Moss and Ralph

[2019] FCCA 1891

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOSS & RALPH [2019] FCCA 1891

Catchwords:
FAMILY LAW – Contravention proceedings – father alleged to have contravened two injunctive orders made against him – father argues reasonable excuse – father found guilty of four (4) out of the five (5) contraventions alleged – less serious contraventions – some mitigating circumstances – father ordered to enter into a bond without surety and without security.

Legislation:

Federal Circuit Court Rules 2001 (Cth), s.25B.04

Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 70NAE(2) and 70NAF

Applicant: MS MOSS

Respondent: MR RALPH

File Number: NCC 1300 of 2012

Judgment of: Judge Betts

Hearing date: 22 May 2019

Date of Last Submission: 22 May 2019

Delivered at: Newcastle

Delivered on: 19 June 2019

REPRESENTATION

Counsel for the Applicant: Ms O’Rourke, Solicitor Advocate

Solicitors for the Applicant: Legal Aid NSW

Counsel for the Respondent: N/A

Solicitors for the Respondent: Self-represented

ORDERS

1. The Court finds that the Respondent Father did, without reasonable excuse, contravene the orders of the Family Court of Australia of 24 November 2016 (as amended on 23 August 2017) by:

   (a)Residing within five hundred (500) metres of the Mother’s home on 15 June 2019, contrary to order 14(b) (Count 1).

   (b)Driving past the Mother’s residence on 15 June 2018, contrary to order 14(b) (Count 2).

   (c)Attending B’s football match on 23 June 2018, contrary to order 14(c) (Count 3).

   (d)Attending B’s football match on 30 June 2018, contrary to order 14(c) (Count 4).

2. The Court is satisfied that is it appropriate to deal with the Contraventions pursuant to Subdivision E of Division 13A of Part VII of the Act on the basis that they are “less serious contraventions”.

3. Pursuant to section 70NEC of the Family Law Act 1975, the Father is required to enter in to a bond for a period of eighteen (18) months without surety and without security, upon the condition that the Father comply with the parenting orders of 23 August 2017 with particular reference to order 14 thereof.

IT IS NOTED THAT

(a)The Court considers that it would be in the best interest of the children if the Father was to obtain appropriate public housing within a reasonable proximity of the Mother.

(b)The parties have varied the previous parenting orders by consent on occasions. The Court has explained that the injunctions which the Father has contravened are a “shield” for the Mother which she is at liberty to raise or lower at her discretion and that the Father does not have the same flexibility as it is not his “shield”. The Father is dismayed at what he believes to be the unfairness of that situation and he does not consider it to be in the children’s best interests.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1300 of 2012

MS MOSS

Applicant

And

MR RALPH

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript so as to make them easier to read.

Background:

1. These are contravention proceedings brought by the Applicant Mother, Ms Moss (“the mother”), against the Respondent Father, Mr Ralph (“the father”).  

2. The parties have two (2) children, B born … 2010, and C born … 2012. 

3. The matter proceeded to a hearing recently.  At the hearing, Ms O’Rourke, solicitor advocate, appeared for the mother, and Mr Ralph represented himself. 

4. The hearing was conducted in accordance with rule 25B.04 of the Federal Circuit Court Rules. In particular, the court informed the father as to the allegations which were the subject of the contravention application, asked him whether he admitted or denied the allegations and the court then proceeded to hear the mother’s evidence.

5. Having heard evidence from the mother, which included cross-examination by the father, the court then made a ruling in relation to the mother having made out a prima facie case.  One of the five (5) counts alleged in the contravention (count 5) was dismissed on the basis that the alleged contravention could not be said to have occurred within a “public place”, which was a necessary requirement for the mother to prove on order to establish a breach of the relevant parenting order.   I found that the mother had established a prima facie case in respect of counts 1 – 4.

6. I subsequently heard evidence from the father, who was cross-examined by Ms O’Rourke and at the close of the hearing I then heard submissions – reserving my decision until today.

Material relied upon:

1. I confirm that I have had regard to the mother’s Application- Contravention filed 9 October 2018, to the mother’s affidavit filed 9 October 2018, and to a document marked as exhibit “1” or “1” for the purposes of the proceeding - being the annexures referred to in the mother’s affidavit but which had not been attached to that affidavit.

2. I have also had regard to the previous reasons for judgment of the Honourable Justice Cleary of the Family Court dated 24 November 2016 in which her Honour made, at the conclusion of a contested hearing, the parenting orders which are the subject of the present proceedings.  I should formally record that those parenting orders were in fact subsequently amended on 23 August 2017 but the amendment was inconsequential in terms of the proceedings.  All that happened was that the date of birth of one of the children was corrected. 

3. Before I proceed to deal with the various remaining counts, being counts 1 to 4 as alleged in the Application-Contravention, I should note that at the hearing, the mother amended count 2 so that she was relying upon a different provision of the relevant order made by Cleary J.  The father did not oppose that amendment. 

An unfortunate history:

1. This matter has something of an unfortunate history.  The fact that the file dates back to 2012 is telling.  These parties have had acrimony and difficulty in their post-separation parenting relationship now for a very long time. 

2. In the reasons for judgment of Cleary J, her Honour makes reference to the difficult history and to the protracted dispute between the parents.  Her Honour notes that at one point the mother had obtained an Apprehended Violence Order (“AVO”) against the father which ceased to operate or expired in 2014.  Her Honour records in paragraph 141 of the reasons for judgment that:

   The mother obtained a Family Violence Order for two years.  It expired in 2014.  The mother currently has the benefit of an interim order under s 68B which restrains the father from coming to the home and approaching her and the children under certain circumstances.  That order has promoted what the first Family Consultant said would be of greatest assistance, that is, that the parents be kept away from each other.  It is for that reason that I am prepared to make the order on a final basis.

3. Her Honour went on at paragraph 142 to state:

   It appears to me that the father remains hopeful that he could still persuade the mother that they regularly meet to chat and discuss the progress and welfare of their children in a civilised way.  There is absolutely no indication that that has happened or is likely to happen in the immediate and mid-term future particularly in circumstances when the father has been so offensive about the mother’s partner.

4. This was a reference to some comments that the father had posted on Facebook. 

5. I quote these paragraphs of Justice Cleary’s judgment because they give a flavour as to the difficult background circumstances between these parties. 

6. Her Honour expressed concerns about the father’s mental health history and some of his behaviours towards the mother, including attending at her home uninvited and sending her multiple text messages.  Her Honour expressed concern about the father’s accommodation arrangements, in that he was living in a share-house at that time. 

7. Ultimately, her Honour made the parenting orders the subject of the present Application-Contravention, which include orders that the children live with the mother, that she have sole parental responsibility for them, and that the father spend some limited time with the children once he obtained appropriate accommodation.  Essentially, the father’s time had the potential to graduate up to a full weekend on alternate weekends once he had appropriate accommodation. 

8. Relevantly for present purposes, the two (2) orders that are relied upon by the mother appear under the heading “Restraints” in order 14. 

9. I will quote those orders in full, being orders 14(b) and 14(c):

   (14)Pursuant to s 68B of the Family Law Act, the father is restrained by injunction from:

   (a)…

   (b)Coming within 500 metres of the mother’s place of        residence; and

   (c)Coming within 200 metres of the mother, her partner and the children at any public place.

The law:

1. Before turning to the substance of each of the alleged contraventions, I should record that these proceedings are brought pursuant to Division 13A of Part VII of the Family Law Act 1975 (“the Act”). 

2. Relevantly, pursuant to s.70NAC of the Act:

   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…

3. Pursuant to s.70NAE of the Act, a person may be taken to have had a reasonable excuse for contravening an order in the circumstances set out in that section. One such circumstance is set out in s.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.

4. Section 70NAE gives other statutory examples of “reasonable excuse” in relation to certain specific events, but none of those particularly apply here. This is not a case in which the father held over the children or the mother held over the children in circumstances where one or other of the parties says that it was necessary to do so in the interests of the health or safety of the relevant children. The orders the subject of the Application-Contravention are mandatory injunctions as set out earlier.

5. Of course, section 70NAE is an inclusive section. It does not purport to prescribe all of the potential circumstances in which a party otherwise in contravention of an order may be taken to have had a “reasonable excuse”. That said, it is not the case that section 70NAE permits a parent to contravene an order merely because they consider that doing so is in a child’s “best interests.” By definition, the best interests of the children are prescribed by the terms of the parenting orders (as amended) made by Cleary J and which have never been appealed.

6. The mother in this case submitted that the contraventions were of a “less serious” nature. The relevant standard of proof is set out in section 70NAF, which is the balance of probabilities. Essentially, the mother carries the onus of proving a contravention on the balance of probabilities, and once she has done so, the father then has the onus on the balance of probabilities of establishing a “reasonable excuse” for the contravention.

Count 1:

1. I turn then to the specific contraventions, which were defended by the father. 

2. The first alleged contravention occurred on 15 June 2018.  The mother alleges that on that occasion, the father breached order 14(b) of the orders referred to earlier, in that he came within 500 metres of the mother’s place of residence. 

3. The mother was residing at the time at P Street, Suburb E. 

4. In her affidavit, the mother gave evidence that in the leadup to this particular event, she had been told by their son B (on 3 June 2018) that:

   Daddy is looking at a unit to live in at the end of our street and Daddy told me not to tell you.

5. She had a look with the child at the unit on “Google Maps” and she was able to ascertain that the property in question was 329 metres away by undertaking a search on “whereis.com”. 

6. It is common ground, in fact, that the father was temporarily living at this particular property and that it was within the 500 metre restraint which was the subject of her Honour’s injunction.  The father confirmed as much in his text message to the mother, which is part of exhibit “M1”, wherein he said:

   Ms Moss, I’m just advising you of my new address as it’s confirmed.  My new address is Q Street, Suburb E.

7. The father’s next text to the mother stated:

   I’ve been to the police to let them know.  They’re expecting complaints from you.  And I’m guessing you’ve found your orders, so can I now get a copy from you, please, and I cannot afford $30, accommodation being where it is, purely because of Affordability Housing New South Wales, bond, etcetera.

8. In cross-examination of the mother, the father having conceded that he had moved into that property for a brief period and that it was within the 500 metre radius, the father suggested to the mother that he had lost or misplaced his copy of the orders as apparently the orders were in storage at the time as the father had been homeless. 

9. The mother agreed that the father had been asking her for a copy of the orders and said she had been too busy and had not had a chance to give a copy to him.  The father had apparently asked her how far away he could live from her, so he was well aware there was a geographical limitation in the order.  The mother’s response was “as long as it was in accordance with the Court orders”, or words to that effect.

10. Insofar as the mother’s evidence is concerned, the reality is that she has made out her case of a contravention on the balance of probabilities.  The question is whether the father had a reasonable excuse. 

11. In the witness box, the father explained that he had been homeless in the leadup to this event, living at one time in Suburb U and at another time in Suburb V.  He said that the only place he could get public housing and satisfy the relevant bond requirements was at this particular location at Suburb E.  He gave evidence that he had been assisted by Catholic Care and NSAT in relation to finding this accommodation, and he says as much in correspondence to the mother which is set out in exhibit “M1”.  He said that he was living in the property after being homeless a number of years, and:

    I accepted the accommodation I could afford and it was offered to me with great assistance from Catholic Care and NSAT.

12. The father said that he did not have a copy of the orders, and that they were in storage as indicated earlier, but he did know that there was a geographical restraint in place. 

13. At one point in his evidence he said that he knew the restraint was 500 metres, or at least he considered that it was 500 metres. 

14. The restraint was made by Cleary J following a hearing.  It was contained in orders, the terms of which were well known and should have been well known to both the mother and the father. 

15. I do not accept that the Suburb E property would have been the only accommodation available to the father on the Region R, as this seems implausible, but I accept his evidence that he did not want to live too far away from the children.  So he was in something of a catch-22 in that his own financial circumstances were clearly strained; he was experiencing homelessness and he wanted to live close by to the children so that he could regularly see them in accordance with the orders.  Given all of the practical difficulties that were involved, this was no easy task for him, and I accept all of those things.

16. Equally however, I do not consider that it is a “reasonable excuse” that the father was not himself in possession of the orders.  It was incumbent upon him to have the orders, or at least to be able to access them himself, and he was certainly, as I have indicated, aware of a geographical restraint.  At the very least, he “took a punt” that he was outside of the relevant restraint but, in my view, the far more likely finding is that he knew or was indifferent to the reality that he was in breach of the order. 

17. I do not consider that the father had a reasonable excuse on this occasion, as I consider that there was no relevant error of law that he perpetrated, and the fact that he had been to see the police indicates that he was well aware that he was walking on a fine line. 

18. I do not consider that he has established a reasonable excuse; however, I do accept that he was experiencing real financial difficulties and that he was, in a practical sense, homeless, having been living in and out of his van at that time.  I also accept that he was gone from the Suburb E property relatively quickly after the mother had complained about it and, in fact, he then returned to being homeless again.  His circumstances are unenviable and the court has some empathy for him in this respect.  However, the court does not accept that he had a reasonable excuse in relation to count 1.

Count 2:

1. In relation to count 2 (as amended), the mother alleges that again, on 15 June 2018, the father breached order 14(b). 

2. The mother’s evidence in relation to this particular event is that:

   On 15 June 2018 at approximately 4.45 pm, a friend and I were standing out the front of my house having a chat and I saw Mr Ralph drive past my house.

3. The husband’s response to that allegation in the witness box was that this “quite possibly” had happened.  He explained that, when leaving the Suburb E property in which he was then living (in breach of the orders as noted earlier), driving past the mother’s home was the most convenient or quickest way to get to where he needed to go.  I accept that this may well be so, but the father well knew the mother lived there and his decision to drive past, in my view, makes little sense and it was a flagrant breach or contravention of the orders.  He certainly could have taken a number of different routes. 

4. I do not see this as being the most serious breach that comes before the court but, nonetheless, I do consider that the father contravened the order and that the mother’s case is made out.  The fact that it may have been a convenient or quickest route to go past the mother’s house is no basis for breaching an injunction that Justice Cleary imposed for the reasons set out by her Honour.  The injunction was a serious matter.  I, therefore consider that the father has contravened those orders on 15 June as alleged in count 2.

5. An interesting question however, is that the father has contravened the same order as pleaded in count 1, on the same date as pleaded in count 1.  The two counts are charged separately and it gives rise to an interesting question of double jeopardy because as soon as the father was living in the Suburb E property and sitting in his van in the driveway, he was immediately in breach of the same order on, essentially, the same basis as for count 1, namely, that he had come within 500 metres of the mother’s house.  It is difficult to see how driving past in the van, albeit that it may have been more provocative, in fact, actually adds anything as a matter of law to his earlier decision to live in that home (count 1).

Count 3: 

1. I now turn to count 3. 

2. The mother’s allegation is that at 9.30am on 23 June 2018 at Sports Oval, Suburb E, the father attended at B’s football match and refused to leave when asked.  This, she asserts, is a breach of order 14(c) which prohibits the father coming within 200 metres of the mother, her partner and the children at any public place. 

1. The mother’s evidence was that the father arrived just prior to kick-off for the game.  She heard B’s coach ask him to leave but he refused to.  She approached the coordinator of the club, who then phoned the police and handed the phone to her.  The mother told the police about the orders and they said they would send someone out. 

2. The coordinator then approached the father and the mother heard her say to him: “You need to leave.”  She did not hear what the father said in response but the coordinator came over to the mother later and said, “He just swore at me and he refuses to leave.” 

3. The father did, in fact, leave prior to the police arriving.

4. This is another one of those difficult situations for the father, as became apparent during the course of the evidence. The mother is a member of the football club.  She is always relevantly going to be at the football games.  The mother is quite agreeable to the father attending the football games on his time with the children, despite the fact that the mother will herself be present on such occasions. 

5. So while I make no criticism of the mother enrolling B in football, the father finds himself in the almost impossible position that:

   ·    when it is the mother’s weekend the father cannot attend the games without contravening order 14(c);

   but at the same time

   ·    when it is the father’s weekend with the children, the mother is content for him to attend the games – and indeed she expects him to attend, thereby putting him in breach of the very same injunction. 

6. The mother herself admitted that the parties can’t really be 200 metres apart at football games because of the size of the ground - although I accept her evidence that the mother does attempt to stay away when the father is there. 

7. There is no doubt that the mother has made out a case for a contravention; the father admits as much. 

8. His reasonable excuse seems to be that, to use his words, “How can it be okay for me to attend football one week and not the next week?” 

9. I have some empathy for his position in this respect because if the mother is concerned about her health and safety and about the father’s behaviour, then it is somewhat regrettable that she has created a situation whereby the father will be placed in breach of order 14(c) when he does the “right thing” on his weekends by taking the child to his football game. 

10. It does not sit well with me that the mother could put the father in that situation in his week but then in her week insist on a strict compliance with the orders.  The father, in one sense, is in a “no win” situation.

11. Obviously if the mother had invited the father to attend a football game for B on his weekend time, the court would be loathe to find the father guilty of a contravention of order 14(c) as a result of such attendance.  Indeed the mother’s consent may well constitute a “reasonable excuse”.

12. But in the end, having thought about the matter carefully, I have come to the view that what in fact is being relied upon by the father as a reasonable excuse is the mother’s agreement or consent for him to attend at games on his weekends.  It seems to me that what the father is arguing is not so much a reasonable excuse but rather that it is in the best interests of the children that he be able to attend football games on the mother’s weekends in circumstances where he is expected to do so on his own weekends.  The father therefore wants, understandably perhaps, to attend the football games in the other weeks, so that he supports his son’s sporting activities.

13. The problem however is that these parties do not have a sufficiently workable relationship, and from the mother’s perspective the father, when given an inch, has then taken a mile by turning up on her time.  So I can understand each party’s position on this issue. 

14. I take the view, overall, that the father, while having understandable reasons for attending B football games on the mother’s weekends, is in fact defending the resultant contravention of order 14(c) on the basis of “best interests” rather than on the basis of a “reasonable excuse”.  In my view, the father does not have a reasonable excuse, although there are mitigating circumstances in his case, for these reasons.

Count 4:

1. In terms of count 4, the mother alleges similar behaviour on 30 June 2018, when she says that at 11.45 am, the father breached order 14(c) by being present at B’s football match once again. 

2. The evidence in this instance is a little more alarming and more confrontational, and perhaps highlights why Cleary J made the orders that her Honour did.

3. The mother’s evidence is that when the father attended at a football game for B on this day, that he started to rant about “parental alienation”;  that B seemingly became embarrassed, and started asking him to leave - telling his father: “Just leave.  I don’t want you here.” 

4. The mother’s evidence was that B was yelling at the father, and that the father then approached the mother’s partner, Mr N, and was standing really close to his face.  She did not hear what was said, but it was later recounted to her that he had said to Mr N that he was “practising alienation…and if you think you’re going to come in between me and my kids, I’ll snap your fucking neck like nothing.”

5. The mother contacted the police, and told the father about it.  (The police did not later take any action.)

6. The facts as alleged by the mother, in my view, have been made out.

7. In his defence, the father again alleged that it was unfair and unreasonable that he could not attend at football games to support the children on the mother’s weekend, in circumstances where she was permitting or inviting him to attend when it was his weekend. 

8. He also gave examples of other occasions where he had attended events (at which the mother and/or her partner were present), or been asked to attend such events, which fell during his time with the children - thereby placing him in jeopardy of breaching that injunction.

9. The father’s evidence was that at the football game on this particular day, the mother’s friends were behaving rudely and aggressively to him, and were disrespectfully “grunting at him”.  The mother is not in a position, it seems to me, to admit or deny that allegation, and I say that because she gives no evidence about it, and may not have witnessed the full extent of what occurred. 

10. I certainly accept that from the father’s perspective, he may have considered that these other persons were treating him in an abrupt or rude manner, although the mother cannot be personally criticised for the behaviour of others.

11. The reality is that the father again - as with count 3 - decided to, if you like, push the envelope, for reasons that he considers to be in the best interests of his children.  He denied saying anything about snapping Mr N’s neck, and given that Mr N is not a witness in the case, I accept the father’s evidence over the hearsay evidence of the mother in this respect.  I therefore do not accept that the father threatened to snap his neck.  However, on his own case, he admits that he “glared” at Mr N.

12. It was, on any view, an unpleasant exchange, which was regrettably witnessed by B, who of course finds himself in the very difficult and unfortunate position where his parents get into an unpleasant confrontation at his football match, which he is supposed to enjoy.  It is a tragedy for him, quite frankly, to find himself in that position, particularly at his age, where he would no doubt be conscious of his image, and not wanting to look foolish or be embarrassed in front of his teammates.

13. As I said, the father has “pushed the envelope” on the basis of what he considers to be in the best interests of the children, and his position is in that sense understandable.  But I do not consider, in all of the circumstances, that the father has established a reasonable excuse above and beyond what he says was in the best interests of the children.  I hearken back to what Cleary J said in her Honour’s judgment, at paragraph 142:

    It appears to me that the father remains hopeful that he could still persuade the mother that they regularly meet to chat and discuss the progress and welfare of their children in a civilised way.  There is absolutely no indication that that has happened or is likely to happen in the immediate and mid-term future, particularly in circumstances where the father has been so offensive about the mother’s partner.

14. It seems to me that the father wants to normalise, for want of a better word, relations between he and the mother, for the very best of reasons, because he wants to smooth things out for the children as much as possible.  In a perfect world, that would be ideal. 

15. This case reflects anything but a perfect world, noting that it has carried on, in some form or another, on and off, since the year 2012.

Count 5 (dismissed):

1. Although count 5 was dismissed by me, on the basis that the events did not occur in a public place, I should record that the mother had also alleged in count 5 that on 31 August 2018, the father had been in attendance at the Suburb S Public School for a Father’s Day event.  The mother was present, and it is quite clear from the material that the mother attempted to dissuade the father from attending the Father’s Day event.  The father’s steadfast position was that it was in the best interests of the children that he attend.

2. Had I found that the schoolyard was a “public place”, I would almost inevitably have had to find the father guilty of that contravention as well, for the same reason as I find him guilty of counts 3 and 4.  His argument related to best interests, but as a matter of law, I determined that the schoolyard was not relevantly a “public place”, for reasons which I gave extemporaneously during the hearing.

Conclusion:

1. So for these reasons I find that the father has contravened the orders of 24 November 2016 (as amended on 23 August 2017), in respect of counts 1, 2, 3 and 4, without reasonable excuse, although he certainly has some mitigating factors. 

2. In terms of the appropriate sanction or order for the court to make, it was urged upon me by the mother’s solicitor advocate Ms O’Rourke that the court ought to put the father on a bond. 

3. When I raised the issue of the father’s financial circumstances, noting that he is in very difficult finances, Ms O’Rourke submitted that the bond could be one in respect of which no dollar figure was necessary by way of security or surety.  She submitted that the condition of the bond could be simply that the father comply with the parenting orders of 23 August 2017, with particular reference to order 14. 

4. The father submitted that he wanted to have the mother’s mental health assessed, and he wanted a psychological or psychiatric report about her.  He described himself as being the “putty” in the situation and said that it is always him who has to adapt and that, effectively, the mother is the “block” and he the “putty”.

5. I have some empathy for the father in relation to the football games, but in my view he does not have a “reasonable excuse” as defined by the Act.

6. I take the view that the father in this case is relatively poor financially but passionate about wanting to spend time with his children and wanting to improve what is clearly a difficult situation.  I accept that the animosity that presently exists (between the parents) is not helpful for the children, but it seems to me that the orders of 23 August 2017 must be complied with until they are otherwise for good reason varied by a court. 

7. These parties have been litigating for a long time, on and off.  If they have a capacity to sort things out for the children in an amicable way, then they need to demonstrate that over a period of time.  The father needs to accept that, unfair as it may appear, the orders are the orders, and what is acceptable in one week is not permitted in the other. 

8. The mother needs to reflect upon her contribution to this difficulty.  Her decision to get herself a membership of the football club means that she is always present at games.  This means that she is, to some extent, an orchestrator of this problem as well - but I am not, at this time, minded to vary the parenting orders. 

9. The parties have varied the previous parenting orders by consent on occasions.  But the altercations that occurred between the parties at the football games demonstrates why they should, in my view, remain apart, which is what Cleary J decided at the conclusion of a contested hearing less than three (3) years ago. 

10. In my view, the appropriate sanction in this case is to require the father to enter into a bond.  I do not consider that a post-separation parenting program would be of any great benefit, in all of the circumstances of this case and noting the significant past history of the matter. 

11. In closing, the court has explained to the father that the injunctions are a “shield” for the mother which she is at liberty to raise or lower at her discretion and that the father does not have that same flexibility, as it is not his “shield”.  The father is dismayed at what he believes to be the unfairness of that situation.  He does not consider it to be in the children’s best interests.

12. I will add a specific Notation to the orders which records my observations set out in paragraph 92 of these reasons.  The purpose of this Notation is to make the operation of the injunctions absolutely clear to the father.

13. I will also add a specific Notation at the father’s request in relation to the possibility of public housing being made available for him at a place which is not too far away from where the mother and children live.

14. I otherwise make the orders that are set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date:  23 July 2019