Papp & Myers (No 2)
[2022] FedCFamC1F 937
Federal Circuit and Family Court of Australia
(DIVISION 1)
Papp & Myers (No 2) [2022] FedCFamC1F 937
File number: SYC 5372 of 2018 Judgment of: HENDERSON J Date of judgment: 2 December 2022 Catchwords: FAMILY LAW – CONTRAVENTION – Reasonable excuse – Where the mother was found guilty at a prima facie level of contravening final orders on 18 occasions – Where the contraventions are in relation to the child spending time with the father and consultation on the schooling – Where the father pressed for a finding the mother did not have a reasonable excuse for nine counts – Consideration of reasonable excuse – Finding the mother guilty without reasonable excuse in respect of all nine counts – Penalty – Where the father sought compensation for expenses incurred and a good behaviour bond without surety for 24 months – Where the father also sought the final orders be varied – Where the mother conceded a bond was an appropriate penalty if reasonable excuse not found and opposed any order for compensation – Consideration of appropriateness of compensation and a good behaviour bond – Finding the expenses incurred by the father were reasonable and incurred in an attempt to spend time with the child – Order made for the mother to compensate the father – Finding a good behaviour bond without surety for 24 months is appropriate to ensure compliance by the mother – Consideration of whether compensation for time lost is in the best interests of the child – Finding it is not in the best interests for an order to compensate the father for time lost – Matter adjourned for consideration of whether the final orders should be varied. Legislation: Evidence Act 1995 (Cth) s 50.
Family Law Act 1975 (Cth) Div 13A, ss 70NAC(a)(ii), 70NAE, 70NAF, 70NBA, 70NDB, 70NEA(1)(c), (2)(a), (4), 70NEB(1)(e)(iii), (4), 70NEC, (5), 102NA.
Cases cited: Delahunty & Delahunty [2019] FamCA 304.
Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214; [2007] FamCA 655.
Ericsson & Beesley (No 3) [2016] FCCA 2111.
Papp & Myers [2020] FamCA 127.
Papp & Myers [2022] FedCFamC1F 936.
Ongal & Materns (No 3) [2013] FamCA 946.
Division: Division 1 First Instance Number of paragraphs: 246 Date of last submissions: 10 November 2022 Date of hearing: 23 September 2022, 10 November 2022 Place: Sydney Counsel for the Applicant: Mr Longworth Solicitor for the Applicant: Michael Conley Lawyers Counsel for the Respondent: Mr Antill Solicitor for the Respondent: Jack Rigg Solicitors ORDERS
SYC 5372 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PAPP
Applicant
AND: MS MYERS
Respondent
order made by:
HENDERSON J
DATE OF ORDER:
2 December 2022
THE COURT FINDS THAT:
1.The respondent, Ms Myers, born 1977, is found guilty, without reasonable excuse, of contravening:
(a)Order 2 of the orders made on 22 May 2020, in February 2021; and
(b)Order 5(a)(i) of the orders made on 22 May 2020, on 27 June 2020; and
(c)Order 5(a)(i) of the orders made on 22 May 2020, on 11 July 2020; and
(d)Orders 5(a)(i), 6(b), and 18(c) of the orders made on 22 May 2020, on 25 July 2020; and
(e)Order 5(a)(ii) of the orders made on 22 May 2020, on 8 August 2020; and
(f)Orders 5(a)(ii), 6(b), and 18(c) of the orders made on 22 May 2020, on 22 August 2020; and
(g)Orders 5(a)(ii), 6(b), and 18(c) of the orders made on 22 May 2020, on 26 September 2020; and
(h)Orders 5(a)(iii), 6(b), and 18(c) of the orders made on 22 May 2020, on 24 October 2020; and
(i)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 27 November 2020.
AND THE COURT ORDERS THAT:
2.The respondent, Ms Myers, born 1977, is to enter into a bond, without surety, for a period of 24 months, on the condition to be of good behaviour.
3.Pursuant to Order 2, the respondent is to attend upon a Registrar of the Sydney Registry of the Federal Circuit and Family Court of Australia by 10.00am on 14 December 2022 to enter into the bond.
4.The respondent is to compensate the applicant for expenses incurred as a result of the contraventions by the respondent in the sum of $2,738.72, with such sum to be paid within three months of the date of these orders.
5.The costs of the applicant and respondent, with respect to the Contravention Application filed 20 August 2021, are reserved.
6.The Contravention Application filed on 20 August 2021 remains listed at 10.00 am on 14 December 2022 to consider whether the orders of 22 May 2020 be varied and any further directions required in this matter.
7.Pursuant to Rule 8.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), copies of the Child Impact Report (“the report”) by Ms PP (“the expert”) dated 18 May 2022 may be given to:
(a)the parties and their legal representatives;
(b)any independent children’s lawyer in the proceedings;
8.Unless a party objects in writing within 14 days of the date of release, copies of the report may be provided to the following if the Court is requested to do so for a purpose related to the care welfare or development of a child to whom these proceedings relate:
(a)a children’s court;
(b)a child protection authority;
(c)a State or Territory legal aid authority;
(d)the convenor of any legal aid dispute resolution conference; and
AND THE COURT NOTES THAT:
A.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in ‘Annexure A’ and those particulars are included in these orders.
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 Papp & Myers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J
In the matter of Papp and Myers, these Reasons for Judgment are in relation to whether the mother has made out her claim that she had a reasonable excuse for contravening final parenting orders made by Harper J of the Family Court of Australia (as it was then known) on 22 May 2020 (“the final orders”).[1] The child subject to those orders is X, born 2015 (“the child”), who is seven years of age. The parents have equal shared parental responsibility for him.
[1] Papp & Myers [2020] FamCA 127.
The counts of alleged contravention, as provided in the father’s Contravention Application filed on 20 August 2021, can be placed into three categories:
(1)Failure to consult the father in relation to the child’s schooling (count 1);
(2)Refusing the child to spend time with the father in Town B (counts 2, 3, 5, 7, 9, 11, 13, and 18); and
(3)Refusing the child to spend time with the father in Sydney (counts 4, 6, 8, 10, 12, and 14–17).
The counts relating to the refusal by the mother for the child to spend time with the father occurred between 27 June 2020 and 22 May 2021.
On 23 September 2022, I delivered ex tempore Reasons finding that the father has established a prima facie case for all of the 18 alleged contraventions. The mother agreed she contravened the orders in the third category but plead she had a reasonable excuse to each count. The mother plead she did not contravene the orders in the first and second categories. These ex tempore Reasons were settled[2] and were provided to the parties contemporaneously with these Reasons for Judgment.
[2] Papp & Myers [2022] FedCFamC1F 936.
I found a prima facie breach in respect of the following orders of Harper J:
(1)Count 1: a breach of Order 2, that the parents share parental responsibility, including education and choice of schooling;
(2)Counts 2–4: a breach of Order 5(a)(i), that from 1 June 2020, the child was to spend time with the father from Saturday morning to Sunday evening, for two weekends each month for two consecutive months;
(3)Counts 5–8: a breach of Order 5(a)(ii), which followed the conclusion of Order 5(a)(i), that the child was to spend time with the father from Saturday morning to Monday afternoon, for two weekends each month for two consecutive months;
(4)Counts 9–10: a breach of Order 5(a)(iii), which followed the conclusion of Order 5(a)(ii), that the child was to spend time with the father from Friday morning to Tuesday afternoon, for two weekends each month for two consecutive months;
(5)Counts 11–17: a breach of Order 5(a)(iv), which followed the conclusion of Order 5(a)(iii), that the child was to spend time with the father from Friday morning to Wednesday afternoon once a month;
(6)Count 18: a breach of Order 5(b), that the child was to spend time with the father from 2.00 pm on 25 December 2020 to the morning of 29 December 2020.
Counts 4, 6, 8, 10, 12, and 14–17 also included a breach of Order 6(b), that the child was to spend time with the father in Sydney on the second weekend of each much, on the condition that the father gave the mother seven days’ notice, as well as Order 18(c), which required that should time be nominated to occur in Sydney, the mother was to effect changeover at Sydney Airport.
The father seeks a finding that the mother had no reasonable excuse for breach of the final orders in counts 1–6, 8, 10, and 12. The father did not abandon a breach of other counts and is content with a finding of guilt on a prima facie basis.
The father sought I make the following findings:
(1)That in February 2021, the mother, without reasonable excuse, failed to consult the father in relation to the child’s schooling and make a genuine effort to come to a joint decision about same.
(2)That the mother, without reasonable excuse, refused to allow the child to spend time with the father, in Town B, during the following periods:
(a)The morning of Saturday 27 June 2020 to the evening of Sunday 28 June 2020;
(b)The morning of Saturday 11 July 2020 to the evening of Sunday 12 July 2020; and
(c)The morning of Saturday 8 August 2020 to the morning of Monday 10 August 2020.
(3)That the mother, without reasonable excuse, refused the allow the child to spend time with the father, in Sydney, during the following periods:
(a)The morning of Saturday 25 July 2020 to the evening of Sunday 26 July 2020;
(b)The morning of Saturday 22 August 2020 to the evening of Monday 24 August 2020;
(c)The morning of Saturday 26 September 2020 to the evening of Monday 28 September 2020;
(d)The morning of Saturday 24 October 2020 to the evening of Tuesday 27 October 2020; and
(e)The morning of Friday 27 November 2020 to the afternoon of Wednesday 2 December 2020.
The Hearing
The hearing occurred over two days on 23 September 2022 and 10 November 2022.
With respect to the events leading up to the hearing, the following points are noteworthy:
(1)The matter was listed for hearing on 29 November 2021, but could not proceed because the mother’s first set of lawyers representing her, with respect to this Contravention Application, under Legal Aid funding handed the brief back and the second set of lawyers only came onto the record on 25 November 2021;
(2)The matter was adjourned in Chambers on 15 February 2022 to allow the mother to appeal the decision to dismiss her grant for Legal Aid;
(3)The matter was listed for hearing on 18 May 2022. The mother attended via telephone from a hotel room in Sydney with the child being present, claiming she was unwell and could not attend Court. The father appropriately conceded that the hearing could not proceed in the presence and hearing of the child; and
(4)The matter was listed for 22 and 23 September 2022, however, 22 September 2022 was declared to be a public day of mourning for the passing of the Queen and again the matter was adjourned.
The applicant father (“the father”) was represented at the hearing by Mr Longworth of counsel. The respondent mother (“the mother”) was, pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”), appointed a lawyer to assist her and was represented at the hearing by Mr Antill of counsel.
Three witnesses gave evidence:
(1)The father;
(2)The mother; and
(3)A friend of the mother, Mr QQ.
Documents and Exhibits
The material read was as follows:
(1)For the father:
(a)Contravention Application filed on 20 August 2021;
(b)Affidavit of Mr Papp filed on 18 August 2021;
(c)Affidavit of Mr Papp filed on 1 August 2022;
(d)Written submissions dated 10 November 2022.
(2)For the mother:
(a)Affidavit of Mr QQ filed on 9 September 2022;
(b)Affidavit of Ms Myers filed on 15 September 2022.
Documents tendered and marked as exhibits are as follows, noting no exhibits were tendered by the mother:
(1)For the father:
(a)Paragraph 206 of the affidavit of Ms Myers filed 22 October 2021 (Exhibit F1) (the affidavit referred to generally as the “October 2021 affidavit”);[3]
[3] The mother was cross-examined on parts of the October 2021 affidavit and some parts of this cross-examination are detailed in these Reasons for Judgment.
(b)Paragraph 50 of the Family Report of Ms D dated 13 February 2019 (Exhibit F2);
(c)Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (Exhibit F3);
(d)An email and letter from TT School District regarding the child’s enrolment status at J School (Exhibit F4);
(e)Documents produced under subpoena by RR Psychology being clinical notes from 17 September 2020 to 15 June 2022 (Exhibit F5);
(f)A bundle of documents to be tendered as contained in a list dated 10 November 2022 (Exhibit F6);
(g)Amended schedule prepared pursuant to section 50 of the Evidence Act 1995 (Cth) of costs incurred by the father in spending time with the child in Town B (Exhibit F7).
(2)The Court:
(a)Reasons for Judgment of Harper J dated 22 May 2020 (Exhibit C1).
Chronology
In 1977, the mother, Ms Myers, was born and is 45 years of age.
In 1984, the father, Mr Papp, was born and is 38 years of age.
In 2015, the child, X, was born and is 7 years of age.
On 23 August 2018, the father commenced proceedings in the Family Court of Australia (as it was then known).
On 20 May 2020, the final orders were made by Harper J.
On 9 June 2020, the father sends an email to the mother regarding the arrangements for the period 27–28 June 2020.
On 27 June 2020, the father arrives at the mother’s house in Town B to spend time with the child.
On 28 June 2020, the father arrives at the mother’s house in Town B to spend time with the child.
On 28 June 2020, the mother wrote to the father notifying him that the child was enrolled to attend J School in 2021.
On 11 July 2020, the father arrives at the mother’s house in Town B to spend time with the child.
On 12 July 2020, the father arrives at the mother’s house in Town B to spend time with the child.
On 13 July 2020, the father sends an email to the mother requesting that she bring the child to Sydney for the period 25–26 July 2020.
On 23 July 2020, the father sends a text message to the mother asking when she will be arriving in Sydney with the child.
On 24 July 2020, the mother and child undergo a COVID-19 test, and the mother advises the father that they are self-isolating, and she is therefore unable to bring the child to Sydney.
On 31 July 2020, the father sends a text message to the mother requesting that she bring the child to Sydney for the period 22–24 August 2020.
On 5 August 2020, the father sends a text message to the mother confirming he will be going to Town B to spend time with the child for the period 8–10 August 2020.
On 8 August 2020, the mother sends an email to the father regarding make-up time and taking the child to Sydney. The father also arrives at the mother’s house in Town B to spend time with the child.
On 9 August 2020, the father arrives at the mother’s house in Town B to spend time with the child.
On 14 August 2020, the father sends an email to the mother following up on her bringing the child to Sydney for the period 22–24 August 2020.
On 21 August 2020, the mother sends an email to the father notifying him that she will not be bringing the child to Sydney, citing concerns of COVID-19.
On 12 and 13 September 2020, the father spends time with the child in Town B, and the father describes this time as “good contact”.
On 17 September 2020, the mother commences seeing Dr SS, a clinical psychologist. The father also sends an email to the mother requesting that she bring the child to Sydney for the period 26–28 September 2020.
On 24 September 2020, the mother has her second session with Dr SS.
On 25 September 2020, the mother sends a text message to the father notifying him that she will not be bringing the child to Sydney, citing a myriad of reasons.
On 1 October 2020, the mother has her third session with Dr SS.
On 10 October 2020, the father arrives at the mother’s house in Town B to spend time with the child.
On 15 October 2020, the father sends an email to the mother requesting that she bring the child to Sydney for the period 24–27 October 2020.
On 22 October 2020, the mother has her fifth session with Dr SS.
On 23 October 2020, the mother sends a text message to the father notifying him that she will not be bringing the child to Sydney, citing a myriad of reasons. The father sends a text message in reply that he will be in Town B for the period 14–18 November 2020, inter alia.
On 29 October 2020, the mother has her sixth session with Dr SS.
In October or November 2020, the mother alleges that she had a conversation with the father that she intended to home school the child.
On 14 November 2020, the father arrives at the mother’s house in Town B to spend time with the child.
On 20 November 2020, the father sends an email to the mother requesting that she bring the child to Sydney for the period 27 November to 2 December 2020.
On 27 November 2020, the mother sends a text message to the father notifying him that she will not be bringing the child to Sydney.
On 9 December 2020, the father sends an email to the mother stating that he will be in Town B for the periods 11–15 December 2020 and 25–28 December 2020.
On 11 December 2020, the father arrives at the mother’s house in Town B to spend time with the child.
On 24 December 2020, the mother sends an email to the father notifying him that the child would “not be available over the Christmas period” citing concerns of COVID-19. The child was to spend time with the father in the period 25–28 December 2020.
On 26 December 2020, the father arrives at the mother’s house in Town B to spend time with and deliver Christmas presents for the child.
On 13 January 2021, the mother makes an application to the NSW Education Standards Authority (“NESA”) for the child to be home schooled.
On 27 January 2021, the father sends an email to the principal of J School requesting various information about the child’s enrolment. The principal replied the same day informing the father the child was due to commence school on 3 February 2021.
On 3 February 2021, the mother has her eighth session with Dr SS.
On 8 February 2021, the father sends an email to the principal of J School, following up on the child’s enrolment. The principal replied that the child was not enrolled, as informed by the mother.
On 12 February 2021, the father sends an email to the mother requesting information about the schooling arrangements for the child. The father also requests that the mother bring the child to Sydney for the period 26 February to 3 March 2021. The mother did not respond.
On 16 February 2021, the mother has her ninth session with Dr SS.
On 26 February 2021, the father’s legal representatives send a letter to the mother requesting information regarding the child’s schooling arrangements.
On 6 March 2021, the father sends an email to the mother requesting that she bring the child to Sydney for the period 27–31 March 2021.
On 10 March 2021, the mother has her eleventh session with Dr SS.
On 19 March 2021, the mother’s then legal representatives send a letter to the father’s legal representatives, advising that the parents had discussed the child’s schooling arrangements, inter alia. The father asserts that this is incorrect.
On 29 March 2021, the father sends an email to the mother regarding the child’s schooling and requesting that the mother bring the child to Sydney for the period 24–28 April 2021.
On 7 April 2021, the father’s legal representatives wrote to the TT School District regarding the child’s schooling.
On 8 April 2021, the mother receives a letter from the NESA advising that her application for the child to be home schooled was refused. The same day, the mother creates an application for the child to attend J School, however, the status of the application remained “Incomplete”.
On 26 April 2021, the father sends an email to the mother requesting that she bring the child to Sydney for the period 22–26 May 2021.
On 4 May 2021, the mother’s then legal representatives send a letter to the father’s legal representatives, suggesting the parents go to mediation. The father is also served with an application made by the mother at District Court for an ADVO.
On 6 May 2021, the mother has her twelfth session with Dr SS.
On 12 May 2021, the father commences Family Dispute Resolution by attending an intake session with Ms UU. The mother does not attend this session.
In mid-2021, the ADVO proceedings are adjourned.
On 18 May 2021, the mother has her thirteenth session with Dr SS. On the same day, the father’s legal representatives receive a letter from TT School District regarding the child’s enrolment at J School.
In mid-2021, the mother’s application for an interim ADVO is dismissed and orders are made for the filing of evidence for the ADVO hearing.
On 2 June 2021, the mother has her fourteenth session with Dr SS.
On 3 June 2021, the father obtains a certificate pursuant to section 60I of the Act issued by Ms UU.
On 10 June 2021, the mother’s then legal representatives send a letter to the father’s legal representatives confirming the arrangement asserted in the letter dated 19 March 2021.
On 21 June 2021, the mother replies to the NESA advising that she wishes to withdraw the application to home school the child.
On 22 June 2021, the mother has her sixteenth session with Dr SS.
On 6 July 2021, the mother makes an application for the child to be home schooled.
On 20 July 2021, the mother has her seventeenth session with Dr SS.
On 11 August 2021, the mother was booked for a session with Dr SS but did not attend.
In mid-2021, the mother’s ADVO application was dismissed.
On 20 August 2021, the father files his Contravention Application, alleging 18 counts of contravention by the mother of the final orders.
On 25 August 2021, the mother has her eighteenth session with Dr SS.
On 21 September 2021, the mother has her nineteenth session with Dr SS.
On 14 October 2021, the mother has her twentieth session with Dr SS.
On 29 November 2021, the Contravention Application was listed for hearing, but was vacated due to issues regarding the mother’s Legal Aid funding.
On 18 May 2022, the Contravention Application was listed for hearing, but was vacated due to the mother, who was attending the hearing via Microsoft Teams, having the child in her vicinity.
On 23 September 2022, I delivered ex tempore Reasons finding a prima facie case that the mother contravened the final orders on all 18 counts.
The Law on Reasonable Excuse
The father’s Contravention Application is brought under Division 13A of the Act. These Reasons for Judgment deal with whether the mother has a reasonable excuse and it is only necessary to state the law in this respect. Section 70NAE deals with the meaning of ‘reasonable excuse’:
70NAE Meaning of reasonable excuse for contravening an order
(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).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
…
(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
…
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The burden of proof to be discharged to establish there was a reasonable excuse is provided for in section 70NAF of the Act:
70NAF Standard of proof
(1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
In Ericsson & Beesley (No 3), Judge O’Sullivan said the following with respect to the meaning of ‘reasonable attempt’:
It ultimately turns on the facts and circumstances of each case as to whether the steps taken are a “reasonable attempt to comply” with a “spend time with” order. In TVT (supra) and again in Stamp & Stamp [2014] FCCA 1269 Judge Riethmuller noted that the way that the applicable obligation has been described in different cases provided considerable guidance as to the extent of the obligation:
…
c) ‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite [the child] to walk of [their] own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep. See: Stevenson & Hughes [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [25].
…
e) Once an order for the child to spend time has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O’Brien & O’Brien (1993) FLC 92-396 at [11].
f) A ‘live with’ parent ought to make ‘the child understand that it was the [live with parent’s] attitude that the child had to [spend time]’: see O’Brien & O’Brien (1993) FLC 92-396 at [8].
g) The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See WJP & TP [2002] FMCAfam 315 (Unrep.) at [12] and [14].
…
i) ‘[I]t is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the [live with parent] of compliance with the obligation’; see Stevenson v Hughes (1993) FLC 92-363 ([1993]) FamCA unrep 527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [6].
j) ‘It is not sufficient discharge of [live with parent’s] obligations, express or implied, to point to words and actions and to say, in effect: ‘You see I tried. But the child does not want to go,’ and thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (1993) FLC 92-363 ([1993]) FamCA unrep 527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [6].[4]
(As per the original)
[4] [2016] FCCA 2111 at [26].
The mother’s case is the following:
(1)In relation to parental responsibility, she notified the father orally in or about October/November 2020 that she intended to home school the child.
(2)She made a reasonable attempt to comply with the orders[5] in Town B but that short of physically forcing the child to spend time with the father, she was unable to comply with her obligations and thus she has a reasonable excuse for contravening the final orders.
(3)Due to COVID-19 concerns in Sydney and her mother’s ill health, the mother did not attend Sydney to provide the child to spend time with the father. In addition, the mother alleged that the father had injured the child on one occasion, is abusive to the child and her on every occasion, and the child is frightened of the father. Further, the father’s behaviour and the child’s reaction to the father caused the mother concern for the child’s physical, emotional and psychological well-being if he spent time with the father.
[5] Family Law Act 1975 (Cth) s 70NAC(a)(ii).
In his Reasons, Harper J found:
… I formed the view that the mother was not a satisfactory witness.[6]
After hearing the mother’s oral evidence, not only would I agree with this assessment, but for this Contravention Application, I find that she is not a witness of truth.
THE EVIDENCE and Reasonable Excuse
[6] Papp & Myers [2020] FamCA 127 at [99].
Count 1 (consultation regarding schooling)
In relation to the prima facie breach of the mother failing to consult the father regarding the child’s schooling for the 2021 year, I find the mother has not established a reasonable excuse for the following reasons.
On 28 June 2020, the mother wrote to the father telling him that she had enrolled the child at J School in Town B, to attend school for the following year. This did not occur.
The mother asserts that she and the father had a conversation at the front door of her house in or about October/November 2020 when she told the father that she intended to home school the child, given her concerns regarding COVID-19 and the child’s age. In her October 2021 affidavit, the mother deposed that father said to her at that time words to the effect of:
Fine [Ms Myers] I don’t care. Do what you like about school.
(As per the original)
In her affidavit, in support of her reasonable excuse, the mother deposed that the father said to her the effect of:
I don’t give a shit what you do.
(As per the original)
Mr QQ gave evidence that he was present when the conversation occurred and that the father appeared to have no interest in the child’s schooling.
Mr QQ was cross-examined and I reject the entirety of the evidence he gave in support of the mother. Mr QQ is clearly in the mother’s camp and was there to support the mother’s version of events. I do not accept his evidence accurately described what occurred at the mother’s house, rather, it supported her narrative. Mr QQ’s evidence was inconsistent with the mother’s evidence in many respects, such as who typed up his affidavit, whether it was handwritten and then typed. I could not see Mr QQ ever criticising the mother or her conduct, and his affidavit was at pains to tell the Court what a wonderful mother and person she was. These are matters not relevant to contravention proceedings. Mr QQ’s credibility was seriously compromised by his overwhelming support in every respect of the mother and her behaviour.
The father denied any such conversation took place. I accept his evidence given the following facts as found.
On 27 January 2021, the father emailed the principal of J School, being the school the mother had told him the child was enrolled to commence in 2021. The father requested information as to start dates, pick up times, his teacher, etcetera. The principal responded that evening saying the child was due to start on 3 February 2021.
On 8 February 2021, the father again contacted J School and was told by the principal that the mother had told her the child would not be attending that year and he was not enrolled at the school.
This conduct by the father is hardly consistent with the mother’s assertion that the father showed no interest in the child’s education or that she told him she was home schooling the child in October/November 2020. If the father had no interest in the child’s education or the mother had told him what her plans were, the father would have had no reason to contact the school about the child’s enrolment.
On 12 February 2021, the father sent an email to the mother to find out what was happening in respect of the child’s education for 2021. The mother did not respond and told the Court she could not remember whether she had received the email. The mother lied on this issue given she had referred to this very email in her affidavit. Further, the mother did not respond to the email either.
In cross-examination, it became clear that the mother did not tell the father about her home schooling plans until after she had acted upon such plans, which is consistent with the notes of Dr SS, the mother’s psychologist, and letters written by lawyers she had then engaged.
The mother lawyers at that time were VV Lawyers. The letter they wrote to the father’s legal representatives on her behalf was dated 19 March 2021 and stated:
In respect of [X’s] schooling, we are instructed that [Ms Myers] was informed by the Principal that [X] is not yet of age to attend school, and is not legally required to be enrolled in school until his 6th birthday. The Principal informed [Ms Myers] that [X’s] paperwork will be kept on file at the school, and that he is welcome to commence at any time.
(As per the original)
Importantly the letter continued:
This matter was previously discussed with [Mr Papp].
(As per the original)
There is nothing in the letter about home schooling, yet the mother said she and the father had discussed this in October/November 2020 and no evidence was provided by the mother of discussing, with the father, deferring the child’s school enrolment in 2021.
The father disagreed with the mother’s course of action, stating the child’s education was extremely important and he wanted him to attend formal education in 2021 and letters were written to this effect, which she ignored.
The TT School District wrote to the father’s legal representatives on 18 May 2021 stating that the mother initiated enrolment of the child for J School on her own, had not completed the enrolment, and had informed the school she would home school the child. There was no record of the child being so registered with the NESA at this time.
The mother had begun an enrolment application for the child at J School on 8 April 2021, a month after her then legal representatives produced the letter of 19 March 2021. The mother admitted she deliberately did not use the child’s legal name on the enrolment form, omitting the father’s surname from the child’s name. The mother did answer ‘Yes’ to the question of the existence of court orders. As the following evidence discloses, this is not what she did in respect of the two home schooling applications she completed previously.
The facts are that the mother did not have the child attend school in April 2021 nor did she commence to home school him, according to the mother, but without the approval from NESA, until June 2021. The mother made two applications to home school the child to the NESA, wherein one was withdrawn/rejected and the second she proceeded with. Those applications were completed by her alone and did not disclose the final orders in respect of the child. The mother’s answer in cross-examination as to this abject failure of her obligation was because the final orders did not specifically refer to schooling, she did not think she needed to include the final orders to the application.
Not only do I reject that answer, but such a conception is ludicrous. The final orders could not be clearer:
(2)That [Mr Papp] … and [Ms Myers] … have equal shared parental responsibility … including but not limited to:
(a) education, including choice of schooling;
I find that the mother did not disclose the final orders, as had she done so, she knew the father’s consent would have been required before she could home school the child.
Even if I accept, which I do not, that the mother had this alleged conversation about home schooling in October/November 2020 with the father at her front door, this is hardly an appropriate manner by which to carry out an obligation to share parental responsibility and make a decision on such an important matter: the education of your child. This evidence would not simpliciter support a finding that the mother did not breach the order.
The mother first saw Dr SS on 17 September 2020 and last saw her on 15 June 2022, and the notes of Dr SS are most revealing and as follows.
On 3 February 2021, the notes state:
… will need help to resolve prob[lem] w[ith] orders specify [X] spending days [and] o[ver]nights w[ith] [Mr Papp] once he starts school – she [the mother] agreed to do so. Unsure whether to home sch[ool] [X] to avoid issue w[ith] orders but[X] already oldest in class …
(As per the original with clarification)
On 16 February 2021, the notes state:
… Still hasn’t sent [X] to sch[oo]l – thinks this way she can avoid orders being implemented. [Mr Papp] has contacted sch[oo]l princ[ipal], who is now formal and reserved w[ith] her.
(As per the original with clarification)
On 10 March 2021, the notes say:
… Has seen new solic[itor], some conflict[in]g advice re[garding] sending [X] to sch[oo]l. … Went to Police w[ith] videos of [Mr Papp’s] resp[onse]s to [X] – officer advised her to send solic[itor] letter telling him not to come to house. … [Ms Myers] reluctant to take anti-dep[ression] med[ication]s – [Mr Papp] will use this to prove she’s unfit mo[ther].
(As per the original with clarification)
On 6 May 2021, the notes state:
… [Ms Myers] decided to home-sch[oo]l [X] for this term/y[ea]r – avoiding dealing w[ith] [Mr Papp] re[garding] pickups/visitat[io]n. Sch[oo]l not wanting to get in middle of custody issues. Solic[itor] has recc[ommended] she take out AVO to limit [Mr Papp’s] ability to harass her; need to re-neg[otiate] access agreement.
(As per the original with clarification)
On 14 October 2021, the notes state:
… [X] now in sch[oo]l – settling in well. … [Ms Myers] will request [Mr Papp] to have supervised visits.
(As per the original with clarification)
These entries make it clear that the mother did not tell the father about home schooling the child and her motivation to home school was, in her mind, a way to thwart the father and the child spending overnight time together, and thus enabling her to breach the final orders. Home schooling was not a decision made in the child’s best interests, rather to achieve the mother’s goals. The evidence supports a finding that the mother deliberately did not inform the father of this unilateral choice.
I find that the mother has failed to establish any excuse, let alone a reasonable excuse, for her failure to consult with the father regarding the child’s schooling, and to come to a joint decision on this major, long-term decision. In particular, it is that the mother had changed her decision in June 2020 for the child to attend J School in 2021, to home schooling the child, and that her behaviour amounted to subterfuge.
Count 2 (time with the father in Town B, 27–28 June 2020)
Going to the second category of contraventions, namely the failure by the mother to provide the child to spend time with the father in Town B.
Dr SS’s notes are again helpful as to the mother’s motivation and conduct.
On 17 September 2020, the notes say:
[Mr Papp] no contact w[ith] … [X] for 19 mo[nths].
She [the mother] maintained intermitt[ent] contact w[ith] [Mr Papp] re[garding] [X].
Now fighting over custody.
…
Problem - ex husb[and] [Mr Papp] controlling, emot[ionally] mani[ulative] – [Mr Papp] now wants contact w[ith] son; placing obstacles to force [Ms Myers] to comply.
…
Plan – info re[garding] emotional abuse …
(As per the original with clarification)
On 24 September 2020, the notes say:
… Blamed [her]self for keeping [Mr Papp] in son’s life. … Anx[ious] re[garding] not taking [X] to Syd[ney] for access visit, despite advice fr[om] solic[itor] re[garding] this …
(As per the original with clarification)
On 1 October 2020, the notes say:
… Decided not to take [X] to Syd[ney] last w[eek]end … will get video camera on house before his [the father’s] next visit. … will encourage [X] to interact with [Mr Papp] but will stop phone call/visit if [X] upset.
(As per the original with clarification)
On 22 October 2020, the notes say:
… Anx[iety] incr[eases] as w[eek]end nears and she has to commun[icate] w[ith] [Mr Papp] re[garding] not taking [X] to Sydney … making him avail[able] for F[ace]time calls and w[eek]end visits by [Mr Papp] but intervening if [X] becomes distressed.
(As per the original with clarification)
On 29 October 2020, the notes say:
… he [the child] becomes v[ery] distressed w[ith] Facetime …
(As per the original with clarification)
The notes from 10 March 2021, as referred to above, are also relevant with regard to this count.[7]
[7] See above [115].
On 18 May 2021, the notes opine:
… Tends to ask for advice [and] then disregard it. … has diff[iculty] listening to my answers, r[e]p[ea]ts q[uestion]s until gets answer she wants.
(As per the original with clarification)
On 2 June 2021, the notes say:
… She [the mother] will enrol [X] in sch[oo]l in Aug[ust] for term 3 …
(As per the original with clarification)
On 22 June 2021, the notes say:
… [Ms Myers] still highly anx[ious] re[garding] submissions to c[o]u[r]t – const[antly] querying my report; her responses; the process. I again raised my concern re[garding] her high level of anx[iety] – [Ms Myers] not receptive. [Ms Myers] requested I amend r[e]p[or]t to clarify nature of her rel[ationship] w[ith] [Mr Papp].
Phone call fr[om] [Ms Myers] re[garding] my report – wanted further change – I refused – I believe she is so anx[ious] th[at] she will never feel satisfied – I stated I wouldn’t make any further changes.
(As per the original with clarification)
On 20 July 2021, the notes say:
… Brought [X] to session – he seemed reas[onably] conf[ident] but she hovered, poss[essive] [and] protective.
(As per the original with clarification)
On 11 August 2021, the notes say:
No show … Still no payment for c[ou]rt rep[or]t.
(As per the original with clarification)
On 25 August 2021, the notes say:
… Missed c[ou]rt date for the AVO so applicat[io]n was dismissed. … Has Fam[ily] C[ou]rt date re[garding] access orders on 15/9. … Still reluctant to enrol [X] in sch[oo]l, esp[ecially] w[ith] COVID lockdown.
On 21 September 2021, the notes say:
… I urged her [the mother] to start med[ication]s. …
…
Has difficulty conveying info[rmation] in logical manner due to anx[iety] – doesn’t finish sentences, can’t summarise. Concluded session w[ith] my urging again to try meds to help reduce her sense of overwhelm.
(As per the original with clarification)
The father’s evidence was not controverted in many respects and when he was cross-examined, he did not waver.
The father’s evidence was that this was the first occasion he was to spend time with the child in Town B, but the child appeared at the doorway in his pyjamas, ill-prepared to spend time with him. The father deposed in his affidavit:
I said to [X]: hello [X], are you ready to go. [X] replied: I don’t want to leave. [X] then walked away.
(As per the original)
The mother’s evidence was that the child was dressed and ready to go, but the father immediately became angry and aggressive, talking about breaching orders and the child became distressed at the conduct of the father and this description was supported by Mr QQ. The mother alleges this was how the father behaved on every subsequent occasion.
I accept the fathers’ evidence that the child was not prepared. The mother disclosed no evidence in her affidavit or oral evidence of how she prepared the child to spend time with the father. Further, it is remarkable that the child would immediately say “I don’t want to leave” if he had been prepared for a visit and the mother was positive about the visit. Further, the mother said in cross-examination that from the get-go, the child did not want to go. This is a failure of the mother’s obligation clear and simple, given the child had not spent time alone with the father for seven months, had no reason to be fearful of him, and had been in the mother’s sole care.
I accept that the father may have reacted with dismay, perhaps became frustrated, and short with the mother at the lack of preparedness of the child on that first visit. I reject the father immediately became aggressive, given the money and effort he had put in to travel to Town B to see the child and his evidence under cross-examination on this was not shaken. Had the child been ready to spend time and the mother was supportive of this, why would the father immediately become aggressive? The mother’s evidence makes no sense. It makes sense if, as the father alleges, the child was ill-prepared and the mother was not supportive and allowed the child to dictate events as he did.
Therefore, I find that the mother has failed to establish a reasonable excuse for this count, by not providing the child to spend time with the father in Town B for this period.
Count 3 (time with the father in Town B, 11–12 July 2020)
The father said he and his family went to Town B. The father deposed in his affidavit that he spoke to mother and she repeatedly said:
[X] doesn’t want to spend time with you and I’m not going to force it on him.
(As per the original)
The mother’s evidence was, as deposed in her affidavit:
I again encouraged [X] to spend time with [Mr Papp], however [X] became extremely distressed in [Mr Papp’s] presence and I tried tirelessly on multiple occasions to encourage him to spend time with [Mr Papp] to no avail.
(As per the original)
The mother did not disclose what she actually did to encourage the child to spend time with the father. There was no reason or justification or explanation why the child did not want to spend time with the father and his family. There was no evidence by the mother of how the child was or his mood or general behaviour leading up to this visit with the father.
In cross-examination, the mother said she told the child that he would have a wonderful time. The mother did not say, for example, ‘I want you to go and if you do not there will be consequences’ adding, that this is not her “style of parenting”. The mother said “I would have been more than happy for him to go”. I could see no evidence in the mother’s affidavit or oral evidence that this is her position and it is inconsistent with Dr SS’s notes where she refers to the father as an abuser.
The father sent a text message to the mother asking her to bring the child to a park, a different environment to her house. The mother did not do this citing she had no car, Mr QQ had no car and she could not borrow a car. In cross-examination, the mother reluctantly admitted that it might have been a better idea to try the visit in a different environment to that of the mother’s house. The mother made no attempt to assist the child to spend time with the father, as is her obligation under the final orders, and her conduct is inconsistent with her words “I would have been more than happy for him to go”.
Therefore, I find that the mother has failed to establish a reasonable excuse for this count, by not providing the child to spend time with the father in Town B for this period.
Count 4 (time with the father in Sydney, 25–26 July 2020)
The father’s evidence was that he sent the mother a text message on 23 July 2020 asking when she and the child would be arriving in Sydney. On 24 July 2020, the mother replied saying she would not be coming to Sydney as she had to undertake a COVID-19 test as a result of both of her and the child were not feeling well “the last couple of days” and could not travel whilst she waited for her results. The mother’s evidence was that she and the child had a COVID-19 test on the morning of 24 July 2020 and self-isolated.
The father had, on 13 July 2020, written to the mother electing, as was his right under the final orders, that the mother bring the child to Sydney on the weekend of 25–26 July.
The mother agreed in cross-examination she had these symptoms as early as 22 July 2020, yet did not undergo a COVID-19 test until the morning before she and the child were due to arrive in Sydney. The mother conducted herself in a manner to leave it as late as possible to take the test and cited self-isolation rules as an excuse. The parents corresponded about make-up time. The mother emailed the father on 8 August 2020:
Hi [Mr Papp],
In relation to makeup time following 25/26 July 2020 as a result of my Covid 19 test, I am happy to discuss once the situation with the pandemic is under control in Sydney, as according to New South Wales Health, the situation in Sydney is extremely precarious.
As such, I don’t believe it is in [X’s] best interest to be taking him from Town B where there are zero cases of Covid 19, to Sydney for a makeup visit, where there are growing clusters with unknown sources in your immediate neighbourhood …
(As per the original)
The facts are that at the time, there were no travel restrictions in place in New South Wales. The extracts of media articles the mother sought to rely upon did not confirm what she had said about the situation in Sydney being “extremely precarious”. The relevant public health order at the time provided restrictions on public gatherings but made specific exceptions for spending time between parents and children.[8]
[8] Exhibit F3.
Further, the final orders made specific reference to COVID-19:
COVID-19
(15)At all times, both parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including maintaining appropriate social distancing guidelines.
(16)Without prejudice, the father may at any time determine at his sole discretion that by reason of the COVID-19 pandemic, including government restrictions, he is unable to spend any time with child specified in these Orders.
(17)In addition to any statutory obligations for consultation to reach consensus about major long-term issues in relation to the child, both parties shall use their best endeavours to communicate regularly by phone, text message, email or other means, to seek agreement on the management of issues affecting the child arising from the COVID-19 pandemic.
(Underline emphasis added)
The mother’s response to the father on 8 August 2020 was clear that the child would spend no time with the father in Sydney until there were zero cases of COVID-19. On 24 September 2020, the mother confirmed with Dr SS she had no intention of taking the child to Sydney and true to her word she did not. The mother simply used COVID-19 as an excuse and has failed to provide any evidence that satisfies me that either she or the child had COVID-19, would have been exposed to COVID-19 or that the father required her to travel to a COVID-19 hot spot as she alleged.
Therefore, I find that the mother has failed to establish a reasonable excuse for this count, by not providing the child to spend time with the father in Sydney for this period.
Count 5 (time with the father in Town B, 8–10 August 2020)
The father says he arrived at the mother’s house at about 10.20 am. The father deposed in his affidavit the following conversation with the mother transpired:
THE MOTHER: [X] does not want to spend time with you.
THE FATHER: Can I come inside to spend time with him?
THE MOTHER: I’m not going to force him to spend time with you if he doesn’t want to.
The father waited in his car and left.
The mother offered no evidence in relation to a breach of this order and therefore it is undefended. Therefore, I find that the mother has failed to establish a reasonable excuse for this count, by not providing the child to spend time with the father in Town B for this period.
Count 6 (time with the father in Sydney, 22–24 August 2020)
As with count 4, the father wrote to the mother on 14 August 2020 requesting she attend Sydney on 22 August 2020 with the child and emphasising that where he lived had not any registered cases of COVID-19, and that he would take proper precautions for himself and the child. The mother did not respond until 21 August 2020 when she emailed the father saying:
I believe it would be negligent and irresponsible of me to be travelling with [X] from [Town B] where there are currently zero cases of the virus, to Sydney which is not considered a hotspot.
(As per the original)
True to her word, the mother did not present the child to spend time with the father in Sydney. In cross-examination, the mother agreed that she was the one who made this decision and that pursuant to the final orders she did not have the right to make that decision.
Again, Dr SS’s notes are instructive regarding the mother’s motivation in not complying with the final orders. On 24 September 2020, the notes say:
… Blamed [her]self for keeping [Mr Papp] in son’s life. … Anx[ious] re[garding] not taking [X] to Syd[ney] for access visit, despite advice fr[om] solic[itor] re[garding] this …
(As per the original with clarification)
Therefore, I find that the mother has failed to establish a reasonable excuse for this count, by not providing the child to spend time with the father in Sydney for this period.
Count 7 (time with the father in Town B, 12–14 September 2020)
The father does not press any further finding in relation to this count other than a prima facie breach. However, the father’s evidence on this occasion is important for other counts and is as follows.
The father deposed in his affidavit, which he confirmed in cross-examination, that on 12 September 2020, the child was more comfortable with him, they spent some time together, and they interacted quite well, having coffee and juice with the assistance of Mr QQ at a shop over the road.
The father described it as “good contact”. They had a hug, he took the child to his friend’s house, they chatted about what they were going to do at his friend’s house, and he was intending to take a photograph of himself and the child. The father says at that point the mother intervened and removed the child from his care.
On 13 September 2020, the father again spent time with the child and the mother alleges the father pinched the child whilst the child was sitting on his lap. From that time, the father did not see the child at all, even at the doorway, going to a coffee shop, or having a juice as they had done previously. The father denied he has ever harmed the child.
Dr SS’s notes dated 17 September 2020 are noteworthy here, as they were created just after the good contact as described by the father on 12 September 2020, when the father says the child began to become more comfortable with him, and are as follows:
[Mr Papp] no contact w[ith] … [X] for 19 mo[nths].
She [the mother] maintained intermitt[ent] contact w[ith] [Mr Papp] re[garding] [X].
Now fighting over custody.
…
Problem - ex husb[and] [Mr Papp] controlling, emot[ionally] mani[ulative] – [Mr Papp] now wants contact w[ith] son; placing obstacles to force [Ms Myers] to comply.
…
Plan – info re[garding] emotional abuse …
(As per the original with clarification)
Count 8 (time with the father in Sydney, 26–28 September 2020)
The father wrote to the mother on 17 September 2020 requesting she come to Sydney the weekend of 24 September with the child. This was an error as the weekend commenced on 26 September. The mother responded on 25 September:
Hi [Mr Papp],
As per advice by my solicitor, we will not be travelling to Sydney this weekend due to [X’s] distress when in person with you and via FaceTime. I don’t believe it si in his best interest to cause him further distress.
Additionally, [X] has a cold and my mother has […] cancer as you are aware.
(As per the original)
True to her word, the mother did not bring the child to Sydney.
The mother said in her affidavit her reasons for this email were her increasing concerns regarding COVID-19, the health risks of COVID-19 circulating in Sydney, low testing rates, the child having general cold symptoms, the father’s alleged abusive behaviour towards the child and her mother’s health. The only matter I accept in that email is her mother’s health, as I accept her mother has cancer.
The mother did not support these allegations with any evidence and it is inconsistent with Dr SS’s notes of 24 September 2020 and 1 October 2020, which are as follows:
24 September 2020:
… Blamed [her]self for keeping [Mr Papp] in son’s life. … Anx[ious] re[garding] not taking [X] to Syd[ney] for access visit, despite advice fr[om] solic[itor] re[garding] this …
(As per the original with clarification)
1 October 2020:
… Decided not to take [X] to Syd[ney] last w[eek]end … will get video camera on house before his [the father’s] next visit. … will encourage [X] to interact with [Mr Papp] but will stop phone call/visit if [X] upset.
(As per the original with clarification)
It is apparent the mother simply made a unilateral decision that she was not taking the child to Sydney on any occasion, despite the existence of the final orders and that COVID-19, the child’s reluctance or ill-health played no part in that decision. This attitude and behaviour is reflected in the Reasons of Harper J, where he described the mother as having:
… a capacity for manipulation and guile in withholding information and changing the parenting arrangements to suit her convenience.[9]
[9] Papp & Myers [2020] FamCA 127 at [99].
Therefore, I find that the mother has failed to establish a reasonable excuse for this count, by not providing the child to spend time with the father in Sydney for this period.
Count 10 (time with the father in Sydney, 24–27 October 2020)
The facts of this breach are almost identical to the facts I have found in respect of the mother’s breach of the final orders in count 4, being a failure to attend Sydney with the child.
The father’s evidence is on 15 October 2020, he sent an email to the mother requesting she and the child come to Sydney on Saturday 24 October, however, the email was dated September 2020. This had no impact upon the mother, who knew the time elected for the visit was October not September.
The mother did not respond until 23 October 2020, saying:
We will not be travelling to Sydney this weekend due to the previous reasons outlined. I have also had a Covid test today due to cold and flu symptoms and am currently self isolating …
(As per the original)
In her October 2021 affidavit, the mother deposed she had experience cold and flu symptoms on 22 October 2020 and so underwent a COVID-19 test. This inconsistency was put to her in cross-examination.
Again, the notes of Dr SS in October 2020 indicate the mother simply made a decision not to take the child to Sydney and that cold and flu symptoms or COVID-19 concerns had nothing to do with her decision. The notes dated 22 October 2020 read:
… Anx[iety] incr[eases] as w[eek]end nears and she has to commun[icate] w[ith] [Mr Papp] re[garding] not taking [X] to Sydney … making him avail[able] for F[ace]time calls and w[eek]end visits by [Mr Papp] but intervening if [X] becomes distressed.
(As per the original with clarification)
There is no mention of COVID-19, flu symptoms or any other reasons advanced by the mother in her affidavit for her decision and it is patently clear the mother made a unilateral decision not to take the child to Sydney. Therefore, I find that the mother has failed to establish a reasonable excuse for this count, by not providing the child to spend time with the father in Sydney for this period.
Count 12 (time with the father in Sydney, 27 November to 2 December 2020)
The father sent the mother an email on 20 November 2020 requesting the mother come to Sydney with the child on the weekend commencing 27 November 2020. The mother replied on 27 November 2020 stating she would not do this “as per [her] previous text messages”, which had similar reasons to the above counts.
The mother’s deposed her alleged reasonable excuse was:
20.Due to the precariousness of Covid 19 in Sydney, and the associated health risks to [X] and my family, I believed it was not at all in [X’s] best interests to travel to Sydney at that time.
21.[X’s] had endured two physical assaults by [Mr Papp] and both he and my family were subject to sustained and unrelenting abuse. For the protection, safety and health of [X] and my family, I did not travel to Sydney.
(As per the original)
The two assaults the mother referred to were fleshed out in cross-examination as pinches by the father on the child’s torso on two occasions, which were allegedly aggressive. The mother stated she went to the police but no evidence of her having so done was produced by her and I reject her evidence.
The mother asked me to believe that the father, who had spent significant sums of money on litigation and was focused on spending time with the child, would jeopardise that embryonic relationship in any way, particularly in physically abusing the child. I reject this as a concoction by the mother made up to support her position before me and to Dr SS that the father is an abuser and that is why the child does not want to spend time with him.
I am further supported in that finding, as I accept the father’s evidence, that on the weekend of 12–13 September 2020, he and the child spent positive time together. This would have alarmed the mother, for she could not then continue to assert that the child was frightened of the father, did not want to spend time with the father, and that the father was an abuser. The mother acted to remove the child from the father’s care and I accept his evidence in that regard. Unfortunately, it is the mother who has made the child fearful and not any behaviour of the father. To cement her concerns, the mother alleged the father pinched the child, which is simply unbelievable on the evidence, given the father’s commitment to spend time with the child.
The mother’s October 2021 affidavit is replete with her saying that she encouraged the child to spend time with the father saying, “Go with father you’ll have a good time” and was doing all she could to encourage the child to spend time with the father. This was explored in cross-examination, and in particular what the mother did to encourage the child to spend time with the father, and ultimately as the father submitted the mother did not provide any details as to how she encouraged the child. The mother also deposed that the child would become so upset that he would scream, yell and run away, and that it was simply impossible for the mother, other than forcing him physically, to have the child spend time with the father.
The mother deposed that on every occasion, the father came to the door he was angry, aggressive abusive to her, threated her with contraventions and that his behaviour frightened her and the child.
I reject the mother’s evidence and find that the father’s evidence is preferred in all respects, given my finding that she is not a witness of truth, having regard to her conduct and behaviour in relation to the child’s schooling for 2021, wherein she told the father he was to attend J School and then set about on a course of conduct to ensure he did not attend said school. That the mother unilaterally determined the child was to be home schooled and aided her unilateral decision by failing to inform the NESA that there were orders in place in respect of the child. This behaviour is subterfuge.
The Family Report relied upon by Harper J at the final hearing was clear that the child had a good relationship with the father, was comfortable with the father, and appeared to enjoy the father’s company. I do not accept that the child’s attitude to the father changed so dramatically between the delivery of Harper J’s Reasons and the first time of contact unless, as the father asserts, the mother is not supporting the child spending time with him, or at the more serious level, actively putting fear into the child in respect of spending time with the father. The child lives full-time with the mother and she has enormous influence over him and it is the behaviour and conduct in her house that has the greatest influence on the child, not that of the father.
The mother’s evidence is that the father is responsible for the child’s adverse reaction to spending time with him on this and every other occasion, and his behaviour has led to these breaches and thus she has a reasonable excuse. This is not what the evidence has revealed for the following.
The mother gave evidence in cross-examination that the child is a well-behaved child, is obedient, and he does what she tells him. In those circumstances, the mother’s abject failure to have the child spend time with the father, as is his right, is even more concerning, given this is a child that follows the mother’s instructions and there are rules in her house regarding his conduct and behaviour. The mother’s evidence was she would not force the child to spend time with the father if he did not want to. This is an abrogation of parental responsibility. The mother said she could not, other than by physical means, force the child to spend time with the father. Yet, the child is an obedient child and follows her rules. Whatever the truth may be, the evidence supports a finding that the only time the child does not follow the mother’s rules is in respect of spending time with the father.
Therefore, I find that the mother has failed to establish a reasonable excuse for this count, by not providing the child to spend time with the father in Sydney for this period.
Other findings
The mother’s motives for thwarting the child in spending time with the father are about her needs and not what is best for the child for the following reasons.
The mother consistently referred to her narrative that the father did not want the child and that she gave birth to him alone without the assistance of the father.
The mother consistently referred, in her evidence, to her and the child being evicted from the father’s house when the child was young.
The mother continues to refer to the father as being found abusive and that Dr SS had said he was abusive. The psychologist has not spoken to nor seen the father and has only heard the mother’s side of the story. Thus, I reject the mother’s claims that this is what Dr SS said. This is her view of the father.
The mother continually referred to the Family Consultant, who prepared the Family Report for the final hearing, as only having seen the child for 30 minutes, thus significantly doubting the soundness of the opinion of the Family Consultant that there was a close and secure relationship between the child and the father, and as was found by Harper J to exist.[10] This attitude, that is dismissing the opinion of experts such as the Family Consultant, when those opinions differ to her own, is a feature of the mother’s personality and behaviour and has carried over to failing to abide by the final orders.
[10] Papp & Myers [2020] FamCA 127 at [171].
The mother continually referred to being unrepresented at the final hearing, her evidence was not presented, and she was not heard. I note no appeal of Harper J’s decision was filed.
The mother brought ADVO proceedings against the father in Town B. At that time, the mother was seeing Dr SS and she asked her to prepare a report for those ADVO proceedings. The mother objected to the production of Dr SS’s notes, which I overruled, as the material produced was highly relevant to the proceedings. Upon reading the notes of Dr SS, I can see why the mother objected to production and viewing of them – they are most revealing regarding her attitude to complying with the final orders or taking on the opinion of experts in their field with which she disagrees, such as Harper J, the Family Consultant and Dr SS.
The notes from 22 June 2021 reveal the mother was most unhappy with Dr SS’s report prepared for the ADVO proceedings.[11]
[11] See above [130].
Under cross-examination, the mother initially denied she had asked Dr SS to prepare a report at all. When caught out in this lie, the mother said she did not think the one page, three paragraph letter Dr SS wrote was a report, despite the fact it is begins with:
This report is produced …
It is clear that the mother’s view of the father is that he is careless of the child, is seeking to spend time with the child to, in some way, get back at her, that he has physically abused the child by pinching him and is causing the child emotional distress and harm. This is an incorrect assessment of the father.
I asked the mother in cross-examination how could I reconcile the view she held with the father’s extraordinary perseverance in pursuing the child’s right to spend time with him, including the bringing of this Contravention Application. I asked the mother did she want me to accept that the father, who has spent an extraordinary amount of money pursuing his Initiating Application, which required the determination of this Court, has gone to Town B on eight occasions without spending time with the child, pays child support consistently, would physically abuse the child and was careless of his wellbeing. The mother confirmed this is her opinion, which she asks the Court to accept. This opinion is unacceptable on the evidence.
Unfortunately, it is the mother who is the abuser of the child, not the father. The mother’s trauma caused by the father’s alleged treatment of her, the mother’s view of the father’s conduct and behaviour, and that the father has physically abused the child, has been overlaid upon the child. The mother has been entirely unable to protect the child from her toxic and substantially erroneous view of the father.
I am able to make these findings because the Reasons of Harper J raised these very concerns. Justice Harper reiterated that the mother stated to him if orders are made for the child live with her in Town B, the child should spend weekend time with the father during the day, as specified in her proposed orders and that the father would be welcome to attend her residence for handover.[12] The mother was not true to her word and the father was not welcome at her house.
[12] Papp & Myers [2020] FamCA 127 at [155].
The mother has always been resistant to overnight time and this was to occur from June 2020. Further, when the child commenced school in 2021, the father was to collect and deliver him to and from school and not the mother’s house. This reason – collecting to and from school – was the reason the mother gave to Dr SS as to why she wanted to home school the child, and not send him to J School, as she had told the father. It was not a decision the mother made in the child’s best interests, as his needs were not even mentioned.
Justice Harper found the mother was an unreliable witness, that she had on multiple occasions preferred her own social life to the best interests of the child, the child had slept in a bed with her male friends in Sydney so she could attend to her social life, and despite telling the Court that Town B was her place of residence, she had for six months been effectively living in Sydney each weekend, bringing the child with her, and had kept this from the father.[13]
[13] Papp & Myers [2020] FamCA 127 at [159].
Further, Harper J found the mother had, on numerous occasions, given scant attention to the obligation of the orders made 16 August 2019 and ignored them when it suited her.[14]
[14] Papp & Myers [2020] FamCA 127 at [159], [190].
Finally and most importantly for these proceedings, Harper J found despite paying lip service to promoting the child’s relationship with the father, the mother had actively interfered with the smooth development of the relationship in accordance with the final orders, again when it suited her.[15]
[15] Papp & Myers [2020] FamCA 127 at [159].
Although he accepted that the mother generally found it difficult to live in Sydney, despite the father providing adequate financial support including child support, Harper J concluded:
However, it is likely that another motivation, at least as strong, arose from the disappointment of unfulfilled hopes, because the father did not want a relationship with her or to form a family unit with her and the child.[16]
[16] Papp & Myers [2020] FamCA 127 at [154].
Justice Harper also found that the mother’s attitude to her parental responsibilities is compromised by her resistance to promoting the child’s relationship with the father, with consistent conduct having the effect of undermining the efficacy of the final orders, designed to facilitate the development of a prospectively meaningful relationship between the father and the child.[17]
[17] Papp & Myers [2020] FamCA 127 at [185].
Justice Harper accepted the father’s argument that if the child lived with the mother in Town B, the mother will not support the relationship between him and the child.[18]
[18] Papp & Myers [2020] FamCA 127 at [190].
Justice Harper found that despite the legitimate reservations about the mother that it was not in the child’s best interest to live primarily with the father, the Court was driven by circumstances to make orders which may risk further litigation in balancing the rights of the child and the duties and responsibilities the parents.[19]
[19] Papp & Myers [2020] FamCA 127 at [191].
Unfortunately, the concerns and reservations set out in the Reasons of Harper J have come to fruition and the child has not had a relationship with the father since the mother was permitted to remain living permanently with the child in Town B and the mother’s focus continues to be on her needs, as noted by Harper J.[20]
[20] Papp & Myers [2020] FamCA 127 at [186].
The mother has failed to establish any excuse, let alone a reasonable excuse, for her abject failures to ensure the child continued and strengthened his all-important relationship with the father, as was attested to by the Family Consultant and found by Harper J at the final hearing, to be of benefit to the child and necessary for his psychological and emotional well-being.
All the evidence, combined with Dr SS’s notes, satisfy me that despite the mother saying she wanted the child to have a relationship with the father at that time and continuing, she had no intention of complying with the final orders for the child to spend time with the father in either Town B or Sydney.
The mother’s primary argument was that the child did not want to spend time with the father because he was an abuser and therefore the child did not spend time with the father. The father is not an abuser of the child and the alleged pinching incident was not even mentioned to Dr SS by the mother. The mother’s allegations are baseless. Further, I have found from the mother’s evidence that the child would be obedient to the mother’s requests. This then results in a finding that if the mother wished the child to spend time with the father, he would happily and willingly go. This is but one sadness in this matter that the mother’s needs have so overwhelmed the child’s right to a relationship with the father, that she may now have put fear into the child regarding him spending time with the father.
PENALTY
The father made submissions, that in the event I found the mother had no reasonable excuse to some or all of the counts pressed, I make the following orders:
1.That pursuant to section 70NEB(1)(e) of the Family Law Act 1975 (Cth), the Respondent Mother pay to the Applicant Father the sum of $10,462.97 within 28 days of these orders.
2.The Respondent Mother enter into a bond without financial penalty for a period of two years on the condition she comply with these orders.
The father also sought orders to vary the final orders made by Harper J, although I made orders for the matter to be adjourned to hear submissions on what orders should be varied.
The father’s case is that the contraventions are a ‘less serious contravention’, and covered under Subdivision E of Division 13A of the Act. This was likely sought as no court has yet imposed a sanction upon the mother regarding a contravention[21] and no issue was raised whether the contraventions were of a category “that showed a serious disregard for [the mother’s obligations] under the primary order”.[22] I note that if I was asked by the father, I would have found the mother to have committed a ‘more serious contravention’ in respect of parental responsibility, given her subterfuge and deceptive conduct around the schooling of the child.[23]
[21] Family Law Act 1975 (Cth) s 70NEA(2)(a)
[22] Family Law Act 1975 (Cth) s 70NEA(4). See also Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 at [49]–[65] (Faulks DCJ, Kay and Penny JJ).
[23] Family Law Act 1975 (Cth) Div 13A sub-Div F.
The first order sought is for the mother to compensate the father for expenses resulting from the contraventions, which is provided for in section 70NEB of the Act:
70NEB Powers of court
(1) If this Subdivision applies, the court may do any or all of the following:
…
(e) if:
(i)the current contravention is a contravention of a parenting order in relation to a child; and
(ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
The second order is for the mother to enter into a bond, which is provided for in section 70NEC of the Act:
70NEC Bonds
(1)This section provides for bonds that a court may require a person to enter into under paragraph 70NEB(1)(d).
(2) A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4)The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a)to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
(5)If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii)having entered into the bond—fails to act in accordance with the bond.
The third order is that the final orders of Harper J be varied, which is provided for in section 70NBA of the Act. I have stood that issue over to another date following delivery of these Reasons for Judgment.
Counsel for the mother submitted that if I were to find the mother did not have a reasonable excuse for any or all of the contraventions, there was no opposition to the order for a bond as sought by the father.
Compensation
The father provided a schedule prepared pursuant to section 50 of the Evidence Act 1995 (Cth) for the expenses he incurred to spend time with the child in Town B on the dates associated with counts 2, 3, 5, 7, 9, 11, 13, and 18.[24] The father only pressed that I find the mother did not have a reasonable excuse for counts 2, 3, and 5. Upon the reading of section 70NEA(1)(c) of the Act, compensation under section 70NEB(1)(e) can only be granted in respect of contravention where the respondent “does not prove that he or she had a reasonable excuse for the current contravention”.
[24] Exhibit F7.
Thus, the expenses I can compensate the father for are those where the mother did not make out a reasonable excuse for a breach and not all the contraventions found at a prima facie level, and these are counts 2, 3 and 5, despite the findings of the Court that the father has not spent time with the child in accordance with the final orders in Town B and has incurred expenses with the other counts where he did not seek I find the mother did not have a reasonable excuse.
The expenses the father set out in the schedule, as applicable to counts 2, 3, and 5, are as follows:
Weekend Invoice Date Expense Amount 27–28 June 2020 17 June 2020 Flights $480.47 2 May 2020 Accommodation $515.10 11–12 July 2020 15 June 2020 Flights $506.84 12 July 2020 Car rental $251.20 8–10 August 2020 13 July 2020 Flights $430.08 9 August 2020 Car rental $251.85 2 May 2020 Accommodation $361.58 Subtotal $2,797.12
I have read the invoices and recepts filed to support his claim and find that all expenses were reasonably incurred expenses, for example, the flights purchased in economy class.[25] The father appropriately quantified his expenses and provided receipts of each expense in his affidavit.[26]
[25] Family Law Act 1975 (Cth) s 70NEB(1)(e)(iii).
[26] Ongal & Materns (No 3) [2013] FamCA 946 at [82] (Dawe J).
The father sought to enforce the child’s right to spend time with him in Town B. It is appropriate that given this time was to occur over more than one day, he was required to book flights to and from Town B, accommodation and hire a rental car. It is the mother’s intentional conduct, as demonstrated from the notes of Dr SS, to prevent the father spending time with the child, that these expenses incurred by the father were wasted.
I note that the father claimed an amount of $506.84 for flights for the weekend of 11–12 July 2020, however, the invoice he provided shows an amount of $448.44. Therefore, the nett expenses incurred for the counts as found is $2,738.72. I make an order that the mother pay the father this amount to compensate for expenses incurred resulting from her contraventions for the following.
Although there is no requirement in section 70NEB(1)(e) for consideration of a respondent’s financial circumstances, it is relevant to my decision whether I use my discretion to make such an order. I have no evidence before me about the mother’s financial circumstances.
The mother knew the father sought an order for compensation, as his affidavit filed with his Contravention Application made this clear and had annexed to it the invoices for each of the expenses he incurred.
The mother’s legal representation at this Contravention Application was appointed pursuant to section 102NA of the Act.
Finally, as is with costs applications, impecuniosity is not an obstacle to an order for compensation.[27]
[27] Delahunty & Delahunty [2019] FamCA 304 at [104] (Forrest J).
The proceedings were necessitated by the mother’s failure to comply with the final orders and she has been wholly unsuccessful in her argument that she had a reasonable excuse for her abject failure to provide the child to spend time with the father.
The mother’s conduct in regard to the child’s schooling for 2021 was deceptive and amounted to subterfuge. The mother’s case in this regard was but a thin tissue of lies exposing her actions as being motivated by her needs and not what was best for the child in regard to an important year for him, being his first year of formal education, which did not occur for him at the beginning of the 2021 school year. The child was denied attending ‘big school’ for the first time at the beginning of the school year and enjoying that experience with his classmates by the mother’s conduct.
In these circumstance the mother should compensate the father for these expenses.
Bond
The order for a bond without surety, to be of good behaviour for 24 months. as sought by the father, is not opposed by the mother, and I am satisfied that such an order is appropriate for the following reasons.
As stated earlier, Harper J found that the mother’s capacity to promote the child’s relationship with the father is compromised, including an unwillingness to comply with court orders[28] – something that she has continued to do – as is clear in respect to this Contravention Application. The imposition of a bond may provide some safekeeping and ensure the mother complies with the orders of the Court.
[28] See above [205].
When the matter comes before me on 14 December 2022 for consideration of varying the final orders made by Harper J, I will, as I am obliged to do, is ensure the mother is made aware of the purpose of the bond, the requirements of the bond, and the consequences of not entering into the bond or complying with its terms.[29] One such consequence may result in, at its highest, in a sentence of imprisonment.
[29] Family Law Act 1975 (Cth) s 70NEC(5).
Given that I have made an order for the mother to compensate the father for expenses he incurred, a bond without surety is appropriate.
Other penalties
Section 70NDB of the Act provides the following:
70NDB Order compensating person for time lost
(1) If:
(a) the primary order is a parenting order in relation to a child; and
(b)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court:
(c)may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and
(d) must consider making that kind of order.
Note:If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).
(2)The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so.[30]
[30] See also Family Law Act 1975 (Cth) s 70NEB(4).
I am required to consider whether I should make an order that the mother compensate the father for time not spent with the child. For the following reasons, I am not satisfied it is in the best interests of the child to so do.
Firstly, the mother has generally not complied with the final orders, and particularly in relation to the counts brought by the father, the mother has actively sought to exclude the father from any involvement in the child’s life, thereby undermining the father’s right to restore his relationship with the child. The reality is the child has not spent time with the father for in excess of two years, except the minimal time in September 2020.
Secondly, the final orders have a progression in the time the father is to spend with the child, which progression has not occurred. Given that the child has not spent time with the father in excess of two years, I am concerned that ordering any time without relevant social science may have a negative impact on the child and his functioning and would not be in his best interests.
Thirdly, I ordered a Child Impact Report, which has been prepared and will be released contemporaneously with these Reasons for Judgement. It is hoped this report will assist the parties and the Court to determine whether the final orders should be varied, and if so, how they should be varied.
Conclusion
I will order the mother to compensate the father in the amount of $2,738.72 and that she enter into a good behaviour bond without surety.
Conclusion and Orders
The matter is to be adjourned to 14 December 2022 for determination if the final orders of Harper J should be varied.
I make an order that the Child Impact Report dated 5 August 2022 be released to the parents.
I reserve the costs of both parties to 14 December 2022.
The mother’s to pay the father the sum of $2,738.72 by way of compensation within three months.
The mother is to enter into a bond, without surety, to be of good behaviour, for a period of 24 months and is to attend before a Registrar of the Sydney Registry to enter into that bond prior to the adjourned hearing on 14 December 2022.
I certify that the preceding two hundred and forty-six (246) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 2 December 2022
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