PICKERING & PICKERING

[2013] FamCA 190

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING [2013] FamCA 190

FAMILY LAW – ORDERS – contravention – where the mother alleges that the father has contravened orders requiring the father to pay the mother the sum of $28,200 and $1,000 – where the father had no reasonable excuse – contravention established.

FAMILY LAW – ORDERS – contravention – where the mother alleges that the father has contravened an order restraining the husband from attending within 100 metres of the mother’s residence – where the father had no reasonable excuse – contravention established without reasonable excuse.

FAMILY LAW – ORDERS – contravention – where the mother alleges that the father has contravened various orders providing the mother with custody of the children of the marriage on specified dates – where the father had a reasonable excuse based on his concern for the children’s welfare – contravention established with reasonable excuse.

FAMILY LAW – ORDERS – contravention – where the mother alleges that the father has contravened an order restraining the father from abusing, harassing or denigrating the mother in the presence or hearing of the children – contravention not established.

Family Law Act 1975 (Cth) ss 70NAB, 70NAC, 70NAD, 70NAE, 70NAF, 70NCB, 112AB, 112AC, 112AD

APPLICANT: Ms Pickering

RESPONDENT: Mr Pickering

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 27 March 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 10 and 11 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. The contravention applications are adjourned to 23 May 2013 at 2.15 pm before the Honourable Justice Dawe for the Court to hear submissions from each of the parties in relation to the orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pickering & Pickering has been approved by the Chief Justice 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. In September 2012 I heard four contravention applications brought by the mother, Ms Pickering, seeking orders based on allegations that the father, Mr Pickering, had failed to comply with orders of this Court.

Hearing

1. At the hearing of the contravention applications, both the mother and father were unrepresented.  Each of the contraventions were dealt with separately.

Background

1. The mother, Ms Pickering was born in 1965 and is now aged 47.  The respondent father, Mr Pickering, was born in 1964 and is now aged 48.  The parties met in 1986, commenced living together in 1987/1988 and were married on 29 October 1988.  There are four children of the relationship.  The eldest daughter R was born in 1989 and is now aged 23.  M was born on in 1993 and is now aged 19.  H was born in June 1995 and is now aged 17.  S was born in December 2000 and is now aged 12.

2. The parties separated in April 2005.  Since the separation of the parties the mother has formed a relationship with Mr X.  The father commenced a relationship with Ms F.

3. Since the parties’ separation, there have been various arrangements in relation to the care of the children.

4. Proceedings were first commenced in December 2005.  The parties divorce proceedings were brought in the Federal Magistrates Court.  The divorce became absolute on 25 March 2009.

5. Judgments have been delivered in this Court by his Honour Justice Strickland and his Honour Justice Burr (as he then was) in relation to both children’s issues and financial issues. 

6. Contraventions proceedings have been heard on numerous other occasions in this Court by various judicial officers.

The Law

1. The provisions concerning contravention orders which relate to orders which affect children are contained in Division 13A of Part VII of the Family Law Act 1975 (“the Act”). Division 13A contains subdivisions A, B, C, D, E and F with 30 sections between s 70NAA and s 70NFJ. For these proceedings the most relevant are the following:

   70NAC  Meaning of contravened an order

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)      where the person is bound by the order—he or she has:

   (i)       intentionally failed to comply with the order; or

   (ii)      made no reasonable attempt to comply with the order;

   70NAD  Requirements taken to be included in certain orders

   For the purposes of this Division:

   (a)      a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and

   (b)      a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and

   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.

   (4)      A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)      the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)      the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (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).

   (6)      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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a)      the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate 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).

   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.

   (3)      The court may only make an order under:

   (aa)     paragraph 70NEB(1)(da); or

   (ab)     paragraph 70NECA(3)(a); or

   (a)      paragraph 70NFB(2)(a), (d) or (e); or

   (b)      paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

2. The Court’s powers concerning orders which could be made in contravention proceedings vary in circumstances determined by whether the contravention has been alleged but not established, the contravention is established but reasonable excuse for the contravention is found, or the contravention is found to have occurred without reasonable excuse.  There is also provision for a contravention which occurred without reasonable excuse where serious disregard of orders of the Court is established and various provisions depending on whether the order has been found to have been contravened had previously been the subject of contravention findings.

3. Part XIIIA of the Act deals with sanctions for failure to comply with orders and other obligations which do not affect children. Section 112 AB and 112 AC provide:

   112AB  Meaning of contravene an order

   (1)      A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:

   (a)      where the person is bound by the order—he or she has:

   (i)   intentionally failed to comply with the order; or

   (ii)   made no reasonable attempt to comply with the order;

   112AC  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 Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).

   (2)      A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:

   (a)      the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)      the court is satisfied that the respondent ought to be excused in respect of the contravention.

4. Division 2 of Part XIIIA sets out sanctions for failure to comply with orders.

The contravention alleged in relation to costs order (document 154)

1. In the first contravention application (document 154) the mother alleges that the father did not pay $28,200 to her and that he failed to pay the sum of $1,000.  The Order of his Honour Justice Strickland of 23 June 2011 provided:

   The husband pay to the wife the sum of TWENTY EIGHT THOUSAND TWO HUNDRED DOLLARS [$28,200.00] by way of costs within four months of the date hereof.

2. My Order of 29 October 2010 provided:

   The husband pay the wife’s costs fixed in the sum of TWO THOUSAND DOLLARS [$2,000.00] payable ONE THOUSAND DOLLARS [$1,000.00] within three [3] months from today and the balance of ONE THOUSAND DOLLARS [$1,000.00] within six [6] months from today.

3. The respondent father admitted both contraventions but claimed to have reasonable excuse for both contraventions.

4. During his evidence in chief the father emphasised his dissatisfaction with the property settlement orders made by Justice Strickland.  He also claimed that at the time of the property settlement orders and at the current time he “had no money”.  During cross-examination by the mother, the father gave evidence about selling a vehicle which he had owned at the time of the trial for the property settlement proceedings.  He said he sold it after the trial to his father.  He said that the vehicle was valued at $15,000 at the time of the property settlement.

5. The father claimed to be self-employed and looking for work.  He maintained he still had a current trade Licence.

Discussion

1. The evidence of the father was that he had contravened the orders but claimed to have reasonable excuse.  His evidence confirms that he understood his obligations imposed by both of the Court orders for payment of costs to the wife and therefore his reasonable excuse does not fall within the specific provisions of subsection 112AC(2).  It is therefore necessary to consider whether he has a reasonable excuse for some reason.  The father’s reason was that he did not have any money.

2. The father also made it clear that he did not like the orders of Justice Strickland by way of property settlement and costs.

3. Annexed to the affidavit filed by the mother in support of the contravention application are the other Reasons for Judgment of his Honour Justice Strickland, delivered on 23 June 2011 in relation to the payment of the $28,200.

4. After detailed discussion of the history of the matter and the evidence before him, his Honour said at the second half of paragraph 87:

   With the husband he has extensive qualifications and experience …, and I have no doubt that if he wanted to work he could readily obtain work.  Further, given the lack of detail in his affidavit I have difficulty in accepting that he does not still have access to monies that he received from the property settlement.  Accordingly, I find that the husband’s alleged financial circumstances do not prevent orders for costs being made, and particularly when the husband’s conduct as outlined throughout these reasons is also to be taken into account.

5. The father admitted that he had contravened the orders but claimed to have reasonable excuse.  It is up to the respondent to establish the reasonable excuse.  The evidence of the father was that he did not have “any money”.  He gave evidence that he had debt owing on a credit card.  He also gave evidence that he was self-employed and doing some work.

6. His simple statement must be taken in the context of the history of the proceedings, the findings made by his Honour Justice Strickland in the previous proceedings, together with the father’s stated dissatisfaction with his Honour’s orders.

7. The father’s evidence fails to establish on the balance of probabilities that he had a reasonable excuse.

Conclusion

1. I am therefore satisfied that the father has not established on the balance of probabilities that he had a reasonable excuse for his failure to comply with the orders of the Court that he pay the mother $28,200 and $1,000.

2. The sanctions which can be imposed upon the father are set out in s 112AD which include a bond, imprisonment and a fine. Subsection (4) of 112AD provides for the Court to make “such order as the Court considers necessary to ensure compliance with the order that was contravened”.

3. As indicated to the parties at the hearing I will hear further submissions from the parties on the orders to be made.

The contravention alleged in relation to injunction (document 156)

1. By contravention application also filed on 28 March 2012 the mother sought that the father be dealt with for contravening the order made by me on 23 June 2011.

2. On 23 June 2011, having heard contravention proceedings brought by the father it was ordered:

   (5)      The father is restrained and an injunction is granted restraining the father from attending within 100 metres of the mother’s residence.

3. Both parties were present in the Court when the orders were made. 

4. The contravention application refers to contraventions of this order which were alleged to have occurred on 5 September 2011 and … September 2011.  The affidavit of the mother in support of that application for contravention stated:

   4.        On 05 September 2011 at approximately 9.30 am the respondent was seen to drive past [AB Street ,Adelaide Suburb 2] South Australia.

   5.        On 06 September 2011 at approximately 4.25 pm the respondent was seen parked in front of [AB Street ,Adelaide Suburb 2], South Australia.

   6.        On 06 September 2011 at approximately 4.35 pm the respondent was seen to drive past [AB Street ,Adelaide Suburb 2], South Australia.

   7.        On 06 September 2011 at approximately 5.40 pm the respondent was seen parked in front of [AB Street ,Adelaide Suburb 2], South Australia.

5. The property at AB Street ,Adelaide Suburb 2 is the mother’s residence.

6. The father originally admitted that he had only contravened the order on one occasion on ….September 2011.  He claimed on that occasion he had reasonable excuse because he was collecting his 18 year old daughter, Mellisa, on her birthday.

7. Originally, he denied any other contraventions.  He later admitted that it was “possible” that he had driven past the mother’s residence as it was on a “busy road with dual lanes”.  He claimed that if this was a breach of the order he had a reasonable excuse because he did not understand the order.

8. Specifically, his evidence on the second day of the hearing was as follows:

   [MR PICKERING]: Yes, your Honour. I may have drove past, and I’m not sure if I did or not, I may have drove past the – her house on a – it’s also a busy road with dual lanes going both ways. It’s already put in my statement. I did call in front of her house once and – to pick up [M] for her 18th birthday. I didn’t think the orders applied to an 18-year old child. I thought once she had turned 18 the – those orders no longer applied. On the second time I dropped [M] off around the corner away from the house, which after [Ms Pickering] sent an abusive text message to [M] which is obviously in the other documents, which she provided for the other contravention orders which verifies that. Yeah. If I’m guilty of this, then I’m guilty by reasonable excuse because I didn’t understand those orders and they’ve – actually I haven’t read those orders, I am – when I thought was said in the 5 court previously when – in front of yourself, and my understanding was that was the – I couldn’t pick up the kids from the house. It was nothing to do with – and that’s what I’m saying, once the children turned 18, my idea was that they are no longer bound by these courts. Thank you.

Discussion

1. I accept the evidence of the mother that the father was observed driving past the mother’s home on 5 September 2011 and on 6 September 2011.  I further accept the evidence of the mother and the father that on 6 September 2011 the respondent parked in front of the property at AB Street ,Adelaide Suburb 2. 

2. The injunction restrains the father from “attending within 100 metres of the mother’s residence”.  The father claims that he was not “attending” within 100 metres whilst he was driving past.

3. On the evidence before the Court the mother has not established that when driving past the mother’s home on 5 and 6 September 2011 he intentionally failed to comply with the order.

1. The father admits that on 6 September 2011 he did attend within 100 metres of the mother’s residence, but claims that either he did not understand the order to apply because he was collecting his daughter M, who was 18 years of age at the time, or that he had a reasonable excuse because he was attending to collect his 18 year old daughter.

2. The submission and evidence of the father, in which he claimed that once M turned 18 the orders no longer applied, was inconsistent and bordering on nonsensical.  

3. I am satisfied that he understood the order.  His evidence did not establish that he had a reasonable excuse for failing to comply with the order when he parked at the entrance to the house on 6 September 2011.

4. I am satisfied that the father made no reasonable attempt to comply with the order when he parked in front of the house on 6 September 2011.

5. I am therefore satisfied on the balance of probabilities that the father contravened the order on 6 September 2011 and that he has failed to establish on the balance of probabilities any reasonable excuse for so doing.

6. The injunction does not fall within the definition of a parenting order.  The provisions of the bond imposed on the father by Justice Watts therefore do not require consideration.

7. In this matter the Court has not previously made an order imposing a sanction in respect of that order. I am not satisfied in this particular instance that the father has shown a serious disregard for his obligations under that order. Therefore subdivision E applies. It is therefore appropriate for me to hear submissions pursuant to s 70NAB as to the orders to be made.

The contravention alleged in relation to spending time with child (document 158)

1. The mother alleged that the father had contravened provisions in paragraph 3 of the Order of Justice Strickland made on 22 October 2008 on numerous occasions.  As set out in the contravention application the dates and times range from 8 September 2011 through to 22 March 2012.

2. Most of the contraventions refer to paragraph 3(i) of the order.  This provides 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 of Monday being a public holiday or a pupil free day, commencing Thursday 23/10/08;

3. The order specifically relates to S who was born in December 2000 (it also relates to M and H). 

4. Alleged contraventions also relate to paragraphs 3(iii), 3(iv) and 3(vii):

   (iii)For the first half of the Christmas school holidays from the close of school on the last day of term to 6.00 pm on a day representative of half way through the holiday period SUBJECT TO the father having the children in his care for the last half of the school holidays from 6.00 pm on a day representative of the midpoint of the holiday period;

   (iv)For Christmas from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day in 2008 and in each alternate year thereafter and in the intervening years from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day SUBJECT TO the children being in the father’s care from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in 2008 and each alternate year thereafter and in the intervening years from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day;

   …

   (vii)On the children’s birthdays from 3.00 pm (or the conclusion of school if a school day) to 7.00 pm SUBJECT TO the children being returned to the father from 3.00 pm (or the conclusion of school if a school day) to 7.00 pm on their birthdays should they coincide with the mother’s time.

5. The affidavit of the mother filed in support of these contraventions refers to the specific orders made by Justice Strickland in relation to the child S spending time with the father.  It states that the father refused to allow any time to occur since 8 September 2011.  The affidavit also refers to the specific orders in relation to S’s birthday and Christmas Day. 

6. The mother seeks make-up time with S and the imposition of “a penalty”.

7. The father did not admit the contraventions, save and except that he admitted the contravention on 25 December 2011, but claimed he had reasonable excuse.

8. In her oral evidence the mother confirmed that she had not had any access to S for over 12 months and that Mr Pickering had sent her messages saying that the school would not hand her over if the mother attended at the school to collect her.

9. During cross-examination the following evidence was given.

   [MR PICKERING]: So obviously there is a number of contravention dates in here. Doing the ones with – for you to pick up [S] after school. Have you ever attended once to pick up [S] from after school?---No, I didn’t for the fact that you had sent me a text message advising me that the school would not allow her to leave with me and I didn’t want to cause any stress by going there with the police to get her as the police would only say to me that it’s a family court matter and there’s nothing they could do.

   So surely you understand that the school’s obligation is to follow the court orders?---Well, I would think so, yes but the school has stopped giving me all information on [S].

   So you know that you were right if you so wished to go and see [S], you have the court orders and the school would not stop you from seeing [S]?---Well, why would you send me a threatening text message telling me not to go there to the school and that you have ordered the school not to hand [S] over to me. So if you have done that I wouldn’t want to put any stress on [S].

   So you didn’t bother to go and see [S] for a whole year?---I haven’t seen her for a year, no.

   You haven’t seen her for – you have seen her but you didn’t bother to attend at her school to pick her up for a whole year, have you?---No, I haven’t.

   And what was the – so when there’s a handover and [S] to go into your care, what’s the normal procedure for you taking [S] into your care?---I will go and collect her from school.

   So it’s normal procedure for you to go and pick her up from school and you haven’t bothered for a whole year to pick her up?---Because you have sent me that text message telling me that you have told [S] not to come home with me and that you have told the school not to let [S] leave in my care.

10. The father also cross-examined the mother about allegations which had arisen previously about the inappropriate behaviour of the mother’s partner Mr X and other matters he alleged to be problems in her household.

11. The father further put detailed allegations to the mother about her behaviour, and the behaviour of her partner and what he alleged to be inappropriate and violent behaviour in her household.

12. The mother denied any inappropriate behaviour or any risk to the children in her care.

13. The father gave evidence, and was briefly cross-examined by the mother.  During his evidence he repeated allegations concerning the alleged behaviour of Mr X and the mother (which the mother had denied). 

14. The father relied on the evidence of his adult daughter R, who when giving evidence agreed with the father’s questioning about the mother’s partner, Mr X, and supported her father’s allegations about the mother providing alcohol and marijuana to the children.

15. The father maintained that he had reasonable excuse for not complying with the orders concerning S. 

16. The mother was reluctant to cross-examine her daughter R, and only did so when it was pointed out to her that should she fail to cross-examine her daughter, then conclusions would have to be drawn that the daughter’s evidence was accurate.

17. The mother has established on the balance of probabilities (and indeed beyond reasonable doubt) that S did not spend any time with her since September 2011.

18. I also accept the evidence of the parties’ daughter R, that S has been told by her siblings about the allegations concerning Mr X’ inappropriate behaviour towards M. 

19. This allegation being made known to S and the ongoing intractable dispute between the mother and the father provides a basis upon which to speculate that S did not wish to attend to spend time with the mother.  However, the evidence itself does not establish this on the balance of probabilities. 

20. The evidence does establish that the father has told the mother that she could not collect S from school.  His reason for doing so appears to be his concern for his daughter’s welfare based on his views of he mother’s past behaviour and his view of Mr X.

21. Based on the evidence before the Court in the affidavits and the oral evidence of the parties and the daughter R, I find that the father has contravened the order of Court which provided for the mother to spend time with the child S and that he did so on numerous occasions between 8 September 2011 and 22 March 2012.

22. The father has established on the balance of probabilities that he had a reasonable excuse.  This conclusion is based primarily on the evidence of the adult daughter R.

The alleged contravention in relation to the denigrating and threatening SMS messages (document 160)

1. In the last of the contravention applications filed on 28 March 2012 (document 160) the mother alleged that the father on numerous specific occasions between end February 2011 and 7 May 2011 contravened the orders of the Court of Justice Strickland of 22 October 2008 and the orders of 28 May 2010.

2. The alleged contraventions were that the respondent sent denigrating and threatening SMS messages to which the child H Mr Pickering had access and read.

3. The orders of 22 October 2008, paragraphs 9 (i) and (ii) provided:

   9.        That the parties be restrained and an injunction be granted restraining them from:

   (i)       abusing, harassing or denigrating one another and/or their respective partners in the presence or hearing of the children or from causing or permitting others to do so;  and

   (ii)      discussing with the children or involving them in the proceedings herein or causing or permitting others to do so.

4. On 28 May 2010 his Honour Justice Watts delivered his reasons in relation to the contraventions the father committed in relation to various parts of the orders of 22 October 2008.  As a result of that judgment, his Honour Justice Watts ordered that:

   7.        [MR PICKERING] 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”).

5. It was further ordered that:    (8.1 and 8.2)

   8.1 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 father has, without reasonable excuse, failed to comply with the order or bond, the court may take action under 8.2.

   8.2       The court may:

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

   8.2.2 revoke 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:

   8.2.2.1       the bond had not been entered into;  and

   8.2.2.2       the 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.”

6. The Court records indicate that on 31 May 2010 the father signed the bond which states:

   [MR PICKERING] having this day the 28^th day of May 2010 been found by the Family Court of Australia at Adelaide to have contravened without reasonable excuse an order made by this Court on the 22^nd day of October 2008 is hereby ordered to enter into this bond pursuant to the provisions of section 70NFE of the Family Law Act 1975

   [MR PICKERING]

   HEREBY ACKNOWLEDGES THAT HE IS BOUND BY THIS BOND ACCORDING TO THE FOLLOWING TERMS AND CONDITIONS:

   (a)      This bond starts on the 28^th day of May 2010 and continues in full force and effect until the 28^th day of May 2011.

   (b)      The conditions of this bond are as follows:

   To be of good behaviour during the time this bond is in force;

   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”)

   (c)       This bond is without surety and without security.

7. The mother’s affidavit filed in relation to these contraventions annexes to it text messages sent by the father to the mother between 4 March 2010 and 7 June 2011.

8. Some of the messages relate to arrangements concerning the children.  Some of the messages make comments which could be considered offensive or argumentative, such as:

   perhaps you should try being a responsible parent more often and put what’s best for the kids before your own selfishness! (message sent 14 April 2011 4.04 pm). 

9. Another message sent on the same date refers to the mother “being a selfish and a useless mother”. 

10. As an example of other messages the one dated 7 June 2011 from the father to the mother says:

    listen here you paedophile fucking whore stop giving mel a hard time about me picking her up from the front of your place!  You are a completely useless slut and yes you should have killed yourself fuckwit!!

11. Other messages annexed to the mother’s affidavit are sent from H to the father apparently using the mother’s telephone. 

12. The mother maintained that the text messages had been sent to her from the father on the dates she specified.  The mother maintained that the messages from the father after 29 April 2011 had been read by H.  The mother maintained that H had sent messages to the father on 29 April 2011 and therefore the father should have been aware that H would have had access the messages the father was sending to the mother.

13. In reply the father did not deny or accept that he had sent the messages produced in the wife’s evidence.  The messages were read from the telephone.  The father did not specifically deny that they were messages sent from him.

14. The orders of the Court dated 22 October 2008 specifically restrain the father from abusing, harassing or denigrating the mother in the presence or hearing of the children.  Some of the telephone messages sent by the father to the mother are clearly within the definition of abuse or denigration by the father to the mother.  Sending messages by SMS to the mother’s telephone is however not within the category of abuse, denigration or harassment in the presence or hearing of the chid of H.

15. It was the mother who permitted H to have access to her telephone and permitted H to continue to use her telephone, to which the father was sending the abusive and denigrating messages.

16. I am therefore not satisfied that the mother has established on the balance of probabilities that the father has contravened the order in paragraph 9 of the 22 October 2008.

17. The orders of the Court made by his Honour Justice Watts on 28 May 2010 required the father to enter into a bond to be of good behaviour.  The bond was in force until 28 May 2011.  Many of the SMS messages of which the mother complains are within this period.

18. The question is therefore whether the behaviour of the father establishes that he has not been “good behaviour”.

19. Whilst the messages sent by the father to the mother are offensive and denigrating and may well have caused the mother upset, I do not consider that they establish that the father has not been of “good behaviour” as contemplated by the terms of the bond imposed by Justice Watts.

20. These contraventions are therefore not proved.

21. The provisions of s70NCB will therefore need to be the subject of submissions by the parties when considering what orders, if any, should be made upon the dismissal of that contravention application.

22. As indicated to the parties at the time of hearing the contraventions I propose to re-list the matter at a later time to consider the parties’ submissions when they have had an opportunity to read these reasons.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 27 March 2013.

Associate: 

Date:  27 March 2013