Nellums & Clemen (No 2)
[2022] FedCFamC1F 801
Federal Circuit and Family Court of Australia
(DIVISION 1)
Nellums & Clemen (No 2) [2022] FedCFamC1F 801
File number(s): BRC 11282 of 2014 Judgment of: CAMPTON J Date of judgment: 19 October 2022 Catchwords: FAMILY LAW – CONTRAVENTION – Where the father alleges multiple contraventions of final parenting orders – Where the mother concedes a breach of orders in respect of some of the alleged contraventions but asserts she had a reasonable excuse for doing so – Where the mother failed to establish reasonable excuse – Where a penalty is imposed pursuant to Subdivision F of Division 13A Part VII of the Family Law Act 1975 (Cth) – Where a good behaviour bond is imposed upon the mother for a period of two years – Where the final orders are varied to ensure compliance.
FAMILY LAW – CHILD SUPPORT – Where the mother applies for enforcement of child support arrears – Where the mother’s application was commenced in the Federal Circuit and Family Court of Australia (Division 1) – Where s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) prohibits the institution of child support proceedings in the Federal Circuit and Family Court of Australia (Division 1) – Proceedings transferred to the Federal Circuit and Family Court of Australia (Division 2) pursuant to s 50(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Legislation: Child Support (Registration and Collection) Act 1998 (Cth) s 30, 113A
Family Law Act 1975 (Cth) Pt VII, Div 13A, ss 4, 60CA, 60CC, 64B, 65D, 68B, 69DN, 70NAC, 70NAE, 70NAF, 70NBA, 70NEB, 70NEF, 70NFA, 102QB,
Federal Circuit and Family Court of Australia 2021 (Cth) ss 50, 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 14.07
Cases cited: Cardus & Lavrick [2020] FamCA 579
Daymond & Joslyn [2021] FedCFamC1F 2
Freeman & Freeman (1987) FLC 91-857; [1986] FamCA 23
Hunter & Child Support Registrar [2017] FamCAFC 259
McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62
Sandex & Bondir (No 2) [2017] FamCAFC 130
Division: Division 1 First Instance Number of paragraphs: 204 Date of hearing: 29 September 2022 Place: Brisbane The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
BRC 11282 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NELLUMS
Applicant
AND: MS CLEMEN
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
18 October 2022
THE COURT ORDERS THAT:
1.In relation to the Application-Contravention filed by the father on 6 December 2019, the Court finds that the mother without reasonable excuse:
(a)Contravened Order 3(a)(i) made 1 March 2019 on 15 March 2019;
(b)Contravened Order 3(a)(i) made 1 March 2019 on 14 June 2019.
2.In relation to the Application-Contravention filed by the father on 25 February 2022, the Court finds that the mother without reasonable excuse:
(a)Contravened Order 1(b) made 25 June 2021 on 4 July 2021.
3.Pursuant to s 70NFB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), within 14 days of the date of these orders the mother shall enter into a Bond for a period of two years without security or surety to:
(a)Be of good behaviour;
(b)Within 21 days of these orders, enrol in and thereafter attend and do all things as are necessary to complete the post-separation “Parenting Orders Program” facilitated by N Services in such time frame as specified by the course provider, and provide to the father a document verifying such enrolment and a further document verifying and certifying completion of that course; and
(c)Comply with all orders of the Court.
4.That upon the mother entering such bond, the father’s Application-Contravention filed 6 December 2019 and Application-Contravention filed 25 February 2022 are otherwise dismissed.
5.The final orders as to the parenting of X born 2011 (“X”) made on 1 March 2019 (as amended pursuant to the slip rule on 9 September 2019) be varied pursuant to s 70NBA of the Act in the following terms:
(a)Within seven days of the date of these orders the parties shall do all things as are necessary to register (again if required) with J Consultancy, Suburb K (“J Consultancy”), and complete such processes as are necessary and as are required by J Consultancy to facilitate the transition of X between the parents for the purposes of time spent by X with the father pursuant to the orders made 1 March 2019 and these orders.
(b)The time spent by X with the father during Queensland school holiday periods pursuant to Order 3(a)(ii) made on 1 March 2019 be suspended for the December 2022/January 2023 school holiday period (noting that the said orders provide for X to spend time with the father commencing from 10 December 2022 for seven days), and in lieu of such time spent will commence at 5.00 pm on Friday 9 December 2022 and conclude at 5.00 pm on Sunday 11 December 2022.
(c)The mother shall do all things as are necessary to ensure and facilitate X attending J Consultancy 20 minutes prior to the time to be spent with the father commencing as specified in the orders made on 1 March 2019 and these orders, and:
(i)Immediately upon causing X to attend J Consultancy pursuant to this Order, the mother shall vacate those premises;
(ii)The mother shall not remain on the J Consultancy premises, or come within 750 metres of the premises, for a period of not less than one and half hours after the delivery of X; and
(iii)Further, the mother shall not attend the J Consultancy premises until 20 minutes after the completion of the time specified to be spent by X with the father pursuant to the said orders.
(d)Order 4 made 1 March 2019 be discharged.
(e)Commencing from 26 October 2022 the mother shall do all such things as are necessary to ensure and to facilitate X communicating with the father by electronic video call by “WhatsApp” at 7.00 pm each Wednesday that X is not spending time with the father pursuant to the orders made 1 March 2019, and for the purposes of such electronic communication:
(i)The father shall initiate the call;
(ii)The mother shall do all such things as to ensure that X has facilities available to receive the call and that X is available to receive the call;
(iii)If for any reason X does not receive the call on such Wednesdays the mother shall do all such things as are necessary to initiate a call to the father on behalf of X on the following night at 7.00 pm and shall do all such things as are necessary to facilitate X’s communication electronically with the father at that time;
(iv)The mother shall ensure that X has privacy during the said electronic communications;
(v)The parties shall forthwith and within seven days of the date of these orders do all such things to keep the other informed at all times as to their and X’s contact particulars to facilitate such electronic communication, including but not limited to electronic telephone numbers, addresses and contact details and shall provide to the other in writing their updated contact details should they change within 23 hours of such change.
6.The Court notes that:
(a)The next scheduled weekend time to be spent by X with the father pursuant to Order 3 (a)(i) made 1 March 2019 is Friday, 18 November 2022; and
(b)The next scheduled school holiday time to be spent by X with the father pursuant to order 3(a)(ii) of the Orders made 1 March 2019 was Saturday 10 December 2022, but by way of these orders will now be Saturday, 24 June 2023.
7.The orders made in the Brisbane Registry of Federal Circuit Court on 25 June 2021 and the orders made by the Senior Judicial Registrar on 17 June 2022 are discharged.
8.The mother shall do all things to cause and facilitate X to attend in person upon a Court Child Expert at the Brisbane Registry at 9.00 am on 1 November 2022 for the purpose of the Court Child Expert advising X of the terms of the time-spent and communication orders and the reasons for those orders.
9.The mother and father shall do all things to serve copy of the orders dated 1 March 2019 and these orders and reasons on J Consultancy, within seven days of the date of these orders.
10.The Court requests that J Consultancy use its best endeavours to facilitate the transition of X between the parties pursuant to the orders made 1 March 2019 and these orders.
11.The Application for Review of the exercise of power by a Senior Judicial Registrar of the mother filed 7 July 2022 is otherwise dismissed.
Instituting further proceedings
12.Pursuant to s 64B(2)(g) of the Act each of the mother and the father are prohibited from instituting further Pt VII proceedings in relation to the parenting of X without first obtaining leave of the Court.
The mother’s Initiating Application
13.The Initiating Application of the mother filed 4 February 2022 and the Response to Initiating Application of the father filed 14 July 2022 are otherwise dismissed.
Costs
14.In the event that either party seeking an order for costs of the Application-Contravention of the father filed 6 December 2019 and 25 February 2022, the Application for Review of the mother filed 7 July 2022, the Initiating Application of the mother filed 4 February 2022 and the Response to Initiating Application of the father filed 14 July 2022, such party is to file and serve written submissions in respect of such Application of no more than 3 pages within 14 days of the date of these orders, and in the event of such party filing and serving written submissions in accordance with this order, the other party have liberty to file and serve written submissions in reply of no more than three pages within a further 14 days, any such costs application to be determined in Chambers
15.Save and except for the mother’s Application-Enforcement filed 1 August 2022, any other extant Application or Response to an Application not dealt with by way of these orders is dismissed.
16.By operation of s 50(2) of the Federal Circuit and Family Court of Australia Act2021 (Cth), the Application-Enforcement of the mother filed 1 August 2022 be listed before a Judicial Registrar in the Federal Circuit and Family Court of Australia (Division 2) on 8 November 2022 at 12.00 pm.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nellums & Clemen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
Introduction
Ms Clemen (“the mother”) and Mr Nellums (“the father”) are the parents of X, born in 2011 (“X”). X is currently 11 years old and lives with his mother in Brisbane. His father lives between Country B and Country A. The father’s current partner and their two children appear to primarily live in Country A.
The parties did not live together. They formed a relationship while living in Country A between 2009 and 2010. Their relationship ended before X was born.
The father commenced proceedings as to X’s parenting in Country A on 24 November 2011. On 9 May 2013, orders were made in that jurisdiction permitting the mother to relocate X to Australia. She did so in early 2014. The parties have continued to litigate in Country A continuously since 2011. Proceedings are next listed in that forum in late 2022.
The mother commenced parenting proceedings in respect of X on 14 December 2014 in what was then the Federal Magistrates Court in Brisbane. The parties have all but continuously litigated as to the parenting of X in Australia since that time. Prior to 1 March 2019, final orders as to the parenting of X pursuant to the Family Law Act 1975 (Cth) (“the Act”) have been made on two occasions.
On 1 March 2019, the Court made final orders partly by consent and partly on a defended basis (“the final orders”), which provided broadly for:
(a)The parties to have equal shared parental responsibility for X, save for that the mother was to have sole parental responsibility for X’s education and health; and
(b)By consent, X to live with the mother in Australia and the father, who lives overseas, to spend time with X in Australia on the third weekend of every month (save for July, September and December) and for one week in each of the June/July, September/October and December school holidays, with changeover to occur at J Consultancy, Suburb K (“J Consultancy”).
Notwithstanding the final consent order as to X spending time with the father in Australia, the father has not spent time with X since January 2019.
On 6 December 2019, the father filed an Application-Contravention (“the first Contravention Application”) in the Federal Circuit Court at Brisbane.
The parenting proceedings were listed before Judge Coates in the Federal Circuit Court at Brisbane on three dates in June 2021. A Child Impact Memorandum was prepared by a Senior Family Consultant for the purpose of those hearings, dated 17 June 2021. On 25 June 2021 Judge Coates made interim parenting orders refining the arrangement for the father to contact X by telephone, and scheduling two additional periods of supervised time between the father and X at J Consultancy in July 2021.
Notwithstanding Judge Coates’ orders, the father’s time with X did not recommence. The evidence is unclear as to when the father last had electronic communication with X. On the mother’s case it was some time in August 2021, and on the father’s case in was some time in October 2021.
The proceedings were transferred from the Federal Circuit and Family Court of Australia (“the FCFCOA”) (Division 2) to the FCFCOA (Division 1) on 16 December 2021.
The mother filed an Initiating Application on 4 February 2022 resisting the father’s Contravention Application, seeking to discharge any orders as to X spending time with or communicating with his father and seeking an order “prohibiting the father” from making further applications to the FCFCOA absent leave. On 14 July 2022 the father filed a Response to that Initiating Application broadly seeking confirmation of the final orders, seeking a recovery order to enforce time spent in June 2022 with X pursuant to the final orders, and seeking enforcement of interim orders made by Judge Coates on 25 June 2022 as to telephone communication between the father and X.
The father filed a further Application-Contravention in this Court on 25 February 2022 (“the second Contravention Application”).
The first and second Contravention Applications were set down for hearing before a senior judicial registrar on 17 June 2022. The mother did not appear on that date. In her absence, a senior judicial registrar determined each of the father’s Contravention Applications and made findings that the mother had contravened parenting orders on six occasions, and varied the orders pursuant to s 70NBA of the Act such that the father spend an additional two periods of supervised care with X on 9 July and 23 July 2022 at J Consultancy. Notwithstanding the senior judicial registrar’s orders, the father’s time with X did not occur.
On 7 July 2022 the mother filed an Application for Review of the exercise of power by the senior judicial registrar. The application sought to review the findings as to contravention made by the senior judicial registrar, the variation of the orders made on 1 March 2019 and 25 June 2021, the order made pursuant to s 70NBA of the Act that she attend a post-separation parenting program, and the order as to the mother paying the father’s costs.
On 21 July 2022, Order 3 of the senior judicial registrar’s orders made on 17 June 2022 was stayed pending determination of the Application for Review. That Order provided for the variation of the orders made on 1 March 2019 and 25 June 2021 such that the father could spend supervised with X on both 9 and 23 July 2022. The other orders of the senior judicial registrar, including that requiring the mother to attend a post-separation parenting program and to pay the father’s costs, were not stayed. The mother had not attended the post-separation parenting program as ordered by the time of the trial before me.
The mother’s Application for Review was listed for hearing before me for two hours on 8 August 2022. It was to proceed by way of Microsoft Teams. On that date, the father appeared by Microsoft Teams and the mother appeared by telephone. It became quickly apparent that the hearing could not conclude within the timeframe allocated, and that the required cross-examination could not effectively occur electronically.
In the circumstances, I listed the proceedings before me in person at the Brisbane Registry for two days commencing on 29 September 2022, for the purpose of finally determining all of the outstanding issues in dispute in this forum between the parties. Hence, these reasons determine the following applications:
(a)Each of the father’s Contravention Applications (filed on 6 December 2019 and 25 February 2022);
(b)The mother’s Initiating Application filed on 4 February 2022 and the father’s Response to that Initiating Application filed on 14 July 2022;
(c)The mother’s Amended Application in a Proceeding filed 11 April 2022;
(d)The mother’s Application for Review filed on 7 July 2022; and
(e)The mother’s Application-Enforcement filed 1 August 2022.
On 29 September 2022, the mother’s Amended Application in a Proceeding filed on 11 April 2022 was withdrawn and dismissed.
Since their commencement in December 2014, the Australian parenting proceedings in respect of X have been listed before a judge or delegate judicial officer on not less than 49 occasions. There has been one full family report prepared, two Child Inclusive Memorandums and one Specific Issues Report prepared by a Court Child Expert. Each of the latter three reports were tendered into evidence. Neither party required the Court Child Expert for cross-examination in the hearing before me.
For the reasons that follow:
(a)Findings are made that the mother without reasonable excuse contravened:
(i)Order 3(a)(i) made 1 March 2019 on 15 March 2019.
(ii)Order 3(a)(i) made 1 March 2019 on 14 June 2019.
(iii)Order 1(b) made 25 June 2021 on 4 July 2021.
(b)The mother shall forthwith enter into a good behaviour bond for a period of two years for the said contravention, without surety or security, upon the following conditions:
(i)The mother will comply with all orders made between the parties under the Act; and
(ii)The mother will be of good behaviour;
(iii)The mother will be required to enrol in, attend and complete the post-separation “Parenting Orders Program” facilitated by N Services in such time frame as specified by the course provider;
(c)Upon the mother entering the bond, the first and second Contravention Applications shall be otherwise dismissed;
(d)The final orders dated 1 March 2019 shall be varied pursuant to s 70NBA of the Act, so as to further refine the terms upon which the father is to spend time and communicate with X with the intention of mitigating the risk of any future non-compliance by the parties;
(e)The mother shall be obliged to attend upon a Court Child Expert with X, in person at the Brisbane Registry of this Court on 1 November 2022, for the purpose of explaining the orders and their purpose to X.
(f)The Initiating Application of the mother filed 4 February 2022 and the father’s Response to Initiating Application filed 14 July 2022 will be dismissed;
(g)The mother’s Application for Review filed on 7 July 2022 will otherwise be dismissed.
(h)An order will be made prohibiting either of the parties from instituting further Pt VII proceedings without leave of the Court; and
(i)Each parties’ costs of the above identified applications shall be reserved for determination in chambers if pressed.
The mother’s application for review
The mother by her Application for Review seeks to review the exercise of delegated judicial power by a senior judicial registrar on 17 June 2022. Specifically, she seeks to review the following orders made on that date:
1. In relation to the Application Contravention filed 25 February 2022 –
a.Contravention 1 is made out where the Respondent without reasonable excuse failed to make the children available to spend time with the father pursuant to paragraph 3.a. of the Order of 1 March 2019 at 5.00pm on 14 February 2020.
…
d.Contravention 4 is made out where the Respondent without reasonable excuse failed to make the children available to spend time with the father pursuant to paragraph 1.b. of the Order of 25 June 2021 at 2:30pm on 4 July 2021.
…
f.Contravention 6 is made out where the Respondent without reasonable excuse failed to make the children available to spend time with the father pursuant to paragraph 1.b. of the Order of 25 June 2021 at 11:15am on 10 July 2021.
g.Contravention 7 and 8 are made out where the Respondent without reasonable excuse failed to make the children available to spend time with the father pursuant to paragraphs 1.f. and 2. of the Order of 25 June 2021 from 13 October 2021 and continuing to the date of the hearing of this contravention application.
2. In relation to the Application Contravention filed 6 December 2019 –
…
h.Contravention 4 is made out where the Respondent without reasonable excuse failed to make the children available to spend time with the father pursuant to paragraph 3(viii)(1) of the Order of 1 March 2019 at 5:00pm on 14 June 2019.
3.Pursuant to section 70NBA of the Family Law Act 1975 (Cth), the Senior Judicial Registrar varies the Orders of 1 March 2019 and 25 June 2021:
a.The Applicant Father spends time with the child on both 9 July 2022 and 23 July 2022 supervised for a period of up to 2 hours at [J Consultancy, Suburb K] at such times as [J Consultancy] is able to accommodate and the court requests [J Consultancy] to notify the parties of those times.
4.Pursuant to section 70NBA(2) of the Family Law Act 1975 (Cth) the Respondent attends upon a post-separation parenting program forthwith and produces evidence of such enrolment and attendance to the court on or before 22 July 2022.
5.Pursuant to section 70NDC of the Family Law Act 1975 (Cth) the Respondent mother pay to the Applicant father costs fixed in the sum of $1,800.00 to be paid within 28 days of the date of this Order.
Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that an Application for Review is to be heard as an original hearing. Hence, I am required to determine each of the father’s Contravention Applications afresh.
Determination of the contravention proceedings
At the commencement of the hearing the husband was required to restrict his prosecution of his Contravention Applications to three charges in respect of each application. He prosecuted a total of five charges across the two applications.
The mother conceded knowledge and understanding of the orders contended to be subject of contravention, and service of the father’s Contravention Applications. Each of the parties appeared on their own behalf in the defended hearing before Baumann J in March 2019. The father appeared on his own behalf at the hearings before Judge Coates (being on 7, 17 and 25 June 2021). The mother appeared on her own behalf on the hearing before Judge Coates on 7 June 2021, and was represented by a solicitor on 17 and 25 June 2021.
Both parties agreed that the polarised and entrenched high conflict between them had generated circumstances where X has not spent time with his father since January 2019. Both parties further agreed that in circumstances it was in the best interests of X for there to be a variation of the final orders pursuant to s 70NBA of the Act.
The applicable law
The applicable law in respect of failure to comply with orders that affect children is contained in Div 13A of Pt VII of the Act. Section 70NAC sets out what must be established to satisfy a Court that a contravention took place:
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.
If a contravention is established, the Court must then determine whether the respondent has demonstrated that he/she had a reasonable excuse for failing to comply with the orders. A “reasonable excuse” is defined in s 70NAE of the Act as:
(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).
The matters contained in s 70NAE are not an exhaustive list of the matters which may be considered when making a determination as to whether a party will be taken to have a reasonable excuse for contravention of an order. A judge is entitled to take into account any and all matters which may be relevant to reach a conclusion as to whether a respondent, firstly has established an excuse and, secondly whether that excuse is reasonable. Then, the Court must also be satisfied that the respondent should be excused for the contravention.
The standard of proof that applies in determining whether a person has contravened an order, and if they are found to have contravened, whether the person had a reasonable excuse for doing so, is proof on the balance of probabilities (s 70NAF of the Act).
The final orders
The final orders were made on 1 March 2019. Some of those orders were made by consent, and others were determined by the Baumann J on a defended basis.
Those orders set out a parenting regime for X to which each parent agreed, which broadly provided for:
(a)X to live with the mother in Australia and spend time with the father;
(b)Changeover to occur at J Consultancy for the purpose of X’s time with the father;
(c)X to communicate with the father by “telephone, letter, email, and Skype at all reasonable times”;
(d)The parties to notify one another of any accident, emergency, serious illness or significant injury involving X;
(e)Each of the parties to have authority to obtain information pertaining to X from his school and any medical professional; and
(f)The parties to be restrained from denigrating one another in X’s presence.
The final consent orders regulating X’s time with his father and communication with his father were in the following terms:
3.That the child shall spend time and communicate with the father at all times as agreed between the parents in writing, but failing agreement as follows:
a. While the child is living in Australia:
i. From 5.00pm Friday to 5.00pm Sunday of the third weekend in each month except for the months of July, September and December;
ii. For one (1) week (being seven days and six nights) of the Queensland gazetted school holiday periods in June/July, September/October and in December of each year, with dates to be agreed between the parents and time to commence at 9.00am on the first day and conclude at 5.00pm on the last day and failing agreement as to the dates then time be as follows:
1. From 9.00am on the Saturday immediately after school finishes in the June/July, September/October and December school holiday period.
iii. The father will facilitate the child telephoning the mother on the third and fifth days during the holiday periods referred to in Order 3(a)(ii)above;
iv. The father will provide his contact details to the mother during the holiday periods referred to in Order 3(a)(ii) above, including a mobile phone number where the child may be contacted;
v. The father will provide an email address where the child will stay during the holiday periods referred to in Order 3(a)(ii) above fourteen (14) days prior to the commencement of the holiday period; and
vi. That except as otherwise agreed, the changeover point for the transition for the child be at [J Consultancy, Suburb K] or such other child contact centre as may be agreed between the parents in writing, with the costs of the contact centre to be shared equally.
4. That the child shall communicate with the father by telephone, letter, email, and Skype at all reasonable times and the mother is to make a phone or electronic device available to the child to initiate communication with the father at all reasonable times if the child should express a wish to do so.
The orders to which the parties did not agree but rather were made by Baumann J provided broadly for:
(a)The parties to have equal shared parental responsibility for X, except for decisions relating to his education and health; and
(b)The mother to have sole parental responsibility for X in respect of his education and health, and for her to consult the father prior to making any decision in the exercise of that responsibility.
There was an amendment to the final orders made on 9 September 2019, such that the word “email” in Order 3(a)(v) was deleted.
The first Contravention Application
The father asserted that the mother has frustrated his capacity to spend time with X and has engaged in a course to exclude him from X’s life. It is the father’s case that within a month of the final orders, the mother without reasonable excuse contravened those orders by not making X available to spend time with him.
The father’s first Contravention Application alleged a total of five contraventions by the mother. It was his case that on 15 March, 19 April, 17 May, 14 June, and 21 September 2019 the mother contravened Order 3(a)(i) of the final orders in that she “without reasonable excuse refused to make [X] available at the changeover to spend time with the [father]”.
The contravention proceedings commenced by the father were obscured by each of the parties filing a plethora of interim applications seeking a broad range of other or ancillary relief. There were a number orders made by different judges.
The issue as to the practicality of the parenting arrangements for X compounded in circumstances where:
(a)At some time in 2021 the father commenced to live in Country B;
(b)The impact of the COVID-19 pandemic required the father to quarantine when he arrived in and left Australia;
(c)The erosion of the parental relationship between X and his father, how so ever caused; and
(d)The preference of each of the parties not to communicate directly with each other but rather through a Court process.
The interim orders
The parenting proceedings were listed before Judge Coates on 7, 17 and 25 June 2021.
On 7 June 2021 a hearing was conducted before Judge Coates by telephone, and each of the parties were self-represented. Orders were made by his Honour as follows:
1. That the parties and [X] shall attend an appointment with Family Consultant, [Mr L] or such other Family Consultant as nominated by the Senior Family Consultant of the Federal Circuit Court of Australia, Brisbane on 17 June 2021 with the [father] to arrive at 9.00am and the [mother] at 10.00am at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.
2.That pursuant to s.11F of the Family Law Act 1975 (“the Act”) the Family Consultant shall provide an advice to the Court and the parties that may include:
a.Identification of the issues for the child;
b.A consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the child until there can be further investigations into the matter; and
c.Such programs as may assist the parties establish a better functioning co-parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills.
3.That the Family Consultant shall have leave to inspect any subpoenaed documents.
4.That the parties shall ensure the attendance of [X] upon the Family Consultant if considered appropriate by the Family Consultant.
5.That the Family Consultant and the parties shall have liberty to approach the Associate of the Judge to list the matter for any further directions and for that mention the Family Consultant shall have leave to appear via the telephone.
6.That the Family Consultant provide an oral report to the Court at 2.00pm on 17 June 2021 in the Federal Circuit Court of Australia at Brisbane.
7.That both parties are to appear in person at Court on 17 June 2021.
A further hearing was conducted in person at the Brisbane Registry before Judge Coates on 17 June 2021. The father represented himself on that date and the mother was represented by a solicitor. A further order was made for the parties to attend on the Family Consultant on 25 June 2021, and for the parties to ensure X’s attendance on the Family Consultant if that were considered appropriate by the Family Consultant.
A further hearing took place in person at the Brisbane Registry before Judge Coates on 25 June 2021. Again, the father represented himself on that date and the mother was represented by the same solicitor as she had engaged for the 17 June 2021 hearing. During the course of the hearing, the father sought adherence to the final orders and the mother sought to suspend the father’s time and communication with X. It was the mother’s submission on that date that, subject to the outcome of the continuing litigation in Country A, the father ought to provide evidence of him being available to spend consistent time with X. The Family Consultant gave oral evidence and was cross-examined at the hearing. That transcript was tendered into evidence.
On 25 June 2021, Judge Coates made orders pending further order on a defended basis setting out a precise mechanism for the father to spend time with and communicate by telephone with X, as follows:
1.That the child [X] born […] 2011 (“the child”) shall spend time and communicate with the father as can be agreed between the parties, but failing agreement as follows:
(a)Commencing 26 June 2021, by electronic video calls via WhatsApp each day at 6.00pm for the next six (6) days;
(b)On either 3 July 2021 or 4 July 2021, supervised for a period of up to two (2) hours at [J Consultancy, Suburb K] should [J Consultancy] be available to accommodate such supervised time, or if [J Consultancy] are unable to accommodate such supervised time, on a weekday during the child’s school holidays that [J Consultancy] are able to accommodate;
(c) On 7 July 2021, by electronic video call via WhatsApp at 6.00pm;
(d) On 9 July 2021, by electronic video call via WhatsApp at 6.00pm;
(e)On either 10 July 2021 or 11 July 2021, supervised for a period of up to two (2) hours at [J Consultancy, Suburb K] should [J Consultancy] be available to accommodate such supervised time, or if [J Consultancy] are unable to accommodate such supervised time, on a weekday during the child’s school holidays that [J Consultancy] are able to accommodate;
(f)Upon the father returning to [Country B], by electronic video call via WhatsApp each Wednesday and Sunday at 6.00pm.
2.That in relation to the child’s electronic video calls with the father pursuant to the above Order, the father shall initiate the call and in relation to the electronic video calls the mother shall:
(a) Ensure that the child is available to receive the call;
(b)Arrange for the child to call the father on the following night if, for any unforeseen circumstance, the child misses the call from father; and
(c) Ensure that the child has privacy during the conversation.
3.That the parties shall keep each other informed at all times of their contact telephone numbers and keep each other informed of any change within 24 hours.
4.That within five (5) days of the date of this Order, the parties shall register with J Consultancy, Suburb K] and complete an intake interview (if necessary) and attend to all other requirements of the [J Consultancy] to facilitate supervised time between the child and the father.
His Honour otherwise adjourned the matter for case management in November 2021.
The second Contravention Application
On 25 February 2022 the father filed the second Contravention Application alleging a further eight contraventions of orders by the mother, including that the mother failed to facilitate time between the father and X, that she did not facilitate X attending a Court Child Expert for the purpose of preparing a family report, and that she did not facilitate phone contact between X and the father.
The alleged contraventions as prosecuted
Charge 1 of the first Contravention Application – 15 March 2019
By way of his 2019 Contravention Application the father contends that the mother contravened Order 3(a)(i) of the final orders dated 1 March 2019 in that on 15 March 2019:
The [mother] without reasonable excuse refused to make [X] available at the changeover to spend time with the [father].
Pursuant to that Order, X was to spend time with the father from 5.00 pm on Friday, 15 March 2019 until 5.00 pm on Sunday, 17 March 2019 with changeover to occur at J Consultancy. It is striking that the first charge on contravention is as to the very first occasion the father was scheduled to exercise time with X being only two weeks after the consent orders were made.
The mother admits this charge but contends she had a reasonable excuse. It was uncontroversial and I find that the mother did not present X at J Consultancy on 15 March 2019.
It was the mother’s case that changeover had not been organised by J Consultancy on 15 March 2019. During the course of the hearing she referred the Court’s attention to an email sent by Ms P, the manager at J Consultancy, on 4 March 2019, such email being annexed to the father’s affidavit filed on 6 December 2019. It had the subject line “MANAGER UNAVAILABLE/OVERSEAS Re: Suspension of Services at [J Consultancy’s] Contact Centre – [Nellums & Clemen]” and recorded:
Please note that I am on leave from Saturday, 23rd February, 2019 - Tuesday, 19th March, 2019. I will not be available during this time to attend to any concerns that you have regarding supervised visits/changeovers or rosters. You may contact [Ms Q] during this time if you require assistance during this period on […]@[…].
For any IMPORTANT/URGENT matters, you may contact [Ms R] at the office (Tues-Thurs) on […] or email […]@[…].
If your enquiry is urgent, you are a current client and it is relation to a visit/changeover occurring within 24-48 hours (Monday, Friday, Saturday or Sunday ONLY), you may contact [Ms Q] directly on […].
Thank you for your understanding,
[Ms P]
Implicit in the mother’s case was that J Consultancy were not able to offer a changeover service to the parties so that time could not occur on 15 March 2019. The email of Ms P dated 4 March 2019 does not establish that contention.
In addition to the email above, further email correspondence from J Consultancy was put into evidence by each party. That correspondence recorded:
(a)On 6 January 2019, an email was sent by Ms P to the parties advising that J Consultancy would be suspending the parties’ access to J Consultancy’s services for a period of two months in circumstances where the mother caused the father to be served with “legal documents” at J Consultancy, in breach of the service agreement, and that this was not the first time that the mother had engaged in that conduct; and
(b)On 20 March 2019, a further email was sent by Ms P to the parties advising that their suspension period had been lifted, and advising that changeovers would be scheduled for the weekend of Friday 19 April 2019 to Sunday 21 April 2019 (being the Easter weekend), and Friday 17 May 2019 to Sunday 19 May 2019.
It almost beggar’s belief that the mother would consent to final orders, knowing that time was to first occur on 15 March 2019, if she knew (on her case) that the changeover service was not available. The suspension identified on the email dated 6 January 2019 had expired on 6 March 2019.
There was no evidence of either party having attempted to schedule changeover notwithstanding Ms P’s absence. Self-evidently, Ms P’s email records that Ms Q would be available to facilitate the changeover at J Consultancy on 15 March 2019. Order 3(a)(vi) provided that the parties could reach agreement in writing as to an alternative contact centre to facilitate changeover. There was no evidence of either of them engaging with the other to organise such service.
The mother gave no substantive evidence as to this alleged contravention, save to say that “time was not scheduled” for the relevant first weekend. That is not the case: time was scheduled by way of the final orders. Those orders created an obligation on each of the parties to take all reasonable steps to carry out the orders. That obligation means that the mother ought not to have been merely passive, but was required to take positive action to comply with the orders. There is no evidence that the mother responded to Ms P’s emails of 6 January 2019 or 4 March 2019, or that she took any further steps to comply with the final orders to facilitate the first period of time that X was due to spend with the father pursuant to those orders.
I find that the evidence does not establish that the mother had a reasonable excuse for the contravention on 15 March 2019. Hence I find that on 15 March 2019 the mother without reasonable excuse contravened Order 3(a)(i) made on 1 March 2019.
I further find that the evidence establishes that time did not occur in accordance with the March 2019 orders on the second scheduled occasion in April 2019, nor for the remainder of 2019. The father’s affidavit contained an email from the mother to J Consultancy dated 11 April 2019, advising J Consultancy that:
(a)That the father had not discussed with her visitation with X in April 2019 “directly”; and
(b)The visitation period for April 2019 fell during the Easter period and that the father had never requested to spend Easter with X to date.
Implicit in the mother’s email was that X would not be made available for the April 2019 weekend scheduled by way of the final orders. The mother accepted in cross-examination that after January 2019, she did not attend J Consultancy for the purpose of facilitating changeover for the father’s time with X for the balance of that calendar year. The dates for time to be spent pursuant to the final orders were plain and unequivocal. There was no aspect of difficulty as to knowledge of the precise dates the mother was required to ensure X was made available to spend time with his father.
Charge 4 of the first Contravention Application – 14 June 2019
The father contends a further contravention of the Order 3 of the final orders in that on 14 June 2019:
The [mother] without reasonable excuse refused to make [X] available at the changeover to spend time with the [father].
The mother admits this charge but contends she had a reasonable excuse.
Pursuant to Order 3 of the final orders, X was scheduled to spend time with his father between Friday 14 June 2019 and Sunday 16 June 2019.
It was the mother’s evidence and case that she was required to be in Country A to attend in person a Court date for the proceedings between the parties in that forum on 2 June 2019.
On 11 April 2019 the mother emailed J Consultancy to advise that she would not facilitate time between the father and X in June 2019. That email was annexed to the father’s affidavit filed on 6 December 2019 and recorded:
Dear [Ms P],
…
Please also be reminded (as I informed you in my previous email) that I will be in [Country A] during the third weekend of June 2019. I have copied [the father] into this email to remind him that he is also required by law to attend the Judgment Summons in [Country A] on […] 2019 and therefore the June visitation in the Order dated 20 March 2019 cannot be carried out.
The Court’s comments were that it is not acceptable for [the father] to continue to disregard [X] and my lives and expect to schedule visitation at the last minute so that we need to adjust our plans to accommodate him. The Court commented that [the father] should provide two-months prior notice and arrange his schedule in advance going forward. Furthermore, feedback was provided to [the father] that [X] is now older and it is confusing for [the father] to come in and out of [X]'s life from time to time. If [the father] does not recall or agree with the comments above he is at liberty to apply for the Court transcripts.
On the above basis, I do not believe that it is your responsibility/duty to contact [the father] about scheduling visitation and it should be his responsibility to arrange his schedule well in advance, if he genuinely wants to spend time with [X] and believes it is of benefit to [X]. This is especially the case given that you have made many complaints to the parties over the past three years about having to spend additional time on scheduling.
Regards,
[Ms Clemen]
It is not clear what, according to the mother’s email, the father was responsible for arranging. Her Case Outline which was marked as Exhibit 15, records the mother’s contention that:
22.The time between [X] and [the father in April 2019] did not occur due to [the father] failing to provide enough notice to [J Consultancy] and the address where [X] was to stay, pursuant to the order dated 1 March 2019 at paragraph 3(a)(v).
This provides insight into the mother’s apparent view that the father’s time with X pursuant to the final orders only “activated” upon him scheduling a visit. That is not the case. The final orders prescribed an exact and regular time for the father to spend with X each month (save for July, September and December) and during school holidays. That time does not vary. It does not depend on the father scheduling a visit “well in advance”, nor on any other factor: provision for the father’s time with X exists independently of any other future action by the parties. Order 3 was not expressed conditionally.
While the mother was in Country A, she left X in the care of the maternal grandmother. It was her evidence that the maternal grandmother lives in Brisbane, close to her home and X’s school.
I accept that the mother being in Country A could not personally deliver X to the scheduled contact on 14 June 2019. That, however, does not relieve her from her obligations pursuant to the final orders.
The mother did not identify in her affidavit evidence any reason as to why the maternal grandmother, with whom X was residing, could not take X to changeover on 14 June 2019. During the course of submissions, she said that:
It’s not she couldn’t make him available; she doesn’t want to get involved because of all the tension, because he has repeatedly lied. She doesn’t want to get involved and be on the receiving end of any allegations, and it has been so contentious.
(Transcript 30 September 2022, p 255, lines 4-7).
The maternal grandmother did not give evidence in her case. In any event, in circumstances where the mother accepted that her mother lives within five kilometres from J Consultancy, I do not accept that her reluctance to “be involved” grounds a reasonable excuse for the mother’s non-compliance with the final orders.
The mother further contended that it was J Consultancy’s policy that only the “resident parent” is able to conduct changeover. She gave evidence of her understanding that a term and condition of J Consultancy’s service agreement was that:
…unless you’ve got a person’s name in a court order as a third party to deliver the child, that the person who signs the agreement must deliver the child or there be some special arrangement.
(Transcript 30 September 2022, p 165, lines 31-33).
She provided no evidence from J Consultancy verifying or establishing that policy. J Consultancy scheduled contact between X and the father having received the mother’s email dated 11 April 2022, and knowing that the mother would not be in the country. That they did so seems counter-intuitive to the mother’s contention as to their policy requiring parents to personally undertake changeover.
The mother gave evidence of having offered make-up dates for the father to spend time with X in lieu of the scheduled time in July 2019. Her case was that she had “bent over backwards to offer [the father] a lot of make-up time… for that one occasion in June”. The father accepted that the mother had proposed nine alternate weekends on which she would make X available to spend time with the father between June and August 2019. He did not accept that she had “bent over backwards” to reschedule time. This was not further explored with the father further during cross-examination.
A series of emails between the parties between June and August 2019 were tendered into evidence by the mother and marked as Exhibit 10. The first of such emails was directed by the mother to the father, dated 20 June 2019, and recorded:
Please confirm if you agree to any of the following visitation dates:
19-21 July
26-28 July
9-11 August
16-18 August
23-25 August30 August to 1 September
If you don’t agree then please contact the parenting coordinator and future visitation arrangements can be negotiated through this service.
A further email sent by the mother to the father on 15 August 2019 was included in Exhibit 10. It recorded:
Dear [Mr Nellums],
… Please confirm if you are visitng [X] again.
Available dates:-
16-18 August
23-25 August
30 August to 1 September (Father’s day)6 to 8 September
Visitation cannot be facilitated on any other dates in September 2019 as I will be in [Country A].
[X] has (for the first time) asked if you will come to visit again or whether the visits have stopped forever. It is only fair to him that I answer this question. Please therefore confirm the date above that you prefer to schedule an if you will not be visiting [X] again then please advise me of the same as soon as possible and also [J Consultancy].
Regards,
[Ms Clemen]
The mother contends that, in circumstances where she had offered make up time to the father, it was not reasonable for the father to have filed the contravention application. Her submission appeared to be that so long as she offered make-up time, non-compliance with the final orders was acceptable. That contention is misguided. Parties do not have discretion to depart from clear orders without mutual consent. The mother was not permitted to unilaterally vary the time which X spends with the father.
I do not accept that the mother had a reasonable excuse to explain her failure to facilitate X spending time with the father in compliance with Order 3 of the final orders. I find that she intentionally failed to comply with those orders when she departed for Country A and made no arrangement to make X available at changeover in her absence. I find that the mother was aware of her obligations under the Order, which was clear and specific, and she made a decision not to comply with it.
Therefore I find that on 14 June 2019, the mother without reasonable excuse contravened Order 3(a)(i) made on 1 March 2019.
Charge 2 of the second Contravention Application – 17 June 2021
The next contravention pressed by the father is that on 17 June 2021, the mother contravened Orders 1 and 4 of the orders of Judge Coates made on 7 June 2021 in that:
The [mother] refused to bring our son to see the court appointed Family consultant [Mr L]. Her conduct resulted in Complaints about respondent conduct and behaviour by the Family report writer.
The mother admits this charge but said she had a reasonable excuse.
Pursuant to Orders 1 and 4 made on 7 June 2021, the mother was to attend and facilitate X attending upon Senior Family Consultant Mr L on 17 June 2021 for the purpose conducting interviews in the preparation of a Child Inclusive Memorandum to the Court. The mother attended the interview as scheduled, however she did not bring X.
The Child Inclusive Memorandum produced by Senior Family Consultant Mr L following her interviews with the mother and father (but not X) became Exhibit 2. Senior Family Consultant Mr L’s observations as contained in the Memorandum provide significant insight as to the mother’s perception of and attitude towards these parenting proceedings and are worth reciting:
8.I felt the mother was rather evasive in interview whereby she was inclined to respond to a question with a question of her own. She also had a tendency to externalise responsibility for her actions and attribute them to others. I suspect [the mother] finds it difficult to make concessions.
9.The mother produced a letter from a psychologist which she said justifies her decision to not bring [X] to today’s interviews.
10.I read the letter. I note there is no reference to anything [X] actually said in regards to attending the interview. I also note that the psychologist has only seen [X] once and also that his first interview was with the mother and her partner. The father has not been interviewed. I mean no disrespect to the psychologist but I find it hard not to think that he only has ‘one-side’ of the story.
11.I asked the mother what she thinks [X] might have said to me if he had come to the interviews. I explained that I probably would have asked him about his family and about his recollections of spending time with his father. She replied, “I don’t think he would have talked to you. He’s too anxious and traumatised”.
12.The mother said she believes the court has sufficient evidence to determine that it is in [X]’s best interest not to spend time with his father. When I said that it seems to me that the court does not have any current information about [X]’s views and wishes or about the nature of his relationship with his father, the mother said, “I think it does. It’s all in the past events”.
The mother put into issue the observations and opinions of the Court Child Expert. In circumstances where the Court Child Expert was not cross-examined, I accept her evidence.
The mother’s excuse for not bringing X to the interviews as reported to the Court Child Expert was grounded in a letter produced by a psychologist upon who X had attended.
The reasonable excuse that the mother contended before the hearing before me had nothing to do with any letter provided by a psychologist. Instead she contended that her reason for not bringing X to the interviews was that he had an “annual [event] at his school” which she described as “the moist important date on the diary”. It was her evidence that when she relayed to X that she would be taking him to the Court to speak with the Senior Family Consultant, he said to her:
Mum, I need to go to that [event]. It has been planned for a year. If I don’t turn up, my friends will be disappointed. They won’t be able to [participate]. I will let the whole team down.
(Transcript, 30 September 2022, p 224, lines 32-33).
Rather than explain to X the importance of the interview with the Senior Family Consultant, or encourage X about the possibility of spending time with his father at the interview, the mother instead said that she didn’t want “to distress X” and so she “made the call” not to facilitate his attendance.
Notwithstanding the mother’s knowing and purposeful disregard for the orders made on 7 June 2021, she nonetheless was of the view that she did comply with the orders because she attended the rescheduled interview with Senior Family Consultant Ms M on 25 June 2021 (after a firm exchange with Judge Coates on 17 June 2021 and further orders being made mandating her compliance). I find that the mother’s evidence on this subject matter is a window into her attitude to the authority of the Court’s orders.
I accept the mother did not comply with Orders 1 and 4 made on 7 June 2021. She did so 10 days after the orders were made.
The father has prosecuted his second Contravention Application by way of Pt VII, Div 13A of the Act. That Part deals with contraventions of orders made under the Act affecting children. The definition of an “order under [the Act] affecting children” is defined in s 4 of the Act to mean, among others, a parenting order and an injunction under ss 68B. It does not include an order for a parent to facilitate a child’s attendance upon a Family Consultant or Court Child Expert. Such an order is not a “parenting order” as defined by s 64B(1) of the Act. Notwithstanding the mother’s concession as to contravention of the Order 1 and 4 made on 7 June 2021, that concession was made in the context of an Application-Contravention made by way of Pt VII, Div 13A of the Act and not Pt XIIIA, Div 5 of the Act. It would be a denial of natural justice, subsequent to the closure of the case of each of the parties, to ground a finding as to contravention without reasonable excuse on this charge without giving them an opportunity to be heard and present any other evidence that may or may not have been available should the matter have proceeded by way of Pt XIIA, Div 5 of the Act.
I dismiss Charge 2 of the second Contravention Application.
Charge 4 of the second Contravention Application – 4 July 2021
On 4 July 2021, the father contends the mother contravened Order 1(b) of Judge Coates made on 25 June 2021, in that:
The [mother] did not allow [X] to enter the contact centre for court ordered access managed by [J Consultancy] resulting in an altercation between the therapist and the [mother] therefore cancelling the one hour supervised access.
The mother denied this charge.
It was the mother’s case that she had complied with Order 1(b) made on 25 June 2021 on 4 July 2021. It was her evidence that she drove X to J Consultancy on that date but that she was not able to “force him” to get out of the car to spend time with the father. She said during cross-examination that a staff member of J Consultancy greeted herself, X and her partner in the carpark of the centre because X had refused to go inside.
The mother tendered a copy of a document, which was identified as being a “short summary report” as to the attempted time spent on 4 July 2022. The document was dated 25 November 2021 and was co-authored by “the therapist who conducted the session with [the father] and [X]… and the General Manager”. The document became Exhibit 13. It recorded that on 4 July 2021, X “presented as anxious and agitated”, that he “was reluctant to leave the car” and disclosed that he “did not feel comfortable seeing his dad in person”. The further records that it was the therapists role to encourage X from the car to attend the scheduled visit with the father, but that in trying to do so, the mother and her partner resisted her by saying:
…words to the effect of “can’t you see he doesn’t want to go in, he is going to make himself sick if he goes to see his father. It’s clear her doesn’t want to see him.”
The report further records the counsellor’s caution to the mother to refrain from speaking in such a way in X’s presence, and X’s statement that he “just [wanted] to stay with [the mother]”, that he was happier with her, and that when he is with the father “he doesn’t really pay much attention to [him] as he has other children now”. Eventually the counsellor concluded the session, “due to [X’s] level of anxiety and agitation”.
It was the mother’s position that all that the order required her to do was to take X to J Consultancy, and nothing more. She submitted that:
I genuinely made every effort, and the fact of the matter is [X] didn’t want to see [the father], and this is out of my control. Even if the Court does not agree with my efforts, I did not wilfully contravene the order as I took [X], and it was on the advice of [J Consultancy] that I take [X] home that I listened…
I do not accept that submission.
The report from J Consultancy includes a summary of email correspondence between the mother and J Consultancy prior to the scheduled time in July 2021. It records the mother’s “concerns about the upcoming scheduled visit” and J Consultancy’s advice to her that:
…it is your responsibility to encourage [X] to attend the visits and get out of the car to meet with the therapist at [J Consultancy]. Children will not attend sessions unless a parent is supporting them to do so. It is not uncommon for children to be confused or reluctant to attend visits with a parent they have not seen in a long time.
To that advice, the mother responded that she was “aware of [her] responsibility to encourage [X] to see [the father]” but that he had said he did not want to do so, and that she would not “physically force him to as it is important [X] be able to trust and [rely] on one parent…”.
On 4 July 2021, following the cancellation of time, the mother sent a further email to the father copying Ms P from J Consultancy in. That email is reported in the summary prepared by J Consultancy to record the mother proposing that as a result of X “not coping at all emotionally” and being “low in energy”, there be a break in his time with the father until late November 2021.
Notwithstanding the mother’s repeated contention that X was anxious at the prospect of spending time with his father and that despite her best efforts, refused to do so, the Senior Family Consultant observed of X in her Child Inclusive Memorandum to the Court produced on 25 June 2022 (just over one week prior to the alleged contravention), that:
37.It was my impression that [X] did not appear anxious about the prospect of spending time with the father in the future. The mother reported that she was not opposed to this. It was my initial assessment that the mother appeared more anxious about [X] resuming time with the father and being interviewed today than [X] himself did, as was suggested by statements she made and non-verbal cues.
I infer and find that the mother did not encourage X to attend the scheduled time with the father on 4 July 2021. Rather, she undermined the process of X attending time with his father at J Consultancy on that date.
I find that on 4 July 2021 the mother without reasonable excuse contravened Order 1(b) made on 25 June 2021.
Charge 7 of the second Contravention Application – 13 October 2021
The final charge pressed by the father is a contravention of Order 2 of Judge Coates made on 25 June 2021, being that:
The [mother] has refused to answer the video calls ordered by court on Wednesday and Sunday 6:00 pm The [mother] has failed to call me back or arrange an alternative time to call as ordered by the court.
Last answered Call is Sunday the 10th of October 2021.
I have called 39 times as ordered since the 10th of October and none have been answered or responded. The [mother] refused to bring our son to the contact Centre to see the therapist and management to let them work with our son in preparation for the supervised access to take place.
The father did not give evidence as to making a video call or WhatsApp call to the mother or X on 13 October 2021, being the date of the alleged contravention.
I find that the mother has no case to answer on this charge of contravention. It is dismissed.
Penalty
Subdivision E of Div 13A Pt VII of the Act applies to contraventions which are categorised as “less-serious”. Section 70NEB(1) of the Act sets out the powers of the Court to make orders as to sanction in this circumstance.
The alternative to Subdivision E is s 70NFA of the Act, which applies in circumstances where the party who has contravened a relevant order of the Court “behaved in a way that showed serious disregard of his or her obligations under the primary order”. Section 70NEF(2) of the Act sets out the powers of the Court to make orders as to sanction in this alternate circumstance.
In McClintock & Levier (2009) FLC 93-401 identified that the focus of the Court in dealing with an Application-Contravention under Div 13A of the Act, must be in making orders which will enforce future compliance with its orders.
The father in submissions confirmed that he sought the imposition of a penalty so as to ensure the enforcement and implementation of the final orders. It was his contention that the mother had conducted herself by way of seriously disregarding her obligations under those orders and hence the sanctions available by way of s 70NEF(2) ought be applied, including that the mother enter a bond to comply with all existing orders, that orders be made for compensatory time. He did not specify the compensatory time sought, save advising that he could spend two-hour sessions at J Consultancy weekly if necessary. He made no other submissions as to the proposed terms or period of the bond.
The mother’s submissions in relation to penalty were brief. At least implicitly, she saw no requirement for the entry into a bond and saw no benefit to X in there being any compensatory time ordered.
In Daymond & Joslyn [2021] FedCFamC1F 2, McClelland DCJ helpfully set out the law in respect of penalties following contraventions of orders affecting children as follows:
24.While that the legislative provisions under subdivision E enables the Court to impose civil penalties rather than criminal penalties, it has been determined that it may be appropriate for the court to have regard to sentencing principles. In that respect, the Full Court in Winch & Jackson (2015) FLC 93-649 (“Winch & Jackson”) at [48], by reference to the decision of McClintock & Levier (2009) FLC 93-401, summarised the relevant principles which the Court is to consider, in respect to the imposition of a penalty arising from a contravention of the Act, as follows:
•The focus of a court in dealing with a contravention application under Div 13A of Pt VII is in making orders which will enforce future compliance with its orders.
•The court’s focus is on the individual party.
•A penalty imposed to deter other likeminded persons would constitute an error of law.
•The court can have regard to criminal sentencing principles.
•If there are multiple contraventions in relation to which the court determines to impose a “global” sanction, particular care is required to ensure the total sanction is not manifestly excessive.
•Reasons must be provided for the imposition of a particular sanction.
In considering what sanction or penalty is appropriate to impose in this matter, I have had regard to:
(a)Nothing in the definition of Div 13A, Subdivision E of the Act apply to the mother’s actions in the circumstances of this case. I find that she clearly understood her obligations pursuant to the orders, but elected to apply her own interpretation rather than the clear objective interpretation to those responsibilities.
(b)Specifically, each of the orders contravened (being made 1 March 2019 and 25 June 2021) recorded by way of the sealed orders that issued:
A.That pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
I find that the mother was clearly on notice as to the consequences that may follow if she contravened the said orders.
(c)The contravention on 15 March 2019 occurred on the first date of scheduled time to be spent pursuant to the consent order made 1 March 2019. The contravention on 4 July 2021 occurred on the first date of scheduled time pursuant to the order made 25 June 2021. The mother made no subsequent material effort to rectify these contraventions. Her application to discharge the primary orders was not made until 4 February 2022, being a lengthy period of time after the contraventions.
(d)Her cavalier attitude about compliance with the orders and a willingness to impose her own interpretation of the orders on and to obstruct their implementation was palpable. I find that she considers the orders of the court to be nothing more than suggestions or guidelines.
(e)The mother illustrated an indifference to the consequences of her actions on X and his relationship with the father. Her statement that she “brought [X] to the [J Consultancy] so there’s nothing else for [her] to do” ought not receive a modicum of endorsement and ought to be clearly dispelled. Notwithstanding the orders made by the senior judicial registrar on 22 July 2022, the mother is yet to complete any post-separation parenting course. I find that absent there being some sanction imposed on the mother to do so, she will not so attend.
(f)I find that it is of grave concern that the mother may, as recorded later in these reasons, refuse to respect and comply with the Court’s determination in its attempts to conclude the Pt VII proceedings relating to X.
An evaluation of all of the evidence as the matters recorded in these reasons justifies treating the contraventions as found without reasonable excuse as more serious in that I find the mother showed a serious disregard to her obligations pursuant to those orders. I find that the provisions of Subdivision F of Div 13A Pt VII of the Act apply in the circumstances of this case.
Although the father sought compensatory time, he did not make any firm submissions as to the terms of that time save that it could occur supervised by J Consultancy, or that he had made any enquiries of J Consultancy as to whether they would be able to facilitate such compensatory supervised time. I decline to make orders for such compensatory time.
I find that the imposition of a bond upon the mother will achieve the purpose of contravention proceedings, as identified earlier in these reasons, and a key objective of the Act – that is, compliance with the Court’s orders. The effect of the bond is that the mother would enter into a promise to do certain things as identified in the conditions of the bond. To further this objective, conditions of the bond will be that the mother will be of good behaviour, that she will comply with the Court’s orders, and that she will attend a post-separation parenting course directed at assisting her to engage with the obligations imposed on her by way of the Court’s orders.
The mother gave evidence that she has no real property or a motor vehicle, that she is in full time employment and that X’s school fees are paid by the maternal grandmother. There are currently periodic child support arrears payable by the father in Australia of $15,953.42 as at 15 September 2022. The mother contends that the father is indebted in the sum of $120,000 in respect of the Country A litigation by way of non-periodic child support arrears and costs orders. In the circumstances, there would be no utility in requiring the mother to enter a bond carrying surety or security.
The making of a bond for a period of two years will reflect the seriousness of the contraventions with a view to enforcing future compliance with the Court’s orders. If the mother complies with the bond, it will expire at the end of two years.
The significance of the bond from the mother’s perspective is that if there is a future contravention in respect of the orders, in which she is found to have contravened orders without reasonable excuse, then the present matter can come back before the Court at that future time for reconsideration of the penalty to be imposed.
So that it is clear to the mother, the purpose and effect of the entry into the bond is to avoid or minimise the prospect of she failing to comply with the Court’s orders as to X spending time with and communicating with his father over the next two years.
Orders cannot be made forcing the mother to enter the bond. In the event she refuses to enter the bond, I will be obliged to relist the matter to consider alternatives as identified in s 70NFB(2) of the Act. Some of these alternatives are harsher than the penalty by way of entry into a bond on the terms proposed. They include the power to make a community service order, to order further make up time, to impose a fine or even to consider a sentence of imprisonment. The mother needs to be aware that in the event she breaches the bond these penalties may be available for consideration by the Court.
I am satisfied that the proceeding paragraphs in these reasons adequately explain to the mother the purpose of the bond, and its consequence if she fails to enter into the bond or fails to act in accordance with the bond. The mother would do well to seriously consider the consequences should she decline to enter into the bond. Again, she is directed to the necessity for the Court to reconsider the appropriateness of the other alternative powers available to the Court as identified in s 70NEF(2) of the Act.
Variation to the orders
The law
Section 70NBA of the Act provides:
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b) there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
Pursuant to s 65D(1) of the Act, subject to certain sections, a court may make such parenting order as it thinks proper. Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. The matters which the Court must consider in determining what is in the child’s best interests are set out in s 60CC. The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. They include issues relating to the child, being their views, level of maturity, culture and relationships, issues relating to the parents going to their capacity and attitude towards parenting, issues of family violence and practical issues. I will refer to those which are relevant in this case.
Meaningful relationship
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.
It is uncontroversial that the mother and X have a strong, loving relationship with one another and that the mother has been X’s primary carer for his life.
In circumstances where the father has not spent time with X for approaching four years, the best evidence available to me as to the nature of their relationship is contained within the two Child Inclusive Memorandums dated 17 and 25 June 2021 respectively, and the Specific Issues Report dated 6 September 2022 tendered into evidence.
As recorded, each of the parties and X met with Ms M for the preparation of the second Child Inclusive Memorandum on 25 June 2021. That report records that each party agreed that X “does not have a strong relationship with the father because of the inconsistent and infrequent time [X] has spent with him,” but (as recorded earlier in these reasons), that X “did not appear anxious about the prospect of spending time with the father in the future”.
I accept that X’s current relationship with the father at this time is tenuous. However, I find consistent with Ms M’s observations, that X is open to having a relationship with his father. On the mother’s proposed orders, such relationship will not be possible.
X met with Ms M, a Court Child Expert at the Brisbane Registry, on 15 August 2022. During the course of his interview with Ms M, X consistently referred to the father by his name as “Mr [Nellums]”. When queried by Ms M he said he did not know why he did this. He expressed to Ms M that:
6.[X] thought he last saw his father about “Four years” ago. [X] could only remember that his father took him to “Expensive hotels and let me do whatever I wanted”. [X] did not feel able to tell me whether he enjoyed spending time with his father because he could not remember what they did together.
7.[X] thought that his father has not seen him for four years because “He probably has something more important to do”. [X] was unsure why he thought this but said his mother told him, “He didn’t want to see me more or anything”. [X] said his mother told him she was “Going to Court (and) arguing (because) he has not come to see me”. [X]’s tone was lowered, he fidgeted slightly and looked away, which suggests he may have been upset. When asked how he felt about his father not wanting to see him, [X] said, “Not too bad”.
The mother submitted during hearing that Ms M inaccurately recorded what was said to her by X, and that if it was accurate, then X had misrepresented what the mother had said to him. She contended that she would not have told X that his father did not want to see him, but that she did say to him “he hasn’t come to see you in a long time”.
The mother confirmed in cross-examination that she has made a complaint about Ms M to the Court but was allegedly advised that the complaint will only be considered formally after the conclusion of these proceedings.
It was the mother’s position notwithstanding the unchallenged expertise and experience of Ms M, and the fact that her evidence was untested, that her report was nonetheless incorrect. I reject that assertion. Again, Ms M was not required for cross-examination by either party. No persuasive submission was made as to why I should reject her evidence. Hence I accept Ms M’s observations and opinions as contained within the Specific Issues Report.
Ms M’s discussions with and observations of X caused her to opine that:
12.[X] appears to know that his parents are in Court because his parenting arrangements are disputed. Sadly, in my opinion, it appears that [X]’s dominant belief is that he is not important enough for his father to spend time with him. It would also appear that the mother has influenced [X]’s belief that his father “Does not want to see me”.
13.From his presentation, combined with statements [X] made, it would appear that [X] might have been upset by his father’s absence in his life. [X] is likely to feel rejected and abandoned by his father. This may have a detrimental impact upon [X]’s self-esteem, sense of identity and belonging as well as his emotional wellbeing. It may extend to [X]’s ability to form healthy interpersonal-relationships in the future. Additionally, if [X] has the opportunity to meet his father in the future, the potential exists that his dominant construct may be at odds with how his father presents. Amongst other things, this could lead to him questioning the nature of his relationship with both his father and mother.
I accept Ms M’s evidence on this issue. I find that X feels a sense of rejection by his father and that such sentiment may have detrimental impacts on X’s sense of identity in the future. It is essential that such an outcome is avoided.
Protection from harm
The mother’s case as to the need to protect X from harm was both inconsistent and confusing. There was a lacing in the mother’s case and evidence as to aspect of unacceptable risk to X being in the father’s care prior to March 2019. This was counter intuitive to:
(a)Her express acknowledgement in agreeing to the terms of the consent orders made 1 March 2019 that X would not be exposed to an unacceptable risk in spending weekend and school holiday time with his father; and
(b)Her case that throughout the second half of 2019 she was proposing “make up” that she contended were appropriate.
That said, she continually reverted during the hearing before me to events that occurred many years prior to the March 2019 orders allegedly grounding an unacceptable risk.
The mother during the cross examination of the father was reckless in her interpretation of objectively plain and clear documents and made scandalous allegations absent a scintilla of evidentiary foundation. These included but were not limited to:
(a)Her broad assertion that the J Consultancy agreements entered by the parties prescribe that only she can take X to the J Consultancy’s premises for transition to the father. There was simply no evidence of same.
(b)Putting to the father that he was being investigated by the Department of Home Affairs for identity fraud. The mother conceded that she did not have a single document to support this allegation.
(c)Putting to the father that he was charged with possession of an illicit substance in early 2022. The police documents tendered into evidence by the mother record them finding an empty bag in the father’s vicinity at a hotel containing what they believed may be illicit substance residue and that this matter is yet to be finally determined, it being listed in the magistrates Court in late 2022. The mother put to the father that on the police facts he would likely received a sentence of imprisonment. There was simply no foundation to put such contention. The mother later conceded that at best it was likely that if penalised, the father may receive a modest fine.
(d)That the father had no interest in having a relationship with or spending time with X. This has been a recurring theme of the mother’s case prosecuted throughout the proceedings. For example, Ms M’s Memorandum dated 25 June 2021 records her perspective that “the father was dis-interested in [X] and did not prioritise his needs”, that he “regularly cancelled visits, that he did not support [X]’s extra-curricular activities, social commitments or give him his prescribed medication when [X] spent time with him”. During the hearing she was that the father is “a father that doesn’t want to see his son”. I reject that contention. It is nonsensical in the face of the father’s persistent and continuous effort to spent time with X across two forums (in Country A and Australia) over the last 11 years. The evidence establishes and I find that the mother has taken almost ever avenue available to her to prevent time from occurring in accordance with the orders of the Court.
(e)That there is a need to protect X from the father because of his diagnosis of ADHD. There was no evidence as to X’s presenting symptomologies, the terms and content of his current treatment, or how it would impact on him spending the time with his father in the terms of that agreed to in March 2019.
(f)That the father’s “character and lifestyle” presents as an issue in that he allegedly spends money in nightclubs, uses drugs, and engages “in risk taking behaviours” which present a “possible influence” on X “at an impressionable age”. There is no evidence of the father engaging in risk-taking behaviours that would present a risk to X. There is no historic evidence that the father has placed the X at risk.
(g)That the father has deficient emotional capacity to care for X’s needs. Again, there is simply no evidence to support that contention.
(h)The mother speculated that the father would not be able to obtain a visa to travel to Australia in the future and hence would not be able to comply with the final orders (or any further orders for time) on an ongoing basis. There was simply no evidence to ground a finding that the father would be prevented from obtaining a visa to Australia as he has historically achieved to date.
On the evidence I reject the mother’s case as to X being exposed to an unacceptable risk should he exercise time with his father by way of the regime contained in the orders made 1 March 2019. I find the mother’s case as to risk to be speculative, fanciful and absent evidentiary foundation.
Additional considerations
I accept that X has expressed uncertainty as to spending time with the father. He reported to Ms M that he was “not sure” how he felt about spending time with his father, as recorded in the Child Inclusive Memorandum dated 25 June 2021. Just over one week later, he was allegedly so anxious to attend time with the father that J Consultancy concluded the scheduled session with him. In September 2022, Ms Egan recorded that:
8.Even if [X]’s father wanted to see him, [X] told me that he would “Probably not want to see him cause he has regularly not come (to visit). He’s not really part of my life”. [X]’s expectations for someone who was ‘part of his life’, was “Checking in every day” and “Spending more time” with him.
9.[X] understood and did not appear to mind that if his father is absent, he would not be involved in important milestones of his life, for example, if he was to have children of his own.
10.[X] was “Not sure” how his mother would feel if he spent time with his father.
11.[X] did not think his father could do anything differently for him to want to see him in the future. [X] said, “He probably wouldn’t have time anyway”.
I give the views expressed by X to Ms M reduced weight as to his underlying wish, in circumstances where it is plain that X is uncertain as to how the father fits in to his life and is conflicted as to how he feels about that. There is no evidence that X is fearful of his father or would feel unsafe being in his care. However, I accept and find that X has some reluctance towards spending time with his father.
I am satisfied that each of the parties are loving parents who are each highly motivated to be part of X’s life. As explained above, I reject the mother’s assertion that the father is not interested in having a relationship with X. The father has now participated in the Australian proceedings as to X’s parenting since 2014. Notwithstanding the mother’s non-compliance with orders, he has continued to prosecute his application to spend time with X.
The father’s capacity to participate in the long-term decisions relating to X and to communicate and spend time with him has been severely constrained over the course of these proceedings. However, I am satisfied on the evidence before me that the father has taken the opportunities to do so when they have been made available to him. Further, there is no evidence that no evidence that the father would not be able to care for X physically and emotionally over the period of time. I accept the father’s evidence and find that he will ensure he is available in Australia to spend time with X in accordance with the regime prescribed by the final orders.
Notwithstanding the mother’s love and devotion to X, I find that she is deficient in her child focus and encounters difficulty in placing what is best for X above her fixation on excluding the father from his life.
The mother gave evidence of co-parenting X with her ex-partner, the father of her 21 year old daughter. It was her evidence that her ex-partner lives between Country A and New Zealand and spends significant time in the S Region for work. Notwithstanding that her ex-partner also lives overseas, the mother facilitates X spending time with him regularly and it was her evidence that:
THE MOTHER: When he was here last they had – I think he was here for two weeks altogether. They spent – he always gets an apartment in [Suburb T], so he stayed in the apartment for a weekend and then I recall that trip – I think he took him to one of the games down the coast, and so they had a place down the coast and [Ms U] joined them. Like, one of the games of cricket or something; I can’t recall.
That the mother is content and able to promote X’s relationship with her prior partner but is unable to make the same accommodations for X’s own father is demonstrative of the mother’s absence of capacity to promote X’s relationship with his father and X’s bests interests.
During the course of cross-examination, the mother was asked whether she understood that Court orders are enforceable and need to be carried out. Her response was:
THE MOTHER: I’m aware that any court order is enforceable. Yes. Okay? But also, there’s the flip side that if they’re not in the best interests of a child, you – you have the right to apply for a variation of those orders as well. So yes, an order… is an order to follow, but there’s – there’s, you know, the law is very broad in that regard.
I find the mother’s response is indicative of her cavalier attitude to the Court’s orders. Throughout the mother’s evidence and submissions, a theme developed as to how her prism of belief shapes her capacity to read orders that are in plain English, and reverses (in her mind) the clear obligations created in orders such that they become mere guidelines that she can vary at her own whim.
The mother did not attend the hearing before the judicial registrar on 17 June 2022. It was her evidence that she had received leave from the senior judicial registrar not to attend on that date. That assertion was made absent evidentiary foundation.
As recorded, the mother at the time of the hearing before me had not attended a post-separation parenting course as ordered by the senior judicial registrar on 17 June 2022. During her cross-examination, she said that the order was stayed. That evidence was incorrect. When I asked the mother where she derived that understanding from, she said that she hadn’t read the orders correctly because:
I have been so stressed. I’ve had very little sleep. I have been juggling working full-time, my staff commitments for two days this week, [X]’s [sport], trying to prepare for the trial, all the stress about the contravention. I’m sorry there’s an oversight. I’m human and I’m not perfect and I can say I did not understand that I was required to do a parenting course.
I do not accept the mother’s contentions on this matter. The order of the senior judicial registrar was clear and unambiguous. The mother conceded that in June 2022 she had managed to file a number of documents in the Country A proceedings, including an affidavit on 16 June 2022. There was no explanation by the mother as to why she was able to prosecute her claim in that jurisdiction but was not able to engage fully in the proceedings in this jurisdiction.
So that it is clear, a positive obligation exists for parties to comply with and facilitate parenting orders, including genuinely encouraging time to be spent and communication.
It is necessary for orders promoting X’s best interests to be made so that the mother:
(a)Acts in a way that prevents frustration of the orders; and
(b)Allows her to understand that token compliance with the orders is not sufficient.
The mother presented as blinkered and fixed in her position on X spending time with the father.
Each of the parties presented as highly burdened by the long-standing conflict between them. The polarised and entrenched conflict of the parties, including the father blocking the mother’s email (which does him little credit) impacts on their ability to prioritise X.
I am mindful of the history of conflict between the parties, and of a lengthy period of their default position being a failure to agree. Any orders regulating the future parenting of X must be firm and unequivocal and crafted to reduce any further potential of conflict between the parties.
X has now not spent time with his father for in excess of three years. The terms of their relationship are delicate, and need to be carefully scaffolded moving into the future. In the circumstances, it is in X’s best-interests for there to be a suspension of longer block-periods of time with his father until his weekend time has been effectively reintroduced. It would not be in his best interests to impose a seven-day block period of time which by way of the final orders would commence on the first Saturday of the gazetted Queensland Christmas school holidays in December 2022. By way of the final orders, the next block period of time would occur in the gazetted Queensland school holidays commencing on 23 June 2023.
There is no evidence that the prior intake of the parties and X into J Consultancy requires renewal, however, to err on the side of caution I shall order that the parties do all such things to ensure their engagement with J Consultancy expeditiously.
The orders made 1 March 2019 as to electronic communication between X and his father are vague and cannot be enforced. Orders will be made to ensure weekly electronic communication occurs between X and his father that clearly specify the role of each parent to facilitate same. One occasion each week will ensure that such communication does not impose of X’s school and extracurricular commitments or becomes burdensome while ensuring X is aware that his father maintains interest in him and what is occurring in the his life.
Other parenting orders sought
The mother sought an order in the following terms:
5.That the father be prohibited from making any further applications to the Federal Circuit and Family Court of Australia without leave of the Court.
The mother did not identify the source of power for such an order. It could be made by way of ss 64B(2)(g) or 102QB of the Act. During the hearing and submissions I instigated as to whether or not an order in the terms sought by the mother should be made against the both parties. There was some exchanges during the hearing and submissions with each of the parties as to the provisions of s 102QB.
The father’s position was broadly that the long standing conflict and dysfunction in the relationship between the parties has generated a current circumstance where by the mother is convinced that it is in X’s best interest to have no relationship with him. In those circumstances the father agreed to the making of an order in the general terms as sought by the mother provided it restrained both parties from commencing any further proceedings as to the parenting of X without first obtaining leave of the Court. The father’s position was articulated and constructed in terms of the proposed order being a parenting order, and not an order pursuant to s 102QB.
The mother’s position and submissions were similarly articulated and constructed in terms of the order she proposed being a parenting order and not an order pursuant to s 102QB. In the circumstances, I will proceed on the basis that the source of power for the making of any such order is grounded from s 64B of the Act.
Background to the Australian proceedings
The conflict and dysfunction in the litigation between the parties in Australia has a tortuous history.
On 16 December 2014 the mother filed an Initiating Application in the Federal Magistrates Court in Brisbane in respect to what was expressed by her as “child maintenance”. That application was determined by way of a judgment delivered and orders made by Judge Denmack on 1 July 2015.
On 20 October 2015, the father filed an Initiating Application seeking orders in respect of the parenting of X, including:
(a)That he and the mother have equal shared parental responsibility for X;
(b)That X live in Australia with the mother;
(c)That X spend time with the father each month and during school holidays, and be permitted to travel overseas with the father.
The mother filed a Response to that Initiating Application on 11 December 2015 seeking orders in the following broad terms:
(a)That she have sole parental responsibility for X;
(b)That X spend time with the father in Australia; and
(c)The father be restrained from removing X from Australia.
The proceedings were listed for a first hearing date before Judge Demack on 25 February 2015. On that date procedural orders were made as to the filing of material directed to both the parenting and child support matters, and setting the matter down for an interim hearing on 13 May 2015 in respect to the discrete issue of X’s schooling.
The trial before Judge Demack after the parties settled the parenting proceedings on a final basis.
The father recommenced parenting proceedings by way of an Initiating Application filed on 20 October 2015. Those proceedings continued and were initially listed for hearing on 10 March 2017. That hearing date was vacated upon the proceedings being transferred to the Family Court by Judge Demack, in light of the mother filing an Amended Response seeking orders that she be permitted to relocate with X from Australia to Country C. At that time, the Family Court generally heard cases in respect to international relocation. A Senior Registrar made an order for an Independent Children’s Lawyer and adjourned the proceedings to 30 May 2017.
The matter was listed for final hearing for four days commencing on 18 September 2018, and a single expert witness was appointed to prepare a report as to the relevant laws of F State, Country C.
On 25 May 2018, Bauman J vacated the final hearing dates in September 2018 after being advised that the parties had reached an in-principle agreement to resolve the proceedings. The compromise did not eventuate. The mother re-listed the matter, pressing her relief to relocate X to Country C.
On 22 January 2019, an order was made by consent and on a final basis that X live with the mother. A further consent order was made placing X on the Airport Watch List. Other orders were made on that date on a defended basis, including setting the matter down for final hearing in March 2019 for determination of the discrete issues as to parental responsibility for X and the time-spent between the father and X. By this stage, the mother had abandoned her application to relocate to Country C with X, the orders made on 22 January 2019 noting that:
A.…the mother expressed an intention to pursue at some future time a wish to relocate to [Country C] with [X], but when that is possible is not currently certain.
The final orders were made on 1 March 2019 following the trial before Baumann J.
On 21 August 2019 the mother again commenced proceedings in the Federal Circuit Court by way of an Initiating Application. She sought to have X’s name removed from the Airport Watch List, and that she be permitted to travel to Country G and New Zealand with X. The father did not file a Response to this Initiating Application.
On 4 December 2019, the mother’s Initiating Application came before a judge of the Federal Circuit Court. The father did not attend Court on that date. It was not clear that he had been served with the mother’s Initiating Application prior to the listing, or that he was aware of the listing. In his absence, orders were made on that date:
(a)Discharging the orders made on 22 January 2019 restraining the parties from leaving Australia with X and placing him on the Airport Watch List;
(b)Permitting the mother to leave Australia with X; and
Dispensing with the formal requirements of service of the mother’s Initiating Application and associated material on the father.
The mother said during submissions on this subject matter, “I’m exhausted, it has to end”. She indicated that she was fearful and worried about “what would happen next” and that she was under “constant attack, and under the spotlight”. In those circumstances it was expected that the mother would agree to an order being made in the terms as generally she sought against each parent.
During the course of the mother’s cross-examination of the father, the following exchange occurred:
HIS HONOUR: [Ms Clemen], if we made orders that time occur on Saturday, would that cause you a problem?
THE MOTHER: Yes.
HIS HONOUR: Right. It has got – so your case, really, has nothing to do with, does it, whether a contravention application is filed in the middle of 2019 or December 2019, does it?
THE MOTHER: Well, the biggest mistake I’ve made is not filing my own contravention application for the 77 occasions that he hasn’t come, and that’s my biggest regret, because I’m now – as I said, the story has been – it has been inverted against me, and that’s, you know, the biggest – I should have made it as soon as I arrived in Australia in 2014 when he didn’t come and every time after he didn’t come, but it wasn’t a good use of court time.
Notwithstanding the mother expressing a desire for the litigation to be concluded, during the course of submissions she said:
HIS HONOUR: …What do you want to say about whether an order be made that both of you be restrained from filing any further applications without leave?
…
THE MOTHER: I don’t oppose having to seek leave. I don’t
HIS HONOUR: Okay.
THE MOTHER: Look, if the orders are discharged, then I will have no reason to come back to the court.
HIS HONOUR: Sure.
THE MOTHER: So I don’t see an issue – I don’t take issue.
HIS HONOUR: But what if they’re not?
THE MOTHER: Then I will be back in the court, as I said, within a month or two, because the minute he contravenes, I will take out an application, because as I’ve said, my mistake was I didn’t take out the applications against him for contravention when he contravened 170 times; I should have at some point…
The mother’s concession that if the Court did not make orders in the terms she sought, she would continue to litigate the matter, was an insight into her persistently litigious approach to the parenting of X.
It is important to recognise that the touchstone at all stages of the exercise of jurisdiction pursuant to Pt VII of the Act is the best interests of X. This is made clear in s 69ZN of the Act, which sets out the principles for conducting child-related proceedings. Relevantly, the first principle provides that, in making decisions about the conduct of child-related proceedings, “the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.”
Those principles apply to the exercise of discretion at all stages of a proceeding, including in considering an application to vary parenting orders in the context of contravention of parenting orders proceedings. The Full Court has repeated on many occasions that the best interests of the child are not served by repeated applications to vary parenting orders, as has been the circumstances in this case. As long ago as Freeman & Freeman (1987) FLC 91-857, the Full Court explained at 76,470:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. … [O]nce the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being.
Relevantly, s 64B provides that a parenting order may deal with:
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
In Sandex & Bondir (No 2) [2017] FamCAFC 130 at [11]–[12] and [31]–[32], the Full Court accepted the appropriateness of orders pursuant to s 64B(2)(g) of the Act restraining the making of any application under Pt VII of the Act in relation to children without first making an ex parte application seeking and obtaining the leave of a judge. Such an order focuses upon the impact of ongoing litigation on the best interests of the child as opposed to whether there had been vexatiousness by one party in the conduct of the litigation. It is to be accepted, however, that those two issues may be interlinked (see Cardus & Lavrick [2020] FamCA 579 at [59]).
As recorded earlier in these reasons, these parties have consumed an expediential and disproportionate share of the Commonwealth’s resources by way of judges, delegated judicial officers, counsellors and other litigation stakeholders over the past eight years. That disproportionate application of Court resources at the expense of other litigants requiring the Court’s assistance is inconsistent with the mandatory obligations pursuant to ss 67 and 68 Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and r 1.04 of the Rules. As was reinforced by Order 1 made on 8 August 2022, parties are required to conduct proceedings in a manner consistent with the overarching purpose of the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
To my mind it is imperative, in promoting the best interest of X and for the benefit of the parents of X and so as to mitigate the ongoing disproportionate use of Court resources, that any matter as to the future parenting of X be finalised as best as can be achieved in the circumstances by way of this determination. Continuing and seemingly endless and inconclusive litigation cannot be permitted to continue or to be endorsed. It is simply destructive, especially for X.
I take into account and give significant weight to the statements made by the mother in submissions as to her driven and blinkered intention to further and again litigate parenting issues within the next few months if she does not achieve her objective by way of this determination.
Having regard to those considerations, I am satisfied that it is appropriate to make the order sought by the mother to apply as against both parents pursuant to s 64B(2)(g) of the Act in respect of any application relating to the parenting of X pursuant to Part VII of the Act.
The purpose of the order is not to impose any punishment for past litigious misdeeds; it serves instead to shield X, the parties and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless claims or claims that have sought to re-litigate something that has already been determined in previous proceedings as has occurred over the unfortunate history of litigation as to X in this country. It will ensure a barrier exists for an objective determination to be made in chambers as to the commencement of further parenting proceedings which lack reasonable grounds or may be an abuse of process including where the proceedings will bring the administration of justice into disrepute.
The order does not preclude the parties from seeking leave to institute Pt VII proceedings, but any such application will be considered without the other party being involved. The other party will only be involved if the court considers there might be some merit or utility in the proposed application and, in those circumstances, the moving party will be ordered to serve the proposed application on the other party so that they may be heard in the usual way.
Recovery orders
The father sought that a recovery order issue and lay in the Registry to be activated in the event the mother failed to comply with any current or other orders made as to him spending time with X. The mother heatedly opposed such order.
In circumstances where the mother is to enter a bond the making of such a recovery order is an unnecessary and blunt instrument at this time to secure future compliance with orders, especially in the circumstances of the current tenuous relationship that exists between X and his father. To my mind the orders identified earlier in these reasons should be sufficient to ensure the mother’s compliance with the time spent and communication regime without occasioning any further level of trauma. I decline to make a recovery order in the terms as sought by the father. A recovery order should only be made under the close supervision of the Court. The impact of the execution of a recovery order at some unknown time in the future could occur without adequate oversight from the Court. That supervision ought to be available to ensure that no more harm is done to X than is necessary in seeking to enforce the Court’s orders.
I accept that there is some merit in the father’s case as to X needing to be aware that his father is seeking to be a part of his life and wants to spend time with him. It is the father’s proposal that X would further spend future time with the father’s current partner and his other children. The father says and I accept there is some risk that X has been led to believe that his father does not want to have a relationship with him and is not interested in him. An order will be made for the Court Child Expert who has prepared two of the more recent reports identified earlier in these reasons to attend upon X and to explain to him in a child focused manner the terms of the orders that have been made for his father to spend time with him and to communicate with him and the reasons for those orders. This will avoid the mother providing any jaundice interpretation of those matters to X. An order will be made for the mother to cause and facilitate X to attend upon the Court Child Expert at 9am on the 1 November 2022 at the Brisbane Registry of the FCFCOA.
Further orders will be made for the parties within seven days to provide a sealed copy of the final orders and these orders together with my reasons for judgment to J Consultancy, and for the parties to undertake any further intake process to ensure J Consultancy can facilitate transitions. The court requests that J Consultancy, to the best of their capacities, assist the parties in complying with the orders by making their services available for changeover to occur at the times prescribed by the orders.
Both parties, either by way of the documentation filed or in the course of the hearing indicated they would seek costs. No submissions were made as to costs. Orders will be made permitting the parties to make submissions in writing should they consider an order for costs is justified in the circumstances. The parties are directed to the provisions of ss 117(1), 117(2A), 70NFB(1) of the Act.
Conclusion as to parenting matters
The Court expresses its hope on behalf of X that this determination will now mark the end of the litigation between the parents. It is time for the parents to move on with their lives, and for X to have the opportunity to explore a meaningful relationship with his father.
The mother’s enforcement application
The mother by way of her Application-Enforcement filed on 1 August 2022 in the FCFCOA (Division 1) (“the mother’s Enforcement Application”) seeks orders to recover arrears of a periodic child support assessment payable by the father in respect of X. Her affidavit filed on 19 September 2022 annexed a certificate issued by the Child Support Agency pursuant to the Child Support (Registration and Collection) Act 1998 (Cth) (“the Child Support Act”). That certificate is prima facie evidence of:
(a)The fact of the registration of the Child Support liability payable to the mother by the father; and
(b)That the registration of the Child Support liability payable by father is by statutory operation a debt due by the father to the Commonwealth. Hence that mother is not entitled to directly enforce the payment of any amounts due from the father (see s 30 of the Child Support Act); and
(c)The sum of $15,953.42 is due and payable by the father by way of arrears of periodic child support as at 15 September 2022.
The mother seeks in this case, pursuant to s 113A of the Child Support Act, to directly enforce against the father payment of outstanding arrears of the registered periodic child support.
When the matter came before me on 8 August 2022, I provided notice to the mother as to:
(a)The requirement for her to comply with ss 30 and 113A of the Child Support Act; and
(b)The jurisdictional requirements for child support enforcement applications set out in the FCFCOA Act.
On that date I invited the mother to file a Notice of Discontinuance of her Application-Enforcement on a without prejudice basis. She declined to do so.
The mother’s affidavit records the forwarding to the Child Support Agency a copy of the orders made on the 8 August 2022 confirming the fact of her filing her application-enforcement of the mother and its listing for hearing on 29 September 2022. I make no finding as to the mother’s standing to enforce the recovery of the arrears of child support.
I note that:
(a)The enforcement power of the court is highly discretionary and may not be exercised in this case; and
(b)The Child Support Act vests the Child Support Agency with extremely broad powers of enforcement for the collection of arrears of child support to both federal and state courts, including those available under the Act and the Rules. The Child Support registrar has the power to prohibit the father from leaving Australia unless satisfactory arrangements have been made for any outstanding child support liability to be wholly discharged by way of a departure prohibition order. The registrar could require the father to provide security for payment of the liability. Importantly the registrar's power to make a departure prohibition order is an administrative act and not the exercise of judicial power (see Hunter & Child Support Registrar [2017] FamCAFC 259). In the event the father attends to spend time with X, such an order may prevent him leaving Australia until the outstanding arrears are satisfied, hence avoiding any further litigation between the parties; and
(c)There is no evidence as to any unsuccessful attempts by the Child Support Agency to enforce any unpaid arrears as certified against the father; and
(d)There appears some dispute if the liability for arrears remains the subject of an administrative or Administrative Appeals Tribunal review or appeal procedure.
Section 50 of the FCFCOA Act records:
Part 3—Certain proceedings not to be instituted in Federal Circuit and Family Court of Australia (Division 1)
50 Prohibition on instituting first instance family law or child support proceedings
(1) A person must not institute family law or child support proceedings (other than appellate proceedings) in the Federal Circuit and Family Court of Australia (Division 1).
Note. For the institution of proceedings other than family law or child support proceedings, see section 62.
(2) If proceedings are instituted in the Federal Circuit and Family Court of Australia (Division 1) in contravention of subsection (1), then:
(a) unless the proceedings are transferred to the Federal Court, the proceedings are, by force of this subsection, transferred to the Federal Circuit and Family Court of Australia (Division 2); and
(b) the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.
The proceedings instituted in this Court by the mother pursuant to the Child Support Act were filed in contravention of s 50 of the FCFCOA Act, and by operation of the section will be transferred to the FCFCOA (Division 2). A listing in that Court has been secured for a judicial registrar at 12.00 pm on 8 November 2022. It will be a matter for that Court to determine whether the mother has achieved the evidentiary threshold contained within the child support legislation to prosecute her application and as to whether that Court exercises discretion to enforce any payment of periodic child support arrears.
Conclusion
For all of the above reasons, I make orders as set out in the forefront of this judgment.
I certify that the preceding two hundred and four (204) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 October 2022
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