SANDER & ABBEY (No.3)
[2020] FCCA 133
•12 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDER & ABBEY (No.3) | [2020] FCCA 133 |
| Catchwords: FAMILY LAW – Contravention of parenting order – high conflict family – final orders made in August 2018 – further proceedings instituted in October 2018 – principles applicable to alteration of order – parenting orders amended – matters to be considered. |
| Legislation: Family Law Act 1975 (Cth), ss.65DAC; 65DAE; 70ABA; 70NAA; 70NAC; 70NAE; 70NAF; 70NBA; 70NCB; Div 13A |
| Cases cited: Attreed & Attreed (1980) FLC 90-907 Davis & Davis (1976) FLC 90-050 Jets & Maker [2010] FamCAFC 55 Kelly & Kobelnek [1998] FamCA 296 Oxley & Inglis [2007] FamCA 1606 Sahari & Sahari (1976) FLC 90-086 Sander & Abbey [2018] FCCA 2295 Sander & Abbey (No.2) [2019] FCCA 1792 Stevenson v Hughes (1993) FLC 92-393 Taikato & R (1996) 186 CLR 454 Vlug v Poulos (1997) FLC 92-778 |
| Applicant: | MR SANDER |
| Respondent: | MS ABBEY |
| File Number: | ADC 2749 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 25 October 2019 |
| Date of Last Submission: | 25 October 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 12 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | Not Applicable |
ORDERS
Pursuant to section 70NEA(2) of the Family Law Act 1975 counts one, six and eight of the contraventions of the parenting orders of this court made on 17 August 2018, as set out in these reasons for judgment, brought by the applicant Mr Sander (hereinafter referred to as “the applicant”) are established against the respondent Ms Abbey (hereinafter referred to as “the respondent) and the Court is satisfied that the respondent did not have a reasonable excuse for each such contravention.
Count two of the contraventions as set out in these reasons for judgment is withdrawn and dismissed.
Counts three, four, five and seven of the contraventions as set out in these reasons for judgment are not established and are each dismissed.
No order is made as to costs in respect of any of the contravention applications in favour of either the applicant or the respondent.
Pursuant to section 70NEC of the Family Law Act 1975 within two days of the making of the orders the respondent enter into a Bond without surety for a period of six (6) months with the condition of the Bond being:-
(a)That she be of good behaviour during the period of the Bond; and
(b)That she comply with all current and future parenting orders of this Court.
Pursuant to section 70NBA of the Family Law Act 1975 Orders (4) and (5) of the orders made on 17 August 2018 are discharged and in lieu thereof the following orders are made:
(4) The father spend time with the children during school holidays periods as follows:
(a) in 2020 in each short school holiday from 9.00 am on the Friday of the middle weekend of each such school holiday period until 9.00 am the following Wednesday;
(b) in the 2020/21 end of school year holiday for alternate periods of five nights from 9.00 am Friday until 9.00 am the following Wednesday commencing with the first weekend of such school holiday period;
(c) in 2021 in each short school holiday period from 9.00 am on the Friday of the middle weekend of each such school holiday period until 9.00 am the following Thursday;
(d) in the 2021/22 end of school year holiday for alternate fortnightly periods of six days from 9.00 am Friday until 9.00 am the following Thursday commencing with the first weekend of such school holiday period;
(e) in 2022 and each year thereafter the children spend equal periods of time with each parent on a week about basis with the weeks to be calculated from 9.00 am Saturday until 9.00 am the following Saturday with the allocation of weeks to be agreed between the parties and failing agreement with the father to have the first week and the mother to have the second week. It being further noted that the orders shall be subject to the provisions for the children spending time with each of the parents on the special occasions specified in order 6 of the orders of 17 August 2018;
(f) for the purpose of interpreting these orders the expression middle weekend means the weekend of each short school holiday period which falls midway between the end of school and its recommencement.
(5) The father spend time with the children during school terms as follows:
(a) On alternate weekends from the conclusion of school Friday (or 6.00 pm if a non-school day) until 6.00 pm the following Sunday (or 6.00 pm Monday in the event that day is a Public Holiday);
(b) On each Wednesday from the conclusion of school at 3.00 pm until the commencement of school the following Thursday;
(c) These orders are to be suspended during each school holiday period which is defined as the period from time school concludes until it recommences;
(d) For the purpose of calculating when the time in order 5(a) recommences following its suspension pursuant to 5(c), it shall be on the first weekend which falls following the end of the school holiday period;
(e) For the purpose of calculating when the holiday time commences following the suspension pursuant to 5(c) hereof it shall be on the first Wednesday which falls following the end of the school term;
(f) For the purpose of interpreting these orders they are to be read so that the father spends at least five weekends as envisaged by order 5(a) hereof during each school term period unless the parties agree otherwise.
All contravention applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sander & Abbey (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2749 of 2016
| MR SANDER |
Applicant
And
| MS ABBEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contravention proceedings, which arise following the making of a series of parenting orders on 17 August 2018.[1] The parties to the proceedings are Mr Sander “the father” and Ms Abbey “the mother”.
[1] See Sander & Abbey [2018] FCCA 2295
Mr Sander and Ms Abbey are the parents of two well-cared for and much loved children, [X] born in 2012 and [Y] born in 2014.
At the outset, it is important to point out that this is not a case concerned with the neglect or abuse of children, unlike many other cases which regrettably come before the court and which must focus on protective matters. In my assessment, both Mr Sander and Ms Abbey are fine parents, who would not willingly do anything to expose their children to harm.
The parties met in 2005; married in 2008; and separated, in emotionally fraught circumstances, in July of 2016. In my estimation, each of the parties was fully committed to making their marriage a success, so as to provide them with a secure base to raise their family.
As such, it is a source of mutual regret for them both, particularly the mother, that their marriage failed. Necessarily, the end of the relationship entailed a difficult process of adjustment and adaptation for each of the parties – a process which in my estimation is still playing out.
Mr Sander has re-partnered. His current partner is Ms H.[2] Both before and after the parties’ separation, he maintained his employment, at a senior level, in Employer C. He spends time with the children primarily on weekends and during school holidays. Otherwise, he works conventional hours.
[2] I mean Ms H no disrespect but this is how each of the parties has referred to her in these proceedings and I will do likewise. As will become apparent in due course, the lack of more identification details in respect of Ms H is a central evidentiary issue in the case.
Ms Abbey has not re-partnered and has not, as yet, re-joined the workforce. As a devoted parent, she is focussed on being available to provide for the needs of [X] and [Y]. The father is not critical of her decision in this regard.
The mother has tertiary qualifications. I accept her financial circumstances are tight. It is evident to me that there is a degree of tension between Ms Abbey and Ms H, although the two do not know each other. This is understandable given the circumstances of the parties’ separation.
The parties have been engaged in more or less constant litigation with one another, over arrangements for [X] and [Y]’s care and the division of their modest family assets, since August of 2017.
These proceedings have cost each of them many thousands of dollars and have resulted in two previous judgments.[3] As a consequence, I have had the opportunity to observe the parties, at close hand and converse with each of them, albeit in the artificial confines of the court room.
[3] See also Sander & Abbey (No.2) [2019] FCCA 1792
As I have previously observed, the parties are each intelligent individuals, whose love for [X] and [Y] cannot be devoted. However, I fear that the powerful emotions precipitated by the end of their relationship have implications for their respective capacity to approach these proceedings with objectivity.
In particular, although I do not doubt their individual capacities as parents, in combination, I have grave concerns about the implications of their parenting for the children, particularly for the prospect of [X] and [Y] being exposed to endemic and vitriolic parental conflict. In purely objective terms, the extent of the resources, both financial and emotional, which the parties have each committed to the litigation between them makes no sense.
If the current proceedings are to serve any useful purpose, it is, in some way to break this cycle of recrimination and bitterness between the parties and put their parenting relationship on a more stable and mutually respectful footing. However, whether this can be achieved appears dubious.
Background
[X] was five and [Y] two and a half years of age when the parties finally separated. There was no controversy that Ms Abbey had performed the majority of the children’s parenting up to this stage, although it cannot be said that Mr Sander was in any way a neglectful or absent parent. Rather, financial necessity dictated that he go out and earn a living for the family.
In these circumstances, it is clear to me that Mr Sander wished to play as significant a role as possible, in the children’s lives, commensurate with their developmental needs, particularly given the extent of their attachment to their mother.
In October of 2016, a family consultant described the parenting relationship between the parties as being “virtually non-existent” and their case as having the hallmarks of one which would become “complex and toxic” with direct implications for the emotional wellbeing of [X] and [Y].
Needless to say, in their respective and extensive affidavit material, both parties have been highly critical of the other and the standard of care provided by him or her to [X] and [Y].
In short, Mr Sander suggested Ms Abbey had compulsive mental health issues, which prevented her from being able to support any proper form of relationship between him and the children. Whilst for her part, Ms Abbey portrayed Mr Sander as a neglectful and incompetent parent, particularly in comparison to her.
In my assessment, the parties approach the task of parenting differently, which is reflective of their different personalities and backgrounds. Necessarily, each has strengths and weaknesses in this regard. As a consequence, they are likely to bring different but complimentary skills to the parenting of [X] and [Y]. Importantly, it is my view that the children are likely to derive significant benefits from having a meaningful level of relationship with both their mother and father.
An independent expert, Mr E, commissioned to prepare a family report, in the first round of the children’s proceedings, was of the view that [X] and [Y] had a secure and loving attachment with both their father and mother. In his opinion, each parent interacted with the children in an age appropriate and child focused fashion. He also noted what he regarded as the parties’ distinct dispositions.
From Mr E’s perspective, the central issue thrown up by his observations and interviews with the parties was how they operated, in tandem, as parents, given his view as to their respective personalities. Against this background, each party agreed to undergo an independent forensic psychiatric examination, as recommended by Mr E.
In this context, each party was examined by Dr F, a psychiatrist, who somewhat opaquely described each of them as having “some unhelpful personality traits”. It seems to me to be improbable that any human being who has ever been born can be truthfully described as having only “helpful” personality characteristics.
However, in the context of Dr F’s characterisation, without wishing to be either unkind or sanctimonious in tone, after my reasonably extensive exposure to each of the parties, I would describe their respective personalities as being marked by a strong degree of stubbornness; a lack of empathy for the other; a fixation on personal entitlements; and an extraordinary capacity to go to any length to prove a point over the other.
The corollary of this is that the parties have little capacity to diffuse situations of conflict or disagreement arising between them and no ability to compromise or forgive and forget any incident relating to such disagreement. In short, the parties are struck in an acrimonious rut.
Given his assessment that each parent was a good parent, with much to offer [X] and [Y], Mr E recommended as follows:
·The children continue to live mainly with their mother but a graduated regime be introduced by means of which the children should spend ever increasing periods of time with their father;
·Holiday time be increased until it was divided equally when [Y] was seven in 2021;
·Handovers occur at a mutually agreed location, with the liberty that such handovers might occur between trusted adults, in the absence of the parents;
·The children be able to travel interstate, given Mr Sander’s parents lived outside South Australia; and
·No restriction on the children’s telephone communications with either parent.
The hearing of the parties’ parenting applications, in May and June of 2018, centred on the practicality of how the children’s time with their father should be incrementally increased, in keeping with developmental issues and prior care arrangements, as identified by Mr E.
Also a focus of these proceedings was the father’s desire to be able to utilise nominees in appropriate circumstances, to exchange the children between the parties. It being his case that unforeseen exigencies arising from his work might require the use of parental proxies, particularly Ms H or his parents, from time to time. This was opposed by the mother.
The orders of August 2018
The parties agreed that they should be conferred equally and jointly with parental responsibility for making long-term decisions concerning the care, welfare and development of [X] and [Y]. Given their mutual devotion to the children, this was clearly appropriate and an order was made to this effect [order (2)].
In this context, the father complains that the mother enrolled [Y] at a pre-school, without consulting with him and has so breached the legislative obligations entailed in the concept of equal shared parental responsibility.
To their credit, in general terms, the parties agreed on the children spending increasing amounts of time with their father, during both school terms and the school holidays. They agreed that there should not be different regimes for the children and therefore the rate of change should be driven largely by [Y]’s needs, particularly in respect of the rate of introduction of consecutive overnight periods.
Against this background, orders were made that, from 1 July 2018 onwards, the father’s time should be extended, during school terms, on a fortnightly basis, from the conclusion of school on Friday until 6:00pm the following Sunday and there should be an opportunity for an afternoon catch up on alternate Wednesday afternoons [order (4)(a) & (b)].
A regime was also implemented for the children to spend gradually increasing periods of time, with their father, in each school holiday period, starting immediately with three consecutive nights; then from 1 January 2019 onwards for four consecutive nights; thereafter a night was to be added with each new year, until parity was reached on 1 January of 2022 [order 5(a) & (b)].
At the commencement of these periods, each coincided with weekends in order to reflect the reality of the father’s work regime. The orders largely reflected the apparent agreement reached by the parties, which had been negotiated by their respective lawyers prior to the commencement of the hearing before me.
The difficulty with the regimes created by orders 4 & 5 is that they do not provide a mechanism as to how they are to be co-ordinated. Essentially how are the parties to tell, from the orders themselves, when school term time is to commence following a block period of holiday time.
Erroneously, no doubt because the orders were largely arrived at by consent, I assumed that the parties themselves would be able to negotiate and so agree the practical issues arriving from the implementation of the regime. In practice, this has not proved to be the case.
Mr Sander believes that he has been short changed his weekend, when school terms have recommenced on the basis that he has been deprived of alternate weekends. On the other hand, Ms Abbey’s view has been that the holiday time should not run over into any weekend which concludes during a term time period and school term weekend time should start only in school terms.
For obvious reasons, it is important that parents not denigrate one another in the presence or hearing of their children. Such conduct has the potential to upset children and be emotionally abusive of them, as it is confusing for them, calling into question their sense of loyalty and love for each of their parents.
In the context of high conflict families, it is sometimes necessary for courts to point out to parents that the disputes arising between them are their disputes not their children’s. Conflict is corrosive. With those principles in mind, the parties agreed to a non-denigration order in the orders of 17 August 2018 [Order 9 (b)].
We live in an age of instantaneous and cheap electronic communication. Whether it is a boon or a blessing, children from an early age become adept and accustomed to such modes of communication and there is an expectation, amongst parents that they should be able to speak with their children by mobile telephone, skype, whatsapp or via other internet media.
With these sentiments in mind, the parties agreed to an order that each of them would facilitate the children speaking with the other parent, by telephone, at all reasonable times if requested to do so by the children [Order 10].
During the trial of the substantive proceedings, in May and July of 2018, much time was spent on the issue of other individuals being able to collect the children, if one or other of their parents was unavailable to do so.
In this context, given the high level of conflict between the parties, it was recognised that it was likely to be the best course that, wherever possible, a neutral location be utilised such as the children’s school, to minimise the potential for feelings to become engaged.
However, from Mr Sander’s perspective, because of his work commitments, he anticipated that it might, from time to time, be difficult for him to get to school and therefore he wished to be able to utilise a proxy, who most usually would be either Ms H or one of his parents.
In the reasons for judgment, I said as follows:
“It is important, I think, that all reasonable steps be taken to ensure that unforeseen exigencies do not derail future parenting arrangements for the children concerned in this matter. I appreciate that Ms Abbey does not approve of Mr Sander’s parents or of Ms H. She is entitled to her views but I should give heed to them only if they have the potential to directly impact on the best interests of the children concerned.
Modern life is complex, particularly if it entails a mix of family and work responsibilities. Inevitably unforeseen events and commitments crop up, even in the most methodical and ordered of lives and diaries. I do not regard Mr Sander as the sort of parent who would be cavalier in respect of his obligations to spend time with the children. I accept that he sees the collection and return of the children as fundamentally his responsibility.
However, at the same time, he has his living to earn, which also contributes to the economic support of [X] and [Y]. In my view, it is more likely than not to be in their best interests if the father is able to approach prospective handovers with as much flexibility as possible, including the facility to have assistance from other at them.” [4]
[4] Sander & Abbey [2018] FCCA 2295 at [179] – [181]
In this context, I made an order that the parties be able to utilise agents for the exchange of the children between them [Order 7 (c)]. This was in keeping with the recommendation of Mr E.
The contravention applications alleged by the father
The final children’s orders were delivered on 17 August 2018. Since 19 October 2018, Mr Sander has filed five sets of contravention proceedings,[5] alleging some thirty contraventions of these orders. Ms Abbey responded with her own contravention application but elected to withdraw it during the proceedings.
[5] On 19 October 2018, 20 December 2018, 2 May 2019, 30 May 2019 & 13 August 2019
Wisely, the father, who had professional assistance in drawing his documents but who acted on his own behalf during the hearing of his application, elected to select eight counts which he considered the most significant.
These counts can be summarised as follows:
Count 1
On 12 December 2018, Ms Abbey failed to deliver the children to his nominee (Ms H), at their school at Suburb J, so he could spend time with them on Wednesday 12 December 2018 [Order 4(b)].
Count 2
This deals with an allegation that the mother failed to deliver the children to Ms H at school on 24 May 2019 [Order 7 (c)].
Count 3
At 9.00 am on Friday 12 October 2018, Ms Abbey failed to deliver the children to him. This was the Friday of the last weekend of the Term Three holiday, which ended with the commencement of school the following Monday 15 October [Order 5 (b)]. This count deals with the lacuna arising in the orders referred to above.
Count 4
At 9.00 am on Friday 26 April 2019, Ms Abbey failed to deliver the children to him. This was the Friday of the last weekend of the Term One school holiday, which ended with the commencement of school the following Monday 29 April [Order 5(b)]. This count is analogous to count 3.
Count 5
Again this count is analogous to the two counts above. It deals with Friday 19 July 2019, which was the last Friday of the mid-year school holiday.
Count 6
On 27 September 2018, Ms Abbey enrolled [Y] into the G Pre-School, without Mr Sander’s knowledge, consent and without involving him in the enrolment process [Order 2]. This is the order dealing with the conferral of equal shared parental responsibility on the parties.
Count 7
The father alleges the mother denigrated him, in the presence of the children at 3.05 pm, at [X]’s school, on 19 September 2018, when she said ‘there is something wrong with you”.
Count 8
The father has made numerous claims that the mother does not facilitate the children speaking with him on the telephone. He selected this count which refers to 21 August 2018. He claims he left a message but the mother did not return his call.
Ms Abbey has denied each of these counts or claimed that she has a reasonable excuse, for so doing, if it is found that she has not followed the strict letter of the order.
The legal framework applicable
Division 13A is the part of the Family Law Act 1975 which deals with the consequences of a failure to comply with orders, and other obligations, that affect children. Pursuant to section 70NAA(1), the division empowers the court to make orders “to enforce compliance with orders [made] under this act affecting children.”
This power includes the authority to vary any order earlier made. These powers are contained in Subdivision B of Division 13A. The exercise of the power does not depend on the establishment of any form of contravention. This is important in the context of the current matter. Whatever is the ultimate outcome, the orders need to be varied to avoid the controversy regarding the coordination of the weekend holiday and school term times.
The expression “order under this Act affecting children” is defined in section 4. It includes a parenting order. There is no controversy, in this case, that the orders of 17 August 2018 are captured by the regime.
Pursuant to section 70NAC, a person is taken to have contravened such an order “if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.”
The expression “reasonable excuse for contravening” an order affecting children is defined in section 70NAE but are not limited to the circumstances delineated in that section. They include the following:
·The person bound by the order in question did not understand the obligations imposed and the court is satisfied that he or she ought to be excused in respect of the contravention [section 70NAE(2)];
·A person contravening an order with whom a child is to spend time with another parent believed on reasonable grounds that not allowing the child in question to spend time with the other person was necessary to protect the health or safety of some other person concerned, including the child affected by the order; and
·The period during which the contravention occurred was not longer than was necessary to so protect the health or safety of such person [section 70NAE(5)].
The prerequisite standard of proof to be applied in determining matters arising under Division 13A, other than matters involving incidents which are characterised as being more serious contraventions is proof on the balance of probabilities [section 70NAF].
Accordingly, the onus is on Mr Sander to establish on the balance of probabilities that Ms Abbey has breached the parenting orders in question. If he is successful in discharging this onus, the onus then shifts to Ms Abbey to establish, on the balance of probabilities, that she has a reasonable excuse for not complying with the applicable orders.
In Jets & Maker[6] O’Ryan J said as follows in respect of the standard of proof:
[6] Jets & Maker [2010] FamCAFC 55 at [83]-[85]
“The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities having regard to the gravity of the allegation. The breach must be shown to be intentional but it does not require proof of contumacious behaviour.
…
The respondent must prove that he or she had a reasonable excuse for the contravention. Again, the onus is on the respondent and the standard of proof is on the balance of probabilities. The Act provides a definition of what amounts to reasonable excuse, however, the definition is not exhaustive.”
The expression “reasonable excuse” is not defined within the Family Law Act 1975 other than in section 70NAE. It is important to note that the definition provided in the section is not confined to the specific incidents which exculpate a contravention of children’s orders set out in subsections (2), (4), (5), (6) and (7) of the section.
The words “reasonable excuse” must therefore be given their ordinary English meaning. By use of the word “reasonable”, the legislation requires that the explanation given by a person, for contravening an order affecting children, must be reasonable when judged by reference to an objective standard. In Kelly & Kobelnek[7] Hannon J expressed the test as follows:
“In my opinion the respondent, in order to exculpate herself from the contravention must establish that she has or had a reasonable excuse according to an objective test namely, whether a reasonable person in the position of the mother would consider on reasonable grounds that she had a reasonable excuse for the contravention.”
[7] Kelly & Kobelnek [1998] FamCA 296 at pages 3-4
In Taikato & R[8] the High Court discussed a criminal statute, which contained the phrase “reasonable excuse”. The statute concerned rendered it an offence for a person to possess, in a public place, any instrument capable of discharging an irritating substance. It was a defence, under the statute, if the person concerned had a “reasonable excuse” for possessing the item in question.
[8] Taikato & R (1996) 186 CLR 454
The appellant in the case was charged and convicted of possessing an aerosol canister of formaldehyde. It was her defence that her possession of the canister was excused because she carried it for self-defence. In this context the majority of the High Court[9] considered the expression “reasonable excuse”. They said as follows:
“The term ‘reasonable excuse’ has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of ‘reasonable excuse’ is an exception.”[10]
[9] Brennan CJ, Toohey, McHugh and Gummow JJ
[10] Ibid at page 464 (footnotes excluded)
The High Court pointed out the desirability of the criminal law being uniform in its application to circumstances which are not materially different. In this context, defences founded upon a reasonable excuse pose some difficulty because they may depend upon a court making a value judgment rather than applying a uniform rule. This difficulty arises in the present case given the non-exhaustive definition of “reasonable excuse” in section 70NAE(1).
In this context, the High Court said as follows:
“… the reality is that when legislatures enact defences such as ‘reasonable excuse’ they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.”[11]
[11] Ibid at page 466
Contravention proceedings have been described as quasi criminal in nature.[12] They are not an inquiry into the best interests of any child or children affected by the order alleged to have been contravened. Before contravention proceedings are started, the court has previously determined the outcome which will best enable a particular child or children to be parented.
[12] See Davis & Davis (1976) FLC 90-050 at 75,207 per Asche J
In addition, serious consequences may follow for a person if a contravention is found to have occurred, without reasonable excuse or otherwise. Such a person may be required to enter into a bond. Given these circumstances, the procedural requirements pertaining to a contravention proceeding should be strictly complied with.[13]
[13] See Sahari & Sahari (1976) FLC 90-086
The procedural requirements attaching to contravention applications are set out in rule 25B.04 of the Federal Circuit Court Rules 2001. At the hearing of any such application, the court must:
“(a)inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c)hear any evidence supporting the allegation; and
(d)ask the respondent to state the response to the allegation; and
(e)hear any evidence for the respondent; and
(f)determine the proceeding.”
In Jets & Maker, which concerned an appeal from a decision of a Federal Magistrate arising from contravention proceedings, O’Ryan J reiterated the need for strict compliance with these requirements and revisited earlier authorities of the Full Court which stipulated that contravention proceedings were analogous to a summary criminal trial.[14]
[14] See Jets & Maker (supra) at [89]
In particular, O’Ryan J made reference to Attreed & Attreed[15] in which it was said as follows:
“Contempt proceedings must be conducted in a formal manner as in the case of a person charged summarily with an offence and with due observance to all the procedures and safeguards applicable to such charges. The concept of the Family Court as a “helping court” is admirable but it cannot in any way impinge on the court’s duty to require that the applicant make a specific charge of non-compliance upon which the case must stand or fall ...”
[15] See Attreed & Attreed (1980) FLC 90-907 at 75,732
One such safeguard is, if there is any ambiguity arising from the order or orders, which give rise to the contravention application in question, such ambiguity should be resolved in favour of the person facing the contravention. It being fundamental that he or she can only be found responsible for an act or omission if he or she knows precisely what is required of him or her pursuant to the applicable order.
The current Division 13A was inserted into the Family Law Act 1975 as part of the package of reforms contained in the Family Law Amendment Bill (Shared Parental Responsibility) Act 2006. The explanatory memorandum to the Bill indicated that the Act was being amended:
“To strengthen the existing enforcement regime in the Act. Breaches of court orders are a major source of conflict and distress to all parties involved. The amendments provide the courts with a greater range of options to better enforce parenting orders. This is necessary to ensure that one of the main objects of Part VII of the Act is fulfilled and that children are able to have a meaningful relationship with both parents. In addition, the amendments repeal the existing Division 13A of Part VII of the Act and replace that Division with clearer and more accessible provisions that will make the whole Division easier to understand.”[16]
[16] See Explanatory Memorandum at Schedule 2
The greater range of options, available to the court in respect of contravention applications, are fourfold:
· Contravention alleged but not established – Stage 1:
Ø Vary the order concerned [section 70NBA(1)(b)(i)]; and
Ø Award costs against the unsuccessful applicant concerned [section 70NCB];
Ø This latter power is presumably to deter unmeritorious would be enforcers. However, the court is specifically conferred with the power to vary a children’s order (subject to best interest considerations) in recognition of its role as a “helping” court.
·Contravention established but reasonable excuse made out – Stage 2:
Ø The court again may vary the order concerned;
Ø Make an order for compensatory time; and
Ø Award costs against the applicant concerned.
·Contravention established without reasonable excuse – less serious contraventions – Stage 3:
In these circumstances, the court may:
Ø Order the defaulting parent to attend a post-separation parenting program;
Ø Make a compensatory parenting order compensating a parent for time lost with any child concerned;
Ø Adjourn the proceedings to allow either party to apply to the court to vary the orders contravened;
Ø Order the defaulting parent to enter a bond;
Ø Make an order for costs against the defaulting parent;
Ø Make an order compensating the contravened parent for any expenses incurred as a result of the contravention in question – e.g. lost fares etc; and
Ø An order for costs.
·Contravention without reasonable excuse – more serious contraventions[17] – Stage 4:
·In these circumstances the court may:
Ø Impose a community service order or bond;
Ø Make an order for compensatory time;
Ø Make an order for compensation;
Ø Award costs; and
Ø Fine or imprison the contravening parent;
Ø It should be noted however that when the court is considering either a fine or imprisonment, the burden of proof required shifts to beyond reasonable doubt.
[17] Contravention applications are deemed to be more serious if the party concerned has previously been found to have contravened a parenting order.
It should be noted that pursuant to section 70NBA the court is empowered, when dealing with any contravention proceedings, to vary the existing parenting order concerned. This power exists even if the contravention is unproven or it is proven but reasonable excuse is found to exist.
The concept of “equal shared parental responsibility” is one which was also created by the shared parenting amendments. The rationale of these amendments was said to be in recognition of the need for separated parents to have a “cooperative approach to parenting”. The relevant amendments were said to be intended to:
“Promote the object of ensuring that children have a right to have a meaningful relationship with both their parents and that parents continue to share responsibility for their children after they separate.”[18]
[18] See Explanatory Memorandum at Schedule 1
In both the earlier reasons for judgment and these current reasons, I have set out the provisions of the Family Law Act 1975 dealing with equal shared parental responsibility. The relevant sections are section 65DAC; section 65DAE and the definition of major long term issue in section 4. The applicable explanatory memorandum says as follows about these provisions:
“These sections provide that, where parents are exercising shared parental responsibility in accordance with the terms of a parenting order that involves making a decision about a major long-term issue in relation to a child, both parents are required to discuss any proposed decision with each other and reach agreement about the decision. However, where a child is spending time with a person pursuant to the terms of a parenting order, that person is not required to consult on decisions about issues that arise during that time that are not major long- term issues. Of course, parents may choose to consult on these issues. The clarification of what issues are major long-term issues is intended to reduce disputes about what falls into this category and to make it clear that day to day decisions can be made by the parent who has care of the child, thus reducing litigation about those issues.”[19]
[19] Ibid at paragraph 27
So far as the terms “child’s education” and “child’s health” are concerned, the explanatory memorandum indicates that the former is intended to capture issues “such as which school a child attends” and the latter was intended “not [to] capture a child’s short-term illness, such as a cold, but may capture issues such as immunisation, which may affect the child’s long-term health or when the child has ongoing medical needs.”[20]
[20] Ibid at paragraph 24
The Full Court has indicated that it is possible for a parent to be found to have breached an order which provides for joint parental responsibility for issues pertaining to the long term care, welfare and development of a child.[21] However the Full Court did not provide definitive guidance in respect of the issue.
[21] See Vlug v Poulos (1997) FLC 92-778 at 84,596 - 597
It found that a joint long term responsibility order could be contravened in circumstances where a person in whose favour such an order had been made was “hindered or prevented from carrying out his or her joint responsibility under the order”[22] by any other person, including the other parent upon whom parental responsibility had been conferred.
[22] Ibid at 84,597
Section 65DAC requires two parents who share parental responsibility to make decisions pertaining to major long term issues in relation to their child or children jointly. Any such order is taken to require the parents concerned to consult with one another and make a genuine effort to come to a joint decision about the issue concerned.
The Explanatory Memorandum says this about the provision:
“New section 65DAC provides a rule that where parental responsibility is to be shared in relation to a major long-term issue under a parenting order, this means that decisions should be made jointly. This clarifies for parents or others who may have parental responsibility, what exercising shared parental responsibility actually involves. This will ensure that both parents have a meaningful involvement in the child's life. This does not only apply in situations where parents are sharing exactly equal responsibility. In all cases where there is some sharing of responsibility then consultation, then discussion about major long-term issues is required for those parts of responsibility that are shared.
…
New subsection 65DAC(3) specifies that in the context of making decisions jointly, consultation between those persons and making a genuine effort to come to a decision is required. This will allow a party to seek to enforce a parenting order in circumstances where there has been no genuine attempt to consult.”[23]
[23] See Explanatory Memorandum at paragraphs 196 and 198
The intention of 65DAE, which stipulates that parents sharing parental responsibility are not obliged to consult in respect of issues that are not major long-term ones, is to make it clear that, while a child is with a parent, that parent takes responsibility for the management and care of the child concerned. It being hoped that this provision will reduce “litigation about minor details”.
Controversy may potentially arise between parents as to whether consultations between them are genuine and whether the issue at the heart of any dispute is indeed a major long-term one. However, the rationale of the provisions is to give meaning to the sharing of decisions about long-term issues and encourage a cooperative approach to parenting.[24]
[24] Ibid at paragraph 200
The Evidence and Conclusions
Count 1
The circumstances surrounding this count graphically demonstrate the parties’ appalling parenting relationship with one another and their stark inability to arrive at any sensible and mature compromise directed towards achieving some improvement in that relationship, which will be useful so far as [X] and [Y] are concerned.
The alleged contravention centres on the involvement of Ms H at a handover. Each party required proxies on the day in question as Wednesday 12 December 2018 was also a day on which they were both required to attend at court because of one of Mr Sander’s earlier filed contravention applications. Ordinarily the children were scheduled to be collected by the father at 3.00 pm for their regular Wednesday afternoon catch-up.
The involvement of the parties’ respective agents – Ms Abbey’s mother and Ms H – were discussed in a lengthy email chain which started in late November. On 25 November, Mr Sander indicated that Ms H would be attending on his behalf.
On 27 November Ms Abbey confirmed that her mother would perform the handover with Ms H on the day in question. However, in her correspondence, Ms Abbey indicated that she required Ms H to produce a photo identification, containing her date of birth, prior to the handover. She signed her correspondence as the children’s “legal and biological mum”. This seems to me to be somewhat gratuitous in its tone and intentionally provocative.
In response, Mr Sander provided a photocopy of his own driver’s licence, superimposed on the relevant court order, on which he endorsed the notation that he had nominated his partner Ms H to collect the children at the school at the relevant time and date. Impliedly, from his perspective this was sufficient. In answer to the criticism that the children did not know Ms H, he responded “[Y] knows my partner very well as does [X]”.
In a subsequent email, Ms Abbey indicated that this was not satisfactory to her. She reiterated that she required Ms H’s last name and birth details. The implication, I think, being that she wanted to perform some sort of background check. In subsequent correspondence, she gave the impression that this was also likely to be a requirement of the school authorities. She also indicated that she required these details in case anything went wrong and police involvement became necessary.
In subsequent correspondence, Mr Sander made it clear that he was not prepared to provide these details and considered them unnecessary and the demand to produce them vexatious. Thereafter lengthy and self-justificatory emails passed between the parties.
Ms Abbey indicated her view that the details should be provided and if they were not, it was open to her to conclude that Ms H and Mr Sander had something to hide about her past, particularly in respect of her previous involvement with children. She further justified her stance on the basis that she did not know Ms H.
From Mr Sander’s perspective, both children knew Ms H well. In this context, he provided a photo of Ms H, with the two children, in an apparent attempt to assuage the mother’s concerns. He was not prepared to identify her further or provide details of her address or date of birth.
As indicated above, the father has referred to his partner only as “Ms H” throughout these proceedings. Whether this has been done for any cogent reason has not been made apparent to me. She has not given evidence before the court to date, although she has regularly attended several of the hearings.
Accordingly, I am unaware as to whether Mr Sander wishes to keep details secret from Ms Abbey for some serious reason. It is apparent to me from the tenor of some of the correspondence from Ms Abbey and what she has said about Ms H that, perhaps for understandable and human reasons, she is not particularly well disposed towards Ms H.
The correspondence provided to me indicates that, ostensibly at least, each party was convinced of the righteousness of their respective position. From the mother’s perspective, she was acting out of protective concerns for the children and with an appreciation of what she considered to be the legal requirements governing those issues, namely a photo ID was required for those who work, in some way, with children.
From the father’s perspective, the mother was out to thwart the court’s order, in respect of the use of agents, because of her own emotional issues arising from her antipathy for him and Ms H. Neither party was inclined to try to resolve or try and find some compromise, which might defuse the issue. Inevitably it came to confrontation.
The mother indicated that she would not facilitate the exchange of the children to Ms H, whom she characterised as being neither legally nor biologically related to them and also a person, whom she did not know. Mr Sander was unwilling to provide any further information to mollify the mother, given the strict terms of the court’s order. Much of the mother’s correspondence with the father indicates her resentment that Mr Sander had brought the earlier contravention proceedings against her.
Against this background, [X] did not attend school on the day in question. Ms Abbey has not provided any reason as to why this was so. She did, however, send a letter to the school indicating that there would be no handover of [X] because Mr Sander had not provided her with proof of his partner’s identity.
It is the father’s position that [X] was withdrawn from school in order to subvert the court order regarding the use of proxies for handover. He further asserts that the mother’s assertions, regarding the need for the school to be provided with some form of photo ID, was utilised as a pretext to frustrate his desire to have Ms H perform the handover, as is evident from Ms Abbey not sending [X] to school on the date in question.
Both parties have an arguable point to justify what they did. On the one hand, it does not seem unreasonable that Ms Abbey should have some details regarding Ms H, given that she was to assume some form of authority, for the children, on the day in question, albeit on a fairly temporary basis.
In this context, I hasten to say that there is nothing to suggest that there is anything malign in Ms H’s background. But nonetheless, I can understand why Ms Abbey would metaphorically ask what she had to hide by concealing her date of birth, surname and address, from her.
On the other hand, these proceedings have been prolonged and bitter. There is no love lost between the individuals concerned in the case. In these circumstances, it is not surprising that Mr Sander would regard the information sought as being none of Ms Abbey’s business and that he would have concerns that the information was being sought for some collateral purpose.
In addition, there was no requirement, in the order in question, that these details be provided. Further, Ms Abbey has not indicated that this was a requirement of the school authorities or that the authorisation provided by Mr Sander was not adequate in some way.
In addition, given the extent of the time the parties have been separated and the length of his relationship with Ms H, it seems highly probable that both [X] and [Y] know Ms H well and are comfortable with her. Certainly, Ms Abbey is not in a position to assert otherwise on the basis of her own direct experience.
The eschewal by the Full Court, of its role as a “helping court” in Attreed, does not sit comfortably with more recent authority, particularly what was said by the Full Court in Stevenson v Hughes.[25] In that case, Fogarty J indicated that it might be necessary to reappraise the “strict criminal approach” for contravention proceedings, given changing community attitudes, some of which were reflected in changes to the applicable legislation.
[25] Stevenson v Hughes (1993) FLC 92-393
Stevenson v Hughes was a “contact” case, in which it was alleged that a parent had been passively resistant to a child spending time with the other parent concerned. In the case, Fogarty J endorsed the following comments which had been made at the initial hearing of the contravention application in question:
“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 that 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.”[26]
[26] Ibid at 79,815 – 816
In this context, Fogarty J alluded to the situation prevailing in many parenting cases, which have been on foot for lengthy periods of time and which involve significant levels of conflict. His Honour said that it was important that custodial parents “appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.”[27]
[27] Ibid at 79,816
The case encapsulates some of the tensions arising from cases such as Attreed and Jets & Maker on the one hand and Stevenson & Hughes on the other. Ms Abbey is entitled to be dealt with in a manner which is procedurally fair, given the possibility that an outcome of the proceedings, adverse to her, may lead to her being criticised and possibly sanctioned. As such, the court should not act upon uncertain charges or imprecise proofs. The benefit of any doubt or uncertainty in respect of any of the charges or allegations arising should be accorded to her.
On the other hand, the contravention application has not arisen in a vacuum. It comes following a long history between the parties of parental dysfunction and unhappiness. There is an obvious lack of tolerance between them and impaired levels of communication.
Against such a background, one parent makes a plea for help to the court and urges it to do what it can to get the other parent to abide by both the spirit of the orders in question and the ethos of the applicable legislation, which promotes an ideal of cooperative parenting. The steel in the plea for help arises from the fact that it comes in the form of a contravention application.
That is not the end of the complexity. The current contravention is concerned with a period of four hours contact, in circumstances in which Ms Abbey made an offer of make-up time, if the details sought by her were not provided. This was not a blank refusal. It also involved, in my view, some elements of the father not being willing to at least try and meet her half way about the details sought in respect of Ms H.
Such situations may lead to the conclusion that there is some pettiness in the complaints made and “a perception from the evidence that the interests of the court in obedience to its orders is being invoked in support of a power struggle between the parents [which leads to] the frustrating prospect of lending the support of the law to a poor motive …”[28]
[28] See Oxley & Inglis [2007] FamCA 1606 per Warnick J at [2]
However, as Warnick J pointed out, such a matrix can throw up diverse consequences. One being that:
“… insufficient understanding is given to the dilemma for a party with the benefit of an order which has been breached, especially repeatedly, and even if only in a way that does not harm the child’s interests. If the court has made an order, whether by consent or not, one rightly assumes it had purpose and gravity. “Small” but repeated breaches can constitute a real detriment to the beneficiary of an order. Yet a contravention application can seem pernickety.”[29]
[29] Ibid at [3]
In my view, these comments can be readily applied to the current matter. I have read much of the correspondence passing between the parties and observed them, at reasonably close quarters, in court. There is, in my view, a tone of passive aggression in Ms Abbey’s correspondence, which comes close to the figurative folding of arms described by Fogarty J.
In these circumstances, I am concerned that Ms Abbey was more intent on proving a point to Mr Sander, by the stance which she took on 12 December 2018 and demonstrating to him her view that she was both the superior parent and had been hard done by at the end of the marriage, rather than being active in supporting the children’s relationship with their father.
Mr Sander is a punctilious person. As such, there is a risk that he will be seen as being petty and unwilling to take a step back in order to pour oil on troubled water. On the other hand, I also accept that he came to the court to seek its help because it was his perception that Ms Abbey was herself intent on undermining his relationship with the children and the orders on which that relationship was founded through innumerable and subtle acts of sabotage and obstruction.
In this context, I suspect he would seize upon the words used by Fogarty J regarding that custodial parents, such as Ms Abbey, are not entitled to perceive parents like him, who have left a relationship and formed other relationships, as an enemy to be thwarted wherever possible. As such, although one such individual act of frustration may be seen as amounting to nothing, it is the context in which such an action occurs which is everything.
In my view, Fogarty J’s comments are apposite to the present case. In my assessment, both Mr Sander and Ms Abbey are intelligent individuals, who, in object terms are more than capable of understanding their obligations under the current regime of orders. They are however, mired in their perennial conflict and, as such, when an opportunity presents for one to demonstrate some form of ascendancy over the other or to prove some point, it will be seized upon with alacrity.
The orders made in August 2018 envisaged the children spending regular and increasing periods of time with their father. They also had a tone of admonition. The parties were warned, both in the judgment itself and the report of Mr E, that their fractious relationship with one another posed risks for the emotional well-being of their children.
In one sense, the issues raised by this particular count are trivial. The two children did not spend four hours, on one particular Wednesday, with their father. Regardless of the time missed, they will remain much loved and well cared for children. In another sense, it raises difficult and complex issues.
The issue of the utilisation of parental agents, at hand over, was canvassed fully before the court. An independent expert made recommendations in respect of it. Each party put their respective positions in regards to the issue. Mr Sander wanted to be able to utilise his parents and Ms H. Ms Abbey opposed this. She did not raise any specific issue about Ms H’s identity at the time. The issue was then determined adversely to Ms Abbey. It was not subject to appeal nor was clarification sought by her.
Mr Sander’s position is clear. There will be occasions on which he cannot get to handovers. The same will be true of Ms Abbey. He wants the person he loves and with whom he shares his life to be able to perform this role.
Ms H, necessarily, will assume a role of growing significance in the lives of [X] and [Y]. How could it be otherwise, she shares her life with their father – a fact which is likely to be emotionally challenging for Ms Abbey.
On balance, I am not persuaded that Ms Abbey has provided an objectively sufficient excuse for breaching the order concerned. Rather I am satisfied that the reason for the children not being presented was to frustrate an order of which she did not approve. This count is made out.
Count 2
This count involves similar issues to those thrown up by count one. In all the circumstances, Mr Sander elected not to proceed with it.
Counts 3, 4 & 5
These counts raise the same point, which turns on the absence, in the orders, of a mechanism to determine how weekend time will fall after the school holidays have finished. As previously indicated, the orders were made on the basis of a draft prepared by the parties’ respective counsels, at trial, which reflected agreement reached between them.
As the old saw has it – the devil is in the detail. I regret that I did not turn my mind to the specific issue. It is clear that wherever there is any scope for uncertainty in respect of any arrangements for [X] and [Y], this has the potential to lead to controversy.
The relevant orders [4& 5] read as follows:
“(4) That the children spend time with the father during the school term as follows:
(a) From 1 July 2018 from the conclusion of school on Friday (or 6:00pm if a non-school day) to 6:00pm on Sunday and in each alternate week thereafter;
(b) Every Wednesday from the conclusion of school at 3:00pm until 7:30pm; and
(c) From the start of 2020, time be extended on the intervening Wednesday from the conclusion of school to conclude at the commencement of school on Thursday.
(5)During both the short term and Christmas school holidays:
(a) From the date of these orders for three (3) consecutive nights on each alternate week from Friday 9:00am until Monday 9:00am save and except for the last Friday of the school term;
(b) From 1 January 2019 for four (4) consecutive nights on each alternate week from Friday 9:00am until Tuesday 9:00am;
(c)From 1 January 2020 for five (5) consecutive nights each alternative week from Friday 9:00am to Wednesday 9:00am;
(d) From 1 January 2021 for six (6) consecutive nights each alternative week from Friday 9:00am to Thursday 9:00am;
(e) From 1 January 2022 for seven (7) consecutive nights each alternative week from Friday 9:00am to Friday 9:00am.”
Mr Sander describes what happened, from his perspective, in respect of the count relating to October 2018 as follows:
“Given that I spent time with the children from the conclusion of school on Friday 14 September 2018 until 6.00 pm on Sunday 16 September 2018, the logical interpretation was that I was due to spend time with the children again on Friday 28 September until 9.00 am on Monday 1 October 2018 and then on 9.00 am Friday 12 October 2018 until the commencement of school on Monday 15 October 2018.” [30]
[30] See father’s affidavit filed 19 October 2019 at [12]
In 2018, the South Australian end of third term holiday ran from Saturday 29 September until Sunday 14 October. In strictly literal terms, it consisted of sixteen consecutive days and included only one complete period of three consecutive nights from Friday to the following Monday.
The first “weekend” of the literal school holiday consists of only Saturday and Sunday. The same is true of the last “weekend”. This seems to be the problem. Mr Sander interprets the orders as providing a flow of alternate weekend time continuing uninterrupted through both school holidays and school terms.
As indicated above, the father’s complaint is that he did not receive the children on Friday 12 October (the last Friday of the school holiday), after he spent time with them on the first incomplete weekend of the school holiday.
The mother’s interpretation of the orders is that the children should never spend the last Friday of any school term with their father, and that he should only have one three night period each school holiday. In an email dated 10 September 2018, she wrote as follows:
“Seriously not reading the orders correctly. There are only two weeks in the school holidays so you only get three nights of them, that’s it. You don’t get them on both weekends as all other arrangements are suspended during the school holidays so I will drop them off at 4.00 pm on Friday 28 September 2018 as a compromise and you will return them to me at 9.00 am Monday morning 1 October, that it. The next time you see them will be Wednesday 17 October 2018… End of discussion, this is simple compliance with the laws as made by his honour. Should you fail to comply, the law is able to be enforced by the police. I can’t be any clearer.”
In response the father indicated his view that he had an entitlement to time on the last weekend of the end of third term school holiday – that is from Friday 12 October. It is conceded that the children did not spend time with the father on this weekend.
The order is ambiguous. In terms of the ethos of the written judgment and the legislative direction that the court give consideration to the benefits arising for children of having a meaningful level of relationship with each of their parents, the father’s interpretation of the orders has much to speak for it.
From his perspective, the orders entailed him being able to see the children regularly on a more or less fortnightly basis, which continued on through the year as a whole. I can understand, in this context, why he considered it both illogical and unfair that he should not be able to spend time with the children for a period of sixteen days, on the basis of the mother’s interpretation.
However the orders do not specifically envisage that. As a consequence, the mother’s interpretation cannot be dismissed as being unfounded in terms of strict logic. Regrettably, as the parties’ correspondence indicates they personally do not have the resources to resolve the apparent lacuna in the orders consensually. Each advocating the interpretation which they perceive to be favourable to them.
The underlying (but unexpressed) spirit of the orders is that the parties would be able to determine when the ever increasing consecutive blocks of time will fall in alternate weeks and when time on weekends should recommence on an ad hoc basis. For all the reasons already provided, this is both impossible and naïve to expect to occur.
In broad terms, each year, there are forty weeks of school each year, divided into four terms each of approximately ten weeks in length; leaving approximately twelve weeks of school holidays. Irregularities arise in respect of when Easter falls each year, which can make the first school term either longer or shorter, depending on whether it is added to a school holiday period.
The twelve weeks of holiday are divided into three blocks of approximately a fortnight and a longer block, at the end of the year, of six weeks. When the end of year holiday concludes is affected by the public holiday for Australia Day.
The difficulty identified, soon after the orders were made, will become more pronounced as time passes. The father’s holiday time, which increases incrementally by a day each year between 2019 and 2022, until week about is achieved, will not be able to be accommodated within an alternating fortnight pattern. The same difficulty is more pronounced with the end of year school holiday.
In my view, the difficulties arising from the failure of the orders to provide a mechanism to delineate how the time is to be specifically allocated during school holidays and when the school term alternate weekends are to both resume and conclude during school terms, result in the orders being unclear and ambiguous. As such, the mother cannot be penalised for failing to adhere to them.
Accordingly, these counts must be dismissed. The mother should be excused from any breach of the orders on the basis of this uncertainty. She has a reasonable excuse for not agreeing to the interpretation advocated by Mr Sander.
However, it is important that the deficiencies in the orders be rectified and I will endeavour to do so within what I believe is in keeping with the spirit of the original orders, which envisaged the children spending substantial and significant periods of time with their father, which was regularly interspersed during the entire year but which was also reflective of their tender years at the time of the initial making of the orders.
In making the changes, I envisage that the orders will see the father having at least five weekends and ten Wednesday afternoons each term with the children, and during the 2020 school holidays, one block of five days during each short school holidays and alternating blocks during the end of year school holiday.
In 2021, the periods will increase to six consecutive nights in each short school holiday period and alternating periods, on a fortnightly basis, of this length, during the end of year school holiday.
By 2022, the original orders envisaged a week about basis. The parties are likely to have difficulty agreeing who should have which period. In the absence of agreement, I will specify the father have the first period of each such period.
In this context, it makes sense that there be a mechanism for determining over which weekend, during school holidays, the father’s time will fall and when his school term time will recommence. I will make an order, which I hope will clarify any possible ambiguity.
In short holidays, the father’s time will fall on the middle weekend of each such period – that is the weekend which falls midway between the end of school and its recommencement.
In order to avoid any doubt, the father’s term time is to commence during the first week after school has recommenced with him to have the first Wednesday of the first school week and the first weekend which falls thereafter.
Count 6
This count deals with an allegation that the mother made a unilateral parenting decision in respect of [Y], when she enrolled him at the G Pre-School in September of 2018 and so breached the order conferring the parties with equally shared parental responsibility.
Clearly, it is appropriate that [Y] attend a pre-school. Both parties would have been aware that a decision, in this regard, would need to be made, in the latter part of 2018 given [Y] would be four at the beginning of December.
In my view, this is to be regarded as a major long term decision and so requiring some form of consultation between the parties in respect of it. Any process of consultation must include a mechanism for exchange of information about the issue relevant to such consultation.
The parties know each other well. In my view it would have been naïve of Ms Abbey to consider that Mr Sander would not have an interest in the pre-school to be selected for [Y] and would want to be consulted about it. In addition, it also seems to me to be a necessary incident of common courtesy, between parents, that the matter at least receive some discussion between them.
In definitional terms, the verb to consult is the seeking of information or advice from a person. The noun consultation is a meeting arranged to consult. In my view, the process of consultation, in respect of a major long term parenting issue, is a two way process involving, at the very least, a canvassing of views of opinions regarding the issue at hand. It does not envisage consensus being reached, although obviously that would be preferable.
Mr Sander’s evidence is that in mid-July Ms Abbey advised him by text message that she had made two kindergarten applications for [Y] but did not specify the locations of the kindergartens in question. Mr Sander requested this information.
In responding texts, Ms Abbey provided her opinion that shared care was not recommended for children of the ages of [X] and [Y] and that Mr Sander “barely managed the time” he already had with them. A series of bitter and emotionally infused texts, from her, follow. It is not useful to quote them in these reasons for judgment.[31]
[31] See Exhibit S 6 to the father’s affidavit filed 19 October 2018
I can appreciate the mother’s hurt feelings, arising from the father’s relationship with Ms H. I can also appreciate that, in the heat of emotion, many individuals do not closely reflect on the contents of text messages and regard them as being ephemeral in nature and so not of any lasting significance.
However, in cases involving vitriolic parenting relationships, the recipients of such text messages are frequently disinclined to view them as such and it has become a common phenomenon that they become part of the court record and used as evidence.
The tone of the mother’s communication is essentially that she views the father as an inferior parent to her. There is nothing consultative about the correspondence. In all the circumstances, I accept the father’s evidence that the mother presented him with the completed enrolled form for the G Pre-School as a fait accompli and as a means of demonstrating her superiority, in respect of parenting matters, over him.
Mr Sander is a pernickety parent in the sense envisaged by Warnick J. He is not one who is inclined to turn the other cheek or easily forgive the failings of the other parent. However, Ms Abbey is also the passively aggressive parent, out to do whatever is open to her to frustrate the parental aspirations of Mr Sander for a variety of powerful and personal motivations envisaged by Fogarty J. For obvious reasons, this is not a good combination.
In respect of the kindergarten issue, Ms Abbey was under an obligation to do more than she did in respect of providing details of the kindergartens in question. In my view, this count is made out as Ms Abbey has not demonstrated a reasonable excuse.
Count 7
This count relates to the formal order restraining the parties from denigrating each other, in the presence or hearing of the children. The aim of such orders is to emphasise to parents that the disputes arising in their relationships are their disputes and not their children’s.
More significantly, they are directed to prevent children being exposed to parental conflict, which may potentially cause them to question their loyalty and love for a parent or be emotionally harmful to them. Children should love both their parents and feel ties of loyalty to them. As such, it is not helpful to their emotional equilibrium if they are exposed to parental denigration.
As a verb, denigrate means to defame or disparage the reputation of a person. Disparage means to speak slightingly of or to deprecate. Both words allude to attacks on character, particularly in the sense of the belittlement of a person.
The disparagement of which Mr Sander complains occurred on the afternoon of Wednesday 19 September 2018, in the presence of both children, at [X]’s school. This was a day on which Mr Sander was due to have his regular afternoon touch base meeting with the children. Ordinarily handovers were scheduled for school in order to avoid the parents coming into contact with one another.
However, on the day in question, Ms Abbey was at that school to facilitate handover. There was a disagreement about the precise physical location of where this should happen at the school. In this context, Mr Sander alleges that Ms Abbey said to him “I have every right to see the kids as per the orders and I’ll have you up on contravention … there is something wrong with you”.
In subjective terms, I accept Mr Sander felt aggrieved by this reference. However, whether an order has been contravened must be judged by objective standards. What Ms Abbey said was impolite and perhaps provocative in the circumstances. However, by reference to general community standards, I do not think it amounted to an attack on Mr Sander’s character or is an episode intended to slight him to the children.
It is not the sort of comment to which orders of this kind are ordinarily directed. It was not a helpful comment but not one of disparagement. This count will be dismissed.
Count 8
Mr Sander has consistently complained that he does not have regular telephone communication with the children. We live in an age in which we have become accustomed to having instantaneous telephone communication with just about anyone on any part of the Globe at any time without incurring any great expense.
In this context, it is readily possible to leave messages, in a variety of formats – voice message; message bank; text message – to alert a person if a call has been missed. The reality of modern life is that it is close to impossible to avoid being contacted if one has a smart phone. As such, in my view, there is an element of choice as to whether one answers a call or elects to respond to a message expeditiously.
The mantra of the age is that individuals spend too much time involved with their mobile phones rather than the reverse. In addition, although there is some controversy about the potential benefits and deficits of children being exposed to screens and electronic devices generally, the reality is that such things are a part and parcel of life.
On balance, I accept the father’s evidence that the mother has been disinclined to maintain his contact with the children via electronic means. She has not readily facilitated return calls. I can appreciate that, from time to time, the telephoning parent may represent an intrusion or disruption into a familial situation, particularly if the children concerned are involved in some activity or getting ready for bed or to have a meal.
As with all things it is a question of balance. So far as parenting orders are concerned, parents have an obligation to facilitate the reasonable intent of orders. It may be explicable if one or two calls are not returned and, in the greater scheme of things, telephone contact is not likely to be central to the development of meaningful parental relationships, particularly if the parent concerned is having regular physical time with any children concerned.
However, telephone communication is important. It enables an absent parent to at least have some form of presence in the day to day life of a child. Parent and child can catch up with one another about the day to day incidents of the moment – how was swimming; what happened at school; et cetera et cetera. Such interactions add meaning and depth to human interactions.
It is on account of such issues that telephone communication orders are routinely put in parenting orders. They are not arcane or complicated. In the present matter, Ms Abbey agreed with them. I accept that the count in question is made out and is representative of a consistent line of conduct on her part.
As Fogarty J observed in Stevenson, there is a positive obligation, on a custodial parent, to positively encourage such things as telephone communications. It should not be difficult for a parent to facilitate a return call, if one is missed.
Regrettably, the passive frustration of such things as telephone calls can become an element in the cold war struggles of parents, who seek to secure advantage over one another. Individually missed phone calls have little significance. It is their totality which matters.
The tone of much of Ms Abbey’s correspondence does indicate that she regards herself as a wronged spouse. She is entitled to her feelings but she is not entitled as a consequence to treat Mr Sander as an enemy whom she can thwart by whatever acts of either passive or active resistance are available to her. For these reasons, I am satisfied that this count is established.
Penalty
The established matters contained in counts 1, 6 & 8 are to be regarded as less serious contraventions established without reasonable excuse, or a stage 3 matter. They are to be regarded as less serious because Ms Abbey has not previously been before the court in respect of any other contravention matters.
In addition, the overall evidence is that, in what must be regarded as challenging parenting circumstances, Mr Sander has been able to interact regularly with [X] and [Y]. I am hopeful that things are getting easier, in the parties’ parenting relationship, with the effluxion of time.
As such, this is not a case involving a holus bolus disregard and contempt for parenting orders. Rather the difficulties have arisen in emotionally charged circumstances, to which even the most magnanimous of individual is likely to struggle to adjust. The appropriate penalty is bond for a period of six months, subject to a condition Ms Abbey will abide by the parenting orders from henceforth.
Counts 3, 4 & 5 are not established but it is appropriate to vary the order pursuant to the provisions of section 70ABA(1). I will make the necessary orders to vary the order in the hope future disagreements can be avoided.
Count 2 is withdrawn and dismissed. Count 7 is not established. It is not necessary to vary the order concerned. In all the circumstances of this case, particularly the fact that Mr Sander has acted on his own behalf in the case and been partially successful, I do not propose to make an order for costs in his favour.
Ms Abbey was initially represented. Although she has been partially vindicated in respect of some of the matters, in my view, her behaviour cannot be regarded as being exemplary. In these circumstances, I do not propose making an order for costs in her favour either.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and ninety two (192) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 12 February 2020
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