Marsdon and Hough

[2017] FCCA 1662

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSDON & HOUGH [2017] FCCA 1662

Catchwords:
FAMILY LAW – Contravention applications – order contravened – serious disregard of obligation under primary order.

Legislation:
Family Law Act 1975 (as amended), ss.70NAC, 70NAE, 70NEA(4), 70NEB(1) & 70NEC

Applicant: MR MARSDON

Respondent: MS HOUGH

File Number: ADC 4256 of 2012

Judgment of: Judge Mead

Hearing dates: 27 January, 17 May and 21 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Adelaide

Delivered on: 19 July 2017

REPRESENTATION

Counsel for the Applicant: Ms Lewis

Solicitors for the Applicant: Tessa Hume

Counsel for the Respondent: Mr Boehm

Solicitors for the Respondent: Angela Ferdinandy

UPON NOTING that the court considers that the appropriate penalty in this matter, in addition to any order for costs that may be made on an adjourned hearing is that the mother be required to enter into a bond in accordance with the provisions with section 70NFE of the Family Law Act 1975 (as amended) in the sum of $1,000.00 for a period of 18 calendar months to be of good behaviour and to comply with the terms of the order made herein on 29 July 2014 with respect to parenting issues.

ORDERS

1. That count two of the contravention application filed herein on 2 November 2015 be dismissed upon the courts finding that the mother had reasonable excuse for the said contravention.

2. That the court finds against the mother in respect of counts one, three, four, five and seven of the contravention application filed 2 November 2015 and against the mother in respect of count one of the contravention application filed 22 January 2016.

3. That the court further finds that the mother had no reasonable excuse for the contraventions referred to in counts one and three of the contravention application filed 2 November 2015.

4. That the court finds pursuant to section 70NFA(2) of the Family Law Act 1975 (as amended) that the mother has behaved in a way that showed a serious disregard of her obligations under the primary parenting order made by consent between the parties on 29 July 2014.

5. That within 28 days of the date on which these reasons are delivered each of the respondent and the applicant file a statement of financial circumstances.

6. That the courts consideration of the provisions of section 70NFB(2)(g) of the said Family Law Act 1975 (as amended) and the question of penalty with respect to the contraventions found be adjourned to 22 August 2017 at 9:00am (30 minutes allowed).

IT IS NOTED that publication of this judgment under the pseudonym Marsdon & Hough is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4256 of 2012

MR MARSDON

Applicant

And

MS HOUGH

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 2 November 2015 Mr Marsdon filed a contravention application alleging that respondent mother Ms Hough had contravened a final parenting order made in these proceedings by Judge Donald on 29 July 2014.  The matter was listed for hearing on 27 January 2016. 

2. On 22 January 2016 he filed a further application alleging that the respondent mother had further contravened the said order.

3. The matter proceeded to hearing on 27 January 2016 in respect of both contravention applications.  It was adjourned part-heard on that day to 17 May 2016 and on that day submissions and outstanding costs applications were further adjourned to 16 June 2016. 

4. Proceedings were administratively adjourned to 21 June 2016 at the request of counsel for the mother and on that day, by consent, count six of the father’s application for contravention filed 2 November 2015 was dismissed.  Judgment with respect to the balance of the matter was reserved.

Background

1. Mr Marsdon and Ms Hough commenced litigation concerning their daughter X born (omitted) 2008 in November 2012.

2. Final orders were made by consent with respect to both property settlement issues and parenting issues on 29 July 2014.  The parenting order provided, inter alia, for the parties to have equal shared parental responsibility, for X to live with her mother, to spend time with her father during school term time and during holiday time, to spend time with each of her parents on special occasions.

3. The contravention application filed by the father on 2 November 2015 originally consisted of seven counts of alleged contravention, six of which related to the parenting order and one (count six) relating to the final order for settlement of property.  It was that count that was dismissed by consent on 21 June 2016.

4. The second contravention application filed on 22 January 2016 alleged a breach on the part of the mother of the final parenting order.

5. Count one of the first in time contravention application contained an allegation that the mother had failed to comply with paragraph 3.1.2 of the final parenting order made 29 July 2014 in that on 13 March 2015 at 4:00pm the mother failed to provide X to the father at (omitted) School, (omitted).

6. At the hearing the mother admitted the contravention but pleaded that she had reasonable excuse for so doing.

7. Count two of the same contravention application contained the allegation that the mother had contravened paragraph 3 of the same order in that on 28 January 2015 at 3:15pm the mother had failed to comply with the order in that she had not allowed X to go into the care of the father.

8. The mother admitted the contravention on that date but pleaded that she had reasonable excuse for such contravention.

9. In count three of the said contravention application the father alleged that the mother had contravened paragraph 3.2 of the said final parenting order in that on 10 April 2015 at 3:15pm at (omitted) School, (omitted) the mother had failed to provide X for her time with him during the school holiday period.

10. The mother likewise admitted that alleged contravention but pleaded reasonable excuse for so doing.

11. Count four of the said contravention application contained an allegation that in contravention of paragraph 4 of the said final parenting order and on 9 June 2015 at 4:00pm at (omitted) School, (omitted) the mother had contravened the order and failed to provide X to spend time with the father on her birthday pursuant to the order.

12. The mother denied that allegation.

13. Count five of the contravention application was an allegation that paragraph 8 of the said final parenting order had been contravened by the mother on 15 April 2015 in that the mother had failed to provide for telephone contact between X and her father during a block period of holiday time with her mother.

14. The mother denied that allegation.

15. Count seven of the said contravention application contained an allegation that the mother had contravened paragraph 14 of the said final parenting order in that on 9 July 2015 at (omitted) she had failed to provide the required information to the father with respect to X’s proposed travel.

16. The mother admitted that contravention.

17. The second contravention application in time being that filed on 22 January 2016 contained one count only.  In that count the father alleged that the mother had contravened paragraph 14 of the final parenting order in that on 16 December 2015 at 12:00pm at Adelaide she failed to give the father the required thirty days’ notice of proposed interstate travel with X.

18. The mother admitted that allegation.

19. The father relied on the contravention applications filed on 2 November 2015 and 22 January 2016 respectively, together with affidavits filed on each of those same days in support of the applications.

20. At the commencement of the proceedings three bundles of documents were tendered to the court marked “F1, F2 and F3” respectively. 

21. The text messages contained in bundle “F1” covered the period 11 December 2014 to 10 April 2015 and 9 April 2015 to 15 April 2015. 

22. The messages contained in bundle “F2” related to 9 June 2015.  There were printouts for voice usage on the applicants mobile telephone plan for the period 4 June 2015 to 10 June 2015 and a printout in relation to text messaging not include in the applicant’s phone plan for the period 6 June 2015 to 10 June 2015.

23. Exhibit “F3” related to voice messages and text messages between 9 July 2015 and 12 July 2015.

Contravention Application filed 2 November 2015

Count One

1. The father alleged the mother had contravened the terms of paragraph 3.1.2 of the parenting order dated 29 July 2014 in that on 13 March 2015 at 4:00pm, being a time the father alleged that X was due to be in his care pursuant to that order, the mother failed to facilitate X going into the father’s care at (omitted) School, (omitted).

2. There was no dispute that pursuant to the terms of the order that was a Friday when X was due to go into the care of the father at the conclusion of school, until the commencement of school on the following Monday morning.

3. The father alleged that on 14 December 2014 the mother had requested that X remain in her care on that weekend, and that he had agreed to the request on the basis that the time he would miss with X on that weekend would be made up.  He deposed to seeking confirmation from the mother as the weekend drew near that he would have make-up time but that he did not receive any response.

4. He deposed to providing a text message to the mother on the morning of 13 March 2015 advising that unless she confirmed when she would provide make-up time for the missed weekend he did not agree to any amendment to the care arrangements.

5. The text message was contained in exhibit “F1” (page 22 of 31) and was in the following terms:

   “Ms Hough.  No variation to my ordered time with X has been agreed.  I will collect her from school today.  I have provided you with ample opportunity to change this weekend and to confirm when makeup time will be provided.  You have not done this.  It is now too late.  I do not want to be contacted again today regarding this I am busy at work.”

6. He deposed to the mother responding by text message in the following terms:

   “X is home today.  She is with me for the weekend.  Spending this weekend with me was agreed to months ago.  She should not miss out on her cousins’ engagement, her cousins birthday, her Grannies birthday and her school friends birthday, hence why I asked to change so long ago.  I am turning my phone off now.  I am not prepared to discuss this anymore.”

7. When it was put to the father in cross-examination that he had agreed for a change in X’s time with him on that weekend he said that that was the first agreement.

8. He agreed that he did not initially ask for specific make-up time at the time of agreeing to the change of weekend.  He agreed that he had not reneged on the first agreement until much later, but said the issue was not that simple.  He agreed that the mother had never said she would not agree to make-up time, but that nothing was forthcoming in terms of proposals although he had asked many times.

9. When it was put to him that the real difficulty was that the parties just could not settle on when the make-up weekend should occur he said that the first offer in relation to make-up time was made in approximately June 2015 after lawyers had become involved.

10. He said that he could not remember exactly a letter received from the mother’s lawyers in September 2015 suggesting make-up time on the weekend of 16 to 19 October 2015, but when it was put to him that he had told his lawyer to respond saying that particular weekend was not suitable he thought that he did remember the correspondence.

11. When it was put to him that the mother had never said that there would not be any make-up time, he replied that she gave excuse after excuse.

12. When it was put to him that the real problem was that they had not been able to work out an acceptable make-up weekend he said that the proposals and negotiations occurred months later which was not a reasonable approach on the part of the mother.

13. He agreed that the order was silent on when make-up time should occur, but said that in his mentality when a kindness is offered the expectation is that it will be returned.  He agreed that he did not seek immediate make-up time when agreeing to the alteration, and that he had withdrawn his agreement much later.

14. The mother filed an affidavit on 22 January 2016 which included her evidence in relation to the contravention application filed 2 November 2015.

15. The mother agreed in cross-examination that she had raised the possibility of the weekend time being changed on 14 December 2014 and further that she understood that the father’s agreement to the change of the weekend was conditional on her agreeing make-up time.

16. She further agreed that she received the first request from the father by text message on 31 January 2015 seeking information regarding a proposed make-up weekend in March.  At about 3:30pm on 31 January 2015 the father sent a text message to the mother saying, inter alia:

    “…Also the weekend in marchThanks.”

17. The mother replied at about 4:10pm on the same day with a text messaging saying, inter alia:

    “….March will get back to you. Thanks.”

18. The father sent a further text message to the mother at 4:21pm on the same day in the following terms:

    “Fine…as for march if you wish to swap weekend then it will need to swap the week starting the 13^th with X in your care for the 20^th when X will be in my care effectively swapping weekends to cater for your request.”

19. The mother replied at 4:30pm in the following terms:

    “Are you asking for the current sequence to now change ongoing?”

20. The father replied at 4:40pm:

    “No Ms Hough i simply want to know whats your expectation of the next two weekends.And confirmation of the swap in march as this is the only viable alternative option for me”

21. There were then four more text messages back and forth talking about swapping various weekends in March with the father then saying at 11:28am on 3 February:

    “Hi Ms Hough could you respond re swapping the weekends in March. Thanks”

22. The mother agreed that she wanted the father to accommodate her request and agreed that she had never confirmed a make-up date prior to the weekend of 13 March, but said she had always said the weekend would be made up.

23. It was put to her that at the time of the hearing it was nearly a year after the March 2015 weekend and there had still been no make-up time.  The mother said she had offered time and the father had not accepted the time.

24. It was put to her that she had only offered one date, but her reply was that she had offered a date in July and a later date, both of which had been declined by the father.  She said that she was unable to recall the father declining the make-up offer in September because of his work commitments.

25. The mother agreed that she had kept X home from school on that day so that the father could not collect her.

26. There is no doubt that the mother did not comply with the order in relation to the weekend commencing Friday 13 March 2015.  It is not disputed that the mother deliberately kept X home from school that day so as to frustrate any attempts by the father to collect X in accordance with the terms of the order.

27. The order was a consent order.  It is silent on the question of make-up time if the parties agree a variation to the order.

28. The mother had sent a text message to the father (“F1” page 7 of 31) on 14 December 2014 at 6:22 am in the following terms:

    “Hi Mr Marsdon, would like to arrange for X to be with me on the weekend 14 March 2015 for engagement party.  Please can you let me know.  Thanks Ms Hough”

29. The father replied at 3:25pm the same day (“F1” page 7 of 13):

    “That should be fine…swap whole weekend or just the day?”

30. The mother responded to the father at 7:19pm on the same day in the following terms:

    “Whole weekend would be better. Thanks”

31. At that time the discussion between the parties was clearly in relation to “swapping” a weekend with no reference to the concept of “make-up time”.  The effect of course would have been the same.

32. There were extensive text messages exchanged between the parties after 14 December 2014.  The first time the March weekend was mentioned again in text messages was in a message from the mother to the father at 4:10pm on the afternoon of 31 January 2015 when at the end of a text message about other matters she said:

    “…March will get back to you.Thanks”

33. That then led into the exchange of text messages on 31 January 2015 to which I have already referred.

34. The next reference in the text messages to the March weekend occurred in a message from the father to the mother at 6:48pm on 23 February 2016 (“F1” page 18 of 31) when the father said:

    “Hi Ms Hough ive let (omitted) now (sic) that X will be attending the party…If you wish to change weekends in March to accommodate your request then i need confirmation tonight that we are simply swapping the weekends.  If no confirmation is received tonight i will revert to the court orders.Thanks Mr Marsdon”

35. The mother replied at 7:54pm on the same day:

    Hi Mr Marsdon, thanks.  You have already confirmed in writing months ago that X can spend that weekend with me and attend her cousins engagement.  Orders specify unless otherwise agreed.  It has been otherwise agreed by you.  I will collect X from school on Friday 14^th.I will need to cover some issues about time/holidays/X with assistance tomorrow to confirm which weekend is best for X.Thanks Ms Hough”

36. That message was followed up by a message at 7:55pm:

    “That’s Friday 13^th. Thanks”

37. At 8:25am on 24 February 2015 the father replied:

    “No Ive agreed in good faith expecting the favour to be returned, and again you need to be difficult.  Ms Hough move on…it is nearly 3 years.Nothing is agreed until i have confirmed swap like for like…”

38. The mother made her position perfectly clear at 8:22am on 25 February 2015 when she replied to the father as follows:

    “Hi Mr Marsdon, again it has nothing to do with being difficult or moving on.  If you think it does then perhaps it is you that needs too (sic)?   I will do what’s right for X and the weekend will be swapped as I confirmed months ago.  I just need to work out when that is, in relation to what is best for X.  Thanks Ms Hough”

39. Between that date and 13 March 2015 there is no evidence of the mother making any proposal about what weekend would be “swapped”.

40. On 6 March 2015 the father sent a text message to the mother at 8:34am as follows:

    “Hi Ms Hough, unless you confirm by the end of today that we are swapping the next two weekends to accommodate your request then i will stick with court orders and pick X up next Friday 13^th of March.Mr Marsdon”

41. On 13 March 2015 the mother sent the following text message to the father:

    “Hi Mr Marsdon, I confirm I have X this weekend as agreed by you last year.  X is struggling with issues both at school and home.  I am trying to ensure that she is supported through this time to minimise her anxiety and behaviour.Again, the weekend will be made up as agreed.  I just want to ensure its planned with X’s best interests in mind.Thanks Ms Hough”

42. The father replied at 11:17am on the same day:

    “Ms Hough. No variation to my ordered time with X has been agreed. I will collect her from school today. I have provided you with ample opportunity to change this weekend and to confirm when make up time will be provided.  You have not done this.  It is now too late.  I do not want to be contacted again today regarding this I am busy at work.”

43. Thereafter the mother sent the father the message to which I have already referred saying that X would remain at home that day.

44. I do not accept that the mother had a reasonable excuse[1] for failing to comply with the terms of paragraph 3.1.2 of the order of 29 July 2014.  There is no doubt that the reason why the mother wanted to change the weekend was reasonable. 

    [1] s.70NAE Family Law Act 1975 (as amended)

45. There is likewise no doubt that the father’s consent to the variation to the order was conditional upon weekends being swapped so as to ensure X’s time with him was not missed.

46. I find the mother had ample opportunity between 14 December 2014 and 13 March 2015 to reach agreement with the father about a “weekend swap” and that the tenor of her responses to the father were deliberately obtuse and of a stalling nature.

1. I do not accept the submission of the mother’s counsel that the problem was simply that the parties were unable to agree on “make-up time”.  Nor do I accept the submission that there was nothing to suggest the mother was not genuine.  To the contrary, I find that the mother was not inclined to specifically suggest when “make-up time” by way of a “swapped weekend” would occur as she was not supportive of such make-up time happening.

2. Notwithstanding that matters would probably have been assisted by the father proposing a series of specific weekends that would have been suitable from his perspective , the reality was that his consent to X staying in the mother’s care for the weekend of 13 March 2015 was always conditional upon the time that would be missed occurring on another weekend.  The responsibility lay with the mother to make specific proposals in that regard. 

3. I find her offers of make-up time in July and September 2015 were an unacceptable response to the father’s request.  I find that she was not entitled to rely on what could only be described as the father’s conditional agreement.  Had the mother made specific reasonable proposals to the father to which he had either failed to respond or unreasonably responded the circumstances would have been different.

4. I those circumstances I find against the mother in respect of count one of the contravention application filed 2 November 2015.

Count Two

1. The father alleged in count two of the said contravention application that on Wednesday 28 January 2015 at 3:15pm at X’s school the mother failed to facilitate X coming into his care pursuant to paragraph 3.1.2 of the consent order of 29 July 2014.

2. The father deposed to the mother keeping X home from school on that day (and on two other dates contained in the body of the contravention application, but not being the subject of separate counts, namely 25 February 2015 and 27 February 2015).

3. The mother deposed in her affidavit to X staying home from school on occasions when she, the mother, judged that it was in her interests to do so.  She said on each occasion that X was kept home from school she was most unwell and settled at home with the mother.  The mother deposed to being of the view that it was not in X’s interests to effect a change over.  She deposed to her belief that the father fails to comprehend that X doesn’t like being moved from her mother’s home when she is unwell or unsettled.

4. In cross-examination the mother confirmed that on the day in question referred to in count two of the father’s contravention application (as well as the other two days referred to by the father) X had been, in her view, unwell.  She agreed that she had been able to attend at school on the day before each of those days and on the day after.  The mother agreed that she did not take X to see a doctor on 28 January 2015 nor did she obtain any medical advice.  She further confirmed that X’s condition on that day related to anxiety.

5. When asked what treatment the mother had provided for X she said that she had given X Panadol and had sat up with her for most of the previous night.  She agreed that the father could also do that for X.  When it was put to her that the father wanted to care for X and that she prevented that occurring, she said that she did what she thought was best for X who was upset and wanted to stay at home.

6. The mother admitted the contravention but said that she had a reasonable excuse for contravening the order on that occasion.

7. The father was cross-examined in relation to this count.  It was his position that he was as capable as the mother in caring for X if she was sick.  He accepted that when he spoke with X on the phone she may well have said that she wanted to stay home with her mother and that he may have told her that she should get better and that he would see her soon. 

8. He agreed that the problem did not seem to have continued after March 2015 and he thought it had been resolved to his satisfaction, but he said that the fact that the mother had not only kept X home from school on 28 January 2015 but also on two other dates X was due to be in his care suggested that there was a pattern of behaviour whereby the mother was intentionally interfering with X’s time with him.

9. He agreed that he had sent a text message to the mother on 23 June 2015 in relation to assessing X’s health and to her behaviour suggesting that she might not be well enough to go to school but said that he communicated about that issue with the mother unlike the mother’s approach to communicating about him.

10. He agreed that he refused to communicate with the mother about X’s health by text message but rather did so by email and said that the mother in turn refused to communicate with him by email.

11. When he was asked whether he formed the view on 28 January 2015 that X was not sick he said he did not do so but when the other two occasions occurred where X was at school one day and then apparently not well enough to go to school and spend time with him the next he became suspicious.

12. He agreed that children can be ill for a period of 24 hours and he agreed that if the mother thought X was so sick that it was best for her to be at home and not at school he would not want X to have to leave the mother and see him. 

13. When he was asked if he complained about the mother not providing medical certificates in relation to the dates X did not spend with him, he said he did not because nobody saw anxiety in X except the mother.  He said that it was until he read the mother’s affidavit that he had heard anything about X having a phobia about going to the doctor of working through that fear with Ms A.

14. In circumstances where the father, in cross-examination, acknowledged that the issue of X being kept home by the mother allegedly because she was sick on days she was due to be with the father had ameliorated by March 2015, and where the father acknowledged that he did not think it would be reasonable for X to have to be moved from the mother’s care if she was indeed sick, I find that the mother had reasonable excuse for contravening the order on 28 January 2015.

15. I accept that the mother believed on reasonable grounds that not allowing X and the father to spend time together was necessary to protect the health of X, and further that the period that X and her father did not spend time together was not longer than was necessary to protect her health[2].

    [2] s.70NAE(5)(a)(b)

Count Three

1. In count three of the contravention application the father alleged that pursuant to the terms of paragraph 3.2 of the parenting order of 29 July 2014 X was due to go into his care for holiday time on 10 April 2015 at 3:15pm.  Paragraph 3.2 of the said order is in the following terms:

   3.2During the short school holiday periods from the conclusion of school on the last day of school term (or 6.00pm if the child does not attend school that day) until 6.00pm on the Friday of the first week of the school holiday period NOTING THAT if Easter falls on the middle weekend of the short school holiday period the father’s time with the child shall conclude on Easter Sunday at 6.00pm and the provision of paragraph 4.6 hereof shall stand suspended for that year.

2. It was the mother’s evidence, as contained in paragraph 27 of her affidavit filed 22 January 2016, that she attempted to negotiate with the father about a reduction of X’s time with him during the Term 1 2015 school holidays.  She deposed to her view that X was suffering from anxiety and would not manage time away from her particularly in circumstances where she said that the holidays were longer than the usual two weeks.

3. That approach was not accepted by the father.

4. She deposed to the father advising her by text message on 16 March 2015, in response to her proposal that X spend less than the time provided for in the order with him, that he did not agree with her proposal and:

   “…therefore X is with me from the conclusion of school on Mandy (sic) Thursday to 6:00pm Easter Monday.  She is then with me from 6:00pm Friday 17 April to 6:00pm on Friday 24 April.  If you don’t comply with the orders I will issue a contravention application.”

   The father’s position was clear.

5. In paragraph 27 of the mother’s said affidavit she agreed that she did not respond to the father’s text message, notwithstanding her belief that his proposal was not in line with the court order.  She said that she was exhausted from dealing with the father in relation to school holiday time and the new threat of litigation.  She deposed to deciding that X could spend time with the father on the days that he specified.  She said she did not consider that there was a need to respond as the father had “dictated the terms”.

6. It was her evidence that on the last day of term being, according to her, Thursday 2 April 2015, the father again contacted her at midday and advised that he had “changed his mind” and would be having the care of X from Friday 10 April to Friday 17 April.

7. It was her evidence that she did not agree with that as she had already planned for she and X to go to (omitted) with her sister in that week based upon the previous text message sent to her by the father. 

8. She deposed to advising the father that she would not attend at handover and to not responding to the father’s text message because her phone was flat.  She said she had left her charger at a friend’s house the previous evening.

9. The mother deposed to X spending time with the father from Wednesday 1 April 2015 to Monday 6 April 2015 and to there being no pupil-free days in the term one holiday in 2015.  It was her evidence that the holidays commenced on 2 April 2015.

10. She relied on literature from the school annexed to her affidavit and marked with the letter “D” in support of her assertion.

11. She deposed to the father arriving at her front door on 10 April 2015 notwithstanding that he had advised her he was having X in his care in the week commencing 17 April 2015, and terrified she and X.  It was her evidence that the police were called, she showed the police officer the text message from the father in relation to having time between 17 and 24 April 2015 and the father then left without X. 

12. The mother deposed to travelling to (omitted) with her sister and X between 12 and 17 April 2015.  She said she did not take her telephone with her to (omitted) as she would not have any reception with her service provider.  She deposed to her sister having a Telstra 4G mobile telephone and to that being the only network working on (omitted).  She said that they utilised her sister’s phone where necessary as she, the mother, is not with Telstra.

13. The father deposed to X’s school, being (omitted) School, having a number of pupil-free days at the end of first term in 2015.  He deposed to the mother in her text message seeking to categorise those days as the commencement of the school holidays, with the intent to reduce the amount of time that X would spend with him.  He deposed to the result being a block of 19 days when X did not see him if the mother’s approach was adopted.

14. The father deposed to filing an application in a case to try and address the issue before the holidays but to it not being listed until after the April 2015 school holidays.

15. He deposed to the problems he anticipated occurring, to the mother maintaining her position that pupil-free days comprised part of the school holidays and to the mother refusing to allow X to go into his care on 10 April in circumstances where she argued that he had not taken the opportunity to spend time with X during the first week of the school holidays as provided for in paragraph 3.2 of the order of 29 July 2014.

16. After a discussion with the police at the home of the mother, the father agreed that he would have X in his care in the second week of the school holidays notwithstanding having amended his work arrangements to accommodate having her in the first week.

17. The father was cross-examined and confirmed that he had received a text message from the mother as to X allegedly suffering anxiety.  He agreed that his reply to her was that did not accord with his impression of X.  He confirmed that he had advised the mother that he would have X in his care between 17 April 2015 and 24 April 2015.  He further confirmed that he had advised the mother that if she did not comply with those dates he would file a contravention application.

18. He agreed that was in fact not the first week of the April 2015 school holidays and agreed that holidays actually started on 10 April 2015.  He agreed his message did not invite a response but said that he had sent other messages.  He disagreed with the proposition that he was dictating times to the mother and said rather that he was confirming the dates but had made a mistake as to the actual dates of the April 2015 school holidays.

19. It was put to him that he did not contact the mother again in relation to the matter until a message on 2 April 2015 at which time he changed the dates that he said he wanted X in his care to being between 10 and 17 April 2015.

20. The father denied that he had “changed his mind” and said that he was just rectifying the earlier message when he became aware of the correct holiday dates.

21. It was put to him that the mother by then, namely 10 April 2015, had plans to travel to (omitted).  The father responded that he had not received any message from the mother in relation to that proposal.  He said that the first he knew about the (omitted) issue was when he attended at the mother’s home on Friday 10 April 2015 and the police officer asked if he was agreeable to swap the weeks that X was in his care as the mother was intending to travel to (omitted).

22. The father conceded in cross-examination that he had made an error in the initial dates that he had proposed to the mother.  He further confirmed that he had attended at the mother’s home on 10 April 2015.  When it was put to him that there was no reason for him to be at the mother’s home at that time he said that he wanted to know where X was.  He agreed that the court order gave him no reason to be at the mother’s home but said that he had no confirmation of the time that X was to be in his care.

23. He denied a suggestion that he had pounded on the mother’s door, and said that he had knocked one time, walked away and then knocked again.  When it was put to him that he knew the mother was at home he said that her car was there and that he just wanted to see what was happening with respect to X’s time during the holidays.  He denied that he yelled at the mother but agreed that he had asked her to open the door.  He said that he used an ordinary voice.

24. It was put to him that he was angry and belligerent when he arrived at the mother’s home.  He disagreed but agreed that he had filmed the incident.  He agreed that he had read the mother’s description of X’s reaction to his attendance at the home and to the mother’s assessment that X was very scared by the event.

25. It was put to the father that he did not leave when asked to do so.  He said that he was not asked to leave but rather the mother said that she would call the police.  The father said that he told her he would do the same.

26. It was the father’s view that the entire incident had been “staged” by the mother.  It was his position that the mother ultimately had a malicious motive towards him, and that she could easily have clarified his mistake in the initial text message that he had sent about holiday time.  He said that mistake was an honest mistake.

27. The mother admitted the alleged contravention, but again said she had a reasonable excuse.

28. In cross-examination she agreed that X had been in her care on the weekend of 13 to 15 March 2015.  She denied that X had not communicated with the father that weekend and said that she had spoken to him on the Sunday.  She agreed the father had sent a text message to her asking for X to call him on the Sunday.

29. It was put to the mother that on 16 March 2015 she had sent a message to the father about the length of the holidays and wanting to arrange a shorter break for X with the father.  She was asked if she expected the father to feel generous towards her request in the circumstances of the dispute about the weekend of 13 to 15 March, being the weekend immediately preceding the text message.  She said that she did, because she wanted them to work together.  I did not find her evidence in that regard genuine.

30. She agreed that on 19 March 2015 the father had sent her a text message stating that he wanted her to comply strictly with the parenting orders or he would file a contravention application.  She agreed that the order clearly prescribed that X should spend the first week of the school holidays with the father.

31. When it was put to her that in reading the father’s text message wherein he said he wanted X in his care from 17 to 24 April 2015, she would have been aware that there was an inconsistency between that and what the order prescribed, she said she simply agreed to the father’s demand.  She agreed that she did not send any response confirming her agreement to the father’s proposal.

32. The mother agreed that the terms of the order can only be varied by agreement between the parties, and that there had been no agreement between the parties in relation to time over the April 2015 school holidays.

33. The mother agreed in cross-examination that when the parties consented to the parenting orders it was on the basis of school holiday time being shared, with each party having the care of X for a week of the two week short term school holiday periods.  She agreed that they had reached agreement about X spending time with each of them on a week-about basis during the Christmas holidays. 

34. It was put to her that the school holidays commenced on 10 April 2015 and concluded on 26 April 2015.  The mother said that a parenting handbook from the school said that the school holiday period commenced on 2 April 2015.  Annexure “D” to the mother’s affidavit filed 22 January 2016 was a copy of the 2015 calendar of school events.  Parts of the annexure were redacted, notably those parts relating to school holiday periods.  If the intention had been to highlight rather than redact, the effect was the same.

35. In 2015 Easter fell on 3, 4, 5 and 6 April.  The gazetted school holidays commenced on Friday 10 April 2015, with school returning on Monday 27 April 2015.  I am not satisfied that 7, 8, 9 and 10 April 2015 were other than pupil-free days at X’s school.  I am not satisfied on the evidence that they could be categorised as forming part of the April 2015 school holidays.

36. On 19 March 2015 the mother would have been aware, upon receiving the father’s text message at just after 4:00pm, that he was mistaken as to the dates for the April 2015 school holiday period when he proposed that X would be in his care from 6:00pm Friday 17 April to 6:00pm Friday 24 April.  He referred in that text message to the need for the mother to comply with orders or he would file a contravention application. 

37. The logical thing for the mother to have done at that time was to query the father as to why he was seeking to have X in the second week of the holidays and not the first week of the holidays.

38. On 2 April 2015 the father advised the mother by text message that he had plans booked for he and X in the first week of the holidays.  He advised that he would deliver X to the mother at 6:00pm on Easter Monday which was 6 April 2015, collect her again on Wednesday 8 April 2015 and return her to the mother at 9:00am on Thursday 9 April.  He advised he would then collect her on Friday 10 April for seven days.

39. The mother then advised him by text message, two minutes later at 12:56pm, that his dates were incorrect and that school holidays were to commence that day.  She requested that he telephone the school to confirm.

40. At 2:05pm on the same day the father sent a text message to the mother saying that she was incorrect.  She replied two minutes later saying that he was incorrect, that she was happy to argue it in court and that holidays start at the end of that day, being 2 April 2015.  She said that she would not negotiate further.  Their arguments continued by way of text message.

1. I do not accept that school holidays commenced on 2 April 2015.

2. Clearly the father made a mistake when he provided his proposed school holiday dates to the mother by way of his text message on 19 March 2015.  The mother did not attempt to clarify that position with the father or point out his mistake.  She should have done so.  There was nothing in the father’s text message to suggest he was proposing a variation to the order for the April holidays.  The mother then made arrangements to travel to (omitted) with her sister and X between 12 and 17 April 2015.

3. She did not advise the father of her intention to take that holiday.  That of itself was not a difficulty under the terms of the existing order, but had she done so as a matter of courtesy, the father’s mistake may have been remedied a lot earlier than 10 April 2015.  I find that unfortunately the mother’s failure to communicate with the father resulted in an incident at the mother’s home which did no credit to either of the parties and frightened X.

4. The mother was disingenuous when she deposed in paragraph 27(b) of her affidavit filed 22 January 2016 to the father changing his mind on 2 April 2015.  I am satisfied that that was when the father realised that he had made a mistake as to holiday dates.

5. I find that the mother took advantage of the school decision to have pupil-free days between Easter and the commencement of the term one school holiday period to enable her to frame an argument that the school holiday period was in fact three weeks long rather than two weeks long.  This was in circumstances where she was aware as at 19 March 2015 of the father’s mistake in terms of his proposed holiday dates and had not raised with him either the mistake in those dates or her view that the holidays were three weeks long until the day prior to Easter.

6. Her failure to communicate these issues with the father led to the father attending at her home on 10 April 2015.  The mother knew from the tenor of the communication between the parties by text message on 2 April 2015 that that was the likely outcome of the course of action she had chosen.

7. She did not base her objection to X going into the father’s care on 10 April 2015 in accordance with the order on any inconvenience that had been caused to her by his initial mistake but rather, on her view that he had missed out on his week of holiday time with X because he should have taken X into his care as and from the Easter period until 10 April 2015.

8. I find that the mother took advantage of the genuine mistake of the father.  I find she intentionally failed to comply with paragraph 3.2 of the order of 29 July 2014[3].  I do not accept that she had reasonable excuse for so doing.

   [3] s.70NAC(a)(ii) (supra)

Count Four

1. In count four the father alleged that on (omitted) 2015, being X’s birthday, the mother failed to facilitate X spending time with him from the conclusion of school until 8:00pm as provided for in paragraph 4.1 of the final order of 29 July 2014. June 9 2015 was a school day.

2. Exhibit “F2” contained transcript of text messages and records of telephone calls and text messages on 9 June 2015.

3. It was the father’s evidence that on that day the mother sent a text message to him at 12:15pm advising that X was unwell and not at school.  He deposed to receiving the following text message from the mother at 12:18pm that day:

   “Hi Mr Marsdon, X’s not a (sic) school today, she told me she was not at all well at your house Sunday night?  Went to bed early, had to have a wheat bag for a tummy ache?  Asked to come home and call me?  Is this right?  I’ve kept her home.  Thanks Ms Hough.”

4. The father deposed to replying to the text message at 1:00pm and asking the mother to meet him at the school carpark at 3:15pm to deliver X so that he could see her on her birthday.  The text message was as follows:

   Hi Ms Hough. im sorry to hear that but i will still see you at 3.15pm at school as per court orders to spend with X on her bday. Mr Marsdon”

5. At 2:12pm the father sent a further text message asking the mother to confirm that she would at the school carpark at 3:15pm that day.  He deposed to the mother sending him a further text message at 2:42pm that day advising that she would meet him on (omitted) for handover as there would be no parks available at the school.  She went on in the message to say that (omitted) was the one before (omitted), closer to the city.  The father replied “Ok” at 2:44pm that day.

6. The father deposed to already being on his way to collect X when he received the message about the (omitted) meeting place.  He said that he attended at (omitted) but could not locate the mother and X.  He deposed to that address being the address of a friend of the mother’s and being very close to the school.

7. He deposed to having telephoned the mother numerous times but to not having received any answer and to waiting on (omitted) to see X on her birthday until 4:00pm.  He deposed to sending the mother a message telling her that he was on (omitted) waiting for her, to which she did not respond and then a further message advising that he was waiting to see X.

8. The father said that after sending another two or three messages to the mother with no response that he sent a further message saying that he was waiting in (omitted) and had been since 3:15pm.  He told her in the message that he would leave at 4:00pm if he had not heard further.

9. The mother deposed to X returning to her care at 9:00am on the previous day being (omitted) 2015 saying that she had been unwell at her father’s home on the Sunday evening.  She allegedly told the mother that she had been very upset.

10. The mother deposed to X being unwell again on (omitted) 2015, and sending a message to the father asking if he knew anything about the Sunday night illness and for his permission to look into having some tests done for X’s tummy aches and vomiting.  She deposed to then advising the father that she would meet him for handover in (omitted) and to the father not responding.

11. She deposed to arriving at (omitted) at 4:00pm, there being no sign of the father and to him being aware that her friend lives at (omitted).  She deposed to calling her lawyer to ask what she should do and to her lawyer saying that she would contact the father’s lawyer but to her (the mother) not receiving any communication from the father’s lawyer.

12. She deposed to contacting her lawyer the next day because she was concerned that the father had not attempted to make any contact with her.

13. The father was cross-examined as to count four and said that he agreed to a change of handover on the day of X’s birthday to (omitted) and that although he did not know the person who lived at (omitted) well, he had met her.

14. It was put to him that the mother had been to that address but he had not turned up.  He responded that he had been there from 3:15pm to 4:02pm.  He said in cross-examination that he had remained there for 45 minutes and sent numerous texts.  It was his evidence that he had left (omitted) at 4:02pm.  When it was put to him that the mother said that he had not appeared he said that he had left by the time the mother got there.

15. When it was put to him that everybody had been waiting for him he said that he did not believe that.

16. The mother was cross-examined.  When it was put to her that the father was an interested and active parent of X she replied “at times”.

17. She agreed that the father liked to spend special occasions with X and speak with her and that X’s birthday was special.  It was put to her that the day prior to X’s birthday was a public holiday with which she agreed.  She confirmed that she understood the order.

18. She was asked when school finishes and replied “at 3:15pm”.  She agreed that X was, pursuant to the order, entitled to spend time with her father from 3:15pm to 8:00pm on her birthday.

19. The mother was asked if the father had telephoned to speak with X on the morning of her birthday and said that she did not recall.  It was put to her that calls had been made to her mobile telephone at 8:20am and 8:32am on the morning of X’s birthday and they had been followed up with an SMS text message to her, to which she did not respond, seeking to speak with X.

20. She said she did not recall the calls and the only reason she would not have responded to a text message is if her phone was flat or not switched on.

21. It was put to her that the first message she had sent to the father on X’s birthday was at 12:18pm and she was asked why had she not invited X to speak with the father earlier.  She said that X was asleep.  It was put to her that by then (12:18pm) she knew that there had been a message from the father and she agreed.

22. The mother was asked why she had not, for example, sent a message back to the father saying that she was sorry that she had missed the call, that X was asleep and could she call him later.  She replied that X was sick and she was concerned about X. 

23. The mother agreed that by 2:12pm the father had sent a text message asking her to confirm the arrangements about meeting at (omitted).  She agreed that she knew that she had to be there. 

24. The mother then said however that, looking back, she thought that she had not been getting responses from the father.  She denied that she had received a message from the father at 3:14pm or at 3:30pm or that she had received a telephone call from him at 2:29pm.  She denied that she had received another text message from the father at 3:48pm.

25. When the court asked the mother whether she had attempted to call the father, in circumstances where she must have been worried that she had not heard from him, she replied that she had not.

26. The mother denied receiving an SMS text message from the father at 4:03pm.  When it was put to the mother that her proposal to the father involved a meeting at (omitted) at 3:15pm but she was not there at that time the mother agreed.  She said that she had not arrived until 4:00pm.

27. When she was asked how long she expected the father to wait outside of her friends home so that he could see X on her birthday she replied that she guessed at 3:15pm but had not heard from the father.  When it was put to her that the problem was that she was not where she said she would be at 3:15pm she said that she did not know what was happening.

28. The mother maintained that she had not received any calls from him that day.

29. When asked by the court why she had not simply been at (omitted) at 3:15pm, which was her proposal, she said that she had not heard from the father.

30. I do not accept the mother’s evidence.  The order was clear in its terms, namely that time for X on her birthday with her father was from the conclusion of school until 8:00pm.

31. The mother conceded in cross-examination that school concluded at 3:15pm.  On her own evidence she did not arrive at (omitted) where she proposed the handover take place until 4:00pm.

32. I find both that the mother fully understood the order in relation to X’s ordered time with her father on her birthday and further, that she made no reasonable attempt whatsoever to comply with the order.

33. I find that the mother contravened the order as alleged in count four of the contravention application.

Count Five

1. Count five of the father’s application contained an allegation that the mother had contravened paragraph 8 of the parenting order of 27 July 2014, which provided for a party to facilitate X’s telephone communication with the other party on two occasions per week at reasonable times for any period that X spends seven days or more in the care of the other party.

2. The father alleged that on 15 April 2015 he tried to contact X via the mother during a holiday block and was not able to contact her and further, the mother did not facilitate the telephone communication as ordered.

3. The father deposed to X being in the care of the mother for a period of seven days during the April 2015 school holidays.  He said that he sent a message to the mother on 15 April 2015 requesting to speak to X, to which the mother did not respond.  He deposed to the mother not allowing X to speak with him during that seven day period.

4. The mother advised that she travelled to (omitted) during the April school holiday period and was out of telephone range.  She deposed to not taking her telephone with her because there was no coverage, and attempting to arrange for X to call the father during the week on a public phone on two occasions in the late afternoon but that the father did not answer.  She deposed to that occurring on the Monday and Tuesday of her holiday on (omitted).

5. In cross-examination the father said that he had no missed calls to his mobile telephone on either 13 or 14 April 2015.

6. The mother was cross-examined about the issue.  She agreed that the order was designed to enable X to speak with her father two times during a seven day period. 

7. She agreed she was on (omitted) with X from 12 to 17 April 2015.  She was unable to recall what time she departed for (omitted) with X on 12 April 2015 or even whether it had been an early start on that day such that she was on (omitted) for the full day on 12 April 2015.  She said however that there was no doubt that she was there on 13 April 2015.

8. She agreed that she did not take her mobile phone with her and said that was because the mobile coverage on (omitted) was “very patchy”.  She agreed that her sister had a Telstra 4G telephone with her for the trip.  She agreed that she was with her sister for the duration of the holiday period and planned to use her sister’s telephone if needed. 

9. She denied that she was mistaken in her evidence that she tried to call the father from a public phone box on two occasions on the Monday and Tuesday of her holiday but received no answer.

10. She was asked why she did not use her sisters telephone to facilitate X phoning the father.  She said that even in (omitted) there was no reception and in addition, it was hard to get X to use the phone.  She said that driving to a public phone box gave her time to persuade X to call the father.

11. When it was put to her that it must have been more convenient to use her sisters telephone she said that it wasn’t, because her sister was not with she and X when they drove to the public phone box. 

12. It was put to her that she had failed to get X to call the father and she responded that they were the reasons that X was seeing Ms A.

13. The mother was directed to annexure “F4” to the affidavit of the father filed on 24 August 2015, referring to an SMS text message sent to the father by the mother at 11:47am on 12 April 2015.  She was asked if she was on (omitted) at that time.  She replied no, and that she thought she was at home.  The mother was asked if she had sent an SMS text message to the father from (omitted) at 6:47am on 13 April 2015.  She replied that she had.

14. It was put to the mother that X did not speak with the father on two occasions pursuant to the order during the seven day period she was in her mother’s care.  She responded that X did on the Friday evening during the incident at her home when the police were present.

15. I do not accept that the mother travelled to (omitted) without her telephone.

16. On page 24 of 26 pages of the father’s affidavit filed on 24 August 2015 there is a transcript of a telephone message from the mother to the father at 6:47am on 13 April 2015, at a time the mother was adamant she was on (omitted).  The message was in the following terms:

    “Also confirming your text to ask if I was ok with arrangement which I have not responded to.  No I am not ok with the arrangement.  I just wanted to get X settled and be able to go back into our own home to collect some clothes.  It is not in line with orders.  Thanks Ms Hough.”

17. The mother had ample opportunity to use either her own telephone or her sisters telephone to facilitate X communicating with her father by telephone during the seven day period from 10 to 17 April 2015.

18. I do not accept that X speaking with the father during the incident on the night of 10 April 2015 qualifies as telephone communication.

19. The mother’s evidence about using a public telephone box was extraordinary and lacked any credibility.

20. I am satisfied that the mother was well aware of the terms of the order in relation to telephone communication and deliberately failed to facilitate that telephone communication.

Count Six

1. Count six of the application related to issues of property settlement.  It was withdrawn by consent order on 21 June 2016.

Count Seven

1. Count seven related to the father’s allegation that on 9 July 2015 the mother contravened paragraph 14 of the order of 29 July 2014.  This  order provided for each party to be at liberty to travel interstate with X when X was in their care provided that they provided written notice to the other at least 30 days prior to the travel of the intention to travel including an itinerary with the proposed dates of travel and the address and contact details for X during the travel.

2. The father deposed to the mother sending him a message on or around 9 July 2015 advising that she was travelling interstate with X.  The father deposed to sending the mother a message in the following terms:

   “Hi Ms Hough. Could you please give me a brief outline of your holidays just so that I have an idea of X’s whereabouts?”

3. The father deposed to the mother responding:

   “We are heading interstate. Going skiing at (omitted). Thanks Ms Hough.”

4. The father deposed to the seeking clarification of the mother’s travel plans to no avail.

5. Exhibit “F3” consisted of a transcript of text messages between the parties on that day.

6. The mother deposed in her affidavit to providing the father with details of her and X’s holiday on 19 July 2015 in accordance with annexure “F” to her affidavit.  Annexure “F” consisted of a series of text message, the first being a message from the mother to the father at 1:25pm on 3 June 2015 advising that she and X would be travelling interstate between 11 and 19 July 2015 for school holidays.  The message was sent 37 days prior to the proposed date of travel.

7. There are six further messages from the mother to the father, one on 3 June 2015 and five on 9 June 2015 between 2:58pm and 5:54pm.  The last two ask the father if he could please let the mother know if he had been receiving her messages in circumstances where she had not received any response, and secondly was he “ok”.

8. In cross-examination the father was asked whether he had contact with X via the mother during the holiday period.  He replied that he did via mobile phone.  He said that he had received calls from X confirming during the first call that she had arrived safely and during the second call that she was having a good time.

9. The mother was cross-examined in relation to count seven.

10. She agreed that the concept contained in paragraph 14 of the said order was not difficult in that she could only travel with X if she carried out the required tasks correctly.  She agreed that she had to provide an itinerary together with the proposed dates of travel.  When asked what she thought it meant to provide an itinerary she replied that it consisted of information about the dates of arrival and return and contact details.

11. When asked whether it should include the route of travel also she agreed.  When asked if there were several legs to the journey whether it should include all of the travel details she replied that it was her understanding that what had to be advised was the ultimate destination, the day of departure and return and in the event that there were a multitude of destinations they should all be included.

12. The mother agreed she was aware that 30 days’ notice of the travel was required.  When it was put to her that she had not advised the father of the required travel details for the proposed July 2015 travel with X she said that was incorrect, and that the father already had the details.  She said she had spoken with him before receiving a text message from him on 10 July 2015 seeking further details and that “this is a set-up”.

13. The mother conceded in answer to a question from the court that she had not provided written notice as was required by the order and confirmed that when the father had travelled overseas and had not provided travel details to her but he had not been travelling with X.

1. When she was asked why she did not provide written details to the father no matter what his view was that is, why did she simply not comply with the order in the strict sense, she replied that she knew now that she needed to do that.

2. The only count in the second contravention application filed by the father on 22 January 2016 also related to an alleged failure on the part of the mother to provide details of travel in accordance with the terms of paragraph 14 of the order of 29 July 2014.

3. The father was not cross-examined in relation to that issue in circumstances where the mother had admitted the contravention contained in count seven of the first contravention application and count one of the second contravention application.  The mother was cross-examined notwithstanding her admission of the allegation.

4. She agreed that she had not provided the required notice and details to the father in respect of travel to Queensland with X on 16 January 2016.  She said that she had not been sure of an address with which to provide him about where she and X would be staying in Queensland and that she had not had any specific itinerary in mind.

5. When the court asked of the mother whether she understood the components of paragraph 14 of the said order, she replied that she did and she “supposed” that she could make up an address to satisfy the requirement of the order but that she did not want to.  The mother’s evidence in that regard was indicative of her attitude throughout the hearing of these applications.

6. In any event, the court finds against the mother in respect of counts seven of the contravention application filed on 2 November 2015 and count one of the contravention application filed on 22 January 2016 on her own admission.

7. Likewise, the court finds that the respondent intentionally failed to comply with the order on both occasions.

Conclusion

1. For those reasons I am satisfied that the mother contravened the orders referred to in counts one, three, four, five and seven of the contravention application filed herein on 2 November 2015 and further that she contravened the order as alleged in count one of the contravention application filed herein on 22 January 2016.

2. I find for the reasons given that the mother intentionally failed to comply with the orders referred to in counts one, three and seven and that she made no reasonable attempts in terms of counts four and five of the contravention application filed 22 November 2015

3. I find that she intentionally failed to comply with the orders referred to in count one of the contravention application filed 22 January 2017.

4. I find that the mother understood the terms of each of the orders referred to in the said counts and that she had no reasonable excuse for her failure to comply with the orders referred to in counts one and three of the contravention application filed 2 November 2015. 

5. The mother denied the allegations contained in counts four and five of the said contravention application but for the reasons given herein, I do not accept the mother’s denials in that I do not accept that she made any reasonable attempt to comply with the order on the occasion of X’s birthday on (omitted) 2015, or that she made any reasonable attempt to comply with the order wherein X was entitled to telephone communication with her father during the April 2015 school holidays.

6. I find that the mother had reasonable excuse to contravene the order referred to in count two of the contravention application filed herein on 2 November 2015.

7. There is no doubt that the parties in this matter are unable to communicate at any reasonable level whatsoever.  It is for that reason that court orders are made, as of course if parents were able to communicate sensibly and amicably they would not be seeking orders from the court in the first place.

8. The mother is well aware of the communication difficulties between the parties and of course contributes thereto.

9. A simple determination by the mother to comply with the terms of the very straight forward and simple existing orders would of course mean that the avenue for dispute between the parties would be significantly reduced.  A failure by the mother to comply with the terms of the order simply ignites further dispute between the parties and a breakdown of any level of trust, such that when X’s needs require a compromise by the parties in respect of the terms of the order, it simply cannot be accommodated.

10. I consider that the deliberate nature of the mother’s failure to comply with the orders as referred to herein requires that the court considers the question of penalty under the provisions of section 70NFA of the Family Law Act 1975 (as amended).

11. I am satisfied that the mother has behaved in a way that showed a serious disregard of her obligations under the primary order[4].

    [4] s.70NFA(2)(b) Family Law Act 1975 (as amended)

12. The powers of the court in relation to such a finding are contained in section 70NFB of the said Act.

13. The court is directed under the terms of section 70NFB(1)(a) that it must, in relation the mother, make an order that she pay all of the costs of the father to the proceedings under this division.  The court is relieved of that obligation however, if it is satisfied that it would not be in the best interests of the child concerned to make that order.  The court has no evidence before it at this time as to the parties respective financial circumstances and in those circumstances is unable to make a finding as to whether such an order would be in X’s best interests.  I intend to adjourn that aspect of penalty.

14. The court is also obliged, if an order for costs is not made pursuant to section 70NFB(2)(g), to make at least one order pursuant to section 70NFB(2) being an order or orders that the court considers to be most appropriate in the circumstances. The court can order a party to undertake community service, enter into a bond in accordance with the terms of section 70NFE, make an order providing for “makeup time” for the child to spend with the father unless it would not be in X’s best interests to make that order, impose a fine on the mother, sentence the mother to a period of imprisonment or make orders to recompense the father for any expenses reasonably incurred as a result of X not spending time with him pursuant to the order. Such orders can also be made in addition to an order for costs.

15. I find that the most appropriate order would be an order pursuant to section 70NFB(2)(b) requiring the mother to enter into a bond[5].  That of course requires the mother to consent to entering into the bond after the purpose and effect of the bond and the consequences of failure to enter into an act in accordance with the bond are explained to her[6], this is a matter which will be dealt with upon the handing down of these reasons.

    [5] s. 70NFE(supra)

    [6] s.70NFE(5)(supra)

16. For those reasons I make the following orders.

I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date:  19 July 2017