Royston & Royston
[2023] FedCFamC1F 967
•14 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Royston & Royston [2023] FedCFamC1F 967
File number(s): SYC 2960 of 2020 Judgment of: JARRETT J Date of judgment: 14 November 2023 Catchwords: FAMILY LAW – CONTRAVENTION – Where nine counts alleged – Where seven counts proven without reasonable excuse – Application listed for determination of penalty Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NDA, 70NEA, 70NEB, 70NFA, 70NFB, 121 Division: Division 1 First Instance Number of paragraphs: 109 Date of hearing: 25 September 2023 Place: Brisbane Counsel for the Applicant: Mr North Solicitors for the Applicant: Brigid Justice Ltd Solicitors for the Respondent: Litigant in person ORDERS
SYC 2960 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ROYSTON
Applicant
AND: MR ROYSTON
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
14 NOVEMBER 2023
UPON THE COURT FINDING that the respondent has, without reasonable excuse, contravened the orders made under the Family Law Act 1975 (Cth) by a Deputy Registrar in the Federal Circuit and Family Court of Australia (Division 2) at Sydney on 31 October, 2022, in that:
(a)in contravention of orders 18 and 19, on 1 November, 2022 he contacted the applicant about issues not provided for pursuant to the orders;
(b)in contravention of order 20, on 24 December, 2022 he refused to facilitate a video call between the child X and the applicant;
(c)in contravention of orders 18 and 19, on 28 March, 2023 he contacted the applicant;
(d)in contravention of order 5.10.1, in early 2023 he refused to return the child X to the applicant’s care;
(e)in contravention of orders 18 and 19, on 10 April, 2022 he contacted the applicant;
(f)in contravention of order 5.2, on 14 June, 2023 he failed to return the child to the applicant’s care; and
(g)in contravention of order 5.10.2, in mid-2023 he failed to return the child to the applicant’s care.
THE COURT ORDERS THAT:
1.The application be listed for determination of penalty at 9:30am on 29 November, 2023 in the Federal Circuit and Family Court of Australia (Division 1) sitting at Parramatta.
2.Personal appearances of the parties are required on 29 November, 2023.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
The applicant and the respondent were in a relationship from about June, 2000 and began cohabiting in 2004. They were married in 2013, separated on a final basis on 19 December, 2019 and were divorced in 2022.
There is one child of their relationship, X, who is six years of age.
Parenting proceedings between the parties were finalised by way of consent orders made on 31 October, 2022. Before me are two applications alleging that the respondent contravened this final order – one filed on 6 June, 2023 and the other filed on 27 July, 2023. Between them there are nine counts of contravention alleged against the respondent.
When the application came before me on 25 September, 2023, the respondent sought an adjournment of the proceedings so that he could obtain legal representation. He had tried to organise Legal Aid, but aid had been granted for limited purposes and there seemed to be other extant applications by the applicant (for variation to the present parenting orders) that were the subject of the application. Whatever was the case, I informed the respondent that I was not prepared to adjourn the application at that point, but that I would take his responses to the contraventions alleged against him.
Upon taking his responses to the nine counts of contravention alleged against him, it turned out that save for two, all were admitted but he asserted that he had a reasonable excuse for the contraventions. The applications were then adjourned to allow the respondent to prepare material going to his claims of reasonable excuse.
Division 13A, Part VII of the Family Law Act 1975 (Cth) invests the court with power to make a range of orders upon an application for contravention. The orders available to the court depend upon a number of matters, but for present purposes, it is relevant to observe that, shorn of matters not immediately relevant to this case, the power to make orders pursuant to s 70NEB or s 70NFB is only engaged where two conditions are fulfilled, namely:
(a)the respondent has committed a contravention of an order; and
(b)the respondent does not prove that he or she had a reasonable excuse for that contravention.
(see ss 70NEA(1) and 70NFA(1) respectively).
Relevantly, the meaning of the word contravened, in the phrase contravened an order is defined in s 70NAC of the Act as follows:
70NAC Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order;
The meaning of reasonable excuse for contravening an order is prescribed in s 70NAE of the Act. It is an inclusive definition but gives some examples of circumstances that might establish a reasonable excuse. The onus falls upon the respondent to establish the existence of reasonable excuse (s 70NDA(c)), and the standard of proof required is on the balance of probabilities (s 70NAF(2)).
THE CONTRAVENTIONS
The first six counts of contravention are contained in the application for contravention filed on 6 June, 2023. The remaining three appear in the second-filed contravention application on 27 July, 2023.
The first count alleges that on 1 November, 2022 the respondent contacted the applicant about issues “not provided for pursuant to “Orders 18 and 19”. The respondent admits the contravention but says that he has a reasonable excuse for the contravention.
Relevantly, orders 18 and 19 of the primary order are in the following terms:
18. That other than in the following circumstances:
18.1in the case of any emergency as set out in Order 15;
18.2to comply with any other obligation arising under these Orders;
18.3to facilitate telephone calls for [X] as specified in these Orders;
18.4directly concerning major long term issues relating to [X’s] education where the Mother and the Father share joint parental responsibility,
the Mother and the Father shall not communicate with each other by any means which includes but is not limited to any communication via telephone, video call, text message, WhatsApp message, Facebook message, or any other form of communication other than by message in their Our Family Wizard application, or other similar co‑parenting application which the Mother and the Father are currently subscribed to with a membership. This Order applies to all telephone numbers held by the parties.
19.For the purpose of Order 18 communications between the Mother and the Father:
19.1will be polite and courteous;
19.2will be succinct and limited to the issues relating to the welfare and development of [X’s] long term educational needs; and
19.3will be limited to one communication per week.
The parties have argued their respective cases on the basis that orders 18 and 19 restrict the parties’ capacity to communicate with each other such that, save in the cases set out in order 18.1-18.4 they may only communicate once per week via the Our Family Wizard application in polite and courteous terms and then in a way which is succinct and limited to the issues relating to the welfare and development of X’s long term educational needs. Neither party suggested that those orders should be interpreted in any other way.
The applicant’s evidence is that she received an email from the respondent on 1 November, 2022 (the day following the making of the final consent orders). The applicant makes no complaint about the fact that the communication was sent by email rather than through the Our Family Wizard application because the parties had not then set up their accounts with that application. However, she complains about the content of the communication and asserts that it was outside of the matters reserved for communication between the parties by the list in order 18.
The email was primarily addressed to the principal of X’s school. The applicant was “cc’d” into the communication. It is in the following terms:
[Mr C]
Cc [Ms Royston]
A quick note we had extensive Family Dispute Resolution yesterday and this email to let you know (sic):
1)I will be picking [X] up from school each alternate Wednesday with immediate effect, starting tomorrow, and
2)from next week, and each alternate week thereafter, continue to pick [X] up on the Friday and dropping [X] at school on the Monday mornings
I also have Orders relating to attendance at the school.
[Ms Royston] or I will provide those new Orders as soon as they are lodged and stamped by the Court, cc’g everyone here once those Orders are available.
In addition, on 17 November, 2022 the applicant says that she received another email from the respondent stating that he was intending “to attend the [event] at [B School]” and also “the kindergarten Christmas date”, despite, she says, the orders not having any provision for the respondent to attend those occasions.
The applicant says that she did not respond to either of those emails because she did not want to contravene the orders herself.
The applicant contends that these facts show that the respondent contacted her about issues not provided for in orders 18 and 19 of the primary orders. Presumably she relies upon both emails to establish the contraventions, despite the duplicitous nature of the way in which the count is framed.
For his part, the respondent accepts that he sent the messages, one to the school principal (into which the applicant was copied) and the second directly to her. The message to the school principal, both in respect of the fact that it was sent at all and the content of it, is entirely unobjectionable and not a contravention of the primary orders. It was no doubt sent to the principal as a matter of courtesy. Copying the applicant into the email was also a matter of courtesy, although (on the parties’ interpretation of order 18) perhaps strictly a contravention.
Keeping the applicant informed of the respondent’s approaches to the principal immediately after the agreement that led to the primary orders was entirely reasonable in the circumstances. That the applicant should now complain about a simple act of courtesy and respect is concerning. To the extent that the applicant relied upon this email to make out this count and assuming that the sending of the email to the applicant was a contravention as she alleges (something about which I am not convinced), I am satisfied on the balance of probabilities that the respondent has established a reasonable excuse for his contravention.
As to the second email of 17 November, 2022 the respondent says that “there were numerous school activities and extra-curricular events that were missed in the Court Orders”. However, this does not amount to a reasonable excuse for the contravention. The ink was barely dry on the primary orders and the agreement between the parties freshly negotiated. That the respondent “forgot” to include the possibility that he might attend particular school events, or they were “overlooked” is not to the point. Indeed the text of the orders (see particularly orders 36 – 38) strongly suggests that thought was given to just which school events the respondent would attend. The absence of a general order that the parents may attend all school events to which parents are invited or at which they might habitually attend in the course of a school year also tells against the proposition that the respondent’s attendance at certain school events set out in the orders was simply overlooked.
I am not satisfied on the balance of probabilities that the respondent’s desire to communicate with the applicant and to “effectively co-parent” gives rise to a reasonable excuse for contravening the orders as the respondent argues. The order provides a regime for communication between the parties, both in terms of how the communication is to occur and the content of the communications. This was not a communication that went to the welfare and development of X’s long term educational needs. And even if it was, his attendance at school functions was specifically delineated by the orders and so no communication was necessary. The respondent has sought, almost immediately after the orders were made, to act in a way that was contrary to their terms.
The second count alleges that on 24 December, 2022 (a Saturday) the applicant attempted to place video calls to the respondent’s mobile number via an application called WhatsApp, a platform regularly used for such calls. The applicant says that she made nine attempted calls between 5.03pm and 5.26pm. Two calls were rejected and the other seven calls rang out.
The applicant alleges that this was a contravention of order 20 of the primary orders. Order 20 provides:
20.That the Mother and Father shall have a telephone call or a video call with [X] each Tuesday, Thursday and Saturday evening between 5.00pm and 5.30pm during school holiday periods if [X] is not otherwise in their care for up to 5 minutes with the Mother to initiate all the telephone call or video calls to the Father’s mobile telephone number. The Father shall do all such acts and things necessary to facilitate the telephone call or video call including to have the mobile telephone switched on and recharged at the appointed times and answering the telephone call or video call promptly.
The respondent admits the contravention but says that he has a reasonable excuse for the contravention.
The applicant’s evidence is that on 3 January, 2023 the respondent sent her a message via the Our Family Wizard communication app about her attempted calls, both on Christmas Eve and some that she attempted on New Year’s Eve (also a Saturday):
You have on several recent occasions now breached the above recent Orders.
Please refrain from video calling me during [X’s] time with her Father. This is certainly unacceptable and clearly a breach. Your actions are nothing but pestering and harassment. I refer to Christmas Eve where you continued to video call persistently. We were at a Church service, but you continued your selfish and ill-mannered actions in your own interest and continued to call.
I also refer to your video communication again on NYE. Please abide by the Orders. I will not accept this behavior (sic) but yearn for more appropriate conduct from you. [X] knows she is loved by both parents. If [X] wants to speak to you she is absolutely entitled. Please abide by these Orders.
It will be observed that the respondent asserts in that message that it was the applicant who was breaching the orders. That assertion is inconsistent with the response he now makes to this count in the contravention application.
In support of the respondent’s case that he had a reasonable excuse for the contravention, he swears in his affidavit filed on 17 October, 2023:
a. I accept responsibility in which the Christmas Eve call was to take place and did not.
b.Due to the excitement of having my daughter for the first time since 2018 Christmas Eve the Church service did coincide with the time the call was to take place and I had not been aware of the time in the moment.
c. It certainly was not appropriate for [X] to take the call during [Church service].
d. At the conclusion of the [Church service], I gently promoted [X] to contact the mother. [X] did not want to.
I do not accept that because the time for the telephone call coincided with the Church service that it was appropriate for X not to take the call. She should have been available and if that meant missing the Church service then so be it. In a case like this where the parents are in such toxic conflict, anything other than a strict adherence to the terms of the orders is bound to lead to more conflict (as it has done in this case).
Moreover, the respondent’s claim that at the conclusion of the Church service he “gently prompted” X to contact the mother is inconsistent with the message to the applicant that he sent on 3 January, 2023. The terms of that message demonstrate either that the respondent completely misunderstands the terms of the orders (and underlying agreement) with the applicant, or he has deliberately chosen to ignore them. In my view it is the latter. It is the height of hypocrisy for the respondent to “yearn for more appropriate conduct from” the applicant and yet to ignore the clear terms of the orders himself.
The respondent does not establish a reasonable excuse for this contravention.
Count 3 alleges that on 3 February, 2023 the respondent breached order 11 set out above. Before proceedings further, it is necessary to note that order 11 has an erroneous internal reference to orders 40–42. The correct reference is to orders 36-38. The applicant denies that he contravened the orders as alleged.
Order 11 and orders 36 – 38 provide as follows:
11.The Father shall only attend at [X’s] school when he is required to pick up or drop off [X] pursuant to these Orders other than pursuant to Orders 40-42.
…
36.That the Father shall be permitted to attend two school assemblies per Term and 1 open classroom provided that he notify the Mother in writing at least 7 days before the school assembly and open classroom that he wishes to attend.
37.That the Father shall be permitted to attend the Father’s Day function each year at [X’s] school.
38.That the Father shall be permitted to attend Parent/Teacher interviews at the school at separate times to the Mother’s Parent/Teacher interviews.
The applicant’s evidence is that the respondent attended the school assembly on the afternoon of 3 February, 2023 without giving her any notice as required pursuant to order 36 of the primary orders. The applicant points out that Friday, 3 February, 2023 was a day that the respondent was to pick X up from school because she was to go into his care for the weekend. However, the school day ends at 3pm and she swears that he attended the assembly between 2.28pm and 2.52pm or thereabouts.
The applicant says that the respondent did “send some correspondence about attending a vigil at the school, but not a school assembly”. In particular, on 3 January, 2023 the respondent sent a message to the applicant notifying his intention to attend “the first [B School] vigil return to school”. Later, on 19 January, 2023 the respondent said in a further message that “The [B School] vigil I previously mentioned I will be attending is 4 February I believe”. Then, on 31 January, 2023 the respondent wrote in another message “Unfortunately I will be unable to attend the vigil on Friday as I had previously notified you a while ago due to personal matters. I will attend Friday 10 February instead”.
The respondent was seemingly confused about X’s time with him and by a message sent to him on 31 January, the applicant pointed out that, “In accordance with the Consent Order dated 31 October 2022, your weekend with [X] is this Friday (3 February 2023) and your Wednesday afternoon with [X] is next Wednesday (8 February 2023).”
In response, the respondent sent a message to the applicant on 1 February, 2023 that provided, in part “In that case I will pick up [X] on Friday and will indeed now attend that first vigil I provided you notice with a while ago, that is Friday 3 Feb”.
The respondent argues that his messages constitute sufficient notice for the purposes of order 36. I accept that argument. His first message gave notice of his intention to attend the first vigil (which I have taken to be the first assembly). There was confusion about the date, but the confusion was self-evidently resolved because the date proposed by the respondent (4 February, 2023) was a Saturday. No party suggested any relevant event was to occur on a Saturday. The respondent confirmed his attendance again in the message of 31 January. The prevarication about his attendance on 3 February arising from his confusion about when X was to come into his care is of no consequence.
This contravention is not proved and must be dismissed.
The fourth contravention alleges that on 28 March, 2023 in response to a message sent by the applicant on 27 March, 2023 to him, the respondent sent a message to the applicant that breached orders 18 and 19 in the following respects:
(i)the message “shows a clear disregard of the orders in that the respondent states that “I do not necessarily wish to engage with you but we must for [X]”;
(ii)the respondent had already sent the applicant a message on 24 March, 2023 and the 28 March, 2023 message from the respondent was “within the same week”; and
(iii)the message was not confined to the prescribed matters set out in Orders 18 and 19 for which the parties may communicate.
The respondent admits the contravention but says that he has a reasonable excuse for the contravention.
It is necessary to record the message sent by the applicant to the respondent on 27 March, 2023 and his response to that message on 28 March, 2023:
[Mr Royston],
Please note the following:
*Under Order 2 of the Final Orders dared 31 October 2022 (Final Orders) we have “equal shared parental responsibility for decisions in relation to [X’s] education”. This means that you cannot unilaterally decide to change [X’s] school, for whatever reason. Under Order 41 we are to jointly consult and attend mediation if there is a disagreement.
* Further, we do not have equal shared parental responsibility in relation to health and there is no order requiring me to advise you of which dentist or other practitioners [X] attends upon.
*Order 11 (and Orders 36-38) set out the ONLY times which you may attend [X’s] school. There is no provision for other times being agreed between us so (even if we did agree, which I do not), you would be in breach of the Final Orders.
*Orders 18 and 19 make clear that you can only communicate with me ONCE per week via the App (no other ways) - and ONLY in relation to [X’s] LONG TERM EDUCATIONAL NEEDS or other obligation under the Final Orders (Orders 2, 5.5, 5.6, 5.8, 17, 18.4, 19.2, 22, 27, 29, 31, 32, 33, 34, 36 or 38). You can also contact me by other means ONLY if specified in the Final Orders (Orders 5.24, 5.26, 15, 18.3, 20 or 24).
The communications you have sent that I have not responded to are because they are in breach of the Final Orders. You have been harassing me about matters that are not provided for in the Final Orders such as uniforms and requests to attend school when these are not allowed under the Final Orders.
To be clear, I am now putting you on notice that I intend to file an application with the Court in relation to your continuous breaches of the Final Orders unless you stop them IMMEDIATELY.
You have also continued to leave posts on social media and websites which have photos of [X] or mention her name or refer to her, where either the court proceedings or the incident are mentioned. Please ensure that you remove all such posts, or this will also be included in my application to Court, noting these posts are also a breach of section 121 of the Family Law Act.
From [Ms Royston]
And in response:
[Ms Royston]
I am very aware and informed as to what the Orders state.
The actions I take are based on legal advice. My actions are also founded and based on the evidence and recommendations of numerous specialists. I will continue to seek what is best for [X] based on those professional opinions.
You are correct in that you have been unresponsive on all matters l have raised with you in regard to breaches of Family Orders on your part, and your conduct and behaviour continuing as to denying [X] a Father. I find I do need to address these important issues to you, approaching 6 months since Final Orders were completed, as your actions are such that 1) your exclusion of me on matters which the Orders have been overlooked is concerning, and 2) the impact on [X] by your actions in not liaising with me on matters I seek your cooperation for her is insurmountable.
You see my efforts based on professional opinions as harassment. I do not necessarily wish to engage with you but we must for [X]. My intentions are clear and founded and that is to effectively liaise with you as to what is best for a daughter we share. It is well documented as to the grief and heinous gross acts of violence your family have subject [X] to. Your actions continue as to the negative impacts for [X] in which 1 request your cooperation. All my actions speak for [X].
Again, I request your full cooperation as to [X] attending your school of choice – [D School]. Please refer to those Final Orders and Notations. I continue to seek that legal advice to achieving those best outcomes I had raised with you no matter what school [X] attends.
l will not engage with you further and dispute with you as to the uniform costs you had agreed to pay, and I the tuition fees, from our agreement on 21 September 2021, prior to [X’s] enrolment at [B School]. Noting, [B School] was my choice of school for [X] for her full junior years and my intention to pay those tuition fees. Please provide the spreadsheet as to [X’s] uniform costs I have requested. I do not wish to continue the conflict with you in the process we must attend to. It is important [X] has a school enrolment and that enrolment I grant which is your school of choice, [D School]. ·
You have what you wanted, and your priorities for [X] has been less than desirable and apathetic towards my attempts to effectively liaise with you and my association with [B School], and other agenda items I have put to you.
Thank you
The respondent’s submissions (contained within his affidavit filed on 17 October, 2023) are difficult to follow and are not seemingly directed to the correspondence of 28 March, 2023 about which the applicant complains. His argument appears to be that as one of X’s parents, he has an obligation to correspond with the applicant about matters important to X, especially where the parties have shared parental responsibility for X’s education. I agree with that proposition as far as it goes. The problem with the argument is that it fails to recognise that the very order that provides shared parental responsibility for X’s education also regulates how the parties will communicate with each other. The respondent is not entitled to ignore some of the terms of the orders just because he says that it is in X’s best interests to do so. Indeed, the terms of the orders agreed between the parties represent what the parties and the court considered was to be in X’s best interests. That included the regulation of the parties’ communication between them about X and her welfare.
The respondent’s complaints about what he considers to be harassment or frustrating conduct by the applicant is not to the point. His communication to her breached order 18.4, 19.1 and 19.2 as the applicant alleges and the respondent admits. The respondent does not demonstrate that there was a reasonable excuse for contravening those orders in the way that he did. Subsequent messages from the applicant concerning other matters do not demonstrate a reasonable excuse for these breaches.
The fifth contravention alleges that on 14 April, 2023 the respondent refused to return X to the applicant’s care pursuant to order 5.10.1 at the handover location of McDonald’s E Street. Initially, the respondent admitted the contravention but said that he had a reasonable excuse for the contravention. On the second hearing day, he said that he wanted to change his response to this count to deny it. I have approached my consideration of this count on the basis that the respondent denies the contravention.
Order 5.10 provides:
5.10The Child shall spend time with the Father during the Autumn, Winter, Spring and Summer school holidays commencing in 2023 as follows:
5.10.1from 12.00pm on Monday 10 April 2023 to 12.00pm Friday 14 April 2023;
…
With the Father to collect [X] from and deliver [X] to McDonalds on [E Street] in [Suburb F] at the commencement and conclusion of the time.
This contravention arises from the respondent’s desire to attend the court date of the applicant’s father. It is necessary to record some matters to understand this contravention more fully.
About two years after the parties’ separation, the applicant’s father assaulted the respondent. Her father was charged with a criminal offence arising out of that incident. The only authoritative document before me that deals with the charge against the applicant’s father is annexure APP4 to the respondent’s affidavit. That document is a letter from the Office of the Director of Public Prosecutions, New South Wales. The document records that the applicant’s father was charged with one count (s 27 of the Crimes Act 1900 (NSW)) for conduct that occurred in 2021. The applicant’s father pleaded guilty to the offence and was sentenced to imprisonment with eligibility for parole after serving a period, to be counted from the date of the offence (and presumably the taking into custody of the offender). Her father has been in custody since 2021.
The respondent refers to this incident in various ways, but invariably as involving an attack upon both he and X. It seems clear enough that X was present when the attack took place, but there is no evidence that X was a target of the attack. The only evidence before me (and it is not disputed) is that the applicant’s father attacked the respondent. He was charged with one count of an offence. There is no evidence of any other charges against the applicant’s father involving the respondent or X. Indeed, order 7 of the primary orders refers to the relevant incident as “the incident between the Father and the Mother’s father which occurred [in] 2021” rather than any incident involving X. In those circumstances, it is disingenuous for the respondent to describe the incident that led to the charge as an attack upon he and X as he does in his affidavit before me. Apart from the respondent’s self-serving description, there is no evidence that X was attacked or was a target of the attack at all.
The applicant’s father was set to be sentenced in 2023. The respondent says that he relayed his concern “[in early] 2023 as to possibly not meeting the midday deadline” for the return of X to the applicant “due to attending the Criminal matter of the applicant mothers’ father for the crime he committed against I and our daughter - […]”. The message from the respondent to the applicant is as follows:
I write in regard to the above and the return date of [X] per School Holiday time Orders specified as [a date in early 2023] at midday.
As you are well aware, it is my offenders Court […] date - your father, as to his plea […] in relation to the […] crime of multiple […] attack he conducted on [X] and I at [G Station] in full view of the public.
I will be attending this, and so will members of my family.
I propose, as the time of the Court […] date has not been communicated […], and [X] is co be returned at midday, either 1) we move forward or backward the time with arrangements for [X] to spend time with her Father by 24 hours, or 2) if I do not hear from you, you will allow grace considering the conflictive arrangements as to the return of [X] at the time the sentencing has been dealt with […]. If you have any further suggestions as to resolve I would be most open to your suggestions.
I provide you ample time for your response.
The message makes it clear that X would not be returned to the applicant in accordance with the orders and suggests alternative, and one might think, sensible arrangements.
The applicant says that she learned that the Court was listed for the morning in early 2023, and she responded to the respondent on 9 April, 2023 and relevantly said:
If you are unable to make arrangements for [X] to be cared for and delivered to me in accordance with the Final Orders, then I am available and you are welcome to return [X] to me earlier, either 7.30am on [the date in question] or 5pm [the day before] at McDonalds on [E Street] in [Suburb F].
The following day the respondent replied saying that he refused to make arrangements to return X to the applicant’s care at the time provided for in the orders, or at some other time as she had proposed. Relevantly, he said:
I have specifically raised matters in which I require your cooperation.
I take the Family Court Orders very seriously and I will be attending the Criminal Court […]. The Office of Public Prosecutions have, and continue, to liaise with me in regard to the threat to life members of your family posed on [X] and me.
I am advising you, whether overtime is 10 minutes or 2 hours, in case the sentencing […] does overrun the midday deadline, albeit it may indeed, however also recognising it may very well be finalised earlier, I will be attending, as a victim, with members of my family, to the end.
I will not be reducing the time [X] is to spend with her Father during this term break from the 4 nights she is entitled to spend with me from the total of 17 nights - in the best interest for our daughter we share; and as you seem to propose to reduce the time.
At this point it is necessary to observe that there is no evidence as to the whereabouts or proposed whereabouts of X while the respondent attended the hearing. She could not have attended the hearing because orders 6 and 7 of the primary orders provide:
6.The Mother and the Father be restrained from making critical or derogatory comments about the other party or members of their family or their partner in the presence or hearing of [X] and the parties shall use their best endeavours to ensure that no other party makes comments about the other party or members of the other party’s family or partner in the presence or hearing of [X].
7.The Mother and the Father be restrained from talking about the incident between the Father and the Mother’s father which occurred [in] 2021 (“Incident”) in the presence or hearing of [X], especially during changeovers, and the parties shall use their best endeavours to ensure that no other party talks about the Incident in the presence or hearing of [X]. This Order will not apply during psychological or counselling sessions for [X] in the presence of a professional psychologist or counsellor.
The respondent complains that the applicant seemed “extremely uncooperative” and “unempathetic” to the respondent (and his family members) and the importance they apparently placed on attending the hearing “considering I was the victim of her father’s attempt to kill me and potentially our daughter”. Again, there is not a shred of evidence that suggests that X was the target of any attack by her grandfather.
It is apparent from the applicant’s message that she was unwilling to countenance the proposition that X’s time with the respondent might be brought forward by 24 hours as the respondent had suggested. I accept the respondent’s characterisation of the applicant’s attitude as “extremely uncooperative”. Why she would not simply move the time forward by 24 hours is not answered in the evidence.
Nonetheless, the orders do not require the parties to be co-operative and there was no obligation upon the applicant to agree to the respondent’s suggestions. The respondent’s obligation was to comply with the orders. In that respect, the respondent’s obligation to return X to the applicant in accordance with the orders did not conflict with the respondent’s desire to attend the applicant’s father’s court date. He could have made arrangements for X to be returned to the applicant’s care by someone else while he attended court. There is no suggestion that could not be done and she must have been cared for by others while the respondent went to the hearing. Alternatively, he could have, and my view should have, prioritised the return of X to the applicant, something compelled by an order of a court, over his own desire to see the applicant’s father court date, as understandable as that might be. His attendance at the hearing was not compelled by any court order.
The applicant swears that she was at McDonalds, E Street to collect X at 12.00pm in accordance with the orders. The applicant involved the police, who contacted the respondent. I accept her evidence about that. It is uncontroversial that the respondent was not there. X was eventually returned to the applicant at 2.00pm (although the applicant says that it was 2.12pm).
Whilst the respondent contends that the applicant has “no perspective as to the importance of my attendance at the Criminal Court and what this meant in my recovery and sees it issues, I must attend, due to the act of violence the applicant mother’s family inflicted upon us, as something I can set aside.” To the extent that this (rather non-sensical) evidence means that there was some reason residing in the health or well-being of the respondent for the contravention and that attendance at the hearing would somehow assist those issues, the respondent called no expert evidence to establish that matter.
Although the respondent now denies this contravention, I am satisfied on his evidence alone that the contravention is proved. I am not satisfied that he has proved that he had a reasonable excuse for the contravention. At best, all the evidence establishes is that he preferred his own desire to attend the proceedings over compliance with the primary order.
The sixth count alleges that on 10 April, 2023 the respondent did not comply with orders 18 and 19 in that a message that he sent her on that day was not ‘polite and courteous’ as required pursuant to order 19.1. She alleges that it was derogatory towards both she and her family. Further, the applicant alleges that the message was not ‘succinct nor limited to the issues relating to the welfare and development of [X’s] long term educational needs’ as required pursuant to order 19.2, nor was it within any of the exceptions to the ban on communication provided for at orders 18.1 to 18.4 inclusive.
Initially, the respondent admitted this contravention but said that he had a reasonable excuse for the contravention. However, on the second day the application was before me he purported to withdraw his admission and denied the contravention. I have approached this contravention on the basis that it is denied by the respondent.
The message which was one of the messages relevant to the immediately preceding contravention, I have reproduced again for convenience:
[Ms Royston]
I have specifically raised matters in which I require your cooperation.
I take the Family Court Orders very seriously and I will be attending the Criminal Court to completion on Friday 14th. The Office of Public Prosecutions have, and continue, to liaise with me in regard to the threat to life members of your family posed on [X] and me.
I am advising you, whether overtime is 10 minutes or 2 hours, in case the sentencing […] does overrun the midday deadline, albeit it may indeed, however also recognising it may very well be finalised earlier, I will be attending, as a victim, which members of my family, to the end.
I will not be reducing the time [X] is to spend with her Facher during this term break from the 4 nights she is entitled to spend with me from the total of 17 nights - in the best interest for our daughter we share; and as you seem to propose to reduce the time.
[X] and I also expected that safe and secure environment from your family. That was not to be the case, and it certainly is evident my expectations were too high in which members of your family put both [X] and I lives at risk. This Criminal Court matter to be conducted on the 14th, this Friday, is most important that I attend to gain part closure.
On another topic I have not received the Uniform spreadsheet from you as to reimbursement. I follow up here as to your action on accommodating [X] to your school of choice, [D School], of which I have had no response for a number of weeks now. Please respond to these issues for the benefit of [X]. This is extremely important in that [X] has a school to attend and you seem to be ignoring my requests on this.
[Mr Royston]
The applicant argues that the message is not “polite and courteous” as required by order 19.1. She argues that it was derogatory, both towards her and her family in circumstances where it was her father alone that committed a crime against the respondent.
Moreover, the applicant argues that the message is not “succinct nor limited to the issues relating to the welfare and development of [X’s] long term educational needs” as required by order l9.2.
In response, the respondent contends that “I expressed every element of courteousness in my communication to the applicant mother and deny any harm or intentional verbose language, as the applicant mother downplayed the incident”.
I consider that the paragraph:
[X] and I also expected that safe and secure environment from your family. That was not to be the case, and it certainly is evident my expectations were too high in which members of your family put both [X] and I lives at risk. This Criminal Court matter to be conducted on the 14th, this Friday, is most important that I attend to gain part closure.
was neither polite nor courteous. It was directed to claims against members of the applicant’s family rather than confined to the applicant’s father. There is no probative evidence that the applicant’s father acted in concert with anyone else, although I note the respondent’s evidence that the maternal grandmother was present. But the evidence does not go so far as to suggest that she was part of or knew about the applicant’s father’s plan. To include other members of the applicant’s family in the respondent’s complaint is to be discourteous to the applicant in those circumstances.
Whilst the message also deals with another topic concerning X’s school and payment of some costs associated with that, I consider that those matters do not contravene orders 18 or 19 because those matters go to major long-term issues relating to X’s education where the applicant and the respondent share parental responsibility.
This contravention is proved. The respondent does not establish that he had a reasonable excuse for the contravention.
The seventh contravention alleges that on 12 June, 2023 the respondent without reasonable excuse failed to return X to the applicant’s care at McDonalds E Street, Suburb F pursuant to order 5.6 (or in the alternative order 5.1) of the October, 2022 orders. The respondent denied this contravention. Order 5.6 is in the following terms:
5.6If either parent notifies the other parent that [X] shall not be attending school on the Monday of the Father’s usual weekend, the Father shall deliver [X] to McDonalds on [E Street] in [Suburb F] at 8.45am.
X was in the respondent’s care for the weekend commencing on Friday, 9 June, 2023. Monday 12 June, 2023 was a public holiday and she did not need to go to school on that day.
The applicant swears that at 7.36am on 12 June, 2023 the respondent sent her a message stating:
As there is no clarity as to the current Final Court Orders as to return of [X] on this one-off public holiday we will see you at 3pm at the normal changeover point. It goes without saying that this time [X] will be spending time with her Father.
The applicant remonstrated with the respondent by message sent at 7.47am on 12 June, 2023:
There is no confusion in the Final Court Orders. Today is a public holiday and [X] is not attending school so under Order 5.6 of the Final Court Orders you are required to return [X] to McDonalds at [E Street] in [Suburb F] at 8.45am today.
The applicant went to Suburb F McDonalds to collect X at 8.45am but the respondent was not there. She waited. She telephoned the police at around 9.00am and spoke to a female police officer. She complained that her six year old daughter had not been returned to her in accordance with family court orders and asked if she could please call the respondent to find out where he was. The police officer agreed to do so. The police officer called the applicant at 10.02am and told her that she had spoken with the respondent. The police officer reported that the respondent had told her insistently that he “wasn’t breaching anything”, that he “will be keeping [X] until 3pm” , then told her to ‘‘get her facts straight” and “to read the Orders properly”.
According to the applicant’s evidence the respondent returned X to the applicant at Suburb F McDonalds at 3.01pm.
In response to this contravention, the respondent says:
7.12/06/2023- The respondent without reasonable excuse failed to return the child [X] to the applicant’s care pursuant to Orders 5.6 (or in the alternative Order 5.1) of the Orders made on 31 October 2022
Denied
a.The Orders are clear. It is a given that the Kings Birthday on the 12 June is a public holiday.
b.I advised the mother of the lack of clarity of the Court Orders. App 16
c.Order 5.1 relates to attendance at school on Monday.
d.Order 5.6 refers to “either parent notifying the other parent” in which I did not take this action as Monday was a public holiday, and it was given the Child will not be attending school. Hence, no notice was provided to the mother as to the Child not attending School.
e.I will not comment as to any further statement the applicant has made to minimise conflict.
The applicant swears that the respondent has previously complied with order 5.6 in the way she suggests it should be. She swears that on 11 November, 2022 she messaged the respondent and said:
In accordance with Order 5.6, I notify you that Monday, 14 November 2022 is a pupil free day, so changeover on Monday will take place in accordance with that Order.
She says that the respondent returned X to her care at 8.49am on Monday 14 November, 2022 at Suburb F McDonalds.
However, notwithstanding this, I do not consider that the respondent has contravened the order as the applicant alleges. The primary order is silent as to what is to occur on public holidays. Often, it is the case that orders provide for the time a child is to spend with a parent should be extended over a public holiday if the child would otherwise have been at school on that day. These orders do not follow that pattern and do not do that.
Order 5.6 contains within its text, a condition. The condition is fulfilled if either parent notifies the other parent that X shall not be attending school on the Monday of the father’s usual weekend. If that condition is fulfilled, then the respondent must deliver X to McDonald’s on E Street in Suburb F and 8:45am.
The condition that needed to be fulfilled before order 5.6 was engaged was not fulfilled on this occasion. I do not consider that the messages exchanged between the parties on 12 June, 2023 are apt to satisfy the condition required by order 5.6. By those messages, I am satisfied that neither party intended to give notice to the other that X would not be attending school. Rather, the purpose of those messages was, from the respondent’s point of view to ensure that the applicant understood what he intended to do and, from the applicant’s point of view to argue with the respondent that he was incorrect.
That the respondent gave such a notice and acted upon in November, 2022 is not inconsistent with my conclusion because on that occasion order 5.6 was clearly engaged when the respondent gave the requisite notice. There was not such notice here and no proper basis for the applicant to have assumed that no notice would be necessary.
This contravention must be dismissed.
The eighth count alleges that on 14 June, 2023 the respondent without reasonable excuse failed to return the child to the applicant’s care at the McDonalds, E Street, Suburb F pursuant to order 5.2 of the primary orders. The respondent admits the contravention but says that he has a reasonable excuse for it.
It is uncontroversial that X had spent the weekend of Friday 9 June, 2023 to Monday 12 June, 2023 with the respondent. By order 5.2, X was to spend time with the respondent from after school to 6.00pm on Wednesday 14 June, 2023. The respondent was to collect X from school at the commencement of that time and deliver her to the applicant at McDonalds on E Street, Suburb F at the conclusion of the time. The respondent collected X from school on 14 June, 2023. The applicant was at Suburb F McDonalds to collect X at 6.00pm on 14 June, 2023 but the respondent did not materialise with X.
The applicant swears that at around 6.20pm she answered a call on her mobile phone from an unknown number, the caller was a male and said he was a police officer from Suburb F Police Station. She says that she and the police officer had the following conversation:
Police officer: Are you at McDonalds?
Applicant:Yes, I’ve been here over half an hour.
Police officer: Your partner has come to the police station to do the custody swap here.
Applicant:He is breaching the Orders as changeover should have occurred at 6pm at McDonalds.
Police officer: He said something happened in the past and he wants to do it here and he can’t contact you because there is a restraining order. He is here with [X] for the custody swap.
The applicant went to the police station and took delivery of X.
The respondent accepts that on this occasion he went to the Suburb F Police Station for the purposes of changeover and organised for the police to contact the applicant to tell her the changeover would take place there. He accepts this is not what the primary order provides.
The respondent says that he was “intimidated, harassed, and bullied only two days prior at the 12 June changeover at a children’s restaurant [Suburb F] McDonalds including being videoed by members of the applicant’s family and others in front of customers, children, and families”. Further, he says “ill serving of ‘official Court documents’ was also conducted at this Family Court changeover”. I’m not sure what he means by the term “ill serving” and he did not explain it to me. The respondent says that he sought the protection of the Suburb F Police station for a changeover on 14 June, 2023.
However, to the extent that the respondent argues that the experiences to which I have just referred amount to a reasonable excuse for contravening the orders, I reject his argument. His evidence does not explain the way in which he was “intimidated, harassed and bullied” at the changeover. To the extent that he says he was “videoed by members of the applicant’s family” he can complain via an appropriate application for contravention to this court that the applicant has caused a contravention of order 9 of the primary orders, or to the police if he says there was a breach of the peace. Alternatively, he could apply for a variation to the primary orders in the event that he says there is an appropriate reason, consistent with X’s best interests, to change the handover location to the Suburb F police station.
Further, there is no proscription upon the respondent being served with court documents following a changeover. The evidence does not suggest that it was the applicant who served the documents upon the respondent. Indeed, the respondent could have been served with court documents at the Suburb F Police Station following the changeover at that location.
To the extent that the respondent argues that by reason of his experience with the applicant’s father more than 18 months earlier, he was justified in demanding a relocation of the changeover location, I reject that argument because, the evidence demonstrates that changeover had occurred at McDonald’s, E Street on many occasions following the incident with the applicant’s father in December, 2021.
There is no evidence before me to suggest that the respondent has made an application to have the changeover venue varied. I am satisfied that this contravention is proved and the respondent has not proved on the balance of probabilities that he had a reasonable excuse for the contravention.
The ninth count alleges that on 4 July, 2023 the respondent without reasonable excuse failed to return X to the applicant’s care at McDonalds E Street, Suburb F pursuant to order 5.10.2 of the October, 2022 orders.
The proceedings for the applicant’s father did not complete on 14 April, 2023. The proceedings were adjourned to 4 July, 2023.
In mid-2023 the respondent sent the applicant a message in these terms:
Due to your father being sentenced in the Criminal Court as a criminal […] and the conflict with the date at midday for changeover, I have been advised judgement (sic) and sentencing will be 10am and/or to be continued at the 2pm session.
As last time, [X] will be dropped off once the Criminal Court […] and judgement (sic) is delivered for the day as I and members of my family will be in attendance for the attempted […] charge and trauma your father inflicted upon us. If we are on time it will of course be at midday. I take it then your father will be taken to general population prison where that will be his home.
The applicant responded:
I expect [X] to be returned to me on or before 12 midday on Tuesday […] in accordance with the Final Orders. if you are unable to make arrangements for [X] to be cared for and delivered to me in accordance with the Final Orders, then I am available and you are welcome to return [X] to me earlier, either 7.30am or 8.30am on Tuesday […] or 5pm on Monday […] at McDonalds on [E Street] in [Suburb F].
Please confirm whether you have made other arrangements for [X’s] care on the morning of [the date in question] or, if not, whether it is your intention to take her to the criminal court sentencing set down for 10am on that date?
I hereby further put you on notice that any failure to abide by the Final Orders will be included in a further contravention application, for which I intend to rely upon this correspondence in relation to costs.
The respondent replied at 9.01am the next day refusing to return X to the applicant’s care at the time provided for in the orders, or earlier. He said:
l have every intention to return [X] per the Final Family Court Orders, and take those Orders extremely seriously. I mention, if however the Criminal Court over runs, I have no choice but to return [X] after my and families attendance ... I will advise if there is any lateness due to the Criminal Court proceedings.
Changeover will be at [Suburb F] Police Station regardless.
On the afternoon of the following day the applicant says that she became aware that her father’s court date had been changed. She sent a message to the respondent at 6.10pm in the following terms:
I have been notified that Judgment will be delivered [tomorrow] at 2.30pm.
I expect [X] to be returned to me on or before 12 midday on Tuesday […] to McDonalds on [E Street] in [Suburb F] in accordance with the Final Orders.
l confirm my notification to you [three days ago] that any failure to abide by the Final Orders will be included in a further contravention application for which I intend to rely upon this correspondence in relation to costs.
The applicant says that on that morning she became aware that the court date was to be further adjourned and it was later adjourned to mid-2023. On the date in question, she went to the Suburb F McDonalds to collect X a few minutes before 12.00pm. The respondent was not there so she waited. She says that at around 12.00pm she received a phone call from a male who said he was a police officer, that the respondent was at Suburb F Police Station to handover X, and that the respondent had apparently notified her that changeover was to occur there. The applicant swears that she told the police officer that there were orders requiring changeover to occur at Suburb F McDonalds and that she was waiting there. The police officer told her that the respondent had not told him there were orders in place, so he would let the respondent know he needed to return her there.
The applicant swears that at around 12.19pm the respondent had not arrived at Suburb F McDonalds so she telephoned the police officer again. She swears that the police officer told her that he had advised the respondent he had to return X to the location specified in the orders, but that the respondent had said to the police officer, “No I’m not doing that because of last time” and the respondent left the police station.
The applicant swears that she told the police officer that the last in-person changeover had occurred on a Wednesday in June 2023, when the respondent returned X to Suburb F McDonalds at 6.01pm. She says that she told the police officer that nothing had occurred, and the only words spoken were from the respondent, saying “her earring is in there”, after which he said goodbye to X and walked away.
The applicant says that she continued to wait at Suburb F McDonalds for the respondent to deliver X, but he did not show up. After waiting for another hour she called the police back. She swears that she was told that as it was a domestic situation officers would be sent to her location (Suburb F McDonalds). Two police officers subsequently arrived at about 1.30pm. They called the respondent and after the called ended the officers told the applicant that the respondent would be returning X to her at Suburb F McDonalds in about 10 minutes. The police officers waited with the applicant until the respondent returned X to her at 1.46pm.
The respondent says that on this occasion he insisted on the Suburb F Police station as the changeover venue because he wanted a safe and secure environment for the changeover and “considering the relevance of this […] date (the applicants father being in the Criminal Court for offences) the mother does not consider my expressions of seeking safety or willing to have a secure environment for the Child in which I raised my concerns”. To the extent that the respondent is suggesting that he needed police protection, or the protection of a police station for the purposes of a changeover, I reject his argument. The evidence does not justify or prove his concerns, whatever they might be.
Whilst the respondent contends that there was a “planned confrontation by the applicant mother, her family, acquaintances, and others at the [Suburb F] McDonalds” and he was served with “official Court papers only days prior on the 12 June” the evidence does not establish any such confrontation. I accept that he was served with court documents following the changeover, but the applicant’s evidence is that she and X had left the changeover venue when that occurred. The respondent does not contend that X was present when service occurred.
The respondent’s evidence does not establish that there was a reasonable excuse for this contravention.
SUMMARY
In summary I find the following contraventions proved and I find that the respondent has not established a reasonable excuse for the contravention:
(a)Application filed 6 June, 2023:
(i)Count 1 – orders 18 and 19, 1 November, 2022;
(ii)Count 2 – order 20, 24 December, 2022;
(iii)Count 4 – orders 18 and 19, 28 March, 2023;
(iv)Count 5 – order 5.10.1, early 2023;
(v)Count 6 – orders 18 and 19, 10 April, 2023;
(b)Application filed 27 July, 2023:
(i)Count 8 – order 5.2, 14 June, 2023;
(ii)Count 9 – order 5.10.2, mid-2023.
I find that the following contraventions are not proved and must be dismissed:
(a)Application filed 6 June, 2023:
(i)Count 3 – order 11, 3 February, 2023;
(b)Application filed 27 July, 2023:
(i)Count 7 – order 5.6, 12 June, 2023.
The applications will be listed for the taking of any further submissions concerning orders consequent upon these findings.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 14 November 2023
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