Pickering and Pickering

[2010] FamCA 418

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING [2010] FamCA 418

FAMILY LAW – CHILDREN – Contravention of parenting orders – where the father says he was not intelligent enough to understand the orders – father found to have breached orders without reasonable excuse – standard of proof – penalties appropriate for a first but significant breach, and where the father has little income

Family Law Act 1975 (Cth) ss 70 NAF, 70NFB, 70 NFE, 70 NFF, Subdivisions E and F of Division 13A

Elspeth & Peter; Mark & Peter and John & Peter (penalty and costs) (2007) FLC 93-341
Gaunt and Gaunt (1978) FLC 90-468
Stavros and Stavros (1984) FLC 91-562
Stevenson v Hughes (1993) FLC 92-363

APPLICANT: Ms Pickering

RESPONDENT: Mr Pickering

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 28 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Watts J

HEARING DATE: 6 - 7 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Burchell

SOLICITOR FOR THE APPLICANT: Nicholls Gervasi & Co

COUNSEL FOR THE RESPONDENT: Ms Hurley

SOLICITOR FOR THE RESPONDENT: Armour & Allen

Orders

THE COURT FINDS THAT:

1. The father has breached Order 2 made 22 October 2008 by removing H and S from their school on or before 12 August 2009 without consulting the mother. 

2. The father has breached Order 2 made 22 October 2008 by taking H and S to Queensland on or before 12 August 2009 without consulting the mother.

3. The father has breached Order 10 made 22 October 2008 by taking H and S out of school and taking them to Queensland without using his best endeavours to resolve the matter by way of mediation.

4. The father has breached Order 3(i) made 22 October 2008 by failing to make H and S available to spend time with their mother each alternate weekend from the close of school on Thursday to the commencement of school on Monday with the breaches occurring on Thursday 13 August, 27 August, 10 September and 24 September. 

5. The father has breached Order 3(ii) made 22 October 2008 by not making H and S available to spend time with their mother during the September/October 2009 school holidays.

6. The father has breached Order 2 made 22 October 2008 by removing S from her existing school in or about April 2009 and placing her in another school without consulting the mother prior to making that decision.

IT IS ORDERED THAT:

1. THE FATHER must forthwith enter into a bond for a period of twelve (12) months without security and with surety to:

   7.1.Be of good behaviour;

   7.2.Comply with any parenting order in respect of the three children of the marriage, M born … September 1993, H born … June 1995 and S born … December 2000 (“the children”).

IT IS NOTED THAT:

8.1If the court (whether or not constituted by the judge or magistrate who required the bond to be entered into in accordance with section 70NFE) is satisfied that the father has, without reasonable excuse, failed to comply with the order or bond, the court may take action under order 8.2

8.2The court may:

8.2.1without prejudice to the continuance of the bond entered into in accordance with section 70NFE, impose a fine; or

8.2.2revoke the bond entered into in accordance with section 70NFE and deal with the father for the contravention in respect of which the bond was entered into, in any manner in which the father could have been dealt with for the contravention if:

8.2.2.1the bond had not been entered into; and

8.2.2.2the father was before the court under section 70NFB in respect of the contravention; that is if the father breaches the bond he risks a more serious sentence such as a community service order or a sentence of imprisonment.

IT IS FURTHER ORDERED THAT:

9.1The orders of 22 October 2008 be varied so that the children spend an additional 9 weekends from the close of school on Thursday to the commencement of school on Monday, extended to Tuesday in the event that  Monday is a public holiday or a pupil free day, to compensate the children for the time the children did not spend with their mother as a result of contravention of the orders of 22 October 2008 by the father. 

9.2Those nine weekends will be the first nine weekends during school term, commencing from the date of this order, when the children would have otherwise been with their father, pursuant to the order of 22 October 2008.

9.3Weekends at the beginning, during and at the end of school holidays shall be part of the school holidays pursuant to order 3(ii) of 22 October 2008.

1. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919 of 2005

MS PICKERING

Applicant

And

MR PICKERING

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The mother says that the father has breached orders made by Strickland J on 22 October 2008.  Those orders were made when the father was present in court.  They were made by consent based on a document which he had signed. 

2. The orders of 22 October 2008 relate to the three children of the marriage, M born in September 1993, H born in June 1995 and S born in December 2000.  The relevant orders are as follows:

   1.That the children live with the father. 

   2.That the parties have equal shared parental responsibility for the children.

   3.That the said children spend time with the mother as follows:

   UPON NOTING THAT the time [M] spends with the mother shall be subject to [M’s] wishes:

   (i)Each alternate weekend from the close of school on Thursday to the commencement of school on Monday extended to Tuesday in the event that Monday being a public holiday or pupil free day, commencing Thursday 23 October 2008;

   (ii)For half of the short school holidays at times agreed between the parties and in default of agreement for the first half thereof from the close of school on the last day of term to 6pm on a day representative of halfway through the holiday period;

   ….

   (vii)On the children’s birthdays from 3pm (or the conclusion of school if a school day) to 7pm SUBJECT TO the children being returned to their father from 3pm (or the conclusion of school if a school day) to 7pm on their birthday should they coincide with the mother’s time.

   7.That each party inform the other by SMS text or email at least 24 hours prior to removing the children or any of them from the State of South Australia, and for that purpose, the parties keep each other informed of their current mobile telephone numbers and email addresses at all times. 

   ….

   10.That in the event of any further dispute arising between the parties as to the care of the children, they will use their best endeavours to resolve the matter by way of mediation before issuing proceedings in this Honourable Court.

3. By way of Amended Application – Contravention filed by the mother on 5 November 2009, the mother alleged that the father had contravened paragraphs 2, 3(i), 3(ii), 3(vii) and 10 of the orders dated 22 October 2008. 

4. Eleven breaches of those orders were alleged and in summary those breaches are as follows:-

   4.1.That the father had breached order 2 by removing H and S from their school on or before 12 August 2009 without consulting the mother. 

   4.2.That the father had breached order 2 by taking H and S to Queensland on or before 12 August 2009 without consulting the mother.

   4.3.That the father breached order 10 by taking H and S out of school and taking them to Queensland without using his best endeavours to resolve the matter by way of mediation.

   4.4.Counts 4 to 8 relate to the failure of the father to make H and S available for ordinary alternate weekend time (Thursday afternoon to Monday morning) with their mother on Thursday 13 August, 27 August, 10 September, 24 September and 8 October 2009 as was required by order 3(i). 

   4.5.The ninth count related to H and S not being made available by the father in the September/October 2009 school holidays (from the close of school on the last day of term being 25 September 2009 to 6pm on the day representative of half way through the holiday period) pursuant to order 3(ii). 

   4.6.The tenth count related to H not being made available to the mother on his birthday, which was in June 2009, pursuant to order 3(vii).

   4.7.The eleventh count was an assertion that the father had breached order 2 by removing S from her existing school (V Religious School) in or about April 2009 and placing her at V Primary School (this being a breach of order 2).

5. The father was formally charged with each of the eleven counts and indicated he pleaded not guilty to each of them.

6. Counsel for the father indicated that none of the contraventions were conceded.

7. During the cross examination of the mother, counsel for the mother indicated that he did not intend to press count 8 as it became clear that 8 October 2009 would not have been a weekend that the children ordinarily would have been with their mother in the event that their mother had had the children during the September/October 2009 school holidays (the fact that she did not have them during those school holidays was the subject to the complaint in the 9^th count). 

8. I find that the father had knowledge of the orders of 22 October 2008. 

9. In support of her application, the mother relied on evidence in four affidavits that she had sworn which had been filed on 8 October 2009, 5 November 2009 (an affidavit of 9 paragraphs), a further affidavit filed 5 November 2009 (an affidavit of 6 paragraphs) and an affidavit filed 15 January 2010. 

10. The father had chosen, prior to the establishment of a prima facie case against him, to file an affidavit on 7 December 2009 and a further affidavit on 29 April 2010. 

11. The mother also, without objection, gave some further oral evidence, as did the father.

12. The mother in her case also tendered by consent a transcript of the court record when the orders of 22 October 2008 were made.  That record discloses that the father was personally present when the orders were made.  It is clear that the orders were made after His Honour had heard a lot of evidence about the issues in dispute.  His Honour was satisfied that the proposed orders were in the best interest of the children and he emphasised that the parties now had the responsibility to make sure that the orders worked.  The court transcript for that day also has annexed to it the original consent order document that is signed by the father, mother and the Independent Children's Lawyer. 

13. Exhibit B is a number of emails which the mother says she sent to the father on 27 February 2009, 24 April 2009 and 12 August 2009. 

14. Exhibit C is a number of emails sent by the father to the mother dated 28 October 2008, 27 October 2008, 23 October 2008 and 29 October 2008. 

15. Exhibit D is a transcript of the court record as to what happened before Justice Strickland on 7 December 2009 and 23 December 2009.  The proceedings on 7 December 2009 were proceedings by the wife for a recovery order.  Exhibit D is evidence that, although not the subject of any separate charge, Justice Strickland on 7 December 2009 at the conclusion of a hearing which the court record shows the husband was personally in attendance by telephone, made an order in the following terms:

    “That the husband deliver up the children to the wife at 12 noon on Saturday 12 December 2009 at the home of the paternal grandparents at […] for the purposes of complying with paragraph 3(iii) of the order made 22 October 2008.”

16. His Honour made it clear on that day he was not yet prepared to issue the recovery order.  He indicated that the order for delivery up of the children was slightly delayed as the father needed some lee-way in terms of delivering up the children and he gave the father a five day opportunity to do so.  It is common ground the father failed to comply with His Honour’s order. 

17. Exhibit D also contains a copy of the recovery order issued by Justice Burr on 23 December 2009. 

CREDIT

Mother

1. The mother impressed me as a credible witness.  There was no point during her cross examination where I thought she was untruthful and nothing in any of the material that she has presented is inherently unbelievable. 

Father

1. The father was an unimpressive witness.  He presented as a man of at least average intelligence.  The affidavit that he filed on 7 December 2009 is a document which was prepared by him without assistance.  That document discloses an above average command of the English language and the ability to express himself in written form.  I have evidence that the father, whilst currently unemployed, was involved in the building industry for many years.  For part of that time he was the joint proprietor of a business which originally operated as a partnership.  He was then the director of a company which ran that business.  I find that the father is not unintelligent.  It is part of his defence to this application that I accept that he is, but I do not. 

2. A lynch pin of the husband’s “reasonable excuse” in this case is what can only be described as an absurd and bizarre interpretation of the original consent orders.  He draws a distinction between the children “living” with him (pursuant to order 1 made 22 October 2008) and the children spending time with their mother (order 3 made 22 October 2008).  He said that that meant that he had “custody” and the mother only had “access”. 

3. The next part of the father’s alleged logic is in relation to order 7. I have set out order 7 above but for convenience I set it out again:

   “7.  That each party inform the other by SMS text or email at least 24 hours prior to removing the children or any of them from the State of South Australia, and for that purpose, the parties keep each other informed of their current mobile telephone numbers and email addresses at all times.”

4. The father relies on order 7 to support the proposition that as long as he has given the mother 24 hours notice that he intends to take the children to Queensland then order 7 authorises him to permanently relocate to Queensland. The father seemed to acknowledge that that logic meant that order 7 could extinguish all rights that the mother had to “access” (to use the father’s word) to the children. 

5. During cross examination I asked the father, given order 7 started with the words “each party” whether or not that meant that the mother could have given at least 24 hours prior notice by SMS text or email that she was going to live in New South Wales with the children and that that would mean that they would no longer live with him in South Australia.  He responded by saying that that is exactly what he thought order 7 did mean.  I do not accept that the father was being truthful when he gave that answer.  I gave the father an opportunity to reconsider his answer but he persisted with it. 

6. The father gave inherently unbelievable evidence that, at relevant critical times, his ability to access the internet was such that he was unable to receive email messages sent to him by the mother.  He asserts that these messages were never received at any time by him.  The mother’s evidence which I accept is that the email messages were sent by her and she received no indication from her email provider that the messages had not been received by the intended recipient, the father. 

7. I find that the father also fabricated evidence in relation to placing a note in S’s school bag informing the mother of his intention to change S’s school after term 1 2009.  The assertion that this note had been sent does not receive a mention in the initial affidavit filed by the father on 7 December 2008.  There is an oblique reference to a “notification” in paragraph 3.12 of the father’s affidavit of 29 April 2010 but there is no specific reference to a note in a school bag.  Later in the father’s evidence he referred to it as a “letter in [S’s] school bag”.  The parties do no speak to one another.  Their traditional method of communication has been by email or text.  The father (as is clear from Exhibit B) seems to have had no trouble sending a number of emails to the mother requesting the mother provide some financial assistance in October 2008. 

8. The mother says that she received no notification from the father in the middle of term 1 2009 that S was changing schools and I accept she is truthful when she tells me that.  I find that the father has fabricated the evidence relating to the note or letter in S’s school bag in first term 2009. 

9. The husband’s explanation for why he did not comply with the orders of Strickland J made on 7 December 2009 beggars belief.  His Honour made it clear in the proceedings in which the husband was given leave to participate by telephone that he did not intend to issue an immediate recovery order for the police to go and get the children. He gave the father an opportunity over a five day period to deliver the children back to the home of his parents in South Australia.  The father’s explanation as to why he did not comply with the clear order was that he thought that if he filed some paperwork seeking a variation of the order then he would not have to comply with it.  He asserted that he attempted to file some paperwork but was unsuccessful in doing so.  He did not produce any of the alleged paperwork that he had attempted to file but that is beside the point.  I do not believe that he thought that he could simply ignore what Justice Strickland had ordered him to do.  Even on his version he was unsuccessful in his attempt to do what he thought might thwart Justice Strickland’s order.  I find that the father’s evidence as to why he failed to return the children in December 2009 as inherently unbelievable.  I do not accept the husband was being truthful in the evidence he gave by way of explanation as to why he failed to comply with the order of the court made on 7 December 2009. 

10. The other bizarre twist of logic that the father relies upon, in his defence, is an interpretation of order 10 made 22 October 2008.  The father asserts that order 10 means that in the event that either parent wishes to do something different with the children to that which is provided for in the court orders they are able to do that.  At that point there is no ‘dispute or disagreement’.  A disagreement in the father’s view would only occur if some objection was raised by the other parent to the first parent breaching the court orders.  It is only upon the raising of an objection by the other parent that a ‘dispute’ arises.  On that logic the father asserts that the onus is on the person objecting to the breach of the orders to use their best endeavours to resolve the matter by way of mediation before issuing proceedings in the court.

11. Again the father asks me to accept that he is a man of very low intelligence and that he genuinely believes that order 10 is meant to operate in that way.  The Full Court in Gaunt and Gaunt (1978) FLC 90-468 said:

    “The essential question is this - can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child?  The question of the child’s welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court’s order or from the consequences of non-compliance would undermine the purposed [sic] and intentions of the Act.”

1. There is a positive obligation on a parent to do everything within their power to facilitate an order that children spend time with the other parent (Stevenson v Hughes (1993) FLC 92-363 and Stavros and Stavros (1984) FLC 91-562).

2. It is however in my view disingenuous of the father to say that a person who wants to change orders should not take the course of firstly inquiring of the other parent as to whether or not that change is agreed to.  In this case, given order 10, the second step would be for the father to use his best endeavours, by way of mediation, to resolve the dispute, that he had created by wanting to change the orders.  To suggest, as the father does in this case, that the onus is on the mother to arrange mediation, in circumstances where the father is doing something different to what is in the orders, defies any reasonable logic that would be applied by a person of average intelligence reading order 10. 

3. The father in oral evidence also changed his story as to when he took the children to Queensland.  In his affidavit filed 7 December 2009, at paragraph 14, he said that it was “at the end of July 2009”.  This would be consistent with the mother’s assumption that the father, when stopped by the police on 29 July 2009 with the children in the truck, was on his way to Queensland.  The father denied that that was so and said he was probably only taking the children out to get some dinner.  His oral evidence was that he did not move to Queensland until about a week later because of wet weather bogging the access to the shed where his belongings were.  I got the strong impression that he did not want me to conclude that he was on his way to Queensland with the children when the police stopped him.  In any event there is a clear inconsistency in two sworn versions given by the father as to when he took the children to Queensland.  What is clear is that the father took the children to Queensland without telling the mother when they were going or giving her a proper opportunity to say goodbye.  That was a deliberate action on behalf of the father because the father knew that the mother was attempting to do things to stop him from going to Queensland with S in particular.

Conclusions about credit

1. Where there is a difference in the evidence given by the mother and the father, I prefer the evidence given by the mother. 

COUNTS 1 - 2

1. On Wednesday 29 July 2009 the mother received a text message from the father advising that he would be relocating to Queensland with the children H and S.  The father’s motivation for going to Queensland was to pursue a relationship with a woman who lived there.  The father gave no child focused explanation as to why the children were being taken out of their schools and moved to Queensland.  The text message was in the following terms:

   (message received at 10.28am on 29 July 2009):

   Just letting you know [H] and [S] can’t attend this weekend because we are moving to qld over the weekend

2. In reply, the mother advised the father by way of text/SMS message that it was her contact weekend with the children “and if you go you will again be in breach of the court orders”. 

3. At paragraph 10 of the father’s affidavit of 7 December 2009 he asserts “there are no restrictions in the orders as to where the father resides”.  That is clearly incorrect given that there was in place an order for equal shared parental responsibility and an order that the children spend defined regular time with the mother at the relevant time.  As I have already indicated, the father asserts (in paragraph 11 of his affidavit of 7 December 2009) that those orders are made void by order 7 made by Strickland J on 22 October 2008 which allows each party to inform each other by SMS, text or email at least 24 hours prior to removing the children or any of them from the State of South Australia.  As I have also said, I find it is disingenuous in the extreme for the father to assert that that order enabled either party on a 24 hour SMS notice to permanently relocate with the children anywhere in Australia. 

4. The father also asserted that he did not know what an order for equal shared parental responsibility meant.  Section 61B Family Law Act (FLA) says it means “all the duties, powers, responsibilities and authority which by law, parents have in relation to children”.  Section 65DAC(2) FLA provides that such an order is taken to require decisions to be made jointly and s 65DAE FLA says parents need not consult on issues that are not major long-term issues.  The father, in my view, however did not need to know these sections.  The words “equal shared parental responsibility” have an ordinary English meaning.  I find that the father knew that permanently relocating the children interstate and changing the schools were decisions about long term issues and that those types of decisions could not be made unilaterally by him without reference to the mother who shared parental responsibility with him equally.

5. Whilst the unilateral change in where the children live is a stand alone offence, the real damage to the children is that it meant that the time that they were otherwise to spend with their mother could not take place.  In that sense, the more serious part of the charges against the father is duplicated in counts 4 to 7 and count 9.  The other ramification of the children moving interstate is that they change schools again; or to put it more accurately, they changed schools eventually at the commencement of term 4 2009.  The father indicated during the hearing that he kept the children out of school for most of (and I find probably the whole of) term 3.  He said he home schooled the children but did not give any satisfactory explanation as to how he achieved that.

6. Nevertheless, notwithstanding the father’s protestations that he had “custody”, I do not accept that he thought that he could unilaterally relocate interstate with the children without consulting the mother, who shared equal shared parental responsibility for the children with him. 

7. I do not accept that the father did not understand that the children’s education would be a matter that required him to consult with the mother, with whom, pursuant to order 2, he shared parental responsibility for the children.

COUNT 3

1. I have already commented about the absurdity of the father’s interpretation of the mediation order. 

2. In his affidavit filed 7 December 2009 at paragraphs 12 and 13, the father says that no mediation was needed so far as he was concerned because he was quite content with his move to Queensland.

3. In paragraph 7 of the father’s affidavit filed 7 December 2009, the father alleges that at court on 15 September 2009 he told the mother’s solicitor that if the mother was not happy about it, it was up to her to initiate mediation and told him that he was available for the rest of the week if he wished to discuss matters further but he did not receive any further contact in relation to mediation.  The difficulty with his evidence being relevant to any defence of reasonable excuse the father might raise is that this alleged conversation with the mother’s solicitor happened on 15 September 2009 in circumstances where the father admits having moved to Queensland at the end of July or early in August 2009. 

4. Also I have admitted without objection the hearsay statement by the mother that her solicitor advised her that no mediation was mentioned in the conversation on 15 September 2009.  Given the conflict in the evidence, and my findings about the father’s credit, I have no confidence that I can accept what the father says about this conversation. 

COUNTS 4, 7 and 9

1. The mother asserts that after the father unilaterally decided to remove the children from their schools and relocate to Queensland at the end of July 2009. She did not have any contact with the children until they were returned to her on 23 December 2009 pursuant to the recovery order made by Burr J except that she communicated on a few occasions with H via Facebook.

2. The father in his affidavit of 7 December 2009 says that on Wednesday 29 July 2009 he notified the mother that the children would not be able to attend her place the following weekend because he was moving interstate.  It is the father’s evidence that this led to the mother attending the school on that day at about 3.30pm and taking S out of school.  S was to be collected by the paternal grandfather who is elderly. 

3. The mother said she received a text message on 29 July 2009 whereby the father notified the mother that he would not be able to attend her place the following weekend because he was moving interstate. She said that text message was sent at about 11.30am.  The mother said that she contacted various authorities to see what she could do.  It was as a result of this text message that she took S from school (one day earlier than the order provided for).  The mother denies the allegation that she twisted S’s arm when she took her from school.  The mother hired a security guard.  He was at the home on the evening of 29 July 2009 when the father arrived shortly before the police arriving.  S was not in the house at the time because the maternal grandparents were driving her around in a car.  The mother says that the police demanded that S be brought back to the house.  The police also confirmed with her that it was not her time to have S under the orders.  There is a difference of opinion between the parents as to what S’s attitude and mood was when she went back with her father. 

4. There is a difference of evidence as to what happened next, but it is generally conceded that with the police in attendance, S was reunited with her father and her father left the mother’s premises with S and H.  The mother continued to make efforts to stop the children going interstate, including seeking private legal advice and advice from other authorities. 

5. On Friday 31 July 2009 the mother drove a considerable distance to the father’s property and saw that he had not yet left for interstate.  She called the police.  The father, with the children in the truck, came out of his property.  They were pulled over by the police.  The father, at paragraph 6 of the father’s affidavit on 7 December 2009, says “The sergeant who spoke to the children relayed to him ([H]) that his mother didn’t care if he went to Queensland with me but just didn’t want [S] going”.  The father asserts that S was scared the policeman was going to take her back to her mother. 

6. The police allowed the father to leave with the children.  The father’s evidence is that the sergeant spoke to the children.  The father said he was told that the mother did not care if they went to Queensland.  Given the findings of credit I have made, I am unable to rely on that evidence by the father.

7. I accept that the mother was distraught at this time.  The police officers knew it was her time with the children because the mother had shown them a copy of the court orders.  She was prepared to abide by H’s wishes.  It was common ground that H said he wanted to go with his father. 

8. Counsel for the father highlighted in cross examination that the mother in her affidavit of 15 January 2010 had said at paragraph 7:

   “What I had told the police was that I wanted both the children to stay with me but as [H] was fourteen (14) years old I assumed that he could legally make up his own mind and if he didn’t want to come with me I wouldn’t force him.  I only have the best interests of the children at heart and I did not want to force them to do anything they did not want to do.  I say that I love both of my children.”

9. Counsel for the father emphasised to the mother the words “did not want to force them to do anything they did not want to do” and suggested that the mother acquiesced to both children going to Queensland at that time.  I however accept the mother’s oral evidence that at no time on 31 July 2009 did she indicate to the police that she acquiesced in S being taken to Queensland.

10. At no time did the father do anything to initiate an arrangement whereby the children would have face to face time with their mother on either alternate weekends or the September/October school holidays. 

11. Counsel for the father sought, during the hearing, to introduce a technical defence by referring to publicly available information about the dates of the Queensland school holidays.  I did not allow that evidence.  In my view, order 3(ii) must be read as a reference to South Australian school holidays unless there is a court order or parenting agreement which provided otherwise.  The father cannot rely upon his unilateral removal of the children from the State in order to ground an argument that the orders now meant something different to what they originally meant.  The onus is on him to get them changed. 

12. It seems common ground that the mother did not make any attempts to go to Queensland to see the children between July 2009 and October 2009.  The father’s evidence is that the mother had limited contact with H through Facebook.  The father’s evidence was the mother did not attempt to telephone H or S and that the father received no emails from the mother requesting to make arrangements to see H or S whilst he was in Queensland.  The mother said and I accept, she was not told where the children were living in Queensland. 

13. The delay in the mother instituting legal proceedings to enforce orders does not provide the father with a reasonable excuse for breaching the orders in the first place and to continue to breach them. 

COUNT 10

1. The mother simply asserts that the father failed to make H available to spend time with the mother on his birthday in June 2009. She initially gives no details in her affidavit of 5 November 2009 about that allegation.

2. The father says that on 7 June 2009 he received a message from South Australian Police alerting him to the fact that H was missing.  He had left his mother’s home.  The police indicated that neither the mother nor they knew where H was.

3. The mother admits H ran away.  The mother denies that Mr X told H to leave the house.  The mother’s version is that H was swearing in the house and Mr X told him that he was to get out as swearing was not tolerated in the house.  It is clear that there was a disagreement between H and Mr X and as a result of that disagreement, H left the home saying to his mother that he was going to sleep over at a friend’s house.  By Sunday evening the mother did not know where H was and reported him missing to the police.  The mother located H on Monday morning and took him home to get his school uniform and took him to school.  She had a conversation with H as to whether or not he would still want to come to her home that evening as it was his birthday and she says he confirmed that he did. She says at about 10am she received a text message from the father advising that H and S would not be attending that night.  She says there was a telephone conversation between she and the father. She told the father that H had indicated he wanted to come. The mother denies that she received a text message from H saying he did not want to come.

4. The father was interstate in Victoria at the time.  His evidence is that he drove through the night to get back to Adelaide.  When he arrived back to Adelaide, H was at school.  The father said he spoke to H at length with the school counsellor.  H told his father that the mother’s partner, Mr X, had had an argument with him and told him to get out of the house. 

5. In relation to attending his mother for his birthday pursuant to order 3(vii), the father’s evidence is that H indicated that he did not want to go to his mother’s place at this time.  The father asserts that H texted the mother to notify the mother of H’s wishes. 

6. The mother says she did not receive the text and I accept that is truthful.  Nonetheless, I also accept that H may have felt conflicted and angry at this time and may well have told his father he did not want to go to his mother’s home on this evening. 

COUNT 11

1. The mother concedes that H was transferred to K High School with her consent and that is not the subject of any complaint. 

2. The mother gives evidence in about April 2009 the father removed S from the V Religious School and transferred her to the V Primary School without consulting the mother.  The mother’s evidence about her attempts to contact the father is contained in Exhibit B.  The mother’s email to the father on Friday 27 February 2009 was in the following terms:

   “When I was getting [S’] sports uniform today I was asking how she was doing at school etc.  I was advised she was doing fine and that it was a shame she was leaving at the end of the term. 

   I was surprised to hear this as you have not indicated any such move to me and according to the court documents we are to discuss this sort of thing.

   Can you please let me know what schools you are considering sending her to?”

3. The father says he did not receive this email but I do not believe him.  He did not respond to this email. 

4. On 24 April 2009 the mother sent a further email to the father in the following terms:

   “Hi [the father],

   I haven’t had a reply from you as yet regarding if you are changing where [S] goes to school.  Over the holidays she told me that she was going to the school next door.  Have you changed schools and if so, will she now be attending [V] Primary School?  As school starts again on Monday, can you please let me know what school she will be attending and what the starting and finishing times are as I need to know where to collect her from and what time when it is my weekends with the children.

   Thanks,

   [the mother]”

5. Again the father says that he did not receive that email and I do not believe that he is telling me the truth.  I accept that the mother did send that email to the father.  It is evidence which corroborates my finding that the father did not put a note in S’s school bag in about April 2009.  Apart from this general assertion by the father that he did in fact give information to the mother about S’s change of school in about April 2009 (evidence which I reject), the father also raised emails that he had sent in October 2008 as either evidence that he had notified the mother that a change was something that he wished to have happen or by way of a reasonable excuse for him having done what he did or by way of mitigation in penalty.

6. The father in his affidavit filed 7 December 2009 says that on 24 October 2008 he emailed the mother and invited her to assist financially towards educating H and S so that he could keep them in the private schools they were attending.  He said he also invited her to contribute towards H’s orthodontist.  The mother agrees that after discussion with H, she conceded his wish to move schools.  She says however that there was no agreement in relation to moving S from V Religious School.  I accept that is so.  The father alleges that the mother refused to contribute any further money than what she was paying in child support which was about $70 per month and that she stopped working in early 2009, the effect of which was that the father was receiving no money towards the children’s education.  The father says the he could not afford to keep S in the private education system and enrolled her into the public school which shares facilities with the V Religious School.  The father points out that S was still able to play with her old friends and be familiar with the school grounds and environment. 

7. The mother confirms that she refused to contribute additionally towards S’s school fees and gives reasons for doing that, namely that on her solicitor’s advice she decided not to make any payments until such time as the result of the property hearing was known.  She also says she contacted the Child Support Agency who confirmed her solicitor’s advice that she was under no obligation to make further contributions.  She further says she was not in a financial position to contribute any more.  She makes the statement in her affidavit of 15 January 2010, “in any event [H] and [S] were in the respondent’s care at the time and such expenses were his responsibility”.  The mother ceased work in 2009 because of health reasons and she said suffered from depression as a result of these proceedings.

1. I find that the father did unilaterally move S from V Religious School.  I however find that he had a reasonable excuse for doing so, namely, his financial circumstances and the lack of support that he received from the mother to assist him in maintaining S at that school. 

2. I reject the father’s evidence that he notified the mother of S’s change in schools.  Even if he had it would be beside the point.  He had an obligation to consult with her before that happened.  Whilst he asked for contribution towards the payment of school fees, he did not make it clear to the mother that absent that contribution, a change of S’s school would be inevitable.

3. Consequently I find the contravention alleged in count 11 established.  The father’s financial position does not go to reasonable excuse but goes to a consideration of penalty.

STANDARD OF PROOF

1. The standard of proof to be applied in determining matters in these proceedings is proof on the balance of probabilities.  No order referred to in s 70NAF(3) FLA is contemplated.  

FINDINGS IN RELATION TO COUNTS PROVEN

1. I find that the mother has established that the father has contravened orders, without reasonable excuse, as she asserts he has in counts 1, 2, 3, 4, 5, 6, 7, 10 and 11.  I note in passing that had I needed to, I could have made those findings beyond reasonable doubt.  I find that the father had a reasonable excuse in relation to count 9. 

PENALTY

1. The father relied on the fact that the mother did not attempt to take any action about the breaches that she asserts commenced firstly in April 2009 (count 11) and then from the end of July 2009 onwards until November 2009.  

2. Counsel for the mother submitted that this matter should be dealt with under Subdivision F of Division 13A of the FLA on the basis that I would find that, although these were first contraventions, I would be satisfied that the father has behaved in a way that showed a serious disregard for his obligations under the order. 

3. Counsel for the father submits that the matter should be dealt with under Subdivision E of Division 13A FLA.

4. The father showed no contrition at all for what he had done.  When considered overall, the cumulative effect of the breaches leads to the conclusion that the father had very little regard for his obligations under the orders.

5. Whilst not charged with a breach of Strickland J’s order to return the children in December, the fact that the father allowed a situation to develop whereby the children had to be recovered by the police underlines what little regard the father had for the role given to the mother in the lives of the children under the 2008 orders.

6. I am satisfied that the father has behaved in a way that has showed a serious disregard of his obligations under the orders and that the powers under s 70NFB FLA are available in this case. 

7. I am informed that the father is currently on a means tested pension and is not in paid employment.  In those circumstances a fine is not appropriate.

8. This is not a case where the breaches are so serious that I would contemplate a community service order or a sentence of imprisonment (suspended or not), as an initial sentence. 

9. It is appropriate however to require the father to enter into a bond in accordance with s 70NFB(2)(b) and s 70NFE FLA. The bond will be for a period of twelve months without surety or security.  The bond will be conditional on the father being of good behaviour for a period of twelve months and complying with the parenting orders made by the court.  The purpose and effect of placing the father on a bond is to encourage him to more actively understand his obligations under the orders.  In the event that he is found to have breached the bond in the next twelve months, the consequences that would flow are set out in s 70NFF(2)(3) and (4) FLA as follows:

   70NFF Procedure for enforcing …..bonds

   (1) ….

   (2) If the court (whether or not constituted by the judge or magistrate who …..required the bond to be entered into in accordance with section 70NFE) is satisfied that the person has, without reasonable excuse, failed to comply with the ….. bond, the court may take action under subsection (3).

   (3) The court may:

   (a) without prejudice to the continuance of ….. the bond entered into in accordance with section 70NFE, impose a fine not exceeding 10 penalty units on the person; or

   (b) revoke ….. the bond entered into in accordance with section 70NFE and, subject to subsection (4), deal with the person, for the contravention in respect of which ….. the bond was entered into, in any manner in which the person could have been dealt with for the contravention if:

   (i)     ….. the bond had not been entered into; and

   (ii)    the person was before the court under section 70NFB in respect of the contravention.

   (4) In dealing with the person as mentioned in paragraph (3)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account:

   (a) the fact that ….. the bond was entered into; and

   (b) anything done ….. pursuant to the bond; and

   (c) any fine imposed, and any other order made, for or in respect of the contravention.

10. The court is required, pursuant to s 70NFE(5) FLA to explain the purpose and effect of the bond and the consequences that may follow if the father fails to enter into the bond or having entered into the bond, fails to act in accordance with the bond. 

11. The purpose and effect of the bond is to attempt to encourage the father to comply with the clear terms of court orders in the future. 

12. In language likely to be readily understood by even the father, if the father fails to enter the bond or breaches the bond, he risks a more serious sentence such as a Community Service Order or a sentence of imprisonment. 

13. Given that I am dealing with this matter under subdivision F of Division 13A FLA, the problems highlighted in Elspeth & Peter; Mark & Peter and John & Peter (penalty and costs) (2007) FLC 93-341 do not arise.

14. It is appropriate under s 70NFB(2)(c) FLA to make a further parenting order to compensate the children for the time the children did not spend with the mother as a result of the contraventions. 

15. The mother has established that the children were not with her on four scheduled weekends up until 24 September 2009.  Those are the four weekends that subject to the breaches in counts 4 to 7. 

16. I am mindful however that the evidence is the children did not see their mother until 24 December 2009.  This means that the children did not see their mother on approximately five additional weekends. 

17. In that regard I am also mindful of the fact that the mother received about an extra week in time with the children during the December/January school holidays as a result of the recovery order that was made by Burr J on 23 December 2009.  That time already compensates her for time lost in the third term school holidays. 

18. I think it is appropriate and in the children’s best interests, that the children spend an additional nine weekends with their mother.  That variation to the parenting orders will become operative immediately so that the children will spend time with their mother from Thursday afternoon to Monday morning on the next nine occasions when they otherwise would have been with their father pursuant to the current orders. 

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  28 May 2010