McCulloch and Pickett
[2017] FCCA 212
•10 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCCULLOCH & PICKETT | [2017] FCCA 212 |
| Catchwords: FAMILY LAW – Contravention proceedings – 8 counts – where the father had not spent court-ordered time with the two children of the relationship for six months at time of trial – appropriate penalties. |
| Legislation: Family Law Act 1975, ss.70NFB(2), 70NAC, 70NAD, 60CC, 65M, Division 13A, 65NA, 70NEB, 70NEC, 70NECA, 70NFA |
| Cases cited: Stamp & Stamp (2014) FCCA 1269 Hugh & Sawer [2010] FamCA 290 |
| Applicant: | MR MCCULLOCH |
| Respondent: | MS PICKETT |
| File Number: | MLC 777 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 15 September 2016 & 16 September 2016 |
| Date of Last Submission: | 16 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 10 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Werner of Counsel |
| Solicitors for the Applicant: | Taussig Cherrie Fildes |
| Solicitors for the Respondent: | Self-represented |
ORDERS
THE COURT FINDS THAT:
The mother did, on 15 April 2016, and without reasonable excuse, withdraw the child X from the (hobby omitted) Team without first obtaining the consent of the father in writing, in contravention of Paragraph 15 of the Orders made in the Federal Circuit Court of Australia on 9 March 2016 (“the orders”).
The mother did, on 25 April 2016 at 4:00 p.m., and without reasonable excuse, fail to collect the children X and Y (“the children”) from the father’s home at the conclusion of the father’s time with the children, in contravention of Paragraph 7(a) of the orders.
The mother did, on 6 May 2016 at 4:00 p.m., and without reasonable excuse, refuse to allow the father to spend time with the children from 4:00 p.m. on Friday 6 May 2016 to 4:00 p.m. on Sunday 8 May 2016, in contravention of Paragraph 2(a)(i) of the orders.
The mother did, on 10 June 2016 at 4:00 p.m., and without reasonable excuse, refuse to allow the father to spend time with the children from 4:00 p.m. on Friday 10 June 2016 to 4:00 p.m. on Monday 13 June 2016, in contravention of Paragraph 2(a)(iii)(B) of the orders.
The mother did, on 17 June 2016 at 4:00 p.m., and without reasonable excuse, refuse to allow the father to spend time with the children from 4:00 p.m. on Friday 17 May 2016 to 4:00 p.m. for the first two weeks of the Term 2 school holidays, in contravention of Paragraph 2(c)(i) of the orders.
AND THE COURT ORDERS THAT:
Pursuant to s.70NFB(2) of the Family Law Act 1975, the mother shall enter into a Bond of one year’s duration with a surety of $1000.00 to be of good behaviour and to comply with all orders of this court.
The mother shall, within 7 days, do all such acts and things and sign all such documents as may be necessary for her to enrol in a post-separation parenting course at CatholicCare (omitted) in the State of Victoria (omitted).
The mother shall, within 7 days, attend upon her general medical practitioner and obtain a Mental Health Plan referring her to a psychologist to address the issues raised in the Reasons for Judgment in these proceedings, and the mother shall attend upon the psychologist for the duration of that Mental Health Plan and shall provide to the psychologist a copy of the Reasons for Judgment in these proceedings, and, within 14 days of the conclusion of that Mental Health Plan, the mother shall provide to the solicitors for the father a letter from the psychologist stating the number of sessions the mother has attended and confirming that the psychologist has read the Reasons for Judgment in these proceedings.
The Contravention Applications filed by the father on 17 May 2016 and 14 July 2016 are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym McCulloch & Pickett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 777 of 2015
| MR MCCULLOCH |
Applicant
And
| MS PICKETT |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to two Contravention Applications brought by Mr McCulloch (“Mr McCulloch” or “the father”) against Ms Pickett (“Ms Pickett” or “the mother”).
The parties have two children: X born (omitted) 2005 (“X”); and Y born (omitted) 2007 (“Y”) (collectively “the children”).
The Father brought these contravention proceedings because at the time of filing his first Application on 17 May 2016, the children had not lived with him pursuant to court orders since late March 2016.
He wants the court to deal with the mother for the breaches he alleges of final orders made on 9 March 2016 (“the final orders”).
The Mother, who was not present when the final orders were made, effectively seeks to re-open the previous proceedings and re-litigate parenting issues. She seeks an order setting aside the final orders, the appointment of an Independent Children’s Lawyer, and the preparation of a further Family Report.
The issues in this proceeding are whether the mother has contravened the final orders on eight occasions without reasonable excuse, and if she has done so, what penalty should be applied.
Background
Ms Pickett was born on (omitted) 1976 and is currently aged 40.
Mr McCulloch was born on (omitted) 1976 and is currently aged 41.
The parties commenced a de facto relationship in (omitted) 1999 and separated in February/March 2008.
X and Y are their only children together, but Ms Pickett has a third child, C, born (omitted) 2011 (“C”), from a subsequent relationship. All three children live with her in (omitted), and four-year-old C spends regular time with his father, who is now separated from Ms Pickett. Ms Pickett has repartnered with Mr S.
Both parties have (omitted) qualifications, and Mr McCulloch is currently working as a (occupation omitted).
In addition to her (omitted) degree, Ms Pickett has obtained a (qualifications omitted) and she is currently working as a (occupation omitted).
Mr McCulloch lives with his wife, Ms W (“Ms W”), and their two children, A born (omitted) 2010 (“Mr McCulloch”) and B born (omitted) 2012 (“B”) in (omitted).
Procedural History
Mr McCulloch first filed an Initiating Application seeking parenting orders on 4 February 2015. The orders initially alleged to have been contravened were interim and final orders made in those proceedings, which concluded with final orders being made on an undefended basis on 9 March 2016.
The final orders were made on an undefended basis because the respondent, Ms Pickett, did not attend the court for the final hearing.
She had sent an email to the court on the day prior to the final hearing stating that she was unable to attend because she had been unable to obtain childcare for C on the day of trial.
I dealt with that matter at the final hearing, and gave judgement to the effect that I did not accept Ms Pickett’s reason for non-attendance, as she had had almost a year to organise childcare on the day of trial.
The orders made on that day were those provided to the court by the father’s lawyers.
The father filed his first Contravention Application on 17 May 2016 (“the first Application”). He also filed an Initiating Application on that day seeking a variation of the final orders which, as noted, had been made as proposed by him on an undefended basis at the final hearing of the previous proceedings on 9 March 2016.
The first Application alleges two breaches of interim orders made on 27 April 2015 (“the interim orders”) and four of the final orders.
The first Application first came before me on 23 May 2016, with the father represented by counsel and the mother appearing in person by telephone. The parties were unable to resolve the matter on that day and it was adjourned for Final Hearing on 15 September 2016 for half a day.
On 28 June 2016 the Mother filed an Application in a Case to set aside the Final Orders made on 9 March 2016 together with an affidavit in support. That application was listed for hearing in the Duty List before Judge Harland on 16 August 2016.
The father filed a second Contravention Application on 14 July 2016 (“the second Application”). That Application alleged a further five contraventions of the final orders.
On 16 August 2016 Judge Harland consolidated the mother’s Application in a Case with the father’s two Contravention Applications and adjourned the matter to the Final Hearing on 15 September.
On 8 September 2016 the father filed a third Contravention Application (“the third Application”), alleging a further five breaches of the final orders. That Application was not heard with the first two on 15 September 2016 and is listed for hearing on the 17 March 2017.
Although counsel for the father had estimated that the hearing time of this matter would be half a day, it was heard over two days on 15 September 2016 and 16 September 2016, being interrupted by other listed matters throughout the hearing.
Witnesses on the first day of hearing were the father, his sister Ms S (“Ms S”), and the mother.
The mother, who was appearing in person, cross-examined the father briefly in a general manner, but did not ask him specific questions, or challenge him about his evidence, in relation to the allegations contained in the two Contravention Applications which are the subject of these proceedings.
She declined to cross-examine Ms S, stating that she did not feel comfortable in that exercise and that she would present her evidence during her own time in the witness box.
Ms Pickett, who gave evidence on both days of trial, was cross-examined at some length by Mr McCulloch’s counsel.
On the first day of trial counsel for the father indicated that he would not be proceeding with one of the counts in the second Application, and at the commencement of the second day of proceedings, after the mother had presented her evidence in relation to the first two counts of the first Application, and with leave of the court, the father withdrew counts 1 and 2 of the first Application.
That left the four counts in the first Application relating to the final orders, and four counts in the second Application to be tried and determined in these proceedings.
At the end of the trial I adjourned Ms Pickett's Application in a Case and Mr McCulloch’s third Contravention Application to 17 March 2017.
I reserved my decision in relation to Mr McCulloch’s first two Contravention Applications.
The Law
Contravention proceedings are quasi-criminal proceedings, and the penalties provided in the Family Law Act 1975 (“the Act”) for such contraventions can be severe. It is therefore imperative that the requirements of the Act are met at all stages of the proceedings.
The law in relation to contravention of parenting orders is found in Division 13A of Part VII of the Act.
S.70NAC and s.70NAD of the Act set out the meaning of what it is to contravene an order as follows:
70NAC a person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order – he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise – he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
70NAD For the purposes of this Division:
(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order;
(b) a parenting order that deals with whom the child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order;
(c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and
(d) a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.
I note that the final orders in this case say that the children shall “live with the applicant father” at specified times and that they shall “live with the respondent mother” at all other times.
Therefore those orders are taken to include the requirements of s.65M of the Act.
S.65M states as follows:
65M(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to live with.
65M(2) A person must not, contrary to the order:
(a) remove the child from the care of a person;
(b) refuse or fail to deliver or return the child to a person; or
(c) interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.
There is no mention in the final orders in relation to a person “spending time” with a child, so s.70NAD(b) does not apply.
Paragraphs 5 and 6 of the final orders refer to the parties being at liberty to telephone the children, “including by FaceTime, Skype or similar program” while they are in the other party’s care, and to email communication between the father and the children, and paragraph 6(b) specifically requires the mother to facilitate those email communications. Therefore s.70NAD(c) applies and paragraphs 5 and 6 of the final orders are taken to include the requirements of s.65NA, which reads:
65NA(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with.
65NA(2) A person must not:
(a) hinder or prevent a person and the child from communicating with each other in accordance with the order; or
(b) interfere with the communication that a person and the child are supposed to have with each other under the order.
The legislation also provides for a the court to be satisfied that a person has contravened an order, but to find that he or she had “a reasonable excuse” for doing so, that finding resulting in either exoneration of the person, or further orders being made.
That is, an Applicant in Contravention proceedings must prove not only that an order has been contravened, but that the Respondent to the Application has contravened the order without a reasonable excuse.
The meaning of “reasonable excuse” is set out in s.70NAE of the Act as follows:
70NAE(1) The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
70NAE(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it, and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
70NAE(4) a person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with the person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent of the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
S.70NAE(5) refers to orders that a person spend time with the child and is therefore not relevant in these proceedings.
S.70NAE(6) refers to an order that a person communicate with a child, and is also not relevant in these proceedings.
S.70NAE(7) refers to an order in relation to parental responsibility for a child, and is also not relevant in these proceedings.
The onus of proving the facts of a contravention lies with the Applicant, that is, with Mr McCulloch.
However once the facts have been proven, the onus is on Ms Pickett as the Respondent to show on the balance of probabilities, that she had a reasonable excuse for the contravention.
So if I find as a matter of fact that Ms Pickett has contravened any of the final orders as alleged, she must prove to the court on the balance of probabilities, either that she did not understand the obligations imposed on her by the final orders, or that the contraventions were necessary in order to protect the health or safety of the children and/or her.
As part of his final submissions, counsel for the father referred to the judgment of my brother Judge Riethmuller in the matter of Stamp & Stamp (2014) FCCA 1269, and while that judgement was in relation to a “spend time with” case and not a “live with” case, the principles are the same.
In that case, His Honour summarises the law in relation to contravention proceedings so succinctly and cogently that I will reproduce that summary here in full.
17. The extent of the obligation has been discussed in a number of cases. In Filipovic and Filipovic (1977) FLC ¶90-266 the Judge emphasised that it was the wife’s ‘duty’ to explain to the children that they will have an enjoyable time during the visit. In Bainrot and Bainrot (1976) FLC ¶90-003 Watson, J noted in making an order for access, that:
…it is implied in this order that the father both personally and by persuasion of his relatives will ensure that the children are dressed and ready to go with their mother and that nothing has been done physically, or emotionally to spoil these periods of access.
18. More recently, in Webber and Budd (No 2) [2011] FamCA 539, Watts J found that the mother contravened the orders for the children to spend time with the father on a particular occasion, saying:
7. … even accepting the version the mother has given, there was nothing in that version about any encouragement that the mother gave to the children to go with their father on that day, or about anything the mother did to prepare the children, so that they would happily go with their father on that day.
19. The starting point is that an order for a child to spend time with a parent is not a mere declaration – it is implicit in the order that reasonable steps must be taken to ensure that the time as ordered takes place: Stavros and Stavros [1984] FLC ¶91-562; (1984) 75 FLR 323; (1984) 9 Fam LR 1025; and followed in Stevenson & Hughes [1993] FamCA 14; [1993] FLC ¶92-363; 112 FLR 415; (1993) 16 Fam LR 443.
20. As I noted in TVT & TLM [2006] FMCAfam 20, ‘the absence of detailed orders providing for the mechanics for changeover does not make the orders inoperative or incapable of enforcement’.
21. Whether steps taken are a ‘reasonable attempt to comply’ with a ‘children’s spend time with’ order will ultimately depend upon the facts and circumstances of each case. However, it is accepted that the parent with whom the children ‘live with’ has a duty to ensure that the children not only attend, but do so in a positive manner. The way that the obligation has been expressed in different cases throws further light on the extent of the obligation:
(a) The ‘live with’ parent must actively encourage the child to attend time with the other parent as ordered (see Webber and Budd (No 2) [2011] FamCA 539).
(b) ‘The courts have been careful to consider whether in reality, not just on the face of things, the [live with] person has taken reasonable steps to deliver the child for [spend time]’: see O'Brien & O’Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC ¶92-396 at [13]. In Ackersley & Rialto [2009] FamCA 817, at para [102], Cronin, J referred to the ‘Parenting orders – obligations, consequences and who can help’ statement, which is annexed to every parenting order of this Court and includes the following statement:
Your legal obligations
§ You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders.
(c) ‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite [the child] to walk of [their] own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep. See: Stevenson & Hughes [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [25].
(d) ‘Similarly, a mere request that the child telephone, or come to the telephone is insufficient’, see: TVT & TLM [2006] FMCAfam 20 at [33].
(e) Once an order for the child to spend time has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O'Brien & O’Brien (1993) FLC ¶92-396 at [11].
(f) A ‘live with’ parent ought to make ‘the child understand that it was the [live with parent’s] attitude that the child had to [spend time]’: see O'Brien & O’Brien (1993) FLC ¶92-396 at [8].
(g) The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See WJP & TP [2002] FMCAfam 315 (Unrep.) at [12] and [14].
(h) It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.’ Such an invitation is insufficient: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [26].
(i) ‘[I]t is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the [live with parent] of compliance with the obligation’: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [6].
(j) ‘It is not a sufficient discharge of [live with parent’s] obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [6].
(k) The ‘live with’ parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [8].
These principles of law must now be applied to the facts of this case.
Issues and Evidence
The First Application
As previously stated, from the commencement of the second day of the trial there were four counts of alleged breach of orders in the First Application to be tried, each of which deals with an alleged breach of the orders made on 9 March 2016, and I will deal with them one by one.
The first alleged contravention
The first count alleges a breach of paragraph 15 of the final orders, which reads:
That the parties be and are hereby restrained from making any changes to the children’s extracurricular activities without first obtaining the other party’s prior consent in writing in the event such extracurricular activities occur at the other party’s time with the children or affect school attendance.
The allegation is that on 15 April 2016 at (omitted) the mother without reasonable excuse, withdrew X from the (hobby omitted) team without first obtaining the father’s prior consent in writing.
I note that a notation to the final orders states that:
X plays (hobby omitted) with the (hobby omitted) Team and (hobby omitted) with the (omitted) and the Applicant Father will use his best endeavours to ensure that X plays for these teams on the Applicant Father’s weekends.
It is the father’s affidavit evidence that he intended to travel to (omitted) to watch X play (hobby omitted) on 16 April 2016. He spoke to X on 15 April 2016 and X informed him that he was no longer playing (hobby omitted) for the (hobby omitted) Team. When asked why, X told his father that a couple of the other team members were “a bit annoying” and that he would be playing two sports in 2016, those being (omitted) and (omitted). X told the father that not playing (omitted) would allow him to play in more (omitted) tournaments.
Mr McCulloch then deposes to having had a conversation with the coach of X’s previous team on 15 April 2016. He says that he was informed that Ms Pickett had complained to the coach when X was not named as one of the vice-captains of his team on 14 April 2016, and that she had sent the coach a text message on 15 April 2016 saying that X would no longer be playing (hobby omitted).
In her affidavit sworn 23 August 2016 and filed 29 August 2016, the mother deposes as follows in relation to this issue:
16. X chose not to play (hobby omitted) this season. He was playing competitive (hobbies omitted), and I told him he could choose two of those three sports to continue with as it was unmanageable to fit in three sports and it was getting too expensive for me. X decided it was (hobby omitted) that he wanted to drop. Was I supposed to obtain the Father’s written consent even though the Father wasn’t paying for the (hobby omitted) or taking him to training twice a week? X had missed the (omitted) Club Family Day on 20 March, as his father chose not to take him, and had continuing anxiety over missing weekend matches when he would be at his Father’s.
That is the only mention of that issue in that affidavit.
At trial, the mother was cross-examined about this issue at some length.
It was her evidence that she had not “withdrawn” X from (hobby omitted) as he had never been formally registered to play in 2016, only having attended some preseason training. She denied that X had been “scheduled to play (hobby omitted)” for the 2016 (omitted) season.
She agreed that there was special mention in the final orders of X playing (hobby omitted), but when asked whether X’s (hobby omitted) was a major issue between the parties when they attended Ms L for the purposes of the family report in late 2015, Ms Pickett said that she thought it had been sport in general, and not (hobby omitted) in particular that had been the issue.
Ms Pickett said she had read the family report several times and that she thought that (hobby omitted) was “… An issue. It wasn’t “the” issue; it was an issue”.
It was her evidence that she had explained in her affidavit that she had not been able to maintain all three sports that X had been playing in 2015.
When asked about Mr McCulloch’s evidence in relation to his conversation with the (hobby omitted) team coach, Ms Pickett denied that she had “confronted (the coach) and complained that your son had not been made vice-captain”.
She said:
I object to the word “confronted” your Honour. I said to (the coach) that I was surprised that he wasn’t a vice-captain, but this seems to peripheral (sic). X – it was X that chose not to play (hobby omitted) this season.
When asked whether that conversation had taken place on 14 April 2016 Ms Pickett said:
Could have been 14 April. I would have spoken to him 10 times at the start of this year.
Ms Pickett was asked several questions about how disappointed X had been that he had not been named as a vice captain. She denied that he had been hugely disappointed saying, “I would say he was somewhat disappointed. I don’t think it was a huge kick in the guts. […] I would not describe it like that at all”. She later described X’s response to not having been chosen as “somewhat unhappy” rather than “very unhappy”.
The following exchange then took place:
Mr Werner: You didn’t think to communicate that with Mr McCulloch did you? The answer is no, isn’t it?
Ms Pickett: Mr McCulloch has made it very clear, he said that he doesn’t trust anything I said.
Mr Werner: Which part of yes or no is ambiguous here?
Ms Pickett: What was the question?
[…]
Mr Werner: But I will ask you to answer that question.
Ms Pickett: What was the question?
Mr Werner: Over a period of weeks – I think you said six weeks, something like that – you had been putting it on X – they’re my words – “you’re only playing two sports this year, X; make up your mind which”. You never communicated that to Mr McCulloch. It’s a very simple proposition.
Ms Pickett: Perhaps I didn’t.
Mr Werner: You did not? […]
Ms Pickett: I can’t – no, to be honest I can’t recall emailing Mr McCulloch that this was the decision, that this was the process. Mr McCulloch doesn’t pay for any of the – his extracurricular sport or do any of the driving to training.
What is clear from that evidence is first, that Ms Pickett did breach paragraph 15 of the final orders on 15 April 2016, in that she did not enrol X to play (hobby omitted) as part of the (hobby omitted) Team for the 2016 season as had been expected, and that she did not inform X’s father about the change of plan.
The second thing that is clear from her evidence is that the reason she did not inform Mr McCulloch of her intention was that he was not paying for X’s (hobby omitted) involvement nor driving him to his training.
That is not, in my view, a reasonable excuse under the Act, as there is no suggestion that Ms Pickett did not understand her obligations under paragraph 15 of the orders, or that her contravention was necessary to maintain the health or safety of her or another person.
However, in this case, final orders were made in Ms Pickett’s absence on 9 March 2016. This alleged contravention of those orders happened on 15 April 2016, and the question was raised whether Ms Pickett had been properly served with those orders, as if she had not, there might have been an issue as to whether she was bound by them on that date.
It was Mr McCulloch’s evidence that on 17 March 2016, his lawyers had sent a copy of the proposed orders as they had been provided to the court on 9 March 2016 to Ms Pickett by email. Ms Pickett had responded that she would wait to receive a sealed copy of the orders from the court.
In her affidavit sworn 27 April 2016 and filed 28 June 2016 Ms Pickett deposes that she received a sealed copy of the final orders in the mail on 12 April 2016.
I am therefore satisfied that she had been served with a sealed copy of the final orders at the time of the breach on 15 April 2016.
In those circumstances I find that the mother did, without reasonable excuse, on 15 April 2016, contravene paragraph 15 of the orders made on 9 March 2016.
The second alleged contravention
The second allegation is that, on 25 April 2016 at 4:00 p.m. at (omitted), the mother, without reasonable excuse, failed to collect the children from the father’s home at the conclusion of the father’s time with the children in breach of paragraph 7(a) of the final orders.
Paragraph 7(a) of the final orders states:
7. That changeover occur:
a. For the purposes of paragraph 2(a) of these orders, in (omitted) at the commencement of the Applicant Father’s time and at the Applicant Father’s residence at the conclusion of the Applicant’s Father’s time;
Paragraph 2(a) of those orders refers to the regular fortnightly weekend time the father is to spend with the children.
In his affidavit sworn 16 and filed 17 May 2016, the father deposes that on 25 April 2016, the children had been in his care pursuant to paragraph 2(b)(iii)(B) of the final orders, which provides for his time with the children to extend to 4 p.m. on Monday in the event that his usual fortnightly time falls on a long weekend with a public holiday on the Monday.
Mr McCulloch deposes that at 9:10 a.m. on that day, Ms Pickett had sent him an email stating, “I can’t make it to Melbourne today. I can meet at (omitted) at 5pm as usual”.
It is Mr McCulloch’s evidence that the following exchange then took place by email:
Father: Why not? Orders are pretty clear and I came to (omitted) Friday. Kids will be at our place at 4.
Mother: If you’re not at (omitted) at 5 p.m. I guess your other two options are to drop them in (omitted) or take them to school tomorrow. The kids overwhelming preference is to meet at (omitted).
Father: The only option both of us have is to comply with the court orders.
Mother: Well if the kids aren’t at (omitted) at 5pm I’ll assume you’re taking them to school tomorrow, so I’ll pick them up at the end of their (hobby omitted) Day.
Father: I’m working tomorrow. If there is some problem complying with the orders let me know. You can pick them up later as a once off if 4pm is a problem today.
Mother: I’ve let you know. I’ve nothing else to add.
It is the father’s evidence that he telephoned the mother at approximately 3:30 p.m. on 25 April and asked if she were intending to collect the children at 4:00 p.m. He says that the mother told him that she had explained why she couldn’t come to Melbourne and then said “well, last time I came to house your wife assaulted me”.
Mr McCulloch says that he then tried to negotiate several different changeover locations with the mother, but that she insisted that the children be delivered to her at (omitted).
As Mr McCulloch did not want to involve the children in the dispute, nor have them get up very early in the morning to attend school from his house, he organised for his father to drive him and the children to (omitted), arriving “not long after 5:00 p.m”. He deposes that Ms Pickett and her partner Mr J (“Mr J”) were at the changeover location and that the children had been delivered to Mr J before Mr McCulloch departed.
The only mention Ms Pickett makes of the events of 25 April 2016 in her affidavit filed 28 June 2016, is that after that weekend Y had said that she was never going to go to her father’s again.
In her affidavit sworn 23 August 2016 and filed 29 August 2016 Ms Pickett does not address any reason why she might not have been able to collect the children from Mr McCulloch’s home on 25 April 2016 as required by the final orders.
Under cross-examination at trial, Ms Pickett conceded that she had not attended at Mr McCulloch’s residence in order to collect the children at 4 p.m. on 25 April 2016. When it was put to her that she had given no reason for that absence, Ms Pickett said that she had told Mr McCulloch on the telephone that, “I wouldn’t be going to his house ever again to collect the children. I told him that”.
It was her evidence that she could not remember exactly when she had said that to Mr McCulloch on the weekend in question, but stated that her reason for telling him she was not willing to attend at his home was that “[…] his wife attacked me at his house. I feel extremely unsafe going there.”
Ms Pickett said that the “attack” had taken place in January 2015, but when it was put to her that it could have been February 2015, she said that that was “perhaps” the case. In any event, she agreed that the incident she referred to had taken place more than a year before the final orders were made on 9 March 2016.
She agreed with counsel for the father that she had, “[…] decided yourself, on 25 April, that you’re just not going to comply with those orders; correct?”
The following exchange then took place:
Mr Werner: And perhaps tell her Honour this, if her Honour decides – as Mr McCulloch wants – to make orders at the end of all this which continue the regime with you driving – you sharing the trip; he drives up on the Friday and you drive down on the Sunday – are you going to thumb your nose at those orders as well?
Ms Pickett: What was the question?
[…]
Mr Werner: I will try it again.
Her Honour: Yes.
[…]
Mr Werner: I will preface the question with this: Mr McCulloch’s case to her Honour is that the present contact regime should continue. Okay? But he wants the changeovers to be shared. So he drives up and gets the kids on the Friday, and you drive down to Melbourne and get the kids on the Sunday, just like the present order requires. My question to you is this: if her Honour agrees with Mr McCulloch at the end of all this and says that’s appropriate and fair, are you going to disobey those orders as well?
[…]
Mr Werner: Are you going to continue to disobey that rule?
Ms Pickett: I refuse to go to Mr McCulloch’s house your Honour. I feel […] incredibly unsafe there your Honour.
Mr Werner: Would you please confront the question in plain language and stop putting your own words on it. Are you going to disobey the order?
Ms Pickett: The order that I pick up the children from Mr McCulloch’s house?
Mr Werner: Yes.
Ms Pickett: Well, you’re seeking to change that order, to make it the park.
Mr Werner: I will try it again. The park or his – would you turn up to the park?
Ms Pickett: I would still feel unsafe at the park.
Mr Werner: I didn’t ask you whether you would feel safe, I asked you would you turn up if you were ordered to turn up?
Ms Pickett: If I had someone with me, but I would feel too unsafe to go there by myself.
Mr Werner: And if you had no one with you you would say, “So sad, too bad, I am not complying with this court’s order”?
Ms Pickett: Correct.
Mr Werner: Is that your evidence?
Ms Pickett: Correct.
Mr Werner: Just so I can be clear: you consider it your prerogative to decide whether you’re going to comply with court orders, correct?
Ms Pickett: If my physical safety […] is under threat, yes.
That evidence, in my view, indicates an extraordinarily cavalier attitude to the obligations created by court orders. Her evidence of feeling unsafe at Mr McCulloch’s home was not convincing, and indeed I found Ms Pickett’s evidence in relation to most issues unsatisfactory and evasive.
I am not satisfied, on the evidence before the court that she has proven on the balance of probabilities, that she has a reasonable excuse for contravening paragraph 7(a) of the orders of 9 March 2016.
On the evidence before the court, I find that on 25 April 2016, the mother, without reasonable excuse, did contravene paragraph 7(a) of the final orders made 9 March 2016 in that she did not attend at the father’s home to collect the children after the father’s time with them.
The third alleged contravention
The third allegation is that, in contravention of paragraph 15 of the final orders, on 23 May 2016, at (omitted), the mother enrolled X to play (hobby omitted) in “the (omitted) Competition” on 7 May 2016, 21 May 2016, and 4 June 2016, those being weekends when the children were ordinarily to be in the father’s care, and that she did so without first obtaining the father’s prior consent in writing.
Again, paragraph 15 of the final orders states as follows:
That the parties be and are hereby restrained from making any changes to the children’s extracurricular activities without first obtaining the other party’s prior consent in writing in the event such extracurricular activities occur at the other party’s time with the children or affect school attendance.
In his affidavit sworn 16 and filed 17 May 2016 the father deposes that on 3 May 2016, the mother had forwarded him an email she had received from (omitted) advising that X had been selected to compete in the “(omitted) Competition” on each Saturday from 7 May 2016 to 4 June 2016. Mr McCulloch deposes that the mother had not sought his consent to X playing in that competition before she enrolled him.
In her affidavit, the mother deposes as follows on this issue:
17. I asked the father by email if he was happy for X to compete in the (omitted) Competition, which takes place twice each year on Saturdays for 2 hours over 6 weeks. I did not receive a response. X kept asking me if Mr McCulloch had agreed. I told him not yet. X was really upset about about (sic) it. I enrolled X, after telling his coach that he might have to miss every second Saturday, which he said was manageable as they can find replacement players.
18. I emailed the Father again regarding the second series but also did not receive a response.
At trial, and again after answering several questions in what could only be called an evasive manner, Ms Pickett confirmed her evidence that she had indeed asked for Mr McCulloch’s consent for X to play (hobby omitted) but that he had not responded. She conceded that she had not received his consent for X to play on the days alleged.
However, she was adamant in her evidence that X understood that he would not be playing (hobby omitted) on weekends when he was scheduled to spend time with his father, and that not only she, but X’s (hobby omitted) coach had explained that situation to him.
She disagreed with counsel for the father that her decision had placed either X or Mr McCulloch in a difficult position in relation to that (hobby omitted) composition.
While Ms Pickett’s responses in relation to this issue indicated some lack of insight on her part into the position she had placed both X and Mr McCulloch in, I accept her evidence that both she and X’s (hobby omitted) coach had explained to X that he would not be playing in the competition on the weekends when he was scheduled to spend time with his father.
Paragraph 15 states that the parties must only obtain the prior written consent of the other to make changes in the children’s extracurricular activities “in the event such extracurricular activities occur at the other party’s time with the children or affect school attendance”.
In the above circumstances, I accept Ms Pickett’s evidence that she had not enrolled X to play in the relevant (hobby omitted) competition on the weekends when he was scheduled to spend time with his father.
I therefore find that Ms Pickett did not breach of paragraph 15 of the final orders on 3 May 2016 by registering him to play (hobby omitted) on the weekends he was to spend with her. In those circumstances, she was not required to obtain the written consent of Mr McCulloch.
There having been no contravention of paragraph 15, Ms Pickett is not required to provide a reasonable excuse.
The fourth alleged contravention
The fourth allegation is that on 6 May 2016 at 4:00 p.m., at (omitted), and without reasonable excuse, the mother refused to allow the father to spend time with the children from 4 p.m. on Friday, 6 May 2016 to 4:00 p.m. on Sunday, 8 May 2016, that being a contravention of paragraph 2 (a)( i) of the final orders.
Paragraph 2(a)(i) of the final orders states:
2. That the children live with the applicant father:-
a. During the school term:
i. From 4 p.m. on Friday (or Thursday in the event that the Friday is a non-school day) to 4 p.m. on Sunday (to extend to 4 p.m. on Monday in the event that Monday is a non-school day each alternate week;
In his affidavit sworn 16 and filed 17 May 2016, Mr McCulloch says that X was participating in an athletics carnival on Friday, 6 May 2016, and that he was also due to play (hobby omitted) in (omitted) at 4:20p.m. Y was due to attend (omitted) School's Foundation Day service in (omitted) from 5:30 p.m. to 7:00 p.m.
It is Mr McCulloch’s evidence that there was an email exchange between him and Ms Pickett on 3 May 2016, which, while not providing definite arrangements for 6 May, resulted in Mr McCulloch and his father meeting at the (omitted) stadium where X was to play at about 4:00 p.m. on that afternoon.
It is the father’s evidence that the mother and the children had walked past him and his father without comment, but when he and his father had gone to the court where X was to play, and he had asked Ms Pickett what the arrangements were in relation to the children’s attendance at the Foundation Day service, Ms Pickett had told him that Y did not want to spend time with him on that weekend. When asked, Y confirmed that she wanted to go with her mother.
Ms Pickett and Y then went to the ladies change room so that Y could change into her winter uniform for the service.
It is Mr McCulloch’s evidence that they passed Mr McCulloch’s father on the way and that his father had made a comment to Ms Pickett to the effect that Y should go with her father. He says that Ms Pickett then yelled at his father in front of Y:
Do you know how embarrassed they are?
And
They are so embarrassed when you come to watch them play sport.
The father’s evidence is that approximately ten minutes later Ms Pickett and Y had again walked past him and his father, and had gone to the other end of the (omitted) to watch X play (omitted).
He says that at half time he had approached Y and spoken to her, saying “she was in normal spirits and we discussed the church service and the songs she was going to sing”. It is his evidence that he had attempted to say to the mother that Y would be fine with him if she left but that Ms Pickett had simply not responded to him other than to say “whatever”.
Mr McCulloch says that after the (hobby omitted) game he had congratulated X on his performance and that while X was leaving the stadium Ms Pickett had said something to him which Mr McCulloch did not hear. X had then said that he did not wish to come with Mr McCulloch for the weekend. He then deposes as follows:
87. [….] I said to the mother, “what do you think we should do?” She said, “I feel like I’ve done everything I can to encourage them to come”. I suggested that I didn’t think that was right and stated that the drop off would have worked better if she had dropped the children off at 4:00pm and then told them she had to leave. The Mother responded that X had wanted her to watch his match. She then walked off with the children to her car and exited the car park.
Mr McCulloch says that he had then gone to the church for the Foundation Day service, at the end of which the mother had collected Y before he could do so. He says that he caught up with Y as she was leaving the church, told her that she had done very well during the service and that he loved her. He says the mother and Y then left the church, and that X was not with them at that time.
The children did not spend time with him on that weekend.
In her affidavit sworn 23 August 2016 and filed 29 August 2016, the mother says simply this in relation to those events:
21. Again, the Father’s claim about me not encouraging the Children (sic) to go with him is completely false. X had wanted me to stay for his match. Mr McCulloch’s father Mr R abused me not long after I arrived, yelling at me “Just go” in front of the Children (sic) in a very aggressive manner.
At trial, Ms Pickett agreed that the children were due to spend time with their father on the weekend of 6 to 8 May 2016. She also agreed that they had not done so, and that they had refused to go with their father on that day.
Ms Pickett did not provide a reason why the children had not spent time with their father on that weekend.
Given her obligation to ensure that the children were in the father’s care from 4:00 p.m. on 6 May 2016, the evidence does not show that the mother did anything positive in order to make that happen.
Moreover, the evidence she gave at court indicated that she certainly understood her obligations under paragraph 2(a)(i) of the final orders, and there was no suggestion that her contravention was necessary to maintain the safety of herself or anyone else.
She therefore cannot be said to have had a reasonable excuse for not ensuring that the children left with their father on that day.
In those circumstances, I find that on 6 May 2016, without reasonable excuse, the mother contravened paragraph 2(a)(i) of the orders of 9 March 2016 in that she did not provide the children to spend time with their father pursuant to those orders.
The Second Application
I turn now to the father’s second Contravention Application filed 14 July 2016.
That Application contains five allegations, but as already stated, at trial counsel for the father indicated that the father would not be pursuing the third allegation of the Application.
So, that leaves a further four allegations for the court to determine.
The fifth alleged contravention
The fifth allegation is that on 20 May 2016 at 4:00 p.m. at (omitted), the mother, without reasonable excuse, refused to allow the father to spend time with the children from 4:00 p.m. on Friday, 20 May 2016 to 4:00 p.m. on Sunday 22 May 16 in contravention of paragraph 2(a)(i) of the final orders.
Paragraph 2(a)(i) is set out in paragraph 113 of these reasons and I will not repeat it here.
In his affidavit affirmed and filed on 14 July 2016, the father deposes that 20 May 2016 had been a day on which both children competed in their school’s cross-country event.
Mr McCulloch says that he volunteered as a parent to assist at that event and was present from 11:00 a.m. on that day, seeing and speaking to both children before and after their respective races. He deposes that the mother left the venue with the children after the presentation ceremonies, with both X and Y having won their age level race.
As X was due to play (omitted) at 4:20 p.m. that afternoon, Mr McCulloch had sent an email to Ms Pickett saying that he would meet her at the (omitted) stadium for changeover at 4:00 p.m. rather than at the usual changeover venue.
It is his evidence that he and Ms S arrived at the (omitted) stadium at about 3:45 p.m. and sat in the bistro, through which people must walk to reach the (omitted) courts.
He deposes that Ms Pickett arrived with both children at approximately 4:00 p.m. and walked straight past him and Ms S without speaking to them. It is his evidence that she did not have the children’s overnight bag or X’s (hobby omitted) gear with her.
After X’s (omitted) game had finished, the father deposes as follows:
16. At the conclusion of the game X left the court on the other side from where we were sitting and the Mother and Y walked after him until the three of them were out of sight. Ms S and I remained seated near the (omitted) court.
17. The two children then returned to where we were sitting without the mother. X was visibly upset and did not seem himself. He said to me “I don’t want to come”. I asked why not and he replied, “I just want to play with my friends and stuff”. Ms S then said words to the effect of “what about (omitted) and (omitted) [Ms S’s children] and the (omitted) game?”
18. I was not prepared to put the children in the middle of the dispute by pressuring them to come with me. I said to X “it’s not fair of Mum to ask you to tell me that mate, you should go”. X said “are you sure?” And I said “yes”. I gave X a Gatorade which I had purchased for him and he smiled. The children then left to find the mother.
I have some concern about that evidence.
That is because the evidence set out in paragraph 141 above indicates that ultimately, Mr McCulloch consented to the children not spending time with him on that weekend.
I note that Mr McCulloch was not cross-examined about that evidence at trial.
Ms Pickett does not appear to have been cross-examined about this particular incident at trial either.
The above evidence shows that while Ms Pickett clearly did not fulfil her obligations under the final orders on 20 May 2016, Mr McCulloch himself told the children that they should go with their mother on that day. I am not satisfied, therefore, that there was a contravention of paragraph 2(a)(i) of the final orders on 20 May 2016. In those circumstances the issue of whether Ms Pickett had a reasonable excuse does not arise.
I will therefore dismiss the fifth allegation.
The sixth alleged contravention
The sixth allegation is that on 3 June 2016, at 4:00 p.m., at (omitted) in (omitted), the mother, without reasonable excuse, refused to allow the father to spend time with the children from 4:00 p.m. on Friday, 3 June 2016 to 4:00 p.m. on Sunday, 5 June 2016, also in contravention of paragraph 2(a)(i) of the final orders.
It is the father’s affidavit evidence that correspondence between him and the mother, and his lawyers and the mother, over more than a week prior to 3 June 2016, had failed to result in a specific agreement to vary the final orders in relation to that weekend.
It is his evidence that the last piece of correspondence on this issue was sent by the mother by email at 12:30 p.m. on 3 June 2016, that email stating, “We will stick to the orders then and meet at the (omitted) at 4 p.m.”.
Mr McCulloch deposes that he took Mr McCulloch and B with him to (omitted) on 3 June 2016. After describing conversations between Y and him, and X and him after X’s (hobby omitted) training which involved the children telling him that they did not want to spend the weekend with him, those conversations taking place while the mother was in her car on the opposite side of the (omitted) ground, the father deposes as follows:
35. It was raining and cold and all four children were in the rain. I decided not to try and talk X and Y into coming any longer that day as I thought it was unfair that the children had been placed in that situation by the Mother. I walked with all four children over to the Mother’s car. X was next to me so I gave him a cuddle and told him I loved him and always would. Y was out in front of me so I said to her loudly that I loved her.
36. Y sat in the passenger seat of the mother’s car and X sat in the back seat. I stood next to Y was (sic) she had the passenger door open. The mother was sitting in the driver’s seat. Mr McCulloch and B were behind me. I asked the mother, “Are you going to help?” She said words to the effect of, “I have, I told them they have to come”. I said, “that’s not positive encouragement”. The mother then said words to the effect of “don’t get aggressive with me”. The mother then said, “you are not hearing the kids”. I replied, “I am, I’ve just been talking to them about it. This is not fair on them to do this in front of them. I’m going to go”. The mother did not move from the passenger seat (sic) nor did she do anything to positively encourage the children to come. Mr McCulloch, B and I then walked back to our car and returned home.
And later:
39. I do not agree with the mother’s assertions that she facilitated the children to transfer into my care. Among other things, X was wearing his (omitted) boots and did not have his (omitted) gear required for his tournament the next day, nor did the children have an overnight bag with them. I reject the mother’s assertions that I am aggressive. I note that in the Family Report the children did not report that I am aggressive and at paragraph 65 of the Report Ms L stated that X had reported “His father never yelled at him or gets angry”.
The father was not cross-examined about this particular day’s events at trial.
Again, this allegation is flawed.
The father’s statement that: “This is not fair on them to do this in front of them. I’m going to go.” indicates a commendable focus on the children, but it also indicates a form of concession that the children would not be spending time with him on that weekend.
As with the previous allegation, his evidence does not disclose a breach of the final orders as alleged in the second Application, and in those circumstances, I will also dismiss that allegation.
The seventh alleged contravention
The seventh allegation is that on 10 June 2016 at 4:00 p.m., at (omitted) Shop, the mother, without reasonable excuse refused to allow the father to spend time with the children from 4:00 p.m. on Friday, 10 June 2016 to 4:00 p.m. on Monday, 13 June 2016 for the Queen’s Birthday long weekend, in contravention of paragraph 2(a)(iii)(B) of the final orders.
Paragraph 2(a)(iii)(B) reads as follows:
2. That the children live with the applicant father:
a. during the school term:
[…]
(iii) in the event of a public holiday:
A. on a Friday, from 4:00 p.m. on the preceding Thursday to 4 p.m. on the following Sunday;
B. on Monday, from 4:00 p.m. on the preceding Friday to 4 p.m. on the public holiday;
In his affidavit sworn and filed on 14 July 2016, the father deposes that his lawyers had written to the mother on 6 June 2016 noting, inter-alia, that the father was due to spend time with the children “for the Queen’s Birthday long weekend from 4 p.m. on Friday, 10 June 2016 to 4 p.m. on Monday, 13 June 2016”.
He then sets out the text of an email sent to his lawyers by the mother on 9 June 2016, which includes a statement to the effect that the children would be made available on 10 June 2016, “as they have at every previous changeover. I have done everything I can to encourage the children to go, perhaps Mr McCulloch should take some responsibility of the situation; not getting so aggressive with the Children and me would be a good start”.
Mr McCulloch deposes that after further email correspondence between him and the mother on 10 June 2016, the mother had sent him an email saying, “How about I just pick Y up from school and then meet you at (omitted) Shop [in (omitted)] on the corner down from the school at 3:30 p.m.?”
It is his evidence that as he had arranged to speak with X’s teacher at 3:00 p.m. on that day to discuss his progress, he had asked Ms S to attend at the (omitted) Shop at 3:30 p.m. in case he was late. He says that when he arrived at the (omitted) at approximately 3:40 p.m., the children were seated at a booth with Ms S and that they did not have with them any bag or equipment that they might need on the weekend.
Mr McCulloch deposes that he and Ms S then spent the next hour talking with the children at the (omitted), that conversation including the following, at paragraph 43:
(a) X said, “we don’t want to go”. Y asked on several occasions, “can we go now?”;
(b) We discussed the children’s upcoming school camps;
(c) I bought a snack for the children, showed them photos on my iPhone and we laughed together at various times about the different things we discussed;
(d) X telephoned his cousin E about his (omitted);
(e) the children watched a video made by their cousins E and M;
(f) I offered to take the children to (omitted) to purchase Y something for her (hobbies omitted) and to purchase X some (omitted) boots for an upcoming tournament. X appeared particularly excited, however then defaulted to saying “no” and that he didn’t want to come;
(g) X and I talked to X’s teacher from 2015 and (hobby omitted) team manager who was in the (omitted) Store at the time;
(h) Ms S proposed to the children, “how about just coming for one night?”;
(i) We talked about what we had planned to the weekend. The children appeared to agree that they would have fun, however then reverted to saying that they still did not want to come;
(j) Ms S and I asked the children what they would do for the weekend if they did not come with me. Both children said that the mother had told them that they could each have a sleepover with friends. We then asked the children, “does mum want you to come?” The children replied, almost in unison, “she encourages us to come”;
(k) I talked to the children about how much I loved them and Mr McCulloch and B.
44. I had sent a text message to the mother at 3:56 p.m. stating “I am here with Ms S and the kids are fine”. At 3:58 p.m. Ms S sent a text message to the mother stating, “you can go”. At approximately 4:25 p.m. Ms S and I stated to the children that the mother may have left the (omitted) store and that, whether she had left or not, we could call the mother and tell her that they would spend a few hours with us. Y replied that she would check and went over to the window to look outside. When she returned she said that the mother was still in the car park in her car. At approximately 4:40 p.m. I suggested that the children go outside with Ms S and that Ms S would speak to the mother. Ms S has advised me that the children entered the mother’s car and that when she asked the mother why she had not left, the mother replied that the children had “begged” her not to leave. The mother then left the (omitted) store with the children.
There is no affidavit material from Ms S about the events of 10 March 2016.
In her affidavit sworn 23 August 2016 and filed 29 August 2016, under the heading “3, 10, 17 June”, Ms Pickett states the following:
27. At both of these changeovers (sic) the Father did nothing to encourage the children to go with him but rather frightened them with his threats. He yelled at me while I was sitting in my car on 3 June. The children had begged me to stay to make sure they were okay. On the morning of Friday 17 June before they went to school both X and Y cried for nearly an hour about going to their Father’s.
I note that there is no specific mention in that affidavit of the events of 10 June 2016.
At trial, when asked why she had remained at the (omitted) store for some 40 minutes after the changeover time on 10 June 2016, the following exchange took place:
Ms Pickett: I was there, because the kids refused to go to the (omitted) store. I forced them there. Took them in the car on the – they said, “we will only go there if you stay there.” I thought Mr McCulloch […] should have been able to encourage the children to go.
Mr Werner: And you submitted to that. “We are only going if you wait there in the car park”?
Ms Pickett: I feel like the children don’t trust me any more about going to their father’s. I have been saying for eight years, your Honour, that they should go to their dad’s, because they will have fun, they will be fine. They’ve been going for eight years. They’re not having fun. They’re not fine. And I they (sic) don’t trust what I say anymore.
Mr Werner: What message do you think that sends to the children when they know you are sitting in the car park waiting?
Ms Pickett: That they can trust me.
Mr Werner: Any other message you think it’s sending?
Ms Pickett: No.
Mr Werner: Are you serious?
Ms Pickett: I – the kids knew how I felt, that I wanted them to go.
Mr Werner: And I put to you your words in their ears have a hollow ring. Disagree with that?
Ms Pickett: Like you said, I know my children best and I say no.
Mr Werner: You don’t think that sitting in a car park with them knowing that you’re sitting in a car park encourages them to defy court orders?
Ms Pickett: Again, no.
[…]
Mr Werner: See, on that day, you even had Ms S, the lady sitting in the back of the court there – she sent you a text message saying, “kids are fine. You can go,” and you still sat there.
Ms Pickett: I don’t believe her, because I know the kids weren’t fine. They were hysterical about going.
Ms Pickett was then asked what she understood the word “hysterical” to mean. She replied:
Extremely distressed, not being able to calm them down, not being able to have a rational conversation with them. Them to breathing properly (sic), extremely…
It was Ms Pickett’s further evidence that the children had been “crying uncontrollably” from when she had picked them up from school until they had arrived at the (omitted) store some five or ten minutes later. She said that they had only calmed down when she had told them that she would remain in the car while they were in the (omitted) store. She denied that the children had been crying “because you’ve taught them to believe that that’s a trick that will work”.
Later, when she was asked more generally whether it might not be better for all concerned if she dropped the children off and immediately left the vicinity at changeover, Ms Pickett stated that she could do that, and that she had no opposition to the court making an order in those terms.
At paragraph 42 of his affidavit affirmed and filed on 14 July 2016, Mr McCulloch describes the scene when he arrived at the (omitted) store at 3:40 p.m. on that day as follows:
The children were seated at a booth with Ms S and were talking comfortably. […] I kissed both children hello and told X I had been to see his teacher.
He does not say that the children were in any way distressed during his time with them on that day, and that evidence was not challenged at trial.
There is no dispute between the parties that the mother drove the children to the changeover location in good time on 10 June 2016 and that the children entered the (omitted) store on their own.
However, the mother is disingenuous, at best, when she states that she did not think remaining in the car at the (omitted) store car park would give the children any message about them spending time with their father. And the fact that she drove the children to the (omitted) store does not, on its own, fulfil her obligations under the Act as discussed by Judge Riethmuller in the passage quoted in paragraph 53 above.
Again, Ms Pickett’s evidence at trial was not convincing when she talked about the children being “hysterical” before they had entered the (omitted) store.
There is certainly no evidence from her that she believed that the children were at risk of harm if they went with their father on that day.
I find that she did not have a reasonable excuse for her contravention on 10 June 2017 and I therefore find this allegation proven on the balance of probabilities.
The eighth alleged contravention
The eighth allegation is that on 17 June 2016 at 4:00 p.m. at the (omitted) store, the mother, without reasonable excuse, “refused to allow the Applicant Father to spend time with the children from 4 p.m. on Friday 17 June for the first two weeks of the (omitted) school holidays”, in contravention of paragraph 2(c)(i) of the final orders.
Paragraph 2(c) of those orders reads as follows:
c. commencing 2016 and every alternate year thereafter, for two of the three weeks of the (omitted) School June/July school holidays at times to be agreed or, failing agreement:
i. the first two weeks in 2016, 2020 and 2024;
ii. the final two weeks in 2018 and 2022;
In his affidavit affirmed and filed on 14 July 2016, Mr McCulloch deposes that in her email to his lawyers on 9 June 2016 the mother had stated the following in relation to the upcoming school holidays:
[…] Regarding the upcoming holidays, X has (omitted) matches on the evenings of 17th June and 24th June as well as (omitted) competition on Saturday 18th June at 12:15 p.m. and Monday 20th June at 4pm. He also really wants to play in the (omitted) Winter tournament from 27 June to the 1st July. Y has (omitted) from 4-5pm. Mondays, Wednesdays and Fridays over both weeks. If Mr McCulloch is unable to take them to any of their commitments can he please let me know so that their teams had plenty of notice? […]
Mr McCulloch notes that as all the children’s activities take place in (omitted), if they were to take part in those activities, he and the children would need to drive between his home in (omitted) and (omitted) on each occasion.
It is his evidence that he had previously consented in writing to X playing (hobby omitted) on Saturday 18 June, but that Ms Pickett had not sought his consent in relation to the match on 20 June 2016, nor to the (omitted) Winter tournament from 27 June 2016 to 1 July 2016.
He does not mention whether any arrangements had previously been made in relation to Y’s activities.
Mr McCulloch deposes that he and his mother drove to (omitted) on 17 June 2016 to collect the children. It had been agreed between him and Ms Pickett that the changeover location would again be the (omitted) in (omitted).
His evidence is that when the children entered the (omitted) store at 4:00 p.m. they came to the table at which he and his mother were sitting. He says they had no bags with them and that X told him that they did not wish to go with him for the holidays. At their grandmother’s request, the children stayed to chat for approximately 15 minutes. Mr McCulloch then deposes as follows:
51. I ultimately told the children that they could return to the mother and that we wouldn’t spend as long in the (omitted) store as we did last week. I said words to the effect of “we need to sort this out, but that’s not your job. Mum and I need to do that.” I asked the children whether the mother would still be in the car park and they said yes. I asked them if she was parked somewhere they could walk to safely and if they were comfortable walking back to the car without me or my mother and they said yes. The children left the (omitted) store at about 4:15 pm.
52. The mother made no attempt following 17 June 2016 to facilitate the children [sic] transfer into my care for the remainder of the school holidays.
It is Mr McCulloch’s evidence that he then instructed his solicitors to write to the mother on 21 June 2016 “noting the further contravention and proposing that changeover occur on Saturday, 25 June 2016 at the (omitted) or at (omitted) Shop, (omitted) Shop provided that the mother undertake to leave the premises once the children were safely in my care”.
He deposes that his lawyers’ letter proposed that if the mother preferred, the changeover could occur in Melbourne and that Mr McCulloch would return the children to the mother on 3 July 2016. The letter sought a response from the mother by 5:00 p.m. on 23 June 2016, but it is Mr McCulloch’s evidence that his lawyers had not received such a response, and nor had the mother contacted him.
I note that in her affidavit, quoted at paragraph 165 above, the only mention Ms Pickett makes about the events of 17 June 2016 is that both children had “cried for nearly an hour” about having to spend the holidays with their father.
At trial, Ms Pickett does not appear to have been asked any specific questions about the events of 17 June 2016. Nor did she address those events in her cross examination of Mr McCulloch.
The circumstances surrounding 17 June 2016 are remarkably similar to those surrounding the events of 10 June 2016, in that Ms Pickett drove the children to the (omitted), the children entered the (omitted) and spoke to their father, and the children then returned to their mother, who drove them away.
Indeed, in terms of Ms Pickett’s behaviour, there is no distinction between the two occasions, and it is not disputed between the parties that the children did not spend any of the school holidays with their father.
I therefore find, for the reasons set out above, that the mother, without reasonable excuse, contravened paragraph 2(c)(i) of the final orders at 4:00 p.m. on 17 June 2016.
Summary of findings
In summary then, my findings in relation to the eight allegations set out in the first and second Applications, is as follows:
Allegation 1: Proven
Allegation 2: Proven
Allegation 3: Not proven and dismissed
Allegation 4: Proven
Allegation 5: Not proven and dismissed
Allegation 6: Not proven and dismissed
Allegation 7: Proven
Allegation 8: Proven
Penalty
Subdivisions E and F of Division 13A of the Act provide for penalties to be imposed when a court makes a finding that a person has contravened a parenting order without reasonable excuse.
Subdivision E addresses contraventions that are said to be less serious.
S.70NEB sets out the powers of the court when the court has made a finding of a less serious contravention as follows:
70NEB(1) if this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of any earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d) – impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i) the current contravention’s contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with the person for a particular period); and
(iii) the person referred to in paragraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this division; and
(g) if the court makes no other orders in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
S.70NEC deals with the bond court may impose under S.70NEB(1)(b):
70NEC(2) A bond is to be for a specified period of up to 2 years.
70NEC(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
70NEC(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
S.70NECA states that, if the court requires a person to enter into a bond, and a court finds that the person has, without reasonable excuse, failed to comply with the bond, the court may impose a fine not exceeding ten penalty units on the person, or it may deal with that situation as though it were a new Contravention Application.
Subdivision F deals with those contraventions said to be “more serious”.
S70NFA states that the court may deal more seriously with a person who it has found to have “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
S.70NFB then sets out the powers of the court in those circumstances:
70NFB(2) The orders that are available to be made by the court are:
(a) if the court is empowered under section70NFC to make a community service order – to make such an order; or
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c) if the current contravention is a contravention of a parenting order in relation to a child – to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d) to fine the person not more than 60 penalty units; or
(e) subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in sub paragraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
As can be seen, the powers of the court to make orders upon a finding that a person has contravened a parenting order without reasonable excuse are very wide indeed.
I have found that the mother has contravened the final orders on five occasions and I note that these are the first findings of contravention made against her.
In Hugh & Sawer [2010] FamCA 290, at paragraph 15, Bennett J set out the principles enunciated by the Full Court in the matter of Elspeth & Peter, Mark & Peter and John & Peter [2007] FamCA 655 (‘Elspeth & Peter’) relating to what might constitute a “serious disregard” for orders under S.70NFA(2)(b).
Those principles are stated to be:
a) what amounts to a serious disregard will depend on the circumstances of the case and the terms of the order;
b) serious disregard is a description of a degree of intent that is something less than the intent required for a contumacious breach, but something more than the intent present in a finding of a contravention;
c) serious disregard has to be seen as a question of proportion and a question of degree, and [is taken] to require some examination of whether it was premeditated, impromptu or minor in its nature;
d) serious disregard may involve no intention on the part of the respondent to support the primary order and/or an intention to circumvent the provisions of the primary order.
Her Honour then goes on:
16. At paragraph 61 of Elspeth & Peter their Honours observed:
The theme that emerges from an examination of several decisions... is that “serious disregard” tends to be found in cases of deliberate, premeditated noncompliance with orders and continued and protracted breach.
17. At paragraph 66 the Full Court observed:
What seems to be a common thread is that the more serious sanction should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on the first breach does not appear to be sufficient to attract the more stringent sanctions set out under Subdivision F.
In the circumstances of the present case, I have found that Ms Pickett contravened the orders made on 9 March 2016 on five occasions.
Under cross-examination at trial, it was Ms Pickett’s evidence that she had attempted to get the children to live with their father pursuant to the orders, but that they either refused or were reluctant to do so.
When asked to enunciate the reasons X had given for that refusal reluctance, Ms Pickett stated that he had told her the following:
· he did not like being forced to spend time with his cousins;
· he did not like the travel between the home in (omitted) or school in (omitted) and the father’s home in (omitted);
· it was boring at his father’s home; and
· he would rather spend time with his friends in (omitted).
When asked whether she thought those issues might constitute “whinges, rather than cogent objections”, Ms Pickett said: “I agree that they’re not severe”.
When pressed with some persistence to say what reasons Y had given for not wanting to spend time with her father as ordered, Ms Pickett said only that Y had reported that Mr McCulloch and Ms W fight a lot.
Later, referring to Ms Pickett’s wish to take the children to a psychologist to deal with their distress about having to see their father, the following exchange took place:
Mr Werner: Have you considered the possibility that you might be the problem in this equation?
Ms Pickett: I know I’m not the problem.
Mr Werner: You know you’re not the problem. Are you open to the possibility that you might be a contributing factor to the problem?
Ms Pickett: No. I think I encourage them, and do the best I can for them to go.
Mr Werner: Thank you, now answer the question please. Are you open to the possibility that you ---
Ms Pickett: No.
[…]
Mr Werner: It’s all the father’s fault. Yes?
[…]
Ms Pickett: I was thinking. It’s not all of the father’s fault. It’s probably some of Ms W’s fault as well. And I don’t know what happens to them when they’re in their father’s care, so I couldn’t say absolutely. But a large part of it is the father’s fault at least.
Mr Werner: Okay. I will say your words back to you, just so I – so her honour understands them squarely. A large part is the father’s fault. The balance of it is Ms W’s fault, but absolutely within the entire sphere of fault you’re not in it. Correct?
Ms Pickett: Correct.
Ms Pickett’s animus towards and contempt for Mr McCulloch was palpable throughout her evidence. Written communications that she sent to his lawyers were written in a tone that could only be described as scornful, and she has no good word to say about him.
After separation she moved to an area more than an hour’s drive from the father’s home, and now uses that distance as a reason why the children are reluctant to spend time with him.
Her behaviour in refusing to collect the children from Mr McCulloch’s home, and in creating environments at changeover which are not conducive to the children transitioning smoothly into his care, are not merely passive behaviours. Indeed, they could be called passive-aggressive behaviours, and they show a marked lack of insight into the impact that her feelings and thoughts about Mr McCulloch is having on her children.
In giving evidence at court, Ms Pickett’s answers were often evasive, self-serving, and combative to the point of belligerence, although she clearly sees herself as the victim in these proceedings.
In sentencing her, I am mindful that these are the first contravention proceedings she has faced, but also that there is a third Contravention Application currently before the court.
In applying the legal principles as set out in paragraph 204 and 205 above, I cannot see how any of the contraventions found could have been other than premeditated, especially on the occasions where the children were driven to the changeover location without the bags or equipment they would need during the time they were supposed to spend in their father’s care.
Overall, on the evidence before the court, it is difficult to escape the conclusion that there was no intention on Ms Pickett’s part to support the orders of 9 March 2016.
In those circumstances, and taken as a whole, I find that some of the proven contraventions do show “a serious disregard” for the court’s orders, and I will therefore apply penalties set out in both Subdivision E and Subdivision F of Division 13A of the Act.
Those penalties will include:
· an order under s.70NFB(2) that Ms Pickett enter into a bond with a surety of $1000.00 to be of good behaviour for a period of one year, to comply with all parenting orders made in relation to the children, and to attend counselling in an attempt to deal with her animosity towards Mr McCulloch;
· an order under s.70NEB(1) that she attend a post-separation parenting course; and
· a costs order under s.70NFB(2)(h) for Ms Pickett to pay some of Mr McCulloch’s costs in relation to these proceedings, the quantum of such order to be dependent on the submissions of the parties when judgement is delivered.
I note that s.70NFB(1)(a) requires me to make an order under subsection (2)(g) that the person who has committed the current contravention pay all of the costs of the other party, “unless it would not be in the best interests of the child concerned to make that order”.
Having regard to all the matters set out under s.60CC(2) and (3), including the relationship that the children have and will have into the future with each of their parents, I find that it is not in the best interests of the children to make an order under subsection (2)(g).
Conclusion
The orders I will make are designed for two purposes: first, to deal with Ms Pickett for the contraventions I have found her to have committed. That is, to emphasise to her the serious nature of court orders; and second, to give her the opportunity to seek professional help to address her issues with Mr McCulloch.
The parties have been separated for more than eight years and it is time that their children had some certainty and confidence about their ongoing relationship with their father.
Court orders are not suggestions, guidelines or frameworks to be ignored or manipulated. They are orders, they are binding on both parties, and both parties must comply with them.
If they do not, there will be consequences for the party who contravenes them, and Ms Pickett should be in no doubt that any further proven contraventions will result in penalties that are equal to or greater than those imposed here.
I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 10 February 2017
Key Legal Topics
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Family Law
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Statutory Interpretation
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Breach
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Consent
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