submissions were received that the behaviour of the respondent mother was to be regarded by the Court as showing a serious disregard for her obligations under the 19 May 2021 orders.
There are no fixed criteria by which to determine whether the respondent mother has behaved in a way that shows near serious disregard for obligations under the May 2021 orders. Some earlier authorities have identified circumstances such as a persistent disregard of an obligation[8], the effect of contraventions upon a child’s relationship with the other parent[9] and the continuing nature of a breach[10] that may give rise to a determination that there has been serious disregard of a person’s obligations under a parenting order.
[8] Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 at [66].
[9] Brown & Brown [2005] FMCAfam 567; H & V [2005] FMCAfam 519.
[10]B & W (No 1) [2003] FMCAfam 101.
In the circumstances of this matter, I take into account;
(1)that it has been established that there were seven contraventions without reasonable excuse over a period of about four months;
(2)that X has become estranged from his father to the extent that he is regarded by X and more importantly by those members of his mother’s household as but a “friend”; and
(3)that a relatively recent confirmation of the orders of 19 May 2021 made by way of the orders of 18 November 2022 has not seen effect given to the terms of the 19 May 2021 orders in circumstances where it has not been brought to my attention that there is any application by the mother to vary or discharge those orders and that the mother has commenced a post-separation parenting course.
Where it appears that X’s relationship with his father has been seriously affected, I am satisfied that there has been a serious disregard by the mother of her obligations under the order of 19 May 2021.
I am satisfied that ss 70NFA(1) and (2) are satisfied.
However, conscious of the orders that the Court must make under s 70NFB with respect to costs under ss 70NFB(1) and 70NFB(2)(g) in circumstances where pursuant to orders made 9 February 2023 (amended 13 February 2023) 33 other counts in the Application – Contravention and a little over a quarter of the supporting affidavit has been struck out, I consider that it is more appropriate the contraventions that have been found to exist be dealt with under Sub-div E of Div 13A of Part VII of the Act.
The sanction that may be imposed in this matter (if any) are to be found in s 70NEB of the Act.
I have considered all of the types of sanctions that are available under s 70NEB.
Firstly, despite the mother having commenced an L Course, I consider that the mother should complete a further post-separation parenting course with emphasis on children having the benefit of a relationship with each parent and the need for each parent to appropriately foster a child’s relationship with the other parent. The Act recognises that children, amongst other things, have a right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together and have a right to spend time on a regular basis with both of their parents.[11] The mother’s evidence in this matter does not satisfy me that she sincerely adheres to actively promoting these rights of X and needs to fully accept their existence and ensure that X has the benefits of those rights.
[11] Family Law Act 1975 (Cth), s 60B.
I find that it is appropriate for the mother to be directed pursuant to s 70NEB(1)(a) of the Act to undertake a post-separation parenting program.
By its own enquiries, the Court has determined that a course in the form of “Parenting After Separation Seminar” program conducted by M Counsellors (being an online course comprising about 8 hours of self-paced learning and a two hour small group discussion) should be undertaken by the mother. The course should be undertaken and completed by 31 December 2023, with the mother to file and serve an affidavit annexing correspondence or a certificate confirming completion of the course. It is to be noted that the provider of the program is to be notified by the Court’s Principal Executive Officer.
Secondly, the father has “lost” time with X that might otherwise have been shared during the last 14 months or so which has comprised important months in X’s young life and in his physical and emotional development to this point in time. There is in my view, a need for the effects of the time that has not occurred to be redressed. Order 3.1 of 19 May 2021 provides for time from Friday to Sunday (and Monday if it is a public holiday).
It was the agreement of the parties that time take place on a daytime basis between February 2022 and April 2022 and that was what the father appears to have sought during that period.
Any orders for compensatory time are parenting orders for the purposes of Part VII of the Act and that in making any order for compensatory time I must be satisfied that it is in X’s best interests (which are to be regarded as the paramount consideration that such an order be made).[12]
[12]Family Law Act 1975 (Cth), ss 70NEB(1)(b) and (5).
I find that it is X’s best interests that he have compensatory time on intervening weekends when he would not otherwise be in his father’s care pursuant to the orders of 19 May 2021 from 11:00am to 6:00pm on the Saturday of such weekends for a period of five intervening weeks. In making such a finding, I have taken the following factors into consideration;
(1)the state of affairs between February 2022 and April 2022;
(2)X’s age;
(3)the lack of time that X has spent with his father in recent months;
(4)X’s reference to his father as a “friend”,
(5)the orders of 18 November 2022 providing for time to occur on a day time basis and then on a single overnight basis in addition to the final orders made on 19 May 2021;
(6)the matters listed in s 60CC(2) and (3) of the Act and in particular the benefit of X having a meaningful relationship with his father,
(7)the nature of X’s relationship with his father,
(8)the mother’s a failure to comply with orders of the Court, and
(9)X’s rights to a relationship with his father;
Accordingly, I consider that there should be an order made pursuant to s 70NEB(1)(b) for a further parenting order that compensates the father for the time the father did not spend with X as a result of the current contraventions.
Given that the Court has been informed that the father’s usual time pursuant to the orders of May 2021 should take place on 22 April 2023, the compensatory times will take place between the hours of 11:00am and 6:00pm on 10 June 2023, 24 June 2023 and 8 July 2023, 22 July 2023 and 5 August 2023.
Thirdly, I consider that there needs to be an increased effort made on behalf the mother to ensure that X spends time with his father as provided for by orders of this Court. I consider that the mother should be required to enter into a bond pursuant to s 70NEB(1)(d) for a period of 20 months from the date of entering into the bond upon the condition that the mother complies with the parenting orders made and to be made under the Act and in the event that the mother breaches the bond, that she forfeit to the Commonwealth of Australia the sum of $1,000. There will be no surety to be paid upon entering the bond. The period of the bond is to ensure that the mother completes the parenting course prescribed by other orders made in respect of the contravention, that there is a period of over 18 months during which there will be compliance with the orders of the Court and to ensure that the changes in time spending provided for in the order of 19 May 2021 as X turns four years old are complied with.
The period of the bond in the amount to be forfeited in the event of non-compliance is intended to reflect the importance of the need to ensure that the orders of 19 May 2021 are properly maintained and that a habit of compliance with the order is re-established and continued.
Finally, by way of sanction I would make an order that the mother pay some of the costs of the father in respect of his having brought the contravention proceedings pursuant to s 70NEB(1)(f). I would make that order on account of the fact that there has been a contravention of the orders and that there has been no reasonable excuse established for those contraventions and that the mother has been unsuccessful in opposing the Application for Contravention.
The mother has made the plea that an order for costs would create financial hardship for her including the prospect of selling a vehicle which would make it difficult for her to transport children. Impecuniosity[13] and hence financial difficulty is not a bar to the making of an order for costs.
[13] Lenova & Lenova (Costs) [2011] FamCAFC 141.
The father has sought the sum of $9,293 on an indemnity basis in respect of costs. I would not make an order for such costs on indemnity basis. I would not do so firstly, because I do not have the benefit of a copy of the father’s costs agreement with his solicitors and none has been provided to me and so the terms of any costs agreement remains unknown.[14]
[14] see Rule 12.13 (4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2020.
Further, I do not consider the circumstances of this case to be so exceptional as to warrant the making of an order for indemnity costs and I am not persuaded that there exists any special or unusual feature[15] the would justify the making of an order for costs on an indemnity basis.
[15]Baker & Bond (No 2) [2023] FedCFamC1A 26 at [20 -21].
So as to avoid the need for any further applications with respect to the question of costs I intend to fix the amount that should be allowed and the period of time within which any costs awarded should be paid. In fixing the amount of costs, I take into account the extent to which portions of the Application – Contravention and its supporting affidavit were struck out pursuant to the orders made on 9 February 2023.
I have had regard to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 and items 11, 13 and 14. It would allow a daily hearing fee for the purposes of the trial hearing before me and the relevant advocacy loading in respect of that. However, in relation to the filing of the Application – Contravention and the attendances before the Court on 6 March 2023 and 9 February 2023, I would only allow 50% of what the schedule would otherwise provide.
Taking those matters into consideration I would fix a sum of $4,460 (inclusive of GST by way of costs and such sum to be paid by the respondent mother to the applicant father within eight months by way of an order pursuant to s 70NEB(1)(f).
VARIATION OF PARENTING ORDERS AND THE MAKING OF ANY FURTHER OR OTHER PARENTING ORDERS.
This is a matter where the Court pursuant to s 70NBA could vary the orders of 19 May 2021.
I do not consider that I have sufficient information before me to persuade me that a parenting order or any other type of order should be made restraining the respondent from relocating more than 50 km from the town of Town D in the State of Victoria as sought by the applicant father. There is no foundation for such an order to be found in material that has been filed of the Contravention Application that persuades me that such an order should be made. The terms and conditions of the parenting order in the arrangements for handover and the existence of orders for equal shared parental responsibility act, to some extent, as practical constraints as to how far apart the parties might in future come to reside.
With respect to change over arrangements and the variation of time that the father is to spend with X pursuant to order 3.1 of the May 2021 orders, I have taken into account the matters that I’ve referred to above in relation to my discussion of factors that might be brought to account pursuant to s 60CC and the fact that the parties consented to orders in relation to “change over” through the consent orders of 18 November 2022. Those provided that at the commencement of time he mother will deliver X to the father at the McDonald’s complex in City B and that at the conclusion of time the father will deliver X to the mother at the C Store at Town D.
In relation to this topic, I also take into account that the parenting orders of 19 May 2021 provide at order 5.4 that each of the parties will authorise all “schools” in which X may attend from time to time, to provide to the other party copies of school reports, school notices and school photographs as well as for the school to communicate with the other parent either by telephone, in writing or by personal attendance in respect of X’s progress at school subject to any school policy in relation to such provisional communication.
The orders of 18 November 2022 also provided for the mother to direct the childcare centre to activate the father’s access to the childcare portal. That order should remain in effect. This is an order which I consider in X’s best interests should continue.
The orders of 18 November 2022 also provided that there would be electronic video conferencing between the father and X between 7:30am and 8:00am or between 4:00pm and 4:30pm on Tuesdays and Thursdays of each week commencing the 22 November 2022. This is an order which I also consider in X’s best interests should continue.
I am not persuaded on the material before me that there should be any variation in the time that X is to spend with his father provided for in the orders of 19 May 2021 and that such time should continue to run from Friday until Sunday (or in the event that Monday is a public holiday, until the Monday).
I consider however, that a changeover should occur at X’s day care centre, kindergarten or school if he is so attending at day care, kindergarten or school at the time of handover on a Friday. Otherwise, if X should not be so attending, that the handover take place at the commencement of time at the McDonald’s complex in City B and at the conclusion of time at the C Store at Town D as provided for in order 3 of the orders of 18 November 2022.
There is no need to consider making any other variation to order 3.1 of the orders of 19 May 2021 as sought in the applicant father’s proposed minutes of order with respect to making provision for “as otherwise agreed in writing between the parties including by text message” as such an order is already provided for in paragraph 3.10 of the orders of 19 May 2021.
Finally, it was noted that there was no opposition on behalf of the mother to the making of an order precluding denigration and I consider in the circumstances that the making of such an order would be in X’s best interests and I would make an order in terms of paragraph 5 of the proposed orders sought on behalf the father.
The Application – Contravention should otherwise stand dismissed.
For these reasons I shall make orders as they appear at the commencement of these reasons.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 25 May 2023
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