R and I

[2008] FCWA 67

[2008] FCWA 67

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	R and I [2008] FCWA 67
CORAM	:	CRISFORD J
HEARD	:	28 MAY 2008
DELIVERED	:	13 JUNE 2008
FILE NO/S	:	PT 2140 of 2001
BETWEEN	:	R Applicant/Mother
AND
I Respondent/Father
Catchwords:

Contravention without reasonable excuse (less serious contravention) - bond - parenting programs

Legislation:

Family Court Act 1997, s 205C, s 205E, s205O

Category: Not Reportable

[2008] FCWA 67

Representation:

Counsel:

Applicant:	Self Represented Litigant
Respondent:	Self Represented Litigant

Solicitors:

Applicant:	Self Represented Litigant
Respondent:	Self Represented Litigant

Case(s) referred to in judgment(s):

Nil

[2008] FCWA 67

1 [Ms R] filed a contravention application on 18 April 2008 alleging her former

partner [Mr I] has breached orders I made on 21 September 2007 in relation to their
son, [Brian].

Background

2 After a trial in August 2007 I delivered my judgment in this matter on

19 September 2007. The main issue was where 10 year old [Brian] should live.
I ordered that he live with his parents on a week about basis.

3 It is unnecessary to repeat the background of the parties and the history of their

relationship as it is set out in my judgment referred to above. For the purposes of this application it is relevant to note that the parties’ conflictual relationship was highlighted throughout my judgment. I commented that “the last 7½ years of [Brian]’s life has been dominated by his parents’ conflict.”

4 On 18 April 2008 [Ms R] filed an application for alleged contraventions by [Mr

I]. Relevantly, she alleges that [Mr I] collected [Brian] from his school, [the local] Primary School during “her” week. This she says is a breach of an order of 21 September 2007:

“2. The child [BRIAN] born [in] 1997, live with his parents on a week about basis, from either the conclusion of school each Friday or 5.00pm on those Fridays where he is not in school until either the conclusion of school the following Friday or 5.00pm on those Fridays where he is not at school, alternating each week between the parents.”

…….

5 The parties attended a Case Assessment Conference with Registrar Vanderfeen

on 15 May 2008. No agreement was reached in relation to the alleged contravention.
I am now asked to determine the matter.

6 At the hearing on 28 May 2008 it was agreed the matter could be determined on the basis of the affidavit material that had been filed. That material comprises:

1. Affidavit of [Ms R] filed 18 April 2008;

2. Affidavit of [Mr I] filed 26 May 2008;

3. Affidavit of [Ms P] filed 26 May 2008.

7 Both parties addressed me briefly before I reserved my decision.

Was there a breach of the order?

8 Pursuant to s 205C of the Family Court Act 1997 a person is taken to have contravened an order under the Act affecting children if, and only if:

(a) where the person is bound by the order, he or she has –

[2008] FCWA 67

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

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

OR

(b)

otherwise, he or she has –

(i)	intentionally prevented compliance with the order by a person who is bound by it; or
(ii)	aided or abetted a contravention of the order by a person who is bound by it.

9 During the week when [Brian] is living with his mother he is now required to

catch a bus after school finishes to [a school], where his mother works as a [teacher]. The bus ride takes approximately 7 minutes. Once at [the school] [Brian] does his homework in the library and then leaves with his mother at 4 pm.

10 On 3 April 2008 [Ms R] alleges that when she was waiting for [Brian] to arrive

at [the school] by bus she saw [Mr I] and his partner, [Ms P] drop him off in their car. Whilst still at work [Ms R] then received an email from [Mr I] and [Ms P] confirming that they had picked [Brian] up from school and transported him to her work as [Brian] had asked them to do this during a telephone conversation with him the night before. Although not acknowledged by [Ms R], [Mr I] says she then replied by email “YOU HAVE BROKEN THE ORDERS, ONCE AGAIN SEE YOU IN COURT !!!!”.

11 [Mr I] does not deny that he collected [Brian] from school and dropped him off

at [the school] on 3 April 2008. He disputed the incident occurred on 28 April 2008 as stated in [Ms R]’s contravention application. [Ms R]’s affidavit states it occurred on 3 April 2008. Regardless, there was no dispute that the incident did occur in [Ms R]’s week.

12 During [Ms R]’s week she is responsible for the making of decisions relating to

[Brian]’s daily routine. Despite my criticism of both parents there is nothing to suggest that they are not able and responsible parents when it comes to issues of schooling, transportation and the practical arrangements that need to be put in place for a 10 year old school boy.

13 It is clear that [Mr I] has breached order 2 of the orders made on

21 September 2007 by collecting [Brian] from school during the week he is to live
with his mother.

14 It is now necessary to consider whether [Mr I] had a reasonable excuse for involving himself in [Brian]’s after school arrangements as he did.

[2008] FCWA 67

Was there a reasonable excuse for the breach?

15 Section 205E of the Act provides instances in which the person who has breached an order is deemed to have a reasonable excuse for the contravention. The subsections of that provision which are relevant for this determination are:

(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)	a 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 subsection (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).

16 Clearly, by the wording of s 205E(1), the circumstances under which

a reasonable excuse can be provided are not limited to the circumstances provided in

[2008] FCWA 67

s 205E. The standard of proof that applies under Division 13 is on the balance of
probabilities.

17 [Mr I] provides the following reasons for collecting [Brian] from school on

3 April 2008:

• [Brian] was apprehensive and anxious about travelling on the bus alone;

• [Brian] asked him to pick him up after school;

• He saw no conflict between [Brian]’s request and the orders made by the Court;

• He wanted to relieve [Brian]’s anxiety;
• He simply did what the bus driver would have done.

18 Further, [Mr I] says he was concerned when he dropped [Brian] off at

[the school] that [Ms R] was not waiting for him. Consequently he says he wrote the email to [Ms R] as he believed she may not have been aware that he dropped [Brian] off and that she was unaware of [Brian]’s anxiety towards catching the bus.

19 Unsurprisingly, [Ms R] paints a different picture of [Brian]’s feelings towards catching the bus. She says:

“4. [Brian] had explained to me how he was looking forward to catching the bus, but he didn’t want to tell his father. I didn’t know why. When he eventually told [his father] told [Brian] that he was too immature and not responsible enough.

5. Where as I had told [Brian] that he was a responsible young man, mature and I trusted him. If I had any hesitation or doubt that [Brian] was not able to catch the bus for any reason, I would have found alternative arrangements.”

20 In his affidavit sworn 25 May 2008 [Mr I] says he does not disagree that [Brian]

is happy to travel by bus but his concern was based on [Brian]’s anxiety “while coming to terms with what to him was a new and onerous routine.” Despite this he says later in his affidavit that it is not surprising that [Brian] has told his mother that he is happy to catch the bus because he has “developed methods of minimizing [sic] the likelihood of violence by his mother toward him by telling her what he thinks she wants to hear…”

21 [Ms P] swore an affidavit on 25 May 2008, in support of [Mr I], confirming the

incident occurred and stating that [Mr I] attempted to encourage [Brian] to catch the
bus and talk to his mother about it.

22 Although I do not believe [Mr I]’s actions were malicious, they clearly

amounted to an interference with [Brian]’s time with his mother, and consequently a breach of the Court ordered living arrangements. I am not satisfied that there is

[2008] FCWA 67

a reasonable excuse for [Mr I]’s breach. The Court orders in place are very clear, that [Brian] lives with his parents on a week-about basis. The parties’ are fully aware that their relationship is highly conflictual and it is important that they respect each other’s time with [Brian] so as to avoid incidents such as this occurring.

23 [Mr I] was aware that when he collected [Brian] from school it was not his

week. [Brian]’s health or safety was not an issue. [Ms R] is more than capable of putting in place appropriate travel arrangements for [Brian]. [Brian] is almost 11 years of age, the bus ride was only a short distance, and [Ms R] purchased a mobile phone for [Brian] in case he requires any assistance. She had done a practise run with him. It is clear that she would find an alternative arrangement if she believed that it was not in his best interests.

Conclusion

24 This is the second contravention application filed by [Ms R] since the orders

were made in September 2007. The first application was dismissed after part of the orders were varied by consent. I have concerns about the parties’ eagerness to continue to involve the Court in their conflicts, regardless of how minor the dispute may be. I noted in my previous judgment:

“103. The Court is concerned about the ongoing potential for conflict insofar as it relates to parental responsibility and the need, inevitably, for decisions to be made about the long-term welfare of [Brian]. These parties have a difficulty in focusing on [Brian]’s needs and in their struggle for supremacy are likely to resort to the Court. The Court will endeavour to put into place orders that cover possible arrears of contention.

104. [Mr I] sought the Court put in place “bomb proof” orders. His naming of the orders is apt. Both these parties have waged a war, indulged in acts of terrorism and caused mayhem and destruction. In those circumstances, bomb proofing matters is an extremely difficult task.”

25 The Court orders I made in September 2007 allow the parties to equally

participate in [Brian]’s life, and it is clear that their designated time with [Brian] should not be interfered with by the other. [Mr I] is clearly aware of this yet he chose to interfere and breach the orders. It was not a situation where [Brian]’s safety was at risk. I am confident [Ms R] would not place [Brian] in such a situation and if she considered [Brian] travelling by bus from his school to her work to be inappropriate or unsafe she would cease the practice immediately.

26 Although I have found that [Mr I] has breached the Court orders and he has no

reasonable excuse for doing so, the breach is minor. In this case Subdivision 5 of Division 13 of the Act applies, being a less serious contravention. Section 205O of the Act sets out the powers of the court under this Subdivision. After consideration of s 205O I consider it appropriate that as a result of his breach of order 2 of the orders made on 21 September 2007 [Mr I] enter into a bond to be of good behaviour in the sum of $500 by way of security. He is to ensure he complies with all Court orders.

[2008] FCWA 67

27 I also intend to make an order pursuant to s 205O(1) of the Act that [Mr I] attend a post separation parenting program. I previously made an order on 21 September 2007 that he forthwith attend the Mums and Dads Forever Program. He has not done so although I am told and accept he has enrolled in such a program and paid for it. He is due to commence this program in June or July 2008. I further ordered that once he had completed that program he was to attend a further parenting course such as the Respectful and Practical Parenting Program conducted by Relationships Australia. I intend to incorporate that in the present order. In accordance with the requirements of s 205O(3) of the Act the provider of the two programs I have nominated will be notified of this order.

28 Thus, having found the contravention proved the orders I make are:

1.	The Respondent enter into a bond to be of good behaviour for a period of six months from the date hereof in the sum of $500.
2.	Within six months of the date of these orders the Respondent is to enrol in and complete the following courses:

(i) Mums and Dads Forever Programme (Anglicare);

(ii) The Respectful and Practical Parenting Program (Relationships Australia);

with proof of completion to be provided to the Applicant and the
Court.

3. The application otherwise be dismissed.

I certify that the preceding [28] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate