Sachin & Sachin
[2023] FedCFamC2F 1337
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sachin & Sachin [2023] FedCFamC2F 1337
File number(s): MLC 10441 of 2020 Judgment of: JUDGE MCGINN Date of judgment: 18 October 2023 Catchwords: FAMILY LAW – CONTRAVENTION – Interim parenting orders – primary order as to time spending not by consent – changeover – obligations of party in encouraging children to attend - no application for suspension or variation of orders by respondent – variation of parenting order – substantive trial pending –changeover in the presence of both parties – lack of sufficient encouragement – contravention no reasonable excuse – sanctions – variation of order– bond – explanation of bond – costs Legislation: Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Attreed & Attreed (1980) FLC 90-907
Caballes & Tallant (2014) FLC 93-596
Cavanough and Cavanough (1980) FLC 90-851
Dobbs & Dobbs (2021) FLC 94-021
Gaunt and Gaunt (1978) FLC 90-468
Greer v Bedelia [2009] FamCAFC 136
Jackson & Fordham (1995) FLC 92-561
Keehan & Keehan [2019] FamCAFC 250
Matthews v Millar and Anor [1988] 12 Fam LR 205
Millson & Halbert [2021] FedCFamC1F 94
Nieuwstraten & Nieuwstraten (1987) FLC 91-826
O’Brien & O’Brien (1993) FLC 92-396
Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725; (1978) 6 FamLR 570
Sahari & Sahari (1976) FLC 90-086
Stevenson & Hughes (1993) FLC 92-363
Wallington & Wallington (No 4) [2020] FCCA 2167
Winch v Jackson [2015] FamCAFC 75
WJP & TP [2002] FMCAfam 315
Division: Division 2 Family Law Number of paragraphs: 375 Date of hearing: 19 September 2023, 16 October 2023 Place: Adelaide Counsel for the Applicant: Mr Kanarev Solicitor for the Applicant: Bentleys Barristers and Solicitors Counsel for the Respondent: Mr Kiernan Solicitor for the Respondent: Yarra Family Lawyers ORDERS
MLC 10441 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SACHIN
Applicant
AND: MS SACHIN
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
18 OCTOBER 2023
IT IS ORDERED:
1.That the respondent mother do attend before Judge McGinn on Friday, 20 October 2023 at 2:15pm (Adelaide Time) to receive an explanation in relation to the bond referred to in the Court’s judgment delivered this day and to make orders as are found at the end of the judgment delivered this day.
2.That pursuant to s 70NBA orders 6 and 7 of the orders made 28 November 2022 (as amended) be discharged and be replaced by:
6. Where changeover cannot practically occur at the children’s school or schools, changeover to occur at the [Suburb B] Police Station or at any other place agreed between the parents in writing.
7. For the purpose of change occurring at the [Suburb B] Police Station pursuant to order 6 herein:
(a) changeovers shall occur inside the police station;
(b) the father be permitted to be within 5 metres of the mother while receiving the children, including [Z], into his care; and
(c) upon delivering the children to the changeover venue the mother is to remove herself forthwith and not remain at the changeover venue.
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
JUDGE MCGINN:
Before the Court is the applicant father’s Application – Contravention dated 2 June 2023.
The principal issue in respect of that application is whether the respondent has discharged her obligations created by the primary orders in this matter to facilitate the children’s time with the applicant on the dates and at the times in question.
For the reasons that follow, I have determined that the respondent has not fulfilled those obligations and that her failure to do so constitutes contraventions of the primary order without reasonable excuse.
Further, I have determined that the contraventions are “less serious” and that sanctions should be imposed by way of a bond and costs orders. I have also determined that there should be an order for a limited variation of the existing parenting order.
By reference to orders made 13 February 2023 there is to be a trial in relation to parenting matters commencing on 25 October 2023 at the Registry of this Court.
The application is brought pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
That application is supported by an affidavit affirmed 1 June 2023.
On the afternoon before the hearing of the application the applicant forwarded a “Minute of Proposed Orders by the Applicant” which provided for parenting orders to be made “upon the finding of contravention” for the applicant father to have two weeks of time with the children without contact with their mother during that time so as – according to a proposed notation – “to rebuild the relationship between the children and the father to the exclusion of the influence of the mother”.
Similar orders were sought at the conclusion of the defended hearing with respect to submissions.
The Application and its supporting affidavit were served by electronic means on the respondent’s then solicitors on 6 June 2023. An acknowledgement of service was completed by that solicitor on that day.
On 21 July 2023 an order was made by a Senior Judicial Registrar upon appearance of a lawyer for the applicant, the respondent appearing in person and counsel appearing for the Independent Children’s Lawyer referring the Application – Contravention for listing.
The Senior Judicial Registrar also determined that section 102NA applied to any cross examination in the proceedings.
On 8 August 2023 the Court directed that the respondent file such affidavit as the respondent may be advised in response to the affidavit filed in support of the application for contravention as she may be advised. The respondent elected to take up opportunity and filed such an affidavit on 22 August 2023.
At that trial hearing of the contravention each of the parties were represented by a legal representative. The Independent Children’s Lawyer did not participate in the hearing.
No material was tendered in evidence other than affidavit material of each of the parties.
To the extent necessary, the Court determines that personal service of the application is dispensed with, and that service be deemed to have been effected by electronic means upon the respondent by her then solicitors and that such service is sufficient for the purposes of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The application for contravention alleges five separate occasions of contravention of order 5c of orders of 28 November 2022 (the orders of 28 November 2022 being referred to as “the primary order”).
Order 5c of the primary order is a parenting order relating to the children X born in 2009 and Y born in 2014. The children are aged about 14 years and eight years respectively.
Order 5c of the primary order was not made with the consent of the parties and the Independent Children’s Lawyer and was to operate until further order.
The substantive proceedings were commenced in 2020 and are listed for trial on 25 October 2023. At the outset of the trial the Court queried whether, given the proximity of that trial hearing this application was to proceed. The applicant indicated that he wished for the application to proceed. At the time of submissions the respondent queried the utility of the application. The application having been brought is not, in my view, frivolous and not deserving of determination. The trial judge in the substantive matter may or may not continue or vary the primary orders as a result of hearing evidence at trial and in light of any applications that may be brought pending judgment. In the event there is no such variation of the primary orders then the parties’ obligations in respect of the primary orders remain to be fulfilled.
The parties separated in 2016.
The children have a sibling Z born in 2012 aged 11 years. He is the subject of other parenting orders made on 28 November 2022. Z has been diagnosed with what was described in the evidence as “autism” and understood by me to mean that he has been diagnosed as having symptoms consistent with autism spectrum disorder.
Z’s relationship with his father appears to be a difficult one and his relationship with his mother appears to be on occasions also difficult. His displays of frustration and anger would be of concern to both of his parents.
Z attends upon a upon a paediatrician who is requested to speak to a Ms C who has facilitated family therapy for the children and the father between November 2021 and October 2022.
During that therapy, in October 2022, Z physically attacked his father and threatened the therapist and threw her phone about.
Y and Z attend the D School. X, being older, attends a different school.
The primary orders of 28 November 2022 disclose that Z is a child who is to undertake individual therapy with a child psychologist as nominated by the Independent Children’s Lawyer upon the provision of a copy of the primary orders of 28 November 2022, a family report and affidavits of Ms C. The orders also direct for family therapy between Z and the father to be suspended and for Z to continue attending upon his current treating psychologist. Further, Z was to be the subject of paediatric review from his treating paediatrician.
The primary orders provided for Z to spend time with the father on four dates in December 2022, if Z wished to do so. His time with his father otherwise provided for in orders of 21 April 2022 was otherwise suspended.
Order 17 of the primary orders[1] provided;
For the purpose of Order 2 herein the Mother shall make [Z] available to the ICL for the ICL to explain to [Z] that the Father welcomes him to spend time when his brothers attend at any time that he wishes to do so.
[1] Now order 18 of the orders amended 31 January 2023.
The reference to “ICL” is a reference to the Independent Children’s Lawyer.
There has been no meeting between Z and the Independent Children’s Lawyer for the purposes of order 18. Contrary to the submission of the respondent I do not confine order 17 (now order 18) as prescribing when the father and/or mother was obliged to spend time with the child Z.
Order 5c of the primary orders provides:
The children [X] and [Y] spend time with the Father as follows:
…
c. from the conclusion of school each alternate Friday (or 12.00pm if a non-school day) to the commencement of school Monday (or 12.00pm if a non-school day) commencing Friday 3 February 2023; …
As noted above, other parenting orders were made on 28 November 2022. Two of those other orders were made with the consent of the parties as to changeover. In that regard, the primary order provides at orders 6 and 7 provide:
6. Where changeover cannot practically occur at school, changeover to occur at the [Suburb E] McDonalds or as otherwise agreed inwriting.
7. For the purpose of changeovers occurring at McDonalds pursuant to Order 6 herein; [sic]
a. changeovers shall take place inside the restaurant and
b. the father may be within 5 metres of the mother or [X], [Z] and [Y] (“the children”) whilst receiving the children into his care.”
I am satisfied that for the purpose of order “inside the restaurant” has been treated by the parties as being within the building on which the restaurant is present and not just in the car park. This interpretation of “inside” appears consistent with the orders on the face of them and is to be adopted.
The orders of 28 November 2022 were amended pursuant to Rule 10.13 (1)(e) on 31 January 2023.
The copy of the order annexed to the Application – Contravention is a copy of the order of 28 November 2022 prior to amendment pursuant to Rule 10.13. Orders 5, 6 and 7 were left unaltered by that amendment. The amendment appears to insert a new order 14 in the order of 28 November 2022
In respect of the present application, nothing turns on the fact of the amendment pursuant to Rule 10.13 or the omission of a copy of the amended orders. The amendment of the order did not affect order 17 of the original orders except it became order number 18. Insofar as the respondent’s submissions referred to “order 18” I have treated that submission as referring to order 18 in the amended order.
Before leaving the orders of 28 November 2022, it is to be noted that those orders also provided, with the consent of the parties, that the father was to attend with X and Y upon a Ms C for family therapy. The mother at the time of the making of the primary order supported the involvement of Ms C but later lost confidence in Ms C to be involved with this family.
DOCUMENTS, EVIDENCE AND WITNESSES
The Applicant relied upon his Application – Contravention of 2 June 2023 and his supporting affidavit of 1 June 2023.
The respondent relied upon her affidavit of 22 August 2023.
Each of the parties sought to rely upon their respective documents.
Each party was cross-examined on 19 September 2023 and the evidence concluded that day. Despite the Court offering earlier times for submissions, none could be found suitable for counsel until 16 October 2023.
Given the proximity of trial the Court has delivered this judgment expeditiously.
The hearing took place by electronic means enabling the parties to present their cases and be cross-examined by video link. Although there were disruptions to the giving of evidence on account of transmission of voice and/or image being lost from time to time, I am satisfied that, having had the proper assistance of counsel, no evidence was lost on account of the disruptions.
The applicant gave his evidence in the presence of his solicitor and the respondent gave her evidence in the presence her counsel. I am satisfied that each of the party’s legal representatives ensured the integrity of the evidence then being given.
The Court followed the procedure for the hearing as set out in Rule 11.69 save and except for the Court omitting to afford the respondent the opportunity to state a response to the allegations brought forward by the applicant after the applicant’s evidence had been adduced. However, no point was taken as to this omission and given that the respondent had at the outset of the hearing exercised a wish to say that she denied each of the contraventions and had earlier filed an affidavit, in response to the applicant’s supporting affidavit I am satisfied that no prejudice has been occasioned upon the respondent in relation to the omission of that step.
Each of the parties in answering questions under cross-examination on occasions tended to give answers that did not always address the questions put to them and were given to providing long explanations in an endeavour to justify the answers that they gave.
This was particularly more so in the case of the respondent who was also given to providing long explanations of her understanding of the effects of the applicant’s past behaviour and its effect upon both herself and the children.
I was left in little doubt from both the content and the manner in which the respondent gave her evidence that she has little or no regard for the applicant’s relationship with the children.
The respondent regards and is strongly of the view that the applicant is unsafe and not a person who, with the company of his present partner, can be left with the children. Further, she held the view that the children were being made by the father not to go with him for time spending to build a case to be made on his behalf and against the mother that the mother is an “alienating parent”. In short, she is of the view that the children should not see their father at all.
This regard of the father is based upon the respondent’s understanding of what she claims occurred during the whole of her adult life constituting family violence between her and the applicant and its effect upon her and the children.
Whether and to what extent the respondent’s regard of the father is to come to be accepted as legitimate or otherwise founding a proper basis upon which she might or can shape the children’s relationship with their father, is a matter for the October trial.
What is a relevance for the purpose of the present application is that the respondent mother’s view and regard of the father pre-existed the making of the primary orders. Whether, ultimately, her views are borne out or not at the subsequent trial does not affect the respondent’s obligations to give effect to the primary orders.
The evidence of the respondent was that she suffers from post-traumatic stress disorder. The evidence did not permit me to understand in what way that disorder should be regarded as permitting an allowance to be made for the way in which the respondent gave her evidence or the manner in which she has conducted herself the time of the alleged contraventions.
The respondent responded to questions put to her that seemed to require a relatively simple answer, with lengthy digressions about matters and topics which she considered to be important for both the Court and applicant to know. The respondent, in my view, deliberately took the opportunity when cross-examined to go beyond her evidence in her responding affidavit and what was required to answer questions. Many of her answers given in response to questions put to her under cross-examination did not respond to questions put to her. Even allowing for the stress of current litigation and the courtroom environment (such as it was) and of a possible effect of the post-traumatic stress disorder of which the respondent said she suffered from, I found the respondent an unimpressive witness in respect of events that were said to have taken place this year in the lead up to and including the dates of April and May of this year that were the subject of the application.
In particular, her evidence in relation to her inability and unwillingness to leave the children at handover with their father in April and May of this year, leads me to find on the balance of probabilities, that the mother was not genuine in in her attempts to ensure that children spent time with their father on the 14 April 2023 and 12 and 26 May 2023 and that her actions in bringing the children spend time with their father on those dates were perfunctory.
On the evidence before me, occasions of changeover became tests of whether her views of the father were to be borne out in the children’s refusals to then attend with their father with such testing to be given oversight to by her and those persons she chose to accompany her to changeover.
I reject the submissions put on behalf of the mother that whilst she held and was entitled to hold unfavourable views about the father, she still could and indeed, in fact, did all that was reasonably necessary in the circumstances to encourage the children to go with their father at the ordered times.
The father’s evidence is to be generally preferred to that of the mother.
His evidence betrayed a belief, not shared by the mother, that the parties were to be working cooperatively at changeovers to enable changeovers to occur in a relatively calm and orderly way.
His belief was mistaken.
I reject the submission that the mother was looking to co-operate with the father in giving effect to the orders.
The father tried to adhere to advice provided by Ms C as to how handovers should be conducted, namely, in a calm and low-key manner.
FIRST ALLEGED CONTRAVENTION
It is alleged that on Friday, 14 April 2023 at 12 noon at McDonald’s in Suburb E, the respondent and her friend blocked the applicant and his partner from an exit route causing the applicant to feel intimidated and report an alleged breach of an intervention order to the Suburb B police station. The applicant alleges this caused changeover to then fail and he messaged the respondent to say that he would reattempt change over at 5:00pm that day.
The respondent mother denied there was a contravention constituted by these facts.
SECOND ALLEGED CONTRAVENTION
It is alleged that on Friday, 14 April 2023 at 5:00pm at McDonald’s in Suburb E, the respondent’s friend began to film the applicant on her phone and the children refused to come with the applicant and the respondent did nothing to facilitate or prompt the children to go with him.
The respondent mother denied there was a contravention constituted by these facts.
THIRD ALLEGED CONTRAVENTION
It is alleged that on Friday, 12 May 2023 at 3:30pm at McDonald’s at Suburb E, the applicant text messaged the child X to remind X that the applicant’s partner was picking X up from school. X did not then show up. The respondent informed the applicant that Y was sick and changeover would occur at 3:30pm instead. The applicant attended at McDonald’s at 3:20pm. The applicant could see Y was outside and in the car. Y did not come out of the car. The applicant waited in McDonald’s for 15 minutes after which he left.
The respondent mother denied there was a contravention constituted by these facts.
FOURTH ALLEGED CONTRAVENTION
It is alleged that on Friday, 12 May 2023 at 5:30pm at McDonald’s at Suburb E, the respondent reattempted a change over at McDonald’s. The respondent and her friend stood 2 metres from the applicant glaring at the applicant with their arms crossed. Y and X stood behind the respondent refusing to come with the applicant. X kept repeating “I don’t ever want to come”. The applicant tried to reason with the children and they refused by the shaking their heads or ignoring him.
The respondent mother denied there was a contravention constituted by these facts.
FIFTH ALLEGED CONTRAVENTION
It is alleged that on Friday, 26 May 2023 at 6:30pm at McDonald’s at Suburb E, the applicant sent X a text message at 1:40pm that his partner was going to pick him up from school. The applicant’s partner attended school at approximately 3:15pm and X did not show up. The applicant called X at 3:30pm but there was no response. The applicant’s partner waited for 20 minutes.
The applicant then attended Y’s school at 3:30pm and Y said “I do not want to go to your house. I want to stay with mama.” The applicant notified the respondent on a parenting “app” that Y was refusing to come with the applicant.
At 6:05pm the respondent messaged the applicant that the respondent and somebody else (“they”) would come to the changeover location at 6:30pm to facilitate change over.
The applicant attended at McDonald’s at 6:30pm.
The children Y and Z were running around in the playground. X was sitting with the respondent. The applicant walked over and said “I’ll wait outside for you guys, okay?”
The applicant sat outside.
Y and Z ran around outside.
The applicant went to the door and asked X “Shall we get going, I’ve got some cool stuff planned for us.” X simply shook his head and continued to sit by the respondent. The respondent said nothing.
After five minutes the applicant said to X “Do you want to come out and chat? I’d love to hear what’s been happening and it’s probably pretty boring for you waiting around like this.”
X did not respond and ignored the applicant’s request.
The respondent just sat in the restaurant chatting with a friend and made no effort to facilitate the changeover.
The respondent mother denied there was a contravention constituted by these facts.
Each of the five alleged instances of contravention are referred to as “counts” in this judgment.
THE OBLIGATIONS UNDER THE ORDERS
Section 70NAD(b) provides that for the purposes of a contravention application brought pursuant to Division 13A of the Act, a parenting order that deals with whom a child is to spend time which is taken to include a requirement that people act in accordance with section 65N in relation to the order.
Section 65N(2) provides that a person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) the child benefiting from spending time with each other under the order.
Both the original order and the amended order of 28 November 2022 had attached to them, in written form, information pursuant to s 65DA (2), 62B and 65AD(3) of the Act.
That information says under the heading “Your legal obligations” the following: –
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the orders put into effect. You must also positively encourage your children to comply with the orders. For example [sic] where the order state your children are to spend time with another party, you must not only ensure the children are available must also positively encourage them to go and do so.
These obligations created by a parenting order requiring children to spend time with apparent have been variously expressed as requiring:
(a)encouragement to children to go and discouragement to children in remaining[2];
(b)not leaving it to children to make up their own mind as to whether to attend or not[3];
(c)making it clear to children that the attitude of the parent with whom the children live is that the children had to spend time with the other parent[4];
(d)bearing all authority over a child just as a parent would have in ensuring that a child attends school[5];
(e)using a tone and manner and not just words and actions consistent with the requirement to attend[6]; and
(f)avoiding casting the burden on the other parent and/or the children to give effect to the order.[7]
[2] Stevenson & Hughes (1993) FLC 92-363 at 79,814 per Nygh J.
[3] O’Brien & O’Brien (1993) FLC 92-396 at 80,044.
[4] O’Brien at 80,044.
[5] WJP & TP [2002] FMCAfam 315 at [12] and [14].
[6] Stevenson & Hughes (1993) FLC 92-363 at 79,814 per Nygh J.
[7] Stevenson & Hughes at 79,816 per Fogarty J .
I find that the mother knew of and understood her obligations under the terms of the primary order because she had the benefit of legal representation and the giving of her consent to other orders the day the primary orders were made, including those orders that had to operate in conjunction with the primary orders.
Despite whatever the respective allegations, views and beliefs of the parties and the independent children’s lawyer may have been when orders were made on 28 November 2022, there then arose obligations of the parties to give effect to those orders. No discharge or variation of the order has occurred since the making of the primary orders and none sought until the presentation on behalf of the applicant of the minute of order present at the commencement of the trial hearing of the present application.
TECHNICALITIES
These are proceedings pursuant to Part VII of the Act.
Section 69ZN(7) sets out at Principal 5, to which the Court must give effect, that proceedings are to be conducted with undue delay and with as little formality, and legal technicality and form, as possible.
Section 188 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that the proceedings in this Court are not invalidated by formal defect or irregularity unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity and the injustice cannot be remedied by an order of the Court.
Whilst the permissive nature of these legislative provisions indicates that a Court should not be unduly restrictive in considering applications that come before it, it must be borne in mind that contravention proceedings are in the nature of quasi-criminal proceedings[8] and that a precise contravention must be stated and proved[9] and that such applications must be strictly dealt with.[10]
[8] Caballes & Tallant (2014) FLC 93-596 at 79,370; Jackson & Fordham (1995) FLC 92-561 at 81,594; Sahari & Sahari (1976) FLC 90-086; Dobbs & Dobbs (2021) FLC 94-021 at [24].
[9] Sahari & Sahari (1976) FLC 90-086 at 75,407; Attreed & Attreed (1980) FLC 90-907; Stevenson & Hughes (1993) FLC92-363 at 79,812, 79,815.
[10] Sahari & Sahari (1976) FLC 90-086 at 75,411; Nieuwstraten & Nieuwstraten (1987) FLC 91-826 at 76,218; Stevenson & Hughes (1993) FLC92-363 at 79,812, 79,815.
No point was taken as to there not being a case to answer or that the counts alleged in the manner that they were could not be made out as a contravention of an order.
Here, each count related to changeover on a Friday being a school day.
It was agreed that apart from the first count on 12 April 2023 when changeover was agreed to occur at 12 noon, the other four counts relate to changeovers that should have occurred at the time of the conclusion of school which from the evidence appears to be 3:30pm.
The place of handover on those days and at those times is, subject to the parties otherwise agreeing in writing, at school and, if a changeover at school is not practicable, at (meaning, inside the building) a McDonald’s restaurant.
Changeovers occurring under the conditions set out in the previous two paragraphs would be changeovers that occur pursuant to and for the purposes of order 5c of the primary orders.
In respect of the counts alleged to have occurred on 14 April 2023, changeover was attempted at 12 noon and 5:00pm that day and in respect of the counts relating to 12 May 2023 at 3:30pm and 5:30pm and on 26 May 2023 at 6:30pm.
Where there was both an earlier and later changeover attempt on 14 April 2023 and 12 May 2023 each of those attempts were required by the primary orders as the earlier one on each day had not occurred.
Where an order for time spending has been made and a specified time for changeover is not satisfied, then it remains incumbent upon the parties to the order to continue during the ordered period of time spending to continue to seek to fulfil the obligations to give effect to the order albeit late.
It is thus possible for there to be more than one occasion of contravention in respect of a particular period of time spending if there are a number of unsuccessful attempts during a single period of time to be spent with the parent pursuant to an order when those attempts might be regarded as constituting separate courses of conduct constituting separate contraventions of an order in respect of 1 period of time ordered to be spent with the child.
In the document Application – Contravention filed in this matter under the heading “Statement of the alleged contravention” there appears lengthy narratives as to what is said to constitute the contravention. The applicant’s determination to set out the “Statement” in this manner does not simply set out the nature of the contravention that is said to have occurred at the alleged date and time.
The “Statement” should provide no more than the necessary particulars to make known the nature of and the conduct or absence of conduct said to have constituted the contravention.
That this should be so is made clear where the “Details of alleged contravention (s)” on the Application informs the applicant to state precisely what amounts to a contravention and not to set out the evidence. Examples are also provided.
The normative style of each of the Statements of alleged contravention in relation to each of the counts in this case means that the applicant has run the risk that not every sentence of each statement has been made out on the balance of probability.
In relation to the Statement for the first count I do not find that a “breach” of the “interim IVO” has occurred.
The Statement for count 5 is an unnecessarily long and its detail in many respects is superfluous.
However, these failures are not, in my view, fatal to the success of either of those counts.
I am satisfied that the respondent understood the crucial issue in respect of the Application and was able to address that issue: namely, did her conduct on the days and times in question amount to a discharge of her obligations under order 5c of the primary order?
Here, all counts proceeded on the basis that order 5c had not been fulfilled.
What was in issue was whether the circumstances of that lack of fulfilment constituted a “contravention” under the Act and, if so, did a “reasonable excuse” within the meaning of the Act then explain any such contravention.
WHAT IS A CONTRAVENTION?
Section 70NAC of the Act stipulates that for a contravention in respect of orders to be established that there must be an intentional failure to comply with an order, no reasonable attempt made to comply with an order, the intentional prevention of compliance with an order or the aiding or abetting of a contravention by a person bound by an order.
The applicant bears the onus to establish the contravention and, on her own behalf, an absence of knowledge of a reasonable excuse for the contravention.
The applicant father must establish the contravention on the balance of probabilities and unless he is to agitate for a particular type of sanction – namely community service orders, fines or imprisonment – where he must establish the contravention without a reasonable excuse and other matters beyond a reasonable doubt.
WHAT IS A “REASONABLE EXCUSE”?
In determining what sanction (if any) should follow from a Court finding that there has been a contravention of an order, the Court must then determine whether a reasonable excuse exists for the contravention.
Section 70NAE of the Act sets out a non-exhaustive definition of what might constitute a reasonable excuse in respect of a contravention application.
Whilst a “reasonable excuse” in respect of a contravention is not capable of any exhaustive definition it can include a lack of understanding of the obligations imposed by the order which in the Court’s view ought to be excused, or a belief on reasonable grounds that the contravening action was necessary to protect the health or safety of a person and for a period that was no longer than necessary to protect the health or safety of the person.
It is necessary for the mother to establish on the balance of probabilities a reasonable excuse if contraventions are found to have occurred.
CHRONOLOGY OF RELEVANT EVENTS
From the evidence presented for the purposes of the hearing of the contravention application certain findings can be made on the balance of probabilities and I now set those out below.
Some of the findings are made in relation to periods beyond those relating to the dates and times set out in the Application – Contravention. Those findings are set out as the respondent introduced such matters through her responding affidavit material as part of a factual matrix that was understood to be her endeavour to establish that contraventions had not occurred and/or a reasonable excuse existed for them. I have set out those findings that I have considered necessary to be made to determine the application and not each and every factual dispute that exists between the parties.
Until 14 April 2023 the father proceeded, with the exception of the weekend of 6 January 2023, to spend time with the children X and Y in accordance with the orders of November 2022.
The respondent by her responding affidavit presents a case that seeks to establish that events occurred between December 2022 and April 2023 that enable the Court to understand that the failure for the primary orders to be given effect on 14 April, 12 May and 26 May 2023 is both explainable and reasonable.
On 23 December 2022 changeover was to occur at McDonald’s for the children to spend time with their father. The mother says Z expressed a desire to spend time with his brothers and his father. The children went outside to their father. X then returned to the mother saying that their father would not agree to allowing Z to remain. The father said to the mother words the effect he was not ready for Z to attend. The father then told X and Y that it was time to go and asking whether they were coming or not. X asked if Z was coming too, and the father said he would not.
I infer from the mother’s evidence that the children X and Y refused to go with their father and that the mother did nothing more to encourage them to go with their father in circumstances where the father was under an obligation to have Z with him under order 4d.
After correspondence from the father’s solicitor, time with X and Y then took place from 5:00pm that afternoon.
In that correspondence the father’s solicitor said, amongst other things:
It’s not in [Z]’s best interests to attend anymore [sic] than a short visit until he has received support from a mental health professional, this is expected to occur soon which hopefully will mean he can start attending.
On 5 January 2023 the father by his solicitor’s correspondence indicated he would welcome Z if Z wished to spend an hour or so with him but considered that it was not in Z’s best interest to have more time than that and requesting that all of the children be “adequately prepared” to spend time with the father.
The father was due to have time with X and Y from 10:00am 6 January 2023 to 5:00pm on 9 January 2023 pursuant to order 5a of the orders of 28 November 2022.
On 6 January 2023 the parties and all three children attended at McDonald’s for the purposes of changeover.
The 6 January 2023 was not a period of time that Z was “permitted” to attend under order 3.
Z said he wanted to come with his brothers to spend time with his father.
I accept the father’s evidence that Z had an expectation then made known to the father that he wanted to come for multiple days and that his father told him that would not work.
I accept that it was unlikely that the father having had advice in the form of “scripts” as to how to explain things to Z that the father simply told Z that he could not come at all and would have explained what could be done in terms of Z attending for some time to be spent nearby and for a limited period of time.
I accept the father’s evidence that he tried to explain to Z that he could not remain with his father for the whole of the weekend when his brothers were otherwise to remain with their father.
Z became upset at this decision of this father. Z sought to struggle with his father.
Both parents told Z to stop struggling with his father.
The mother also became upset. She directed the father to walk away from Z. She is likely to have said that a number of times and to have done so by raising her voice to the point of screaming at the father.
The father walked away towards a car park. Z and the mother followed.
I accept the father’s evidence that he did not grab Z’s arm and that he only made contact with Z when Z sought to struggle with his father at that time.
I find that all of this made the mother angry.
I find that all of this made the father both fearful and distressed.
The father’s partner took a video, not produced in evidence, of the incident.
The father left without any of the children. He went to the police station to seek an intervention order against the mother.
The children returned home with their mother. The mother observed that Z remained distressed and angry and kicked a hole in a wall of the mother’s home.
The mother later sought to send a message to the father to attempt a changeover at 6:00pm that day. The father did not respond to that message as he was distressed by what had occurred earlier in the day.
On 18 January 2023 the Independent Children’s Lawyer wrote to the parties saying, in effect amongst other things:
(a)that if Z was seeking to spend time with the father it was a positive sign but that it remained a matter for the father if he thought it was premature or likely to be problematic prior to returning to family therapy with Ms C; and
(b)that the Independent Children’s Lawyer thought that if Z was wanting to spend time with the father that it should be encouraged and if not, the father ran the risk of Z forming the view that Z was being rejected.
This evidence of the Independent Children’s Lawyer’s thinking leads me to infer that family therapy with Ms C had yet to commence and that the Independent Children’s Lawyer did not know if Z was in fact seeking to spend time with the father. It is to be recalled that order 12 of 28 November 2022 provided that the father’s therapy with Z was to be suspended until such time as a child psychologist nominated by the Independent Children’s Lawyer and Ms C were of the view that it could recommence.
The correspondence also discloses that in the Independent Children’s Lawyer’s view that Z’s time with the father was a “matter for the father”.
I find that a copy of that letter was available to the mother on or about 18 January 2023.
Order 5b of 28 November 2022 provided that the father was to have time with X and Y from 10:00am on 20 January 2023 to 5:00pm on 23 January 2023.
On 20 January 2023, despite the events of 6 January 2023 and the Independent Children’s Lawyer’s letter of 18 January 2023, the mother attended at McDonald’s with all three children for changeover and the father took them into his care.
On 21 January 2023 the father, his partner and all of the children were at a park.
Y and Z had fought over water toys whilst in the water. The father seeing this told them to leave the water and have a break.
Z then at some point ran away from his father’s care. The father was then unable to locate Z after about 10 or 15 minutes and so contacted the mother and then the police. The mother did not view that information until about 4:13pm. Z found his own way to his mother’s care at her home at about 5:30pm and the mother then advised the father that Z had returned home and was safe at 5:55pm.
I do not accept X’s subsequent description to his mother that the father was “hounding Z all weekend” as to what had occurred.
Z running away and his not being located by his father was not an intentional or reckless act on the father’s behalf. I am not prepared to draw the inference (as might be suggested by the Independent Children’s Lawyer’s letter of 8 February 2023) that the father spending time at a national park was placing Z in danger.
On Friday, 3 February 2023, the father attended at Y and Z’s school, it being the first of the alternate weekends when X and Y were to spend time with their father pursuant to the primary order.
When meeting at school, Z attacked his father again with a large stick. The situation was addressed by the principal who was present. I accept the father’s denial that he did not on that occasion squeeze Z tight or try to use Z’s hand to punch Z. I accept the father’s evidence that he complied with the school principal’s directions at that time and I find, on the evidence available to me, that he acted appropriately.
The father left school on 3 February 2023 with Y.
X was subsequently collected at a changeover at McDonald’s at 5.45pm that day.
On 8 February 2023 the Independent Children’s Lawyer sent correspondence to each the parties which is of no consequence.
In early 2023 an Interim Intervention Order was granted against the mother in the Magistrates Court. That order was then to come before that Court for mention in mid-2023 and again before the Court in late 2023. There is no evidence otherwise about that order other than each of the party’s evidence which leads me to the view that it is still current.
On 3 March 2023 and 17 March 2023 the mother collected Z from school early permitting the father to collect Y without incident from the school. The mother claimed in her affidavit that the father attending at school at 3:15pm to collect Y was a breach of a Final Intervention Order. Without the terms of the order being in evidence before me, I am not prepared to find that this is a breach of that order for the purposes of the present application.
In early 2023, Y returned from his father’s care with what the mother describes in her affidavit as Y’s “hair had been cut off”. This is, in fact, an overstatement.
What in fact had occurred is that the father had cut and reduced the length of Y’s hair which was beyond collar/shoulder length back to about shoulder length.
Y’s hair was cut by his father following a shower as a way to deal with what the father described as a persistent knot. Y identified the length of cut and the father cut his hair. This took place in the early afternoon. Y and his father then took photos and sent them to the father’s mother and then a game event took place.
The events of 23 December 2022, 5 January 2023, 5 January 2023, 6 January 2023, 18 January 2023, 20 January 2023, 21 January 2023, 3 February 2023, 3 March 2023, 7 March 2023 and 3 April 2023 were be asserted by the respondent to explain that no contraventions occurred on 14 April, 12 May and 26 May 2023.
The findings of events to this date establish, on the balance of probabilities, the following inferences:
(a)that the father’s relationship with Z requires therapeutic support;
(b)that the father’s relationship with Z remains problematic in that Z’s behaviour towards his father can be unduly aggressive and that the father even meeting with Z can give rise to physical aggression by Z towards his father; and
(c)that the children report matters back to their mother that may not truly reflect all of the circumstances as to what has occurred on occasions.
The father suspects that his seeking the granting of the intervention order in February 2023 has something, which he does not articulate, to do with the lack of compliance with parenting orders from 14 May 2023. His evidence in that regard was but indicative of the level of mistrust, suspicion and speculation that exists between the parties.
The father’s statement to the police and/or the court that led to the making of that intervention order were criticised for being incomplete and hence adversely reflecting on the evidence he gave to this Court and leading to an inference that the father was an unreliable witness. I reject this submission. The father in my view provided what he thought was sufficient evidence to obtain a restraining order against the mother. It appears in that regard he has been successful and the order and its supporting evidence has not been challenged in the court which has granted the restraining order.
It was agreed that changeover should be occurring pursuant to the primary orders on 14 April 2023 at 12 noon. It was further agreed that changeover was to occur at the McDonald’s restaurant.
On that day the mother says she was late by 20 minutes for the changeover.
Before arriving at the restaurant, the mother said Y had to be showered and re-dressed to be ready to go to spend time with his father. The mother describes Y causing himself needing to be re-dressed as having “adopted tactics to delay our arrival”.
At the restaurant the mother was accompanied by a friend. The friend was not called to give evidence.
The parties have differing recollections as to what occurred at the McDonald’s that day. The father says the mother and her friend were sitting blocking the exit for the restaurant and the children stood behind their mother. I am not prepared to find that it was so.
On that day the mother carried Y into the restaurant. Y attempted to run back out of the restaurant. The mother physically stopped him. The father does not appear to have been in a position to observed this.
The mother then carried Y over to the table in front of the father and his partner and “encouraged” Y to physically detach and go with his father.
Y did not detach from his mother. The mother told Y that his father and his partner had fun stuff planned for him, that his father knew not to cut his hair, that his brother X would be with him and that the mother and Z only had boring things to do at home. Y still not did not detach from her.
The father did not hear what passed between the mother and the children.
The father and his partner were not laughing and chatting at the time.
There is no evidence of any direction by the mother given to the children to go with their father or any attempt by her to exercise her parental authority to cause the children to go to their father.
The determination for the children to go with their father, made evident in her carrying Y into the restaurant, appears to have subsequently been left to the mother.
The mother did not tell the children that they could not remain with her.
The father then asked X if he wanted to come with him and X refused.
After about 40 minutes the father and his partner then left the McDonald’s restaurant.
The father says he left to report to the police the mother’s behaviour standing over him and his partner and blocking the only exit with the children standing behind them as a breach of the intervention order. No action has been taken by the police.
This evidence of the father does not satisfy me that there was a breach of the intervention order.
I am satisfied that the mother had the children close to her throughout this period.
The changeover did not occur in accordance with the primary orders.
The father was challenged in cross-examination as to why he was alleging the first contravention when he was granting the children an “option “as to whether they would come or not.
The father says he asked X if he wanted to come with him because he did not want the children forced or for him to be demanding or aggressive as an approach to be displayed in the presence of children. The father also said that the children should consent and should be comfortable in moving from one parent to the other and that both parents should be helpful in prompting the children as they need to be prompted. He does not want the children to be the subject of “wrap them up and marched out” and would not say to the children “absolutely you have to go.”
A further attempt at the changeover was agreed by the parties to be undertaken that day at 5:00pm that day.
The children were not brought to the father by the mother. The mother sat and chatted with her friend who then accompanied her.
There was a glass door and windows between the father and the children. He could see the children.
There was filming or an attempt at filming of at least some of what was occurring at the time.
There is no evidence that the mother directed the children to go with their father or having taken them to him or her and her friend leaving the children then in their father’s care.
The father came to the door several times and spoke to the children. He did so every couple of minutes.
Ultimately, the father said to Y “It’s your choice.”
X enquired as to whether he had a choice as well and his father told X that it was his choice as well.
The father and his partner waited 10 minutes and left without the children.
The father deliberately did not use any forceful or demanding language. The father said he was not there to give “marching orders”. He considers that changeovers are psychologically important for children and need to be done in a calm and encouraging manner and as relaxed as possible and not in a pressuring or demanding manner.
The father gave the explanation that him telling the children that they had a choice of whether to go with him was the result of him seeking not to be “demanding of” the children.
Such an attitude whilst commendable did not turn out to be particularly helpful.
In this regard the father said, initially he did not say “Let’s go” and then said he used that language. His evidence was that that was the type of phrase he might use. However, I am not satisfied he used that phrase on this occasion.
The father and his partner were there for 10 to 15 minutes and left.
On Friday, 28 April 2023, the father’s partner went to collect X from school at 3:30 pm but he did not show up.
At the same time, the father attended at Y school to collect him. Y shouted repeatedly “I’m not going with you.”
The father messaged the mother informing her that X was not with him and informing the mother that X had not confirmed with his father a plan as to his pickup.
The father did not spend time with the children that day.
On Saturday, 29 April 2023 the father messaged the mother requesting a change over at 12 noon. The mother did not respond until 1:50pm offering a 5:00pm changeover.
The mother’s response was by electronic message. Having considered the message, the father determined it was not made in good faith and did not attend.
The mother attended the changeover and waited until at least 5:08pm.
The father’s time with the children, of course, did not occur that day.
The message from the mother at 1:50pm, that precipitated the decision on behalf of the father not to attend, referred to:
(a)the father explicitly giving the children the choice to attend to spend time with their father;
(b)Y displaying ongoing distress in relation to attending to see his father including, throwing things, screaming, crying and not sleeping, which the mother attributed to the father having “hacked off” Y’s hair (which had occurred in mid-2023) in circumstances where there was no “consent”;
(c)Y being scared to attend school;
(d)X still being asleep at 12 noon; and
(e)the father needing to meet Y “where he needed you to”.
The message closed: “We will be at McDonald’s at 5pm today if you would like to consider a way to support our child to feel safe with you again, we will see you inside McDonald’s.”
The message was angry and displays no sincere intention that the proposed changeover would proceed, instead, the message displayed that the changeover was to be an occasion of testing the father as to whether he would accept the mother’s views of the state of the father’s relationship with the children and act in some way, not specified, that was consistent with and verified those views.
The father was reasonably entitled to take the view that the message from the mother was harassing and the offer of changeover was not made in good faith and to anticipate that an inappropriate level of angst would be present.
The father should have replied to the mother that he was not going to attend so as to save the mother and the children the trouble of doing so.
On 12 May 2023, X was not collected from school. How that came to be is not clear on the evidence. SMS Messages sent by the father to X that he was to be collected from school did not appear to be of effect as X did not have his phone with him at the relevant time.
The mother informed the father at 1:16pm that Y was sick and that changeover with Y was to occur at 3:30pm at the McDonald’s restaurant.
The father attended McDonald’s at 3:20pm and sent a message to the mother that he was waiting inside.
From where he was sitting, the father could see Y outside and in his mother’s car with his mother. X was not seen by the father to be present.
The mother informed the father that Y was “refusing” and in the car.
The father then messaged the mother advising he would return 5:30pm to again attempt changeover with both children. There was no reply.
The father then waited some minutes and then left.
At 5:15pm on 12 May 2023 X arrived at his mother’s home as she was then trying to get Y “out the door”.
The parties agreed to conduct changeover at 5:30pm.
The father and his partner returned to the McDonald’s for changeover at 5:30pm.
The father and his partner entered the McDonald’s restaurant before the mother and the children arrived.
The mother attended at the restaurant with the children and accompanied by a friend.
Y attempted to leave the restaurant.
The mother stopped that.
The mother was accompanied by a friend.
The mother was making notes on an iPad.
The mother asked the boys to go and speak and sit with their father.
The mother told the children to sit with their father as he wanted to chat with them.
The father told X to ask his mother to move away from him. He says he did so to maintain a respectful space between himself and the mother.
The mother, however, perceived this request as a “threat” presumably of a report to police about intervention order matters.
The mother and the children moved away.
X was very upset.
The father said to the children “Come on, I’ve got some good stuff planned for us” or something similar.
All of these things did not see the children leave with their father.
X appears to be the only child who then spoke saying “I don’t ever want to come”. The father says that he tried to reason with the children but they each refused by either shaking their heads or ignoring him.
There is no evidence of the mother directing the children to go with their father or of her leaving them with the father.
After a further 15 minutes the father and his partner left leaving the mother, her friend and the children at the McDonald’s restaurant.
Time between the children and their father under the primary order did not take place.
The mother sent a message to the father the following day stating her recollection of events and stating a number of views as to what and why things unfolded on the previous day as they did. I do not attach any weight to those views. In that message the mother said that X had on 12 May 2023 reminded the father that the father had given both himself and Y a choice as to whether they attend or not and that as he is now 14, he won’t be made to go with his father.
These views, said to be expressed by Y, I find likely to have been discussed with and promoted by the mother.
Sometime after mid-2023 the father made a report to the police as to a breach of the intervention order of early 2023.
On 13 May 2023 the father informed the mother that he would no longer use the parenting messaging “app” and that communications would be through lawyers. Despite this each of the parties returned to using messaging on the parenting “app”.
On 19 May 2023 the father’s solicitors wrote to the mother’s solicitors requesting the mother to facilitate time by actively encouraging and prompting the children to come with him at changeover. The Independent Children’s Lawyer sought that there be a response to that correspondence as a matter of urgency. By 1 June 2023 there had been no response
On 26 May 2023 the father sent X a message saying that he was going to pick him up from school but received no response. Consequent upon that message, the father’s partner attended school, but X did not show.
Meanwhile, the father attended at Y’s school at 3:30pm to collect him. Y was calm and told his father repeatedly that he did not wish to go to his father’s house and that he wanted to stay with his mother. The father left without Y and sent a message to the mother telling her that Y was asking for her to collect him and that Y had been left with the school principal.
Y later said to his mother that his father had said, in response to Y saying that he wanted to go to his mother’s home, “That’s okay, you’re not in trouble”.
The mother then messaged the father on the parenting “app” telling him that there would be a changeover at 6:30pm.
The parties then acted in accordance with that message and attended for a changeover to occur at 6:30pm.
At 6:30pm the father attended at McDonald’s for changeover.
All three children were then present having been brought to McDonald’s by the mother and a friend.
When the father arrived, X was sitting with his mother and her friend. The father said to X “I’ll wait outside for you guys, okay?” He then went outside.
The father went to the door of the restaurant and asked X “Shall we get going, I’ve got some cool stuff planned for us?”. X shook his head and continued to sit by his mother.
After another five minutes the father said to X “Do you want to come out and chat? I’d love to hear what’s been happening and it’s probably pretty boring for you waiting around like this.”
There was no response from X.
There is no evidence of any encouragement by the mother other than her taking X and Y to a table closer to the exit, saying she encouraged the children to go to their father outside by saying that it was late and that their father had something planned for dinner.
The mother in her affidavit complains the father made no attempt to sit with the children on this occasion.
Y and Z remained in the playground at the restaurant.
After waiting for about 17 minutes the father left.
These events are notable for showing:
(a)that faced with resistance from the children in coming into his care, the father resorts to asking the children as to whether they are coming or as to whether they wish to come and the father thereafter does not persist; and
(b)that handovers take place in the presence of the mother who remains and does not leave the children in the father’s care nor direct them to go with him although it is his time to spend with the children.
THE PARTIES’ SUBMISSIONS
The applicant says:
(a)the respondent, despite bringing the children to McDonald’s or permitting the children to be collected at school, has not appropriately prompted or encouraged the children to spend time with him in that:
(i)she has not left the children with him at handover;
(ii)she has not told the children to leave with him;
(iii)she has maintained an understanding with the children that it is their choice as to whether they spend time with him or not; and
(iv)she has maintained that the children are unsafe in their father’s care;
(b)it should be noted that the respondent has not applied to discharge the orders.
(c)that these matters, either considered separately or in combination, satisfy the definition of “contravention” in s 70NAC(a)(ii) that there was no reasonable attempt to comply with the primary order; and
(d)impliedly that it is not a matter of “attitude” although that can be an explanation for or provide a motive for the conduct.
The respondent in answer says:
(a)that the reason that time has not occurred does not have anything to do with her, she having done all that was reasonably required of her in difficult circumstances;
(b)that the children do not have a good enough or sufficient relationship with their father to enable the children to accept his invitations to go with him;
(c)that the mother has done all that is necessary to comply with the primary order;
(d)that time ordered has not taken place regardless of her presence or not as is demonstrated by the father’s inability to collect children from school;
(e)that the father has provided the option to the children as to whether they attend or not and having provided that option he has acted consistently with it;
(f)that the father has not directed the children to go with him;
(g)that the mother’s actions have been nothing but to compliment what should have been the father’s appropriate actions to follow on from her actions to make time occur; and
(h)that the father’s position of not “forcing” or “demanding” anything of the children at changeover should be applied to a consideration the mother’s behaviour such that there should not be imposed upon the mother that requirement when it is otherwise not required of the father.
The mother’s submission is that, she has done her “level best” to fulfill the terms of the orders about which complaint is made, in circumstances where:
(a)her relationship with the father was irreconcilable;
(b)her views about the father that he had no relationship with the children and was extremely dangerous were genuinely held;
(c)the father did not assist the mother in causing changeover to occur and sent the “wrong signals” at handover; and
(d)the father has caused problems in not spending time with Z and cutting Y’s hair.
Although the mother’s counsel did not have the benefit of transcript, it was submitted that even in saying to the children (which the mother said she had) that they would be “having fun with Dada”, the mother was doing all that was reasonable in the circumstances to facilitate the father’s time with the children.
CONSIDERATION
In respect of each of the 5 counts it is common ground that there has been no fulfilment of the primary orders at the times and dates alleged.
The facts of this case beg the question as to what constitutes a “reasonable attempt to comply” with the primary order within the meaning of s 70NAC(a)(i) so as to amount to a contravention.
Does the absence of a prompt or cajole or direct direction to the children in the circumstances of each of the contraventions constitute a “contravention” within the meaning of the Act?
There is no definition in the Act as to what is a “reasonable attempt to comply”.
The Explanatory Memorandum to the amending legislation which introduced s 70NAC of the Act [11] offers no assistance.
[11] Revised Explanatory Memorandum: Family Law Amendment Bill (Shared Parental Responsibility) Bill 2006 [254 – 255].
Division 13A is found within Part VII of the Act.
Section 60B of the Act sets out the objects of Part VII and the principles underlying it.
Those objects and principles give emphasis to children having the benefit of both parents having meaningful involvement in children’s lives, protecting children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence. The objects and principles also put emphasis on the parents undertaking their parenting duties and responsibilities to ensure that the children achieve their full potential.
Except where it would be contrary to a child’s best interests, it is acknowledged in the legislation that children have a right to spend time on a regular basis with and communicate on a regular basis with both of their parents.
Consistently with those objects and principles, it has been held that proceedings under Division 13A are “directed only to ensuring continued and future compliance with operative parenting orders as distinct from performing any separate or discrete role of deterrence from, or punishment of, non-compliance with orders.”[12]
[12] Keehan & Keehan [2019] FamCAFC 250; [2019] 60 FamLR 276; at [22], [31].
The legislative provisions relating to the definition of a “reasonable excuse” were set out earlier in the judgment.
The application of the standard of “reasonableness” to the facts of this case is not a straightforward exercise.
The test of “reasonableness” of actions or inaction is not capable of precise definition.
There have been applications of the test of reasonableness in a number of cases in respect of the obligations of a parent who has to provide children to another parent for the purposes of spending time with that other parent.
Gaunt and Gaunt (1978) FLC 90-468 was a case considered by the Full Court of the Family Court[13] in which it was submitted by a husband appealing a decision that he had knowingly and without reasonable cause failed to comply with a provision of the Act (as it then was) in that he had prevented the respondent wife from having access to children.
[13] As per Evatt CJ, Emery SJ and Hogan J.
In that case, the appellant husband submitted that he was motivated by concern for the children that they were upset at the prospect of seeing the mother and that if the children were forced to do so against their wishes, they could suffer harm. The appellant husband’s attitude was that he would not force the children to go with their mother but he would not prevent her from taking them. The appellant husband also maintained that the access ordered was contrary to the best interests of the children.
The Full Court determined that the essential question in that case was: Can a party who does not agree with a court’s decision about access and defies the order successfully plead that in preventing access his or her actions were based on a genuinely held belief that to allow the order to operate was contrary to the welfare of the child?
In answering that question the Full Court held that a party’s subjective view of the rights and wrongs of the order cannot be relied upon on as a “just cause or excuse” or “reasonable cause”. To do so would be to allow a party to arrogate to herself/himself a power to make an independent decision on what was in a child’s best interests after the same having been determined by a previous order and then to rely upon that decision to escape from compliance with the order or from the consequences of non-compliance and to do so would undermine the purposes and intentions of the Act.[14]
[14] Gaunt at 77,398.
In Cavanough and Cavanough (1980) FLC 90–851 the Family Court of Western Australia at first instance had to determine an application under s 70(3) of the Act (as it then was).
In doing so the Court had to consider whether a husband held an honest and reasonable belief that, firstly, children did not wish to be with the wife on the terms stated in an order and, secondly, if it was not in the children’s interests to attend that court ordered time and so constituted a just cause or excuse for not complying with the terms of that order.
Section 70(3) of the Act as it then was, provided:
“Where an order under this Part or section 112AD provides for a person to have access to a child, a person shall not, without just cause or excuse, hinder or prevent the first-mentioned person from obtaining access to the child in accordance with the order or interfere with the access to the child that the first-mentioned person is entitled to in accordance with the order.”
In that case there was no evidence led by husband that the children would not have obeyed a command given by him. Further, it was held by the Court that the husband merely accepted the children’s decision not to see the other party, acted on that belief and failed to deliver the children.
The Court in that case held that the husband did prevent compliance with the order.[15]
[15] Cavanough and Cavanough (1980) FLC 90-851 at 75,370.
The Court went on to hold, however, that the husband had just cause and excuse for not complying with the order as the Court accepted that the husband had an honest and reasonable belief that the children did not wish to be with their mother and that it was not in their interests that they attend access under the circumstances then prevailing.
This case was decided before the amendment of the Act[16] which saw, amongst other things, the introduction of Part 13A of the Act with its definition of “contravention” and “reasonable excuse” referred to above.
[16] Family Law Amendment (Shared Parental Responsibility) Act 2006.
This case serves to emphasise that although facts may be relevant to both the question of the contravention of an order and the existence of a reasonable excuse, those facts can give rise to findings of both a contravention and a reasonable excuse.
In that case, in determining the question of reasonableness the Court held that the determination of reasonableness is not a subjective one but an objective one. The Court cited the passage from the Full Court of the Family Court of Australia in Gaunt where it was said:
A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”. Evidence of changed circumstances or of matters not considered when the order was made might be.[17]
[17] Gaunt at 77,398
It is to be recalled that in Gaunt the respondent husband did not comply with an order for children to be delivered to their mother as he was motivated by concern for the children, that they were upset at the prospect of seeing the mother, and that if they were forced to do so against their wishes, they could suffer harm. The respondent husband’s attitude was that he would not force the children to go with her mother but that he did not prevent her from taking them. The Full Court observed that the finding by the trial judge that the husband failed to comply with the order was clearly open to the trial judge.[18]
[18] In the marriage of Gaunt (1978 – 1979) 4 Fam LR 305 at 307
In Matthews v Millar and Anor (1988) 12 Fam LR 205 an application for contempt of court orders in the Supreme Court of New South Wales was made where access to a child of 10 years did not occur at least primarily because the child indicated that she did not wish to go. The Court identified the main issue was whether there was a breach of the court order shown in relation to actions taken generally by defendants in preparing a child for access and in dealing with the question of access generally in relation to the attitude of the child. It was submitted on behalf of the defendants that all they had done to comply with an access order was to prepare the child by getting the child dressed, packing a bag and telling the child that she had to go because the law required it and on occasions telling the child that she would or might have a good time.
In the absence of being provided with authority as to the test to be applied to the conduct of persons in the position of the defendants in that case the Court said:
On the one hand, it is quite clear that they must not do anything to prevent access taking place. As put by [Ms F], they must do nothing physically or emotionally to spoil the access, they must have the child prepared physically for the access. On the other hand, it seems clear that they are not obliged force the child go on access when the child does not wish to do so.
The question that does not appear to be dealt with in any authority to which I have been referred is the test to be applied when the child expresses a wish not to go with the person seeking to exercise access. Is there some obligation on the custodial parents to take some positive action in relation to this attitude of the child?
In the absence of authority, my view is that what persons in the position of the defendants are obliged to do is to do whatever is reasonable to bring about compliance with the court order. If in a particular case in all the circumstances would be reasonable to take positive steps to bring about some change in the attitude wishes of the child, then I think persons in the position of the defendants are obliged by the order to take those steps.[19]
[19] Matthews v Millar and Anor at 207
In O’Brien and O’Brien (1993) FLC 92-396 the Court was concerned with an application under s 112AD of the Act[20] that the respondent failed to make a child available for access in accordance with an order. The respondent had told the child that the child no longer had an ability to say no to access and that the court order required the child to go on access but not that the mother otherwise told the child that the child would have to go.[21]
[20] A section now confined to contraventions of orders not affecting children: Part XIIA of the Act; ss112A and 112B
[21] O’Brien at 80,093.
In Wallington & Wallington (No 4) [2020] FCCA 2167 the Court, amongst other things, had to determine whether a respondent contravened a parenting order in not doing enough at the end of a drive of many hours to a changeover location. The Court said that at the end of such a trip, the respondent to be able to show a reasonable attempt to comply with the order in that case:
[W]ould have to have parked her car, turned off the engine and told each daughter to alight. If refusal then ensued she then needs to herself alight the car, open the door for the children, if necessary unbuckle a seat belt and verbally sternly require the girls to get out of the car.
Any refusal should then result in a request to the father to encourage the children and standing away whilst this happened.
Stopping but not parking the car and not turning off the engine and then quickly driving off is not a reasonable attempt. Even if the driving off follows a verbal request from the child.
In making that determination the Court there made reference to the decision of Stevenson & Hughes (1993) FLC 92–363 and s 70NAC(a)(ii) of the Act. The Court also referred to the judgments of Nygh J and Fogarty J in Stevenson v Hughes (1993) FLC 92-363. The Court summarised from Nygh J’s judgment that access orders impose a positive obligation to encourage access and reasonable attempt to ensure compliance is required, noting that an invitation can be made in a persuasive way or can be made in a manner which implicitly approves of the child’s refusal. From Fogarty J’s judgment the Court summarised that in every access order there is an implied obligation of the custodian to take reasonable steps to ensure that the access in an order takes place and that it is not a sufficient discharge of the custodian’s obligation to point to words and actions to say, in effect “You see I tried. But the child does not want to go,” and thereafter to figuratively fold their arms as if that were an end of the matter and that custodians have an active role with an obligation to positively encourage access.
The Court in Wallington (No 4) went on to say that reasonable encouragement is relevant because s 70NAC(a)(ii) refers to having “made no reasonable attempt to comply” with the relevant order.
In determining the present case I think it is appropriate that the whole of the passage from Fogarty J’s judgement in Stevenson & Hughes at 79, 815 and 79, 816 be set out:
Then there is the following passage which, although lengthy, is worthy of being repeated and it is as follows:
I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian’s obligations, express or implied, to point to words and actions and to say, in effect: “You see I tried. But the child does not want to go,” and thereafter to figuratively fold their arms as if it were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.
In this case I consider that the respondent was most careful to ensure that her conduct was to be seen (and witnessed) as attempting to give effect to the orders for the father to spend time with X and Y whilst all the while considering that the order did not serve the children’s interests and that the children were unsafe and were not to be going with their father. The evidence does not disclose that the mother gave any firm direction to the children to go with their father nor made any attempt on the occasions in question to leave the children with their father which I consider, in all of the circumstances, would have been reasonable attempts to comply with the orders in question.
In this matter, the respondent was prepared to go only so far and no further in ensuring the children went with the father on the occasions complained of.
The fact that the applicant resorted to effectively inviting the children to come within at changeovers does not, in my view, establish that the respondent has fully discharged her obligation to encourage by meaningfully and genuinely directing the children to go with their father; rather, his presenting “options” to the children is to be regarded as the product of the mother’s failure to fulfil her obligations and to improperly cast those obligations upon the father and the children.
I do not find the evidence as to the circumstances of the cutting of Y’s hair in mid-2023 by his father to be a reason for his or his brother's time with their father under the order to cease on account of physical or emotional safety issues. After all, after that date the mother continued to present the children for time with their father.
The issue of the cutting of Y’s hair became a critical matter as the mother permitted it to be so to further her views about the father. It does not constitute a “reasonable excuse” for the contravention which has occurred in all of the circumstances.
I am not satisfied that the mother has shielded the children from her own views about the father to the extent that she can feel free and let the children know that she is content for the children to go with their father or to be left with him.
This is not, as was submitted on behalf of the mother, “to condemn her for her feelings” but rather to find against her case as her actions which are a product of her attitudes are permitted by her to act inconsistently with the obligations created by the interim orders.
Just as the mother’s views did not preclude the making of the primary orders, they cannot now be taken to permit non-compliance with those orders.
I am not satisfied that the mother has otherwise discharged the onus to establish a “reasonable excuse” for the children to not spend time with their father and has effectively chaperoned and guided (but not encouraged in an appropriate way) and permitted the children to return with her from changeover.
I find that on those occasions the mother attended at McDonald’s for the purpose of changeover, she contravened the orders within the meaning of s 70NAC and without reasonable excuse.
The father in providing an "option” for the children to attend does not constitute a reasonable excuse within the meaning of s 70NAE of the Act. It is not for the applicant father to make good the respondent mother’s failure to discharge her obligations.
Further, it is to be observed that the type of circumstances described in s 70NAA(5) indicates that “reasonable circumstances”, however comprised for the purposes of s 70NAA(1), must be circumstances that demonstrate that giving of effect to time spending orders would be contrary to the interests of the child concerned. The giving of an “option” by the respondent father did not discharge the respondent mother from fulfilling her obligations to give effect to the primary orders.
CONCLUSION ABOUT CONTRAVENTIONS
I find on the evidence before me that, on the balance of probabilities, the respondent mother contravened order 5c of the primary orders on each of 14 April 2023 at 12 noon and at 5:00pm, on 12 May 2023 at 3:30pm and 5:30pm and on 26 May 2023 at 6:30pm and did so without reasonable excuse.
COMPLIANCE SANCTIONS
I find the contraventions that have occurred to be “less serious” contraventions falling within Subdivision E of Part VII, Division 13A of the Act.
I have considered each of the powers available to the Court pursuant to s 70NEB of the Act.
In considering the type of sanctions I have had regard to the parties’ and the children’s circumstances as set out in this judgment and particularly as to those circumstances set out under the heading “Variation of parenting orders in the context of contravention applications” and “Costs”.
I have given consideration to all of the types of sanctions that are available under s 70NEB.
Some sanctions such as imprisonment were not pressed. This case is a long way from that type of sanction being considered, let alone imposed. Counselling classes so as to better inform parents is not justified here, particularly where trial is so close.
I consider that sanctions in the form of a costs order and the requiring of the respondent to enter into a bond for a period of 18 months upon condition that she comply with all parenting orders made or which come to be made under the Acct in that period and that in the event that she does not do so, she forfeit to the Commonwealth the sum of $750.
Before the respondent enters into the bond she is entitled to receive from the Court[22] an explanation in language likely to be understood by the respondent as to the purpose and effect of the proposed requirements of a bond and the consequences that follow if the respondent fails to enter into the bond or having entered into the bond fails to act in accordance with the bond.
[22] Section 70NEC(5); Greer v Bedelia [2009] FamCAFC 136 at 67; Winch v Jackson [2015] FamCAFC 75
That explanation would have to include: –
(a)that a bond is a solemn promise and agreement by the person entering into the bond to the Court to comply with the obligations set out in the bond document that is to be signed by the respondent;
(b)that the bond will operate for a period of 18 months from the date of entering into the bond when it is signed by the respondent;
(c)that the bond requires the respondent to adhered to and to give effect to all existing and further parenting orders made under the Family Law Act 1975 (Cth) for the 18 months that the bond operates;
(d)that in the event the respondent does not comply with the terms of the bond then:
(i)the sum of $750 is to be paid to the Commonwealth of Australia; and
(ii)the Court can then give consideration to:
(A)allowing the bond to continue and in addition fine the respondent up to 10 penalty units (presently about $312 per penalty unit so a total of about $3,100); or
(B)revoke the bond and give fresh consideration to imposing sanctions that could otherwise have been imposed upon the respondent instead of or together with the bond at the time that the bond was imposed being attendance at a post separation parenting course, provision of compensatory time to the other party, adjournment of proceedings to allow consideration of an application to change and existing parenting order, another bond, the imposition of a fine if without reasonable excuse the respondent did not enter into that new bond, compensation of expenses incurred by the respondent and endeavouring to give effect to a parenting order and legal costs that might sustained by the other party; and
(e)if the respondent does not enter into the bond as required without reasonable excuse, the Court may impose a fine not exceeding the 10 penalty units being the amount of about $3,100 referred to above.
VARIATION OF PARENTING ORDERS IN THE CONTEXT OF CONTRAVENTION APPLICATIONS
Section 70NBA of the Act provides that the primary orders may be varied if proceedings in relation to that order are before the Court and it is alleged in those proceedings that a person has committed a contravention of the primary order and the Court finds either that there has or has not been a contravention of that primary order.
In considering whether to make a variation of the primary order the Court must approach such a variation in the way that it would approach any other variation of parenting orders and, in particular, should not do so in a summarised or abbreviated way and, in particular, must give consideration to whether the so-called “rule” in Rice and Asplund[23] has been satisfied.
[23] Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725; (1978) 6 FamLR 570.
That “rule” is a manifestation of the principle that final parenting orders should only be reconsidered if it can be shown it is in the best interests of a child or children. This “rule” has been expressed as requiring, amongst other things, that there has been a change in circumstances since the making of final parenting orders of such significance that reconsideration of the final orders can be regarded as justified.
In Millson & Halbert [2021] FedCFamC1F 94 it was determined that in exercising the power under s 70NBA a Court should “attempt to cure the issues exposed by the contravention”[24] so as to return orders to “an operable state” rather than there being a recasting or usurping of any parenting regime contained in the primary orders said to have been contravened. I respectfully adopt that view given the terms of s 70NBA insofar as the phrase “exposed by the contravention” should be taken to mean “issues exposed by the contravention application”.
[24] Millson & Halbert [2021] FedCFamC1F 94at [63].
Any variation of the primary orders requires the Court to be satisfied after considering, amongst other matters, those matters set out in s 60CC of the Act that any variation is in the best interest of the child or children concerned.
Here, there is a consent order made later November 2022 which neither party has made application to discharge or vary as to its terms other than by the minute of proposed orders.
The parenting matter is proceeding to trial on 25 October 2023.
The children are engaged in one way or another with counselling and therapeutic processes.
There is an interim family violence order in place obtained by the father on his own behalf without that application being, at least initially, served.
That order is dated 23 February 2023.
It precludes the mother from family violence, intentionally damaging property, locate, follow or surveil the father, publishing material about the father, contact him other than by “Our family Wizard”, approach within 5 metres of the father or 200 metres of his residence or work subject to an exception for, amongst other things, to do things permitted by a Family Law Act order, provided that in doing so the mother does not commit family violence.
The evidence of the mother also disclosed that there is an order of a similar nature between the mother and the father under which the mother is a “protected person”. The terms of that order were not disclosed in the evidence. Orders that vary existing parenting orders should be expressed in permissive terms so as to best facilitate changeovers despite any other five (5) metre restriction that would otherwise have to be respected.
The father has not had time with the children since 14 April 2023. He has attended at various changeover places but has not met with success in having any of the children come with him.
There are allegations of the most serious violence by the father towards the mother which on the evidence presented appears to relate to the period of cohabitation and there are also allegations of ongoing family violence upon the mother by the father and others involved in the father’s life and in these proceedings of the controlling type, including the use of the very proceedings in this Court.
Despite the presence of those allegations, orders were made both with the consent of the parties and by the Court on 28 November 2022 for the father to have time with the children.
Since April 2023 the children have been missing out on some school with weekly attendance, generally speaking, falling to as little as three days a week.
The previous provisions for changeover at Suburb E McDonald’s have not been effective on account of the respondent mother’s attitude and her presence at that venue when the changeover is to occur and the children should be spending time with their father. The changeovers have also not been effective at school as the father has not been able to either collect the children from that venue or he has left it to a child to elect to attend and spend time with him.
In my view, the mother is likely to have made known to the children that their father does not have the children’s interests at heart, disregards their happiness and welfare and is unsafe.
Z’s circumstances dictate that the terms and conditions of his spending time with his father as provided under the orders of November 2022 should remain undisturbed.
The father’s time with the X and Y needs to recommence. For it to do so, the recommencement must occur under circumstances that best ensure the mother encourages the children to go. That will mean that the mother should, after delivering the children to the father at changeover, leave the venue so that he can then proceed to spend time with the children.
The conflict between the parents and the disregard that the mother holds for the father indicates that it is in the children X and Y’s best interests for the mother to encourage and exercise appropriate authority over the children Y and X to spend time with their father and failing her doing so, for the changeover to be done at a place where the children following proper encouragement from the mother can be delivered by the mother who shall then absent herself and the children then be collected by their father.
I do not consider that it is in the best interests of the children for a parenting order to be made such that it extends the time that the children spend with their father to a block of 2 weeks as sought by the applicant. Such a block of time goes beyond the amount of time missed that is to be compensated and would fundamentally change the children’s living arrangements for a period of time.
I had sought at the end of evidence and before submissions came to be made that submissions be made for changeover to occur at a different venue and be independently supported. The only submission I have received (and one with the consent of the ICL) is, changeover to occur inside the Suburb B Police Station and upon condition that the mother then leaves after effecting changeover.
A police station should be regarded as the least preferable of changeover venues where members of the public, sometimes in distress or angry, may appear when officers are likely to have other duties to attend to.
In the circumstances I am satisfied that it is in the best interest of not only Y and X but also Z, that when the parents cannot otherwise agree, changeover occur in the Suburb B Police Station.
There is no need in my view for the injunctive relief sought at paragraph 5 of the applicant father’s proposed minutes of order as similar orders are in place pursuant to order 19 of the (amended) primary orders.
The determination of the present contravention application has been made on the basis of the evidence that was presented in the course of the hearing for it. I anticipate that much more evidence about matters relating to the nature of final parenting orders is likely to be presented at the hearing of the parties’ respective substantive applications.
The hearing of that evidence and the determinations that may be made in light of it would better inform the nature of any further parenting orders to be made in this matter.
I would decline to make orders for variation of the primary parenting order in terms of the proposed minute of order provided on behalf of the applicant at the beginning of the hearing and in the written summary of submissions presented for the purpose of oral submissions other than for orders 6 and 7 of the primary orders to be discharged and be replaced by those sought at paragraph 7 of the written summary of submissions for the applicant.
COSTS
Section 70NEB(1)(f) provides that the Court may make an order that the person who committed the current contravention pay some or all of the costs of the other party to the proceedings where other orders pursuant to s 70NEB have been made. “Costs” is to be understood as meaning legal expenses comprising costs and disbursements incurred in conducting the legal case.
The mother is in receipt of legal aid.
The father is not in receipt of legal aid.
The mother as of mid-2023 is no longer working.
The father’s monthly income is $7,000.
Excluding legal fees, his outgoings are about $5,495 per month.
The Court was informed that the applicant has incurred about $14,105 (inclusive of GST) in legal fees in respect of the contravention. I take that amount to be actual costs.
The respondent has, in respect of her answer to each of the counts of the contravention application, been wholly unsuccessful.
Taking all of these matters into account I consider that an order for costs should be made in favour of the applicant father. The costs order should be made on a party-party basis.
I will fix the amount of costs having regard to Schedule 3 of the Court Rules and allow a portion of those costs.
Taking each of the matters into account that I have identified with respect to the question of costs, the orders shall be that the respondent do pay the applicant’s costs of the Application – Contravention dated 2 June 2023 fixed in the sum of $5,000 payable within 7 months from the date of this order.
CONCLUSION
There shall be orders as appearing at the beginning of these reasons.
Further orders, as appearing below, shall be made, after the explanation is given to the respondent.
UPON NOTING
A. that the respondent mother has contravened without reasonable excuse order 5c of parenting orders made 28 November 2022, at 12 noon on 14 April 2023, 5pm on 14 April 2023, 3:30pm on 12 May 2023, 5:30pm on 12 May 2023 and 6:30pm on 26 May 2023;
B. that the contraventions were less serious contraventions within the meaning of Subdivision E of division 13 A of Part VII of the Family Law Act 1975
IT IS ORDERED:
1.Pursuant to s 70NEB of the Family Law Act 1975 (Cth) (“the Act”) the respondent mother is required to enter into a bond pursuant to section 70NEC of the Act for a period of 18 months from the day upon which the respondent enters into the bond upon condition that the respondent mother complies with all parenting orders made and to be made under the Act and that in the event and only in the event that she breaches that condition of that bond she shall then forfeit to the Commonwealth of Australia the sum of $750;
2.the respondent mother do attend at the Registry at 10:00am on 24 October 2023 (Australian Eastern Daylight Time) to sign the bond referred to in order 1 in the presence of a Judicial Registrar or other judicial officer of this Court;
3.Pursuant to s 70NEB(1)(f) of the Act, the respondent mother do pay the applicant father’s costs of and incidental to the applicant’s Application - Contravention fixed in the sum of $5,000 within 7 months of this order;
4.There be liberty to relist this matter before Judge McGinn upon written application to his Associate at [email protected] in the event that the mother does not comply with the requirement to enter the bond referred to in order (1);
5.The Application – Contravention dated 3 June 2023 do otherwise stand dismissed.
I would otherwise dismiss the Application – Contravention.
In the event that the respondent does not enter into the bond as required, this matter can be relisted before me for further consideration as to whether further orders should be made, in particular, pursuant to s 70NEB.
I certify that the preceding three hundred and seventy-five (375) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 18 October 2023
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