Rossini & Koopman
[2024] FedCFamC2F 901
•4 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rossini & Koopman [2024] FedCFamC2F 901
File number(s): MLC 10048 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 4 July 2024 Catchwords: FAMILY LAW – Contravention – Parenting – Where father alleges mother failed to comply with orders allowing father to spend time with children – Where father alleges mother failed to comply with orders not to communicate through children – Where father alleges mother failed to comply with “live with” orders – Differences between “old” and “new” Division 13A – Parents to use their parental authority to ensure that the orders are complied with – “Live with” orders not a mandatory injunction or obligation on the Mother to actually keep the children in her care at all times – Two contraventions established – Mother ordered to enter into bond. Legislation: Acts Interpretation Act 1901 (Cth), s 7
Family Law Act 1975 (Cth) Division 13A, ss 70NAA, 70NAB, 70NAC, 70NAE, 70NBF, 70NCA, 70NEA, 70NEB, 70NEC, 70NFE
Family Law Amendment Act 2023 (No. 87, 2023)
Cases cited: Atkins and Milburn [2013] FCCA 2202
Bale-Sutch & Bale-Sutch (No 2) [2007] FamCA 590
Stephens v R (2022) 273 CLR 635; (2022) 404 ALR 367; (2022) 96 ALJR 871; [2022] HCA 31
Division: Division 2 Family Law Number of paragraphs: 75 Date of last submission/s: 4 July 2024 Date of hearing: 23 May 2024 Place: Melbourne Counsel for the Applicant: Mr Gates Solicitor for the Applicant: Bentleys Barristers and Solicitors Counsel for the Respondent: Mr Harvey Solicitor for the Respondent: DSA Law - Lawyers & Consultants ORDERS
MLC 10048 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROSSINI
Applicant
AND: MS KOOPMAN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
4 JULY 2024
THE COURT DECLARES THAT:
1.MS KOOPMAN (‘the Mother’) contravened a child-related order of the court made on 4 August 2023 without reasonable excuse when on 26 August 2023 she made no reasonable attempt to comply with the order for MR ROSSINI (‘the Father’) to spend time with X (‘X’) born 2014 and Y (‘Y’) born 2017 (‘the children’).
2.The Mother contravened a child-related order of the court made on 4 August 2023 without reasonable excuse when she contravened the order that the parents were not to communicate about parenting matters through the children, or either of them, on 17 September 2023.
THE COURT ORDERS THAT:
3.The Mother, MS KOOPMAN, do all acts and things to enter into a bond pursuant to ss.70NEB and 70NEC (as the Family Law Act 1975 (Cth) (‘the Act’) provided prior to 6 May 2024) for 2 years from this day, that is until and including 4 July 2026, without security or surety, pursuant to which she shall undertake to comply with all parenting orders applicable to her made by the Court.
4.Pursuant to order 3 herein, by 4.00 pm on Thursday 11 July 2024, the Mother attend upon a Registrar of the Melbourne Registry of the Federal Circuit and Family Court of Australia to enter into the bond.
5.Orders 2(b)(i) and 2(c)(i) of the Orders of 4 August 2023 be and are hereby amended to read ‘…commencing from the conclusion of school on the last day of [Y’s] school term…’, removing the reference to the last day of the Victorian Gazette School Holidays.
6.For the purpose of the coming school holidays (notwithstanding that X has already spent time with his Father during his school holidays), both children are to move into the care of the Father for the period specified by the 4 August 2023 Orders (7 consecutive days), with changeover to occur:
(a)for the commencement of time:
(i)at 3.30 pm on Friday 5 July 2024 at Y’s school (as requested by the Mother); and
(b)for the completion of time:
(i)at 4.00 pm on Friday 12 July 2024 at the contact centre, if it is available; or
(ii)if the contact centre is unavailable for 4.00 pm, any other such time on Friday 12 July 2024 that the contact centre can facilitate; or
(iii)in the event that the contact centre is unavailable on Friday 12 July 2024, changeover is to occur at Suburb C Police Station.
7.The parties are to communicate via the ‘AppClose’ communication app to facilitate those arrangements.
8.The parties do all things to cause a copy of the orders of 4 August 2023, a copy of these orders, and the reasons delivered this day (when written form is available) to the contact centre that facilitates the non-school changeovers pursuant to order 4(b) of the Orders of 4 August 2023.
AND THE COURT NOTES THAT:
A.Before making these orders the Court explained to the Mother in language that was readily understood by her, and she took legal advice about:
(a) the purpose and effect of the bond and the conditions of the bond; and
(b) the consequences that may follow if the Mother fails to enter into the bond or having entered into the bond, fails to act in accordance with the bond;
and the Mother acknowledged that she understood the purpose and effect and the conditions of the bond and the consequences if she failed to enter the bond or failed to act in accordance with the bond.
B.The standard bond form available via the Court website has been updated to include the sections of the Act following the amendments of 6 May 2024, thus the form provided to the Mother has been amended by Judge O’Shannessy.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
These are the settled reasons of an oral judgment delivered some short time after the hearing, but not immediately after. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged. I did not recite the passages of legislation referred to but merely referred to the provisions. Those provisions are recited in these settled reasons.
BACKGROUND
In the matter of Rossini and Koopman, the applicant father, Mr Rossini (‘the Father’), was born in 1981 and the respondent mother, Ms Koopman (‘the Mother’), born in 1990. They have two children, X, who is aged nine, born in 2014, and Y, who is six, having been born in 2017. The parents married in 2013, commenced to cohabit in 2014, and separated in 2021.
Final parenting orders
Parenting proceedings were commenced on 8 September 2022. Those proceedings concluded after many twists and turns, with final orders being made on 4 August 2023. Those orders were made by consent and were made by a Judicial Registrar. At the time of the orders, the Father was unrepresented and the Mother was represented by K Lawyers.
Those orders provided, by consent, that the parents would have equal shared parental responsibility for the children, that the children would live with the Mother and spend time with the Father according to the regime set out in the orders. That regime of time was to commence on 12 August 2023, whereby the Father was to spend time each alternate weekend from 4.00 pm Saturday, to the commencement of school on Monday, that is, overnight Saturday and Sunday.
By order 2(a)(ii), the Father’s time from 26 August 2023, was from Saturday 4.00 pm, until commencement of school the following Tuesday, or 12.00 pm Tuesday if a non-school day and each alternate weekend thereafter. By clause 2(b), the Father was to spend time during the school term holidays as agreed in writing and, in default of agreement, commencing from the conclusion of the last school day for seven consecutive days, with changeover to occur at 12.00 pm. The long summer holidays were to be on a week about basis, and there were provisions for special days, including Mother’s Day and Father’s Day, as well as what are regarded as religious and/or cultural occasions.
Special orders were made about changeover. Changeover was to be at the children’s school at the conclusion and/or commencement of school. Where changeover was unable to occur at the children’s school, for example, in the middle of school holidays or on special days when school would not be available, changeover was to occur at a nominated community changeover and supervision service. The cost was to be shared equally.
Other provisions in those orders included provisions in regard to overseas travel. The parties and children were permitted to travel outside the Commonwealth of Australia provided that, no later than 90 days prior to the intended date of departure, they provided the usual details of itinerary and travel details. Upon receipt of that information, in the event that there was no objection, the party who had received the travel request was deemed to have consented to the travel.
There were also provisions in regard to communication. The parties were ordered to communicate with each other in relation to the children through a particular app designed for parental communication, or as such other parental communication app as agreed, save and except for time-sensitive or urgent matters, in which the parties are at liberty to communicate by SMS, text message or telephone, and the communication was to be child focused. In addition to that injunction about how they were to communicate, there was a further restraint preventing the parents from doing certain things. Order 28 read as follows:
28. Without admitting the necessity for same, the parties, their servants and/or agents, be and are hereby restrained by injunction from:
…
(b) passing messages through the children to the other parent;
(c) discussing parenting disputes and/or issues with or in the presence of the children or any of them and permitting any other person to do so.
Contravention application
On 2 November 2023, the Father filed a contravention application in the proper form, dated 23 October 2023. The application was supported by an affidavit. The affidavit was filed on the same day and affirmed on 23 October 2023. On the hearing before me, both the Respondent and Applicant were represented by counsel.
Proceedings before me
When the contravention application came on before me on 23 May 2024, I took the Mother to each of the counts in the contravention application and asked her for her response. The contravention application itself specified a number of different contraventions.
On the day, I was advised that what I regard as count 1, being an alleged contravention on 26 August 2023, was pressed by the Applicant, the father of the children. I was also advised that what I regard as count 2, or charge 2, was not pressed and was abandoned. I was also advised that what was said to be a contravention to have occurred on 3 September 2023 – the third alleged contravention or count 3 – was not pressed. In regard to what could be called count 4, or charge 4, alleging a contravention on 17 September 2023, that was pressed. Charge 5, which alleged a contravention that was alleged to have occurred on 21 September 2023, was also pressed. I did not bring the charges that were not pressed to the attention of the Respondent, the mother of the children.
In regard to charge 1, that is, the contravention alleged to have occurred on 26 August 2023, the Respondent denied the allegation that she had contravened the order. In regard to count 4, that is, the contravention alleged to have occurred on 17 September 2023, the Respondent admitted that the acts said to constitute the contravention had occurred, but she said that she had a reasonable excuse and so had not contravened the order. To make it clear, the Respondent admitted certain acts and statements by her, but she denied that she had contravened the order. In regard to charge 5, that is, a contravention alleged to have occurred on 21 September 2023, the Respondent denied the allegation.
The Respondent had helpfully, but not compulsorily, filed an affidavit on 16 May 2024 where she had chosen to set out her side of the story. After the Respondent had responded to the allegations or “pleaded”, the matter proceeded. Each of the Applicant and the Respondent had provided an outline of case, and I had read those documents.
The Applicant was cross-examined. Following the end of his evidence (after he left the witness box), I was advised that the Respondent chose to rely on her affidavit in answer to the allegations, that is, her affidavit filed on 16 May 2024. She was then called to the witness box and was cross-examined.
At the conclusion of the hearing, I heard submissions from counsel and then reserved my decision and reasons. This is my decision, and these are my reasons.
Applicable law: the “new” Division 13A and the old Division 13A
Before I go further, I will now deal with the legislation that applies. At this point I note the following chronology. Final orders were made on 4 August 2023 in proceedings that commenced on 8 September 2022. The alleged contraventions all occurred between 26 August and late October 2023. On 6 May 2024, the amendments to the Family Law Act 1975 (Cth) contained in Act number 87 of 2023 came into operation.[1]
[1] Those provisions were inserted by section 3 of that Act and item 21 of the second schedule.
The important aspect, from my point of view, is that the amending Act includes the words:
Schedule 2—Enforcement of child-related orders
Part 1—Enforcement of child-related orders
21 Division 13A of Part VII
Repeal the Division, substitute:
Division 13A—Orders in proceedings relating to contraventions of child-related orders
(emphasis added)
Hence, as and from 6 May, a new scheme (or at least a “new” Division 13A) was to apply. From one point of view, the differences between the new Division 13A operating from 6 May and the old Division 13A operating prior to that date, are of emphasis rather than substantial or even procedural. The basic procedure remains the same but the dichotomy between less serious and more serious contraventions no longer exists. Hence, the issue arises whether the matter before me should have been dealt with under the old Division 13A or the new Division 13A.
Statutory presumption against retrospectivity
The issue is touched on by what is regarded as the assumption or presumption that legislation is not retrospective. In one sense that can be expressed as simply as – a person can’t commit an offence that didn’t exist at the date of the alleged contravention or offence. I take into consideration the following discussion in Chapter 10 of D C Pearce, Statutory Interpretation in Australia (LexisNexis Australia, 10ed, 2024) on the retrospective operation of legislation.
ASSUMPTION THAT LEGISLATION IS NOT RETROSPECTIVE
General Statements
10.5The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation. The leading case on this question in Australia is Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 where Dixon CJ summarised the approach of the courts:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
Perhaps the other most frequently cited statement of the principle is from Fullagar J in Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 194:
There can be no doubt that the general rule is that an amending enactment — or, for that matter, any enactment — is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.
…
Presumption Against Retrospectivity Rebuttable
10.21The presumption against retrospectivity can, of course, be excluded by a direct statement to the contrary in the relevant Act. […] However, it is not necessary for the legislature to make its intention as plain as this. A court will regard the presumption as being rebutted if it can spell out a necessary intendment that the Act is to operate retrospectively. […]
I refer also to the High Court decision of Stephens v R,[2] in particular the following paragraph:
[39] In Zainal bin Hashim v Government of Malaysia,[3] the Privy Council said that “for pending actions to be affected by retrospective legislation, the language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature”. Such an expression may have been overstated by suggesting a requirement that all other conclusions be impossible, but it is certainly correct to say that “[s]ince the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this … presumption [against retrospective or retroactive operation] will be that much harder to displace”.[4]
(footnotes as in original)
[2] (2022) 273 CLR 635; (2022) 404 ALR 367; (2022) 96 ALJR 871; [2022] HCA 31.
[3] [1980] AC 734 at 742; [1979] AII ER 241 at 245.
[4] Attorney-General of New South Wales v World Best Holdings Ltd at [59], quoting Wilson v First County Trust Ltd [2004] 1 AC 816; [2003] 4 All ER 97; [2003] UKHL 40 at [198].
I am also more assisted in this question by section 7 of the Acts Interpretation Act 1901 (Cth) which provides the following:
Section 7 Effect of repeal or amendment of Act
No revival of other Act or part
(1)The repeal of an Act, or of a part of an Act, that repealed an Act (the old Act ) or part (the old part ) of an Act does not revive the old Act or old part, unless express provision is made for the revival.
No effect on previous operation of Act or part
(2) If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act ) or a part of an Act, then the repeal or amendment does not:
(a)revive anything not in force or existing at the time at which the repeal or amendment takes effect; or
(b)affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or
(d)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or
(e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.
(emphasis added)
The language of Division 13A is not of an offence, but rather of consequences of failure to comply with orders.
The “old” Division 13A
The Division 13A that applied prior to its repeal included the following:
Section 70NAA Simplified outline of Division[5]
[5] Replaced by “new” section 70NAA Simplified outline.
(1) This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
…
Section 70NAB Application of Division[6]
[6] Replaced by “new” section 70NAB Objects.
Despite anything contained in any other provision of this Division, this Division does not apply in respect of a contravention, committed before this Division commences, of an order under this Act affecting children if a court made an order, in respect of that contravention before this Division commences, under this Act as previously in force.
Section 70NAC Meaning of contravened an order[7]
[7] Replaced by “new” section 70NAC Meaning of contravene a child-related 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; 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.
…
Section 70NAE Meaning of reasonable excuse for contravening an order[8]
[8] Replaced by “new” section 70NAD Meaning of reasonable excuse for contravening a child-related order.
…
(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;[9] and
[9] No such issue arose in this case.
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
…
(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).
…
Subdivision E—Contravention without reasonable excuse (less serious contravention)[10]
[10] Replaced by “new” section 70NBF Orders where contravention established without reasonable excuse.
Section 70NEA Application of Subdivision
(1) Subject to subsection (4), 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;
and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
(2) For the purposes of paragraph (1)(d), this subsection applies if no 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.
(3) For the purposes of paragraph (1)(d), this subsection applies if:
(a) a 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, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
(4) This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.
Section 70NEB Powers of court
(1) If this Subdivision applies, the court may do any or all of the following:
…
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)—impose a fine not exceeding 10 penalty units on the person […]
…
Section 70NEC Bonds
(1) This section provides for bonds that a court may require a person to enter into under paragraph 70NEB(1)(d).
(2) A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
…
Subdivision F—Contravention without reasonable excuse (more serious contravention)[11]
[11] Replaced by “new” section 70NBF Orders where contravention established without reasonable excuse.
…
Section 70NFE Bonds
(1) This section provides for bonds that a court may require a person to enter into under paragraph 70NFB(2)(b).
(2) A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b)to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
…
The “new” Division 13A
The “new” provisions are more straightforward, easier to follow, but fundamentally the same. These “new” provisions include the following:
Section 70NAC Meaning of contravene a child - related order
(1)A person contravenes a child - related order only if:
(a)the person is a person (other than a child) to whom the order applies and:
(i) the person intentionally fails to comply with the order; or
(ii)the person makes no reasonable attempt to comply with the order; or
(b)the person is not a person to whom the order applies, and the person is not a child, but:
(i)the person intentionally prevents compliance with the order by a person to whom the order applies; or
(ii)the person aids or abets a contravention of the order by a person to whom the order applies.
…
Section 70NBF Orders where contravention established without reasonable excuse
(1)If the court finds that the respondent has contravened a child - related order without having a reasonable excuse, the court may make any of the following orders:
(a)an order requiring the respondent to enter into a bond in accordance with section 70NCA;
(b) if an order is made under paragraph (a), and the respondent fails, without having a reasonable excuse, to enter into the bond--an order imposing a fine not exceeding 10 penalty units on the respondent;
(c) where the contravention resulted in a child not spending time with, or living with, a person (the affected person) for a period--an order requiring the respondent to compensate the affected person for some or all of any expenses the affected person reasonably incurred as a result of the contravention;
(d)where the court is satisfied beyond reasonable doubt that the respondent contravened the order:
(i) an order imposing a fine not exceeding 60 penalty units;
(ii) an order imposing a term of imprisonment.
…
Matters to be considered by the court
(2) In making an order mentioned in subsection (1), the court must have regard to:
(a)the likely effects of making the order on any child, or any other person; and
(b)the seriousness of the contravention.
(3)Without limiting the matters the court may take into account, the following matters must be taken into account by the court when having regard to the seriousness of the contravention:
(a)whether a court has previously found that the respondent has contravened a child - related order without having a reasonable excuse;
(b)whether the respondent behaved in a way that showed a serious disregard of the respondent's obligations under the child - related order mentioned in subsection (1);
(c)the behaviour of any person with whom the child is to live or spend time under the child - related order mentioned in subsection (1).
(4)The court may sentence the respondent to imprisonment under subparagraph (1)(d)(ii) only if the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention in any other way under subsection (1).
Section 70NCA Matters relating to bonds
(1)This section sets out requirements relating to bonds that the court may require the respondent to enter into under paragraph 70NBF(1)(a).
Matters dealt with in bonds
(2)A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a)with or without surety; and
(b)with or without security.
(4)The conditions that may be imposed on the respondent by a bond include (without limitation) conditions that require the respondent:
(a)to attend a post - separation parenting program; or
(b) to attend an appointment (or a series of appointments) with a family consultant; or
(c)to attend family counselling; or
(d)to attend family dispute resolution; or
(e)to be of good behaviour.
Not retrospective
I am satisfied, because of the provisions of section 7(2)(b) – (e) of the Acts Interpretation Act and the conclusionary part to those provisions, as well as the authorities referred to, that there was no intention of Parliament to displace the time-honoured presumption or assumption against retrospective application. In this case, the consequences of the difference between the new legislation or the old applying are minimal. I am so satisfied because the imposition of consequences, or orders following the finding of a contravention, is in substance a penalty in respect of a contravention of the Act, albeit it has not used the words offence. If I am wrong about that, in this case that difference is of no consequence. I take into account the new part, or Division, 13A in any event.
Count 1
I will now deal with the first count, that is, charge 1, relating to 26 August 2023 and described in the contravention application as follows:
The respondent without any reasonable excuse withheld the children from me in complete disregard to her obligations under order 2 (a) (ii) of the final orders made on 4 August 2023.
i)On Saturday 26 August 2023 at approximately 3:45PM I arrived at the [B Contact Centre] in [Suburb D] to pickup the children.
ii)At approximately 4:00PM the respondent arrived at the child contact centre [in Suburb D].
iii)Before brining the children for this changeover, the respondent allegedly influenced the children to say “No they don’t want to go with the father”.
iv)During this impeded changeover attempt, children said to the changeover supervisor [Mr E] that they don’t want to go with the father, The supervisor conveyed the children’s message to me and the changeover didn’t occur. The respondent didn’t make any effort to facilitate the changeover and I left the centre at or around 4:15pm without the children.
v)Mother has withheld the children from the applicant in complete disregard for the recent court order number 2 (a) (ii) made on 4 August 2023.
vi)Changeover discontinued since then and I couldn’t meet or speak to my children between 19 August 2023 and 17 September 2023.
…
(spelling and grammar as in original)
In the circumstances where non-school changeovers were meant to happen at the supervision centre, a report from that centre was made available. The deponent, a senior social worker at the centre, was not required for cross-examination. Both parties proceeded on the basis that I could have regard to the written text of the affidavit.
Firstly, I am satisfied that there were sufficient particulars in the contravention application so that the substance, detail and gist of the allegations were made clear to the Respondent. It is not disputed that on 26 August 2023, the respondent mother did attend at the contact service with the children.
Role of contact centre
Thereafter, what occurred, as described in the report, is very careful and sensitive interaction with the contact centre worker, showing immense patience and care.[12]
[12] And the report describes the writer and the person attending and assisting this family as a worker.
It is not apparent to me that the worker charged with the responsibility of assisting this family in difficult circumstances had been provided with the very recent court orders. The difficult task of a changeover centre worker cannot be underestimated. The worker will not have an unlimited period of time to read court orders, family reports or any affidavits, transcripts of evidence or other material. The changeover service is just that, a changeover service to assist families. It is not a service to enforce orders.
Parental authority required
In this case there were and are allegations of family violence during the relationship. The parties were to attend non-school changeovers for the purpose of ensuring that they didn’t come into contact with one another. The non-school changeover provision was not there so that someone else, or someone other than the parents, had the responsibility of ensuring that the court orders were complied with. It was not the responsibility of the worker to enforce the orders. That responsibility lays with the parents. I’m satisfied that the court orders made in the usual terms required each of the parents to use their parental authority to ensure that the orders were complied with.
Father to return children to the Mother
It was not a matter that if one, or both, of the children told the Father or said something to the Father that could be interpreted that they did not wish to return to the Mother, that he would not return them. What the orders provided and required of him was that, in accordance with the orders, at the end of his time, he was to return the children to the Mother. He was to do this by returning them to school for the school day’s changeovers or otherwise to return them to the contact centre for the non-school changeovers. On the evidence I have, I am satisfied that he has done so and there is no allegation that he has not, save for the events in regard to one of the charges that I will come to.
The report from the contact service worker includes the following:
The worker informed the children that their dad had arrived at the service and asked if they were ready to go.[13] [X] shook his head and said he did not want to go. The worker asked [X] if he would be ok to come into one of the playrooms and play with just the worker and [Y], and if [X] was comfortable, then their dad might join them. The worker said he would return in a moment and left the waiting room.
The worker informed [Mr Rossini] that the children said they did not want to come through to him, that the worker would be supporting the children to play in the playroom, and that if the children are comfortable, the worker would invite him to join them. [Mr Rossini] nodded his head. The worker returned to the children, and they walked with the worker into the playroom. The children began to play, and the worker asked [X] why he did not want to go to his dad. [X] said that his dad hits his back. The worker asked if this has only happened in the past or does his dad still hit him. [X] said his dad still hits him. The worker discussed how it is important to let people know this and [X] said he has only told his mum. [Y] added that one time her dad hit the back of her head. The worker asked [Y] if she wanted to see her dad and she nodded. […]
The children and the worker returned to their mum and the worker shared what the children had said. […] [X] told his mum that he did not want to go, and the worker chatted with them about how this was their time to see their dad and that sometimes there are things we have to do that we do not want to do. […] [Ms Koopman] told [X] that the worker was right and encouraged him to go with the worker. […] [Y] told the worker that she wanted to go back to the playroom and the worker said they could go once [X] wants to go back. [Y] and [Ms Koopman] encouraged [X] to go, and he returned to the playroom with [Y] and the worker.
The children returned to playing […] After a couple of minutes, the worker asked [X] to tell the worker about how he felt about seeing his dad. [X] said he was going back to his mum. […] The worker watched as [X] walked down the hallway, he returned to his mum …
[…] [Ms Koopman] spoke about previous changeovers and how [X] had gone through quickly in the past. [Ms Koopman] said she does not know why he was doing this today. [Ms Koopman] and her partner encouraged [X] to go and tell the worker how he feels and that it was ok to tell the worker. [X] spoke to his mum […]. After some time, [Ms Koopman] said that the children are concerned about the cameras that [Mr Rossini] has in his room and that it records them when the children are changing. [Ms Koopman] said this was just to protect [Mr Rossini] and was not appropriate. [Ms Koopman] continued to encourage the children to talk to the worker, and the worker confirmed that the children could talk to him. The worker shared that the family are using the service so they can see their dad, that the worker would not be forcing the children to see [Mr Rossini], that the worker is there to support them to see him, and that they feel comfortable. [Ms Koopman’s] partner repeated that it is not right that [Mr Rossini] is changing [Y] by himself and shared that [Y] uses nappies that she can change herself, so [Mr Rossini] did not need to change her. The worker asked [Y] if she wanted to see her dad and she shook her head. The worker asked why she felt that way, she did not respond and [Ms Koopman] spoke with her […]. [Y] began to share that she slept on the bottom bunk, it was scary, and she did not like it. [Y] said she wanted to sleep on the top bunk and the worker confirmed that this could be shared with her dad. [Ms Koopman’s] partner repeated to [Y] that the worker would tell her dad about this. As the worker and [Ms Koopman] chatted with [X] about going to his dad, [X] began to cry and shook his head. As [Ms Koopman] and [X] chatted about his going with the worker into the playroom, [X] said that he did not want to go because the worker would bring their dad into the room. The worker confirmed that he would not bring his dad into the playroom until [X] and [Y] were comfortable with him joining them, and [X] stopped crying. After a couple minutes of encouragement from [Ms Koopman], her partner and the worker, the children walked with the worker back to the playroom […]
As they walked, [X] asked the worker if [Y] wanted to see her dad could she see him alone, and the worker shared that she could if she wanted to. […] After a couple minutes of play, the worker shared that the children could return to their mum as they would be leaving shortly. […]
The worker walked the children back to [Ms Koopman] as the worker carried the children’s backpack. The worker shared that as the children are not willing to go through to their dad, the changeover would not occur today.
…
(emphasis added)
[13] I regard this as merely introductory “chat”, not the worker placing responsibility on the children for the decision as to whether they go to or with the other parent.
I am conscious of the parts of the events where the worker has expressed the opinion that Ms Koopman had encouraged the older child to go with the worker for the purpose of seeing his father, as emphasised above. I also acknowledge that the report stated that the Mother and her partner encouraged X to go and tell the worker how he feels. I also emphasise the part where the Mother’s partner criticised the parenting of the father. Hence, it is quite clear that the Father, who had attended the centre, did not get the time with the children as the court orders provided. The Mother asserts that she has a reasonable excuse in regard to that in accordance with the Act.
Unfortunately, the contravention application used phrases such as “in complete disregard”[14] to describe the alleged contravention in count 1 – as well as in count 4 and count 5. Such colourful language does nothing to assist. As can be seen from the provisions of the “old” Division 13A, the point is not whether something has been done in complete disregard, but rather whether a person who is bound by the order has either intentionally failed to comply with the order or made no reasonable attempt to comply with the order. Before dealing with that count, it is necessary to move on to the next counts that were pressed.
[14] Section 70NFA(2)(b) of the “old” Division 13A, when defining a more serious contravention, refers to contravention in a way that shows a serious disregard for a party’s obligations under an order.
Count 4: findings
I now turn to count 4, which is alleged to be a breach of paragraph 28(b) of the orders recited earlier and set out in the contravention application as follows:
The respondent has breached the court orders by passing me messages through the children in complete disregard to order number 28(b) of the FCFCOA’s final orders made on 4 August 2023.
i.On 17 September 2023, at approximately 2:15PM I arrived at [B Contact Centre] in [Suburb D] to collect the children and waited in the waiting room for [Ms Koopman] to arrive with the children.
ii.Respondent with the children arrived at the centre at approximately 2:30PM.
iii.At approximately 2:35PM when I was seating my children into my car, first, my son said to me words to the effect that “Mama has asked me to get our Australian passport application forms signed from you which she has sent to you in the email. Can you give them to me after signing so I can take them back to mama?” I explained to him that I have told your mama to follow the due process for sending me those documents as due to existing FVIVOs between both of us we are not allowed to communicate or exchange any documents with eachother. Then my daughter said words to the effect that “mama was saying that you tell your baba if he didn’t sign the papers then we will never ever come to your home”.
iv.By involving children into these matters, respondent is exposing them to parenting conflicts which may cause serious harm to children’s emotional health, positive development, their relationship with the father and overall behavior in the long run.
…
In regard to that count, the Applicant complains that on 17 September 2023, the older child said words to the effect of the following:
Mama has asked me to get our Australian passport application forms signed from you which she has sent to you in the email. Can you give them to me after signing so I can take them back to mama?
The parties’ daughter then said words to the effect of:
Mama was saying that you tell your bubba if he didn’t sign the papers that we will never ever come to your home.
I note the Mother’s explanation: she said she felt that she had no choice but to ask the children to remind the Father to sign the passport documents. I note that she did not think that would be harmful to the children or cause conflict between herself and the Father. The history of the litigation in this case, the attitude of the parents to each other, and the requirement that they agree that it is necessary to impose upon the children a contact centre changeover unless the changeovers are at school, all combine to satisfy me that I do not accept the evidence that the Mother did not think that this would cause conflict between herself and the Father.
I acknowledge the difficult, even drastic, circumstance that the Mother was in. The same relative had been ill on another occasion, and she had not been able to attend. The Mother understood the illness to be a very serious illness. In regard to the alleged contravention she deposed as follows:[15]
Alleged Contravention 4 – 17 September 2023
17.In relation to the alleged contravention relating to passing messages through the children, I say that prior to the scheduled changeover on 17 September 2023, I had requested on numerous occasions that the Father sign the children’s passport applications as I had upcoming travel plans. He continuously refused stating that I needed to speak to my lawyer. I did not have a lawyer at the time. Despite the cross Intervention Orders being in place, the Father and I can still communicate in relation to the children, and the children’s passports are one of the matters relating to the children. His continuous refusal to engage with me in relation to the passports caused me great distress. Due to the Father’s refusal, the children were unable to come to [Country F] with me. They were very upset.
18. As I was desperate to travel, I felt I had no other choice but to ask that the children remind the Father to sign the passport documents. I did not think that this would be harmful to the children or cause conflict between myself and the Father.
19. At the time, I did not understand that this would be a breach of the Final Orders or that I was doing something wrong. I did not intentionally try to breach any orders, I was stressed in relation to the upcoming travel, did not think to look back at the Final Orders to see if this was something I was able to do.
[15] In her affidavit of 16 May 2024 at page 5.
I am not satisfied that the circumstances were sufficiently explained to the Father. Hence, we do not know whether he would have agreed to vary the orders to accept her travelling overseas with the children and provision of passports with less than the 90 days’ notice. The Father demonstrated that he was concerned that he would not breach the orders himself. That is a good thing.
It is important that he does not breach the orders or applicable intervention orders. There was a humane reason for the mother to ask the children to pass on the passports. However, the mother was simply not contemplating at all the difficult position that that places the children in, when there is a conflictual relationship between the parents. I am satisfied that order 28(a) has been contravened in that the Mother made no reasonable attempt to comply with the order.[16]
[16] I was not satisfied that the Mother had a reasonable excuse for contravening that order.
Count 5
Count 5 complains that after the Father was advised on Friday 15 September 2023 that the children were not willing to attend with him, that changeover did not occur. Later, on 16 September, the Father was advised via AppClose that the children did want to see him. On Sunday 17 September, the parties made arrangements for the changeover to occur. The changeover should have occurred on Friday, 15 September, being the start of school holiday period.
It is common ground that on 17 September, both parents attended the changeover centre and that there was a changeover of the children into the Father’s care. On that day the worker made the observations as follows:
2:30pm, [Ms Koopman], the children and her partner arrived at the service on time. The worker asked who was ready to spend some time with their dad and the children said they did not want to see him. The worker invited the children into the playroom, the children said goodbye to [Ms Koopman], and walked with the worker.
The worker and the children entered the playroom and began to play. The worker asked if the children wanted their dad to join them in the playroom, and [X] said he did not want to see his dad ever. The worker asked why not, and [X] said that his dad pulled on his shirt and tossed him around. The worker continued to play with the children as they played with multiple toys. The worker asked if the children were going to go with their dad today and they said no. The worker shared that their mum had told the worker that they were wanting to go see their dad and they said no. After playing for 15 minutes, the worker helped the children pack up as it was time to return to their mum.
The children returned to their mum and the worker shared that they did not want to go through to their dad. [Ms Koopman] asked why, and she began to speak with [X] in a different language. As they spoke, [Ms Koopman] said comments in English like, “You have to”, “Please”, “Why.” [Y] rubbed [X’s] back and said, “Don’t cry” as the corner of [X’s] lips turned down. [Ms Koopman] stood up and continued to speak to the children in a different language. [Ms Koopman] said, “Ok, go” and the children hugged her goodbye. The worker encouraged them to be brave and that they would see mum soon. [X] returned to his mum to kiss her goodbye.
The children walked with the worker back to the playroom and the worker asked if their dad should join them. [X] said yes, and [Y] initially said no. The worker asked why and said that [Ms Koopman] had said they would go see their dad. [Y] then said ok, and she walked with the worker to the room where [Mr Rossini] was waiting. [X] followed and when the door opened, the children walked to [Mr Rossini] as he held his arms open and greeted them in a different language. The children smiled as their dad hugged and spoke to them. [Y] spoke with her dad about signing something and [Mr Rossini] said he would sign whatever she liked. The worker opened the door, and the children left the service with their dad. [Mr Rossini] picked up [Y] and flew her in the air as she smiled.
The worker informed [Ms Koopman] that the children had left with [Mr Rossini], and the worker would update once they could leave. The worker asked if the family had a plan for the return changeover. [Ms Koopman] said she would like to do the return changeover on Sunday 24th September 2023 at 2:30pm. The worker informed her that if both parties agree, she can update the service and the worker will confirm before it is scheduled. At the appropriate time, [Ms Koopman] and her partner left the service.
(emphasis added)
So far so good.
What thereafter occurred is remarkable. On the Mother’s account and case, what she did was that after dropping off the children to the Father on 17 September, being part of his court‑ordered school holiday period, she then (soon after) left the country and returned to her country of origin to visit a very ill family member. She deposed to the following: [17]
Alleged Contravention 5 – 21 September 2023 to [late] October 2023
20. In relation to my overseas travel, my father in [Country F] was unwell and I therefore arranged to see him. I intended to take the children with me however as deposed to in paragraphs 16 to 18 herein, the Father refused to sign their passport applications.
21. The Father knew about my intended travel as we had previously communicated about the children’s passports which he refused to sign.
[17] Mother’s affidavit dated 16 May 2024 at page 6.
Mother ensured children moved into Father’s care
It is also common ground that save for one communication on the app on 21 September, the Mother did not otherwise communicate with the Father until she returned to Australia in late October 2023. Hence, following at least one occasion – that started 26 August 2023 when on one view it was left to the children’s decision as to whether or not they would move through the contact centre to attend time with their Father, merely three weeks later, the Mother has been able to ensure that the children not only moved into the Father’s care, but saw fit to leave them in his care, without notice to him, for about a month or five weeks.
Count 1: findings
The circumstances where the Mother, in difficult personal circumstances, chose to leave the children with the Father soon after the alleged contravention of 26 August, informed me as to the Mother’s attitude to her responsibility as a parent to ensure that the orders are complied with.
Children should not have responsibility for the decision
I do note statements of the worker’s opinion that the Mother encouraged the children. However, the requirements of the Act are not to encourage a child to attend, but to ensure a child attends. The circumstance where very significant attention is paid to the apparent or expressed wishes of a child may appear child-focused. However, in many circumstances, and this is one of them, that places the burden and the responsibility of making the decision about whether a child should attend with the other parent for time squarely on the shoulders of the child. The child or children should not have the burden of making that decision.
Parental authority to be exercised
The child’s wishes and expressed wishes are taken into account under the Act in determining what orders are made. Once the orders are made, it is not a matter of asking the children if they want to comply with the orders. That is, if they want to see their Father. The requirements are that parental authority is used to ensure that happens.
Two-way street
Were the children to tell the Father that they wanted to stay longer with him, or that they did not wish to return to their Mother, or did not wish return to their Mother and her new partner or some other reason, the Father is obligated by the court orders to return the children. The Mother in this case was obligated by use of her parental authority to ensure that the children attended.
I am satisfied, because of the events of 16 and 17 September, and what continued up until late October 2023, that at all material times, the Mother had the parental authority to be able to ensure that the children attended the time with their Father. The attitude that the Mother demonstrated to me in the witness box, and in her affidavit, is that if the children expressed the wish that they did not wish to go through at the contact centre to see their Father, then that was the end of the story. She understood her obligation to be only to say words that could be interpreted as “encouraging” them.
Conclusion: count 1
I am not satisfied that the Mother used her parental authority to ensure that the children attended. I am satisfied that she did not make a reasonable attempt to comply with the order, but rather, left it to the worker to enforce the order and left it to the children to decide whether they would attend or not.
Taking into account the Mother’s attitude and demeanour when cross-examined before me, as well as the observations of the worker, I am satisfied that the Mother did not exercise her parental authority so as to ensure that the children moved to spend time with the Father. I am satisfied that that is a situation where, in the words of the Act under the “new” Division 13A, at section 70NAC(1)(a)(ii), the Mother ‘makes no reasonable attempt to comply with the order’, and in the words of the “old” Division 13A, at section 70NAC(a)(ii), ‘made no reasonable attempt to comply with the order.’
I am satisfied that count 1 is made out and that the Mother contravened the order on 26 August 2023.
Count 5: findings
I turn now to charge 5. That is, the alleged contravention that is said to have occurred from 21 September until late October. This count is set out in the contravention application as follows:
The respondent without any reasonable excuse has failed to provide primary care to the children between 21 September 2023 and [late] October 2023 in complete disregard to her obligations under order number 2, 2 (a) (i) & (ii) & 2 (b) (i) of the FCFCOA’s orders made on 4 August 2023
i. On 13 September 2023, two days prior to the start of term 3 school holidays, the respondent informed me via AppClose communication app that the upcoming changeover on Friday 15 September 2023 will not occur as the children are not willing to come into my care neither the respondent made any genuine efforts to facilitate the changeover.
ii. However, later on, first on 16 September and then on 17 September 2023, the respondent sent me messages via AppClose that the children want to see me.
iii. I agreed with the respondent to see the children and take them into my care in compliance with the default parenting order made on 4 August 2023.
iv.On 17 September 2023, the respondent left the children into my care at [B Contact Centre] in [Suburb D].
v. Later on, between 17 and 21 September 2023 the respondent went overseas without any prior notice or agreement with me about her plans to travel abroad and leaving the children in my full time care.
vi. On 21 September 2023, the respondent informed me via AppClose app that she is overseas but didn’t share her plan to return to Australia.
vii. The respondent without any reasonable excuse failed to comply with FCFCOA’s order number 2, 2 (a) (i) & (ii) & 2 (b) (i) made on 4 August 2023 to provide primary care to the children between 20 September 2023 and [late] October 2023.
The Father’s complaint is about the manner in which the Mother left the children with him, as well as the fact that she did not ensure that they lived with her at all times. It was discourteous, rude and without focus upon the potential distress to the children in determining to leave the children with the other parent for such an extended period and without notice to the other parent.
The Father detailed the trouble that caused him as follows:[18]
[18] Father’s affidavit affirmed 23 October 2023 at [56] page 13-14.
e. […] The following has occurred:
i. On 17 September 2023, during school holidays, [Ms Koopman] left the children in my fulltime care and went overseas without any prior notice or agreement with me.
ii. Because my children were very young only 9 and 6 years old respectively, had no schools during their stay with me due to school holidays, neither they were going to any day care or child care, so they were needing my full-time care and I could not leave them home to go to work, so my income was stopped during school holidays period.
iii. On 21 September 2023, when [Ms Koopman] told me through AppClose communication app that she is overseas and is not sure of her plans to return to Australia, I was completely shocked and worried about my everyday deteriorating financial position as I was not able to work to earn any income while children were in my full-time care.
iv. After the kids started going to school, I was able to sleep during the day to go to work at night to earn money from [transport work].
v. I share house with other adults and when one of my housemates became aware that children will be staying with me for an indefinite period she started getting upset with my children’s presence at home and she made a complaint to child protection that I leave the children alone at home during night time and go to work.
vi. [In] October 2023, in response to my housemate’s complaint, two police officers visited my home for a welfare check on the children and provided their report to child protection.
vii. On [the same date], after feeding my children and putting them to sleep, I left my home at 8:05pm to go to work.
viii. At approximately 8:45pm I received a call from an after-hour child protection officer [Ms G] who checked with me if I am at home with the children or At work.
ix. I explained to her that I am at work and briefed her about all the safety measures I have taken to ensure my children’s comfort and safety before leaving home.
x. I also explained her my financial challenges that make me to work in order to fulfil my family’s day to day needs. I explained to her that as a new migrant I am not eligible for any Centrelink benefits until I have resided in Australia for four years after getting my permanent residency. I also mentioned to her that my recent claim for special benefit payment has already been rejected due to this waiting period requirement so if I don’t work I can’t support my kids’ day to day needs.
xi. She asked me to wait so she can talk to her manager about my circumstances before she could give me any answer on whether I can continue to work or not.
xii. At around 9:30pm she called me back and told that I can’t leave home while the children are in my care even if they are sleeping because they are very young and may need an adult to look after them. She also warned me that if I don’t stop working right now and don’t go straight back to my home, she will have to lodge an application to take my children in State’s Care.
xiii. I was left with no choice but to listen to her and stop working so I stopped working and went back home at 10:25pm.
xiv. My financial difficulties started escalating with every coming day.
xv. On [the same date], I briefly explained the respondent through AppClose communication app about the challenges I was facing due to kids’ current care arrangement and the involvement of Child Protection in the matter. I invited her to discuss these issues with me so we can find out some resolution sooner than later that can best suit the children and the parents. But she didn’t respond to my request.
xvi. [One week later], when my financial difficulties reached to an extent where I couldn’t even afford to pay my rent due to increased expenses, no Centrelink benefit support and loss of income due to the fact that I was not able to work as I had to provide full time care to my children, so I asked [Ms Koopman] through AppClose communication app to handover kids’ passports to me so I can take the children to [Country F] where I could easily afford to arrange full time carers for them and family members to supervise their care needs and schooling but [Ms Koopman] didn’t respond to my request.
xvii.On [the same date], two of the child protection officers namely [Ms H] and [Mr J] attended my kids’ schools to interview them to ensure their safety and wellbeing. They visited my place at 2:30 pm on the same day for an interview with me and to look into the care arrangements I had put in place to ensure my kids’ safety and comfort while they are in my care. Both of them expressed their satisfaction with the care arrangements I had organized for my children however they both agreed with me that these living arrangements are not suitable to provide full-time care to the children due to the fact that other housemates can easily get upset when kids do things that they don’t like.
xviii. Both officers ensured me that with the care arrangements I have put in place for my children, I can go to work when the kids are sleeping at home provided there is at least one adult person present in the house to help the kids in the event of an emergency.
xix. Both child protection officers ensured me that they will talk to the respondent and will get back to me with an answer about her plans to return to Australia and continue to meet her obligations to provide primary care to the children under order numbers 2, 2 (a) (i) & (ii) & 2 (b) (i) of the orders dated 4 August 2023. They confirmed respondent’s contact details with me which they already had with them so they can successfully reach her while she is overseas. After both officers left my place at around 3:20pm, I then left home to go and collect the children from their schools.
xx. The respondent returned to Australia sometime [in late] October 2023 and she took the children back into her care on ... October 2023 at 2:00PM from [B Contact Centre] in [Suburb D]. [19]
[19] The evidence at (i) to (xx) above was not contradicted or challenged. I accepted that evidence.
That behaviour was exacerbated by the Mother’s failure to use the AppClose app to explain the situation in detail to the Father. The Father was left wondering when, and whether, the Mother was returning. That can only have made his task of parenting the children during that period very difficult. Both of these parents are impacted by the reality of the circumstances of recent migrants and lack of financial resources to be able to live and travel as they might wish. The Father shares rental accommodation with other adults. He had arranged to work for the period when the children would ordinarily be with their Mother.
Having the care of the children impacted on the Father. I am satisfied that if he did not work, he would not have the money to pay rent, to buy food, and to be able to look after the children. The Father was in a conundrum. Having not planned to have the children for any extended period, there they were. I am satisfied that the manner in which the Mother dealt with the children was ill-advised, discourteous and rude. It was discourteous to the children and to the Father. But the issue is whether that discourtesy is a contravention of the orders.
This is not a situation where shortly after obtaining an order that the children live with a parent, that parent then makes arrangements for the children to live with someone else thereafter and does not inform the other parent. In this case, albeit discourteously, the Father was well aware that the children were not in the care of the Mother. In the circumstances of where the Mother had a very good and humane reason, and need, to travel overseas, and in the circumstances where she was practically unable to take them with her, I am not satisfied that a holiday or time or care with the Father of that duration means that the children are no longer living with the Mother.
There was no question as between the Father and the Mother that when the Mother returned that the children would return to her care. I am not satisfied that the Mother relinquished care of the children. I am not satisfied that it could be said that they were not living with her during that period. They were being cared for by the Father in very unusual and difficult circumstances. But I am not satisfied that that can properly be characterised as the children living with him. They were being cared for by him for an extended time, albeit longer than the usual school holiday period, that had arisen in urgent and pressing circumstances for the Mother, even though it was discourteously communicated to the Father and the children.
I am fortified in that view by the decisions of Bale-Sutch & Bale-Sutch (No 2) [2007] FamCA 590, a decision of Bennett J. In regard to the order allegedly contravened in that case, Bennett J said:
24. The relevant order is not, in my view, expressed in the nature of a mandatory injunction toward the father spending time with the boys. It is expressed so as to define the rights of [the] father as against the mother in relation to the time that they can have the children.
In finding that the father in that case had not contravened the order, Bennett J held:
27.My reading of the legislation is also consistent with the general reluctance of courts of equity to make mandatory injunctions which impose or require people to maintain personal relationships such as the performance of a partnership[20].
28. Were it the case that an order that children spend time with a father was a mandatory injunction (which I am comfortably satisfied that it is not), the order itself would have to make it abundantly clear that it conferred a responsibility and obligation on the father to attend.
29.Furthermore, the order that the father spend time with the children is recognition, in this case, that the children spending time with the father is consistent with the best interests of the children.
(citations as in original)
[20] Spry I.C.F, (2001) “The principles of equitable remedies: specific performance, injunctions, rectification and equitable damages”, 6th ed, Law Book Co, Sydney, Australia, 112-113.
Bale-Sutch dealt with the situation where the father did not exercise his time with the children, and the mother complained of that and regarded it as breach of the orders. That is a very human feeling. Where one parent does not make the children available for the other, that parent may well have contravened an order or, in the vernacular of family law practitioners, be “breached” and incur significant costs and/or penalty. Potential penalties include substantial fines and jail. Hence, it would be enormously irritating to find a parent insisting on the other parent complying with the orders on some dates but not bothering to turn up on others. However, this is not such a situation. In Bale-Sutch, the situation was that the father, again, did not exercise the time that the orders provided that he could.
I note also the decision of Atkins and Milburn [2013] FCCA 2202, a decision of Judge Coakes, which applied the rationale of Bale-Sutch.
Conclusion: count 5
I am satisfied that the order that the children live with the Mother was not a mandatory injunction, that, save for the time that the orders provided they spend time with the Father, they be in her care at all times.
I am not satisfied that there is an obligation on the Mother to actually keep the children in her care at all times. A parent falling ill overseas, even in extremis, is an ordinary, everyday event that occurs over and over. I am not satisfied that an order that a child live with a parent is an order that that parent must keep the child with them at all times, and not attend to the usual family events and other necessary commitments of parents. I am satisfied of these matters on the balance of probabilities.
Hence, I am satisfied that the Mother has not contravened the “live with” order. To make it clear, charge 5 – that is, the alleged offence of not having the children in her care from 21 September to late October 2023 – will be dismissed.
PENALTY
I have now determined that the appropriate penalty under Division 13A, as it was at the time of the contravention, should be, – in the event the Mother is prepared to enter into it – a bond with the condition that she comply with the court orders.[21] The bond will be without surety or security and will be for a period of two years.
[21] I am not satisfied that section 70NFA, a “more serious” contravention, has been satisfied.
The procedure for enforcing bonds is that the person is put on notice and brought back to Court, and at that time the bond may be continued if the person has not complied with the bond, or the person could be fined, or the other penalties under the Act could be enforced.
The purpose of the bond is to ensure that the existing orders are complied with in the future. The requirement of the bond will be that the Mother is to abide and comply with the parenting orders applicable to her. I am also satisfied that it is in the best interests of the children to order that the parties provide the contact service with a copy of the original orders of 4 August 2023, these reasons (when available) and the orders that I will make. Nothing in these reasons should be taken as any criticism of the worker involved with this family. I was impressed by the immense patience and care and concern for the welfare of the children demonstrated by the report. And I repeat that I do not underestimate the difficulty of the task that was imposed upon the worker.
CONTRAVENTIONS PROVEN
Count 1
I declare that Ms Koopman, the Mother, contravened a child-related order of the Court made on 4 August 2023 without reasonable excuse when on 26 August 2023 she made no reasonable attempt to comply with the order for the Father to spend time with the children, X, born in 2014, and Y, born in 2017.
Count 4
I declare that the Mother contravened a child-related order of the Court made on 4 August 2023, without reasonable excuse, when she contravened the order that the parents are not to communicate about parenting matters to the children or either of them, on 17 September 2023.
SCHOOL HOLIDAY CHANGEOVER
Following my reasons above, the applicant’s solicitor requested I determine the issue of the children’s different school holiday dates and the difficulty that creates for the changeover requirements of the August 2023 orders. I am satisfied that those orders should be varied to mean that changeover occurs for both children to move into the care of the Father on the last day of Y’s school term.
The parties also requested that I determine how changeover is to occur for the school holiday period currently underway for X and about to commence for Y. I am satisfied that both children should move into the care of the Father at the end of school on the last day of this school term with changeover to occur at Y’s school. My reasons for this are that whilst the scheme of the orders of August 2023 was to keep the parents apart, in the circumstances where the Mother is prepared to facilitate the changeover at Y’s school, which is a perfectly normal thing for the two parents to be at the school,
(i)It will only be on this one occasion.
(ii)The two parents will have to be on their best behaviour.
(iii)There is some risk of trouble, and trouble for the school;
(iv)but on this one occasion, I am satisfied that the parents will be able to manage this, and so changeover will be at Y’s School.
The principal reason why I have ordered that is because of the sheer normalcy for this. This is what ordinary normal people do day in day out, notwithstanding that their marital relationship has broken down. Ordinary, normal people resist the temptation to say something spiteful, nasty, or smart alec to the other side, or to behave in a way that aggravates or distresses the children. There is some risk of this in this case. But notwithstanding my criticisms of both parents in this matter, fundamentally, I have got two good people who are good parents. I am not dismissing the seriousness of allegations of family violence in the past. But for all of those reasons I am going to impose on them the obligation for tomorrow’s changeover to be at 3.30 pm at Y’s school for both children and for then the return to be at the contact centre and only if that is unavailable, then the police station, at that time.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 22 August 2024
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