Plunkett and Perkins

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLUNKETT & PERKINS

[2016] FCCA 1340

Catchwords:
FAMILY LAW – Parenting Orders – contravention application – where contravention found without reasonable excuse at a time when Mother already subject to a s.70NEC bond to comply with Orders – consideration of appropriate penalty.

Legislation:

Family Law Act 1975, ss.65M, 65N, 65NA, 65P, 68B, 68C, 70NAC, 70NAD, 70NBA, 70NEC, 70NECA, 70NFA, 70NFB, 70NFD 70NFE, 70NFG

Federal Circuit Court Rules 2001, r. 16.05

Cases cited:

McClintock v Levier [2009] 233 FLR 179

Applicant:

MR PLUNKETT

Respondent:

MS PERKINS

File Number:

WOC 94 of 2013

Judgment of:

Judge Altobelli

Hearing date:

6 May 2016

Date of Last Submission:

6 May 2016

Delivered at:

Wollongong

Delivered on:

14 July 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Ms Humphreys

Solicitors for the Respondent:

Sward Law

ORDERS

Pursuant to section 70NFE of the Family Law Act 1975 (Cth) the Respondent Mother is to enter into a further bond for a period of two (2) years from the date of this Order, without surety or security and on the condition that she comply with all parenting Orders and otherwise be of good behaviour.
Pursuant to section 70NFB(2)(g) the Respondent Mother pay to the Applicant Father the sum of $1500.00 within six (6) months of the date of this Order.
Pursuant to section 70NFB(7) the Respondent Mother is to enrol in and complete a Parenting Orders Program (or equivalent, the purpose of which is to educate a parent about the necessity and benefits of compliance with Parenting Orders) within six (6) months of the date of this Order.
Pursuant to section 70NFB(2)(c), the Mother shall provide compensatory time to the Respondent Father with the children for one period not exceeding one week, provided such time is taken during school holidays, and provided the Father gives not less than two (2) calendar months’ notice of the date of commencement of his compensatory time with the children pursuant to this Order.
Order 5.1of Orders dated 29 November 2013 be further varied as follows:
5.1 During school terms (with the exception of the weekend containing Mother’s Day) from the conclusion of school on Friday (or 3.00pm if the children do not attend school that day) until the commencement of school on Monday (or 9.00am if the children do not attend school that day) in each alternate week calculated from the first weekend of each school term.
The parties shall do all things and sign all documents necessary to cause a passport to issue, including but not limited to each party bearing half the associated costs.
The passports referred to in Order 6 above are to remain in the Father’s care and control when not used for overseas travel.
The Father shall give the Mother the children’s passports upon notice that the Mother plans to travel with the children or either of them. Immediately upon the children’s return from travel with the Mother, the Mother shall give the passports back to the Father.
The Mother and Father to provide to the other party a full itinerary relating to domestic or overseas travel including details of air travel, accommodation and contact details for the parent who is travelling with the child/ren and the child/ren as soon as is practicable before departure.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 94 of 2013

MR PLUNKETT

Applicant

And

MS PERKINS

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about two children, X born (omitted) 2005 and Y, born (omitted) 2007. The proceedings are contravention proceedings commenced by their father with the Mother as the Respondent. These reasons for judgment explain the Orders that the Court has made.

Background

On 29 November 2013, about two and a half years ago, the parents entered into very detailed Consent Orders with the assistance of three learned Counsel representing the Mother, Father and the children. The parents agreed that the Mother should have sole parental responsibility, that the children live within a particular geographic area with their mother and that the children spend time and communicate with their father as detailed in the Order in question. To be precise, the Orders made consist of sixteen Orders and four Notations. The Court was asked to adjudicate in relation to two specific but relatively minor issues - Orders 5.2 and 6.5.
The Father filed two previous contravention applications before the present one. The first one was on 25 February 2014 and the second on 20 June 2014. It is notable that the first contravention application was filed less than three months after the Orders were made. In the reasons for judgment I delivered on 13 November 2014, dealing with the two contravention applications, I made the observation that as at the time the first contravention application was filed the metaphorical ink had barely dried on the Orders.
Indeed, at paragraph 5 of the said reasons for judgment I provided further important background about the case. I said:
By way of further background, it is important to understand that the case that presented before the Court last year when Consent Orders were made, and the case that was presented before the Court in these contraventions proceedings, had a number of key and fundamental attributes. This is a high conflict case. The parents had no trust for each other. What little communication they have is entirely dysfunctional. Both clearly have limited insight into the needs of their children and struggle to prioritise those needs over their own. Notwithstanding the Contravention Application, it was not the Father’s case that the Mother was preventing him from spending regular time with the children, and his focus was on other aspects of the Orders they entered into.
In the earlier proceedings the Father made eight allegations of contravention, three were conceded, two were dismissed and three were established without reasonable excuse. The Orders I made on 13 November 2014 were as follows:
1. Pursuant to section 70NEC of the Family Law Act 1975 (Cth) the Respondent is to enter into a bond for a period of two years, without surety or security, and on the condition that the Respondent comply with all parenting orders and otherwise be of good behaviour.
2. The Applicant’s Application for costs be dismissed.
3.Order 6.5 made 29 November 2013 be varied as follows:
a) The words “subject to the father’s work commitments” be vacated and replaced with the words “unless the father indicates to the mother not less than seven days beforehand that he is unavailable”.
It is significant to note that the bond that the Mother was required to enter into pursuant to s.70NEC of the Family Law Act1975 (‘the Act’) was for a period of two years which, therefore, has not yet expired.
On 5 February 2015, pursuant to an application under r.16.05 of the Federal Circuit Court Rules 2001, I varied Order 3 that I made on 13 November 2014. The Order that I made on 5 February 2015 pursuant to r.16.05 was as follows:
Pursuant to r.16.05 of the Federal Circuit Court Rules 2001, Order 3(a) be varied to read as follows:
(3) Order 5.3 made 29 November 2014 be varied as follows:
(a) The words “subject to the father’s work commitments” be vacated and replaced with the words “unless the father indicates to the mother not less than seven days beforehand that he is unavailable”
By the time of the present proceedings, i.e., the Father’s third contravention application, the Mother was still on her bond. X was 10 years old and Y was 9 years old. As in the first two contravention applications, the Father was not contending that the Mother was preventing him from spending regular time with the children, and his focus was on other aspects of the Orders.
The Father’s contravention application was filed 15 June 2015. It was supported by his affidavits filed 15 June 2015 and 5 May 2016.
The Father was again limited in terms of the number of alleged contraventions he could run at the hearing. As directed, he elected five alleged contraventions, the details of which will be set out below.
The Father conducted the proceedings himself. He is clearly an intelligent and articulate man who is more than capable of representing himself, assertively when necessary.
The Respondent Mother was represented by her solicitor and her Counsel, Ms Humphreys. She relied on her affidavit sworn 1 July 2015, filed the following day.
Both parents advanced proposals to vary the existing Orders and where necessary, these proposals will be discussed below.
The Father was cross-examined by Ms Humphreys and the Mother was cross-examined by the Applicant Father. The Mother participated in the proceedings by telephone. She was located in a courtroom in the Wollongong State Court complex.

The Applicable Law

Contravention proceedings are commenced pursuant to Division 13A of Part VII of the Family Law Act1975 (Cth). But what becomes clear by way of overview of Division 13A is that the Court’s power to enforce compliance with its orders is power to be exercised in tandem with the power to vary the order. The Orders that can be made in a contravention application depend on whether the contravention alleged is not established, the contravention alleged is established but there is a reasonable excuse or the contravention is alleged with no reasonable excuse.
A key concept is that of contravening order. Section 70NAC emphasises that a contravention occurs when a person bound by an order has intentionally failed to comply with it or made no reasonable attempt to comply with it.
Section 70NAD specifies that in the context of contravention proceedings, an obligation created by an order in relation to a child whether specified in the order or not, includes a number of other statutory obligations that are set out in ss.65M, 65N, 65NA, and 65P of the Act. A common theme of these provisions is that when obligations are created by Orders, those bound by the order are prevented from doing anything that might interfere with the exercise or performance of the powers, duties, rights, responsibilities and benefits conferred on other persons by the order. These quite expansive provisions mean, in effect, that Orders need to be complied with not just in a technical sense, or having regard to form but rather by reference to the intention and purpose of the Orders and what was sought to be achieved in a substantive sense.
Section 70NAE explains what is the meaning of reasonable excuse for contravening an order. What reasonable excuse means depends on the context of the obligation created by the order in question. A common theme of these provisions is that the respondent to the contravention application believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of the person or the child. However, a reasonable excuse is also established if the Court is satisfied if the person did not understand the obligation and the Court believes in those circumstances that the respondent ought to be excused in respect of the contravention.
The Court’s powers to vary parenting orders are set out in section 70NAD.

The Alleged Contraventions

The Applicant Father was permitted to run five alleged contraventions. He chose the following:
(1) That on 10 January 2015, contrary to Order 6.5, the Respondent failed to send appropriate clothing with the children.
The Mother denied this alleged contravention. For reasons that are set out below, the Court finds that the Father has not established the contravention on the balance of probabilities.
(2) That on 5 February 2015, and contrary to order number 7, the respondent mother failed to make both children available to communicate with their father.
The Mother denied the contravention. The Court finds that the Mother contravened the order, without reasonable excuse.
(3) That between 22 – 26 February 2015, and contrary to order 10.1, the respondent mother failed to advise the father of a serious medical problem suffered by the children.
The Mother denied this alleged contravention. The Court finds that the contravention is not established, on the balance of probabilities.
(4) That on 27 February 2015, and contrary to order 10.6, the respondent mother failed to inform the father, as soon as reasonable practicable, of a matter relevant to the welfare of the children.
The Mother denied this alleged contravention. The Court finds that the contravention had not been established on the balance of probabilities.
(5) That on 24 April 2015, and contrary to order 5.1.2, the respondent mother failed to drop the children off so that they could spend time with their father.
The Mother admitted that she had contravened the Orders but asserted that there was a reasonable excuse. The Court finds that the Mother contravened the Order without reasonable excuse.
The reasons below will set out the Court’s findings in relation to the evidence about each of the alleged contraventions.

Contravention 1

Order 6.5 provides that the Mother shall ensure that the children are sent to the Father’s care with such clothes as appropriate for the time they are to spend with him and such clothing shall be returned at the conclusion of the time. The Father’s case, in short, was that when the children came into his care on 10 January 2015 for their summer school holidays with him, the Respondent failed to provide appropriate clothing for them to wear. It was common ground that the children were to spend about three weeks with him. The Father annexed to his affidavit photocopies of some of the children’s clothing and also emails between the parties. In short, the evidence that he adduced did not establish to the Court’s satisfaction that the clothing provided was either inappropriate or inadequate. The Mother’s explanation for the clothing provided both in her affidavit and in her oral evidence was both cogent and plausible. The onus of proof was on the Father, and he was not able to satisfy the Court that the Order was contravened on the balance of probabilities.

Contravention 2

Order 7 provides that each party is at liberty to communicate with the children by telephone each Tuesday and Thursday between 5.00pm and 7.00pm, while the children are in the care of the other parent and for the purpose of facilitating this Order, the Mother was to ensure that the children have access to a mobile telephone, the battery of which has been charged at those times. The evidence of both parties establishes that on (omitted) 2015 which happens to be both the Mother’s birthday and a telephone contact day for the purposes of Order 7, the Father rang the Mother in order to talk to the children. The Father was at work at the time. He is a (occupation omitted). It is not always easy for him to be either stationary or even in an area where there is a strong telecommunications network at the time he rings. It is a variable of his employment that he has to navigate.
A voice recording of this telephone conversation was in evidence. It confirms that he rang on the number provided and spoke to the Mother. He asked her several times whether he could speak with Y. He contends that he did not. The Mother contends that he did. If he spoke to Y, it is certainly not recorded. He says that he gave up at about 7.00pm. The Mother said that she experienced his telephone calls as harassing and intimidating. The Father pointed out, however, that she agreed to these Orders.
In cross-examination of the Mother, she agreed that there were a number of calls. In relation to the first one, she says she struggled to hear what the Father was saying. During the second one, however, she explained that she was out at dinner, received the call and passed the telephone to Y but the Father had hung up. She conceded that he possibly called a third time, that she was again in a crowded, noisy restaurant and that it took her a minute or two to walk out of the restaurant but by then the Father had hung up. She described him as “quite abusive” but that contention is simply not borne out by the recording, though the Court does not discount the possibility, indeed the probability that the Mother finds any communication with the Father to be abusive, even though that is her subjective experience but there is no objective basis for it in the particular context in which these telephone calls occurred.
The Court finds that the Mother contravened Order 7 without reasonable excuse. In my first reasons for judgment in this matter delivered 13 November 2014, I stated at paragraphs 10 and 11:
(10) A key concept is that of contravening order. Section 70NAC emphasises that a contravention occurs when a person bound by an order has intentionally failed to comply with it, or made no reasonable attempt to comply with it.
(11) Section 70NAD specifies that in the context of contravention proceedings, an obligation created by an order in relation to a child, whether specified in the order or not, includes a number of other statutory obligations that are set out in ss.65M, 65N, 65NA, and 65P of the Act. A common theme of these provisions is that when obligations are created by Orders, those bound by the order are prevented from doing anything that might interfere with the exercise or performance of the powers, duties, rights, responsibilities and benefits conferred on other persons by the order. These quite expansive provisions mean, in effect, that Orders need to be complied with not just in a technical sense, or having regard to form, but rather by reference to the intention and purpose of the Orders, and what was sought to be achieved in a substantive sense.
The Court can only assume that the Mother read these reasons for judgment. One certainly hopes so given the bond that she entered into. Those paragraphs make it clear that her obligation to comply with Order 7 is not just a technical obligation having regard to the form of the Order but also an obligation informed by the intention and purpose of the Orders. She knew it was the Father’s time to ring the children. She should not have put herself in a position where it became impracticable for him to do so.
Her obligation does not end merely with giving the children access to a mobile phone and ensuring that its battery is charged. Order 7 is an Order about communication between a parent a child and carries with it the broader obligation to act reasonably in order to make this so. The Court is not satisfied that she did enough on 5 February 2015 to facilitate Y’s communication with his father. If she was suggesting, even impliedly that the circumstances of being in a busy and probably noisy, restaurant constituted a reasonable excuse, the Court disagrees.
The Court has no doubt, based on the way in which the Mother’s case was presented, that the Mother experiences the Father as being controlling, intimidating, and abusive. She may well interpret what the Father was doing on 5 February 2015 and what the Father was doing by bringing the contravention application as another example of seeking to control. It is interesting to observe that the first Order proposed by her, irrespective of the outcome of the contravention proceedings, was an Order that the Father be restrained from instituting proceedings pursuant to Part VII of the Act without first obtaining leave of the Court.
The second Order she sought was a s.68B injunction, accompanied by a s.68C Order in relation to arrest. These proposed Orders clearly reflect an attitude on her part that any action that the Father takes to enforce the Orders that she agreed to should be construed as harassment, intimidation and an attempt to control her life. Whilst remaining respectful of the Mother’s perception of the Father and her experience of him, the role of the Court is to apply the law to the evidence before it.

Contravention 3

Order 10.1 provides that each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of any serious medical problems or illnesses suffered by the children. The Father asserts that the Mother took X to an eye specialist because she was having problems with her eyesight and that he did not become aware of this until X came over on 27 February 2015. He says that even at the time of swearing his affidavit, he did not know what that was all about.
The Mother’s evidence about this was cogent and plausible. X went to see an optometrist for eye tests. The optometrist performed a number of tests and found no problems with her eyes. A visit to an optometrist is not, in this Court’s view, a “serious medical problem” or an “illness” suffered by the children. There is no basis whatsoever for the alleged contravention.

Contravention 4

Order 10.6 provides that each parent is to ensure that the other parent is kept informed as soon as reasonably practicable of any other matter relevant to the welfare of the children. The Father’s evidence about this refers, once again, to X supposedly being seen by an eye specialist as in the previous count but goes on to refer to X suffering from asthma. He accepts that the Mother provided some medication for X’s asthma and sent it over to him. He said that it was out of date.
He was clearly suspicious about the alleged prescription. But the Father himself annexes the Mother’s email to him of 27 February 27 2015 where she tells him about the medication that X needs. It is impossible to see any basis for the Father’s complaint. The email in question clearly satisfies the requirement of Order 10 that he be “kept informed as soon as is reasonably practicable” of the relevant matters. There is no basis to this alleged contravention.

Contravention 5

Order 5.1.2 provides that the Father spend time with the children in term 1 of 2014 and each term thereafter from the first weekend of each term, from the conclusion of school on Friday until 5.00pm on Sunday. The children were not at school when they were to be collected. The Mother’s evidence is that on the day in question the children returned home instead of going to the Father’s house. It was the first week back at school after school holidays and she “had misread the orders”.
She explained that she mistakenly understood that the weekend time during school term would alternate in the same way a holiday alternated. In effect, she contends that this amounts to a reasonable excuse for contravening the Order. The Mother’s explanation quickly unravelled in cross-examination. She conceded that, notwithstanding her confusion about the Orders, she did comply with Order 5.1.2 in term 1 of 2015 but maintained that she had misread the Orders for the purposes of the contravention on 24 April 2015, the commencement of term 2.
With respect to the Mother it is hard for the Court to understand why she would read the Orders correctly for the purposes of term 1 but somehow misread the Orders for the purposes of term 2. Moreover, the difficulties confronting the Mother only worsened as she was taken back to the earlier contravention proceedings. Indeed, she was reminded of two paragraphs in my reasons for judgment, paragraphs 35 and 36, as follows:
(35) Order 5.4 specifies the time that the Father is to spend with the children during school holidays. He alleges that on 11 April 2014, the conclusion of term 1 2014, that the Mother failed to collect the children from school on the last Friday of term. He was called to the school by the principal, explained that it was the Mother’s half of the school holiday period, whereupon the Mother was called and she eventually came to collect the children. She explained that, while she concedes she breached the Order, she was confused about their meaning and thought that her school holiday time would start on the Monday, and that the weekend in question was the Father’s alternating weekend time. She acknowledged now that that was her misunderstanding.
(36) The Mother acknowledged contravention of the Order. It is clearly of lesser significance, though embarrassing no doubt for the children, but an understandable error in interpreting the Orders. The Court is satisfied that the misunderstanding is unlikely to be replicated.
In other words, it became apparent that the Court had already previously accepted the Mother’s explanation that she had misread the Orders but was now being asked to accept the same explanation again.
Regrettably, the Court’s confidence in the Mother as reflected in the last sentence of paragraph 36 above was misplaced. The “misunderstanding” was, in fact, replicated on 24 April 2015. The Court does not accept that a reasonable excuse has been established for the purposes of s.70NAE in circumstances where a parent has already been given the benefit of the doubt in previous contravention proceedings in relation to her understanding of the Orders. The contravention of Order 5.1.2 is therefore established without reasonable excuse.

Summary

The Father made five allegations of contravention, three of which have been dismissed and two which have been established without reasonable excuse.

Consequences of Contraventions

Having regard to the evidence and findings made above, the Court finds that notwithstanding that the bond that the Mother entered pursuant to s.70NEC of the Act to comply with all parenting Orders, she has failed to do so. This means that s.70NECA is activated. This section provides:
(1) If a court has made an order under paragraph 70NEB(1)(d) requiring a person to enter into a bond in accordance with section 70NEC, the following provisions have effect.
(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 70NEC) 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 70NEC, impose a fine not exceeding 10 penalty units on the person; or
(b) revoke the bond entered into in accordance with section 70NEC 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 70NEB 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.
It is not entirely clear to the Court precisely what consequence for the contravention indeed the breach of the bond the Father was seeking, apart from a wholesale review of the Orders that would see him have the children for half time. Ms Humphreys, on behalf of the Mother, submitted that notwithstanding the breach of the bond and the further findings of contraventions without reasonable excuse, any penalty to be imposed should be on the lower end and should perhaps focus on parenting programs.
The matter comes within subdivision F, of division 13A of Part VII of the Act. The court is entitled to treat this as a contravention without reasonable excuse but a more serious contravention. S.70NFA states in this regard:
(1) Subject to subsection (2), this Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Division; and
(b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and
(c) the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3) applies.
Note: For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2) For the purposes of paragraph (1)(d), this subsection applies if:
(a) no court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b) the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
(3) For the purposes of paragraph (1)(d), this subsection applies if a court has previously:
(a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4) This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5) This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
This is a case to which s.70NFA, subsection (3) applies. The Court is not satisfied that it should be treated as a subdivision E case. There is a certain indifference in the Mother’s attitude about compliance with these Orders and an ambivalence about their importance from the children’s perspective that warrants on the evidence the matter being treated as more serious. She was given the benefit of the doubt by the Court the first time in terms of her understanding of the Orders but it would be a mockery and an abuse of process to allow that excuse a second time.
Section 70NFB sets out the powers of the Court in subdivision F proceedings. It states:
(1) If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
(a) make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and
(b) if the court makes an order under paragraph (2)(g)--consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and
(c) if the court does not make an order under paragraph (2)(g)--make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
(2) The orders that are available to be made by the court are:
(a) if the court is empowered under section 70NFC to make a community service order--to make such an order; or
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c) if the current contravention is a contravention of a parenting order in relation to a child--to make a further parenting order that compensates a 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, unless it would not be in the best interests of the child concerned to make that order; or
(d) to fine the person not more than 60 penalty units; or
(e) subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f) 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;
to 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); or
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
Note: The court may also vary the primary order under Subdivision B.
(3) If a court varies or discharges under section 70NFD a community service order made under paragraph (2)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate.
(4) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent.
(5) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of:
(a) a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989 ; or
(b) a breach of a child support agreement made under that Act; or
(c) a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).
(6) An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.
(7) When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.
Section 70NFB(1)(a) compels the Court to make an Order that the person who committed the current contravention pay all of the costs of the other party unless the Court is satisfied that it would not be in the best interests of the children concerned to make that Order. The only costs sought by the Applicant Father were his out-of-pocket expenses relating to the preparation of the case including setting-down fees, transcript fees, service and subpoena fees, etcetera. The sum he claims of $1500.99 is neither excessive, inappropriate nor disproportionate to the litigation in question.
No evidence was adduced by the Mother about her financial circumstances and no evidence was adduced nor submissions made about why it would not be in the best interests of the children to make the costs Order. The Court is satisfied that the imposition of a costs Order is consistent with the broader purposes of division 13A which empowers the Court to make orders which will enforce future compliance with its orders: McClintock v Levier [2009] 233 FLR 179 at 216, per Cronin J. The Respondent Mother will have six months to pay.
It is clear from s.70NFB(1), however, that merely making a costs Order is not necessarily the end of the exercise. The Court is entitled to exercise its other powers under subsection (2). The Court does not believe that a Community Service Order is either warranted or practicable. There is merit, however, in requiring the Mother to enter into a further bond in accordance with s.70NFE for a period of one (1) year. In this regard, the Mother needs to consider very carefully the escalating consequences on her if she breaches the Orders yet again in a context where she has given a bond. Whilst the Court, this time, will rule out as being inappropriate the imposition of a fine or of a sentence of imprisonment, if she returns to the Court again in the present circumstances, the Court will have to seriously consider these options.
Section 70NFB(2)(c) contemplates making an Order that compensates a person for time that the person did not spend with the child. A compensatory time order is certainly an option in this case even if it was not specifically sought. It was certainly implicit in the Father’s proposal that the Court should vary the Orders and make it equal time. Even though the Father only missed out on a weekend, the Court will give the Father the option of having an extra week with the children during the school holidays, should he so desire and provided he gives at least two months’ notice.
The Court is satisfied that s.70NFB, subsection (7) also empowers it to direct the Mother to participate in a Parenting Orders Program or similar program designed to educate a parent about the necessity and benefits of compliance with parenting Orders.
The practical consequences for the Mother, therefore, will be that she has to reimburse the Father his out-of-pocket expenses in the sum of $1500.99 within six months, she must enter into a new bond and make the children available for compensatory time up to one week during the school holiday period on the Father’s nomination with two months’ notice and lastly that she must participate in a parenting orders program or equivalent. The Court has considered but rejected the option of revoking the first bond and dealing with the contraventions which were the subject of the first hearing again. The procedure outlined above will be sufficient on the facts of this case.

Variation of the orders?

Section 70NBA empowers the Court to vary an existing parenting Order in the context of contravention proceedings, whether or not a contravention is established. Both parents invited the Court to do so.
The Father wanted an order for sole parental responsibility and that the children live with him but spend time with the Mother. Notwithstanding his Minute of Proposed Order, he did explain in closing submissions that equal time would be acceptable to him. The Father’s proposals in this regard can be dealt with very succinctly. There is insufficient evidence before the Court to enable it to make the drastic change that he proposes. Even the findings of contravention without reasonable excuse and contrary to the provisions of an existing bond would not warrant, per se, the drastic change that he proposes. Neither the present contravention hearing nor the accumulation of such proceedings gives rise, in this Court’s opinion, to the need to reconsider the substantive arrangements as to parental responsibility, where the children live and how much time they spend with the Father. The focus rather, should be on whether relatively minor changes can be made so as to facilitate the compliance by both parents with the Orders and minimise the prospect of subsequent difficulties. The Court recognises, however, that that is a great challenge in a case like this where there is no constructive communication between the parents, where there is no trust, where the relationship is best described as a toxic one and the conflict is most certainly high.
The Mother proposed a variation to existing Order 5.1, the effect of which would be that the alternate weekend contact would, in fact, conclude on Monday at the commencement of school rather than on Sunday at 5.00pm. This was explained on the basis of eliminating a changeover for the children and the possibility of tension and conflict between the parents at that changeover. The Court was rather surprised to hear that the Father opposed the variation on the basis that he did not see the benefit of it. This was even though it provided the Father with an extra night each fortnight. The Court does see the benefit of it, whether the Father does or not. The children cannot help but be aware of the toxic relationship between their parents and the high conflict that exists in this case. The introduction of an extra night is clearly something that the mother believes is in the best interests of the children and which the Court accepts will minimise yet another opportunity for the children to be exposed to the parental conflict. The Order will be made in terms of Order 2 of the Minutes sought by the Mother.

As foreshadowed, the Court will not make the Order under s.68B and s.68C of the Act. Irrespective of how the Mother perceives the Father, she is the one who has now, on two occasions, been found to have contravened Orders without reasonable excuse. If she has concerns about the Father’s behaviour, she has access to State law and State remedies which are in any event far easier to enforce.
The Mother proposes a variation to Order 7 which deals with telephone communication. She proposed that the telephone calls continue to be between each Tuesday and Thursday, but be limited to between 6.00pm and 7.00pm, rather than between 5.00pm and 7.00pm. The Father opposes the change on the basis that the nature of his work and the inconsistent access to the telephone network that he has as a result of his employment means that a two-hour window of opportunity is, in fact, needed. The Court accepts his submission in this regard. There is no basis for a revision of Order 7 and, indeed, such a change may well have the unintended consequence of impeding the children’s telephone communication with their father.
The Mother also proposed a change to Order 6.5, the effect of which would be that when the children go from the Mother’s care into the Father’s care, all they bring is the clothes they are wearing and all they come back with is the same clothing. In other words, the Father would be responsible for having clothing for the children during the time they are with him. The Father opposed the order. He submitted that the Mother had sole parental responsibility and thus, implicitly and subject only to his obligation to pay child support, that it was the Mother’s responsibility to clothe them. He submitted that the children were in his care for such limited periods that for him to provide clothes for them would not be viable, particularly as they would grow out of it quickly. The Court declines to make the Order proposed by the Mother. Whilst clothing has been a point of contention, no contravention has been established. The Court’s greatest fear, however, is this; that the children would be placed in an embarrassing and unacceptable situation where they are left with inadequate clothing in their father’s care. It is not beyond the realm of possibilities in this case that two parents who have such a toxic relationship would actually allow this to happen. Making the Mother’s Order would merely increase the risk of this unacceptable situation.
The final issue raised between the parties about a variation to the Orders dealt with passports and international travel. Doing the best the Court can to understand where the parents stand in relation to this issue, it is as follows. They agree that the children should have passports. They agree that the children should have opportunities to travel internationally. There did not even appear to be much contention about the Father retaining the passports when the children are not travelling. The sticking point is who pays for the cost of the passports which the Court was informed was $127 for each passport. The Father wanted the Mother to bear this cost. Implicitly, the basis of this was that the children live with her, she has sole parental responsibility and he pays child support. The Mother says it is appropriate that each pay half. This is an absurd situation but provides a more‑than‑adequate insight into the nature of the relationship between the parents. The Court is placed in the difficult position where it must act judicially and thus on the basis of non-existent evidence on this topic, or not make an order at all which will have the consequence for these children that because of their parents’ inability to agree about even simple things, they will be denied opportunities for international travel. The Court will make an Order that requires each parent to contribute half the cost of applying for a passport that enables the Father to retain the passports when the children are not travelling and which will empower both parents to travel on reasonable notice and with the provision of travel details and itinerary. If anyone is unhappy with these Orders, they can appeal.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 14 July 2016

[2016] FCCA 1340

14 July 2016

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