Sathra and Sathra

[2012] FamCA 112

FAMILY COURT OF AUSTRALIA

SATHRA & SATHRA [2012] FamCA 112

FAMILY LAW – CONTRAVENTION - where the father alleges the mother has contravened interim parenting orders on four separate occasions – whether the mother has “contravened an order” – where the mother contravened the orders on the four occasions alleged by the father – whether the mother had “reasonable excuse” – where the mother had “reasonable excuse” in respect of three of the four alleged contraventions – where the mother contravened the orders without reasonable excuse on one of the occasions alleged by the father – where the mother’s contravention is a “less serious contravention” – where the mother has not “behaved in a way that showed a serious disregard” in respect of her obligations – where no penalty ordered in respect of the established contravention – whether the mother should be ordered to pay costs pursuant to s 70NEB(1)(g) – whether the father should be ordered to pay costs pursuant to ss 70NCB and 70NEB(7) – where both parties are self-represented – where no order for costs made against either party.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Childers & Leslie (2008) 39 FamLR 379
In the Marriage of Gaunt (1978) 4 FamLR 305
The Northern Territory of Australia v GPAO and Others (1999) 196 CLR 553

APPLICANT: Mr Sathra

RESPONDENT: Ms Sathra

FILE NUMBER: SYF 5076 of 2003

DATE DELIVERED: 12 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Murphy J

HEARING DATE: 29 February 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That in respect of the Application for Contravention of parenting orders filed by the father on 19 August 2011:

   (a)The contravention alleged to have occurred on 27 May 2011 is dismissed.

   (b)The contraventions occurring on 8 April 2011 and 24 June 2011 are dismissed by reason of the respondent mother having a “reasonable excuse” on 8 April 2011 and 24 June 2011; and

   (c)The contravention occurring on 5 August 2011 is established and the mother does not establish reasonable excuse.

2. That in respect of the contravention occurring 5 August 2011 no order be made and no penalty be imposed.

IT IS NOTED THAT:

The trial of parenting issues between these parties will be heard by Watts J commencing 4 June 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sathra & Sathra has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF5076 of 2003

Mr Sathra

Applicant

And

Ms Sathra

Respondent

REASONS FOR JUDGMENT

1. These proceedings are the latest instalment in about nine years of litigation between these parties. Their children, who are the subject of the instant contravention proceedings, are M (born … .1.98) who is now 14, and L (born … .3.00) who is almost 12.

2. It will be observed that the conflict between their parents has pertained for the majority of the children’s lives.

3. In about 12 weeks or so, there is to be a trial of parenting issues emanating, at least in part, from the mother now residing with the children in Newcastle while the father resides in Sydney Suburb P.

4. I am told by each of the self-represented parties that among the matters to be decided at that parenting trial are issues as important to the best interests of these children as whether holiday time should commence on the last day of school or the following morning. Professor Q has, or will, produce a report for the purpose of the upcoming parenting trial. It will be of considerable interest to read what Professor Q reports as to what these two girls, on the cusp of womanhood, make of the relentless conflict between their parents.

5. I gather from what fell from each of the parties during the proceedings before me, that Justice Watts, who will hear the parenting trial, attempted to have the parties focus upon the issues relevant to that parenting trial unclouded by contravention proceedings which, as authority demands, must be determined according to different criteria, a different process (see rule 21.08 Family Law Rules 2004, (“the Rules”)) and prior to a hearing as to the substantive issues. His Honour’s best efforts went unheeded.

6. The words of Warnick J in Childers & Leslie (2008) 39 FamLR 379 at 380 are so frequently apposite in cases of this type. They are particularly apposite here, where the parties have been litigating about their children for year after year after year:

   This appeal involves features typical of a great many applications that assert contravention of an order that a child spend time with a parent: the complaint, even if correct, seems a heavy handed, even obsessive reaction – yet if the incident is the latest in a series (about which there will commonly be mainly subjective comment, irrelevant to the particular proceeding) perhaps any exasperation of the complainant is at least understandable; second, the “excuse” offered by the respondent will seem “fair enough”, at least not to be behaviour that ought attract punishment; and finally, whatever the outcome, it will seem unlikely to contribute to any real diminution in the particular family’s conflict.

   However, these pervasive but nebulous features must be put aside, though the sense that one is presiding over an unproductive process might tempt a judicial officer to strive to achieve more from the hearing than it can properly yield. The focus must be narrowed, and, at first instance, the relevant facts determined and the law applied…

The Orders Allegedly Contravened

1. On 6 September 2010, Watts J made the following relevant orders:

   1.The orders made 12 April 2006 be suspended except order 15 and any order relating to school holidays (subject to these orders).

   …

   5.The children shall reside with the father as follows:

   5.1Each alternate weekend from 6.00pm Friday to conclude with the father placing the children on the [Sydney Suburb P] to [Town E] [public transport] at 7.30am on a Monday morning.

   5.1.1The next scheduled Friday will be 24 September 2010 and on that occasion the children shall spend time with their father until Tuesday 5 October;

   5.1.2The first scheduled Friday after the next school holidays will be Friday 15 October 2010 and alternate weekends thereafter;

   …

   5.1.4The father’s first weekend in 2011 will be Friday 11 February 2011 and each alternate weekend thereafter. 

   5.2The father have the second half of Christmas school holidays, provided that the children shall come back from their father on Sunday 30 January 2011 but in the event the children are required to go to school on 28 January, the father will ensure that they are able to do that.  The first day of the holidays is the day after the children cease to go to school and the last day of the holidays is the day before they go back to school.  

   …

2. As can be seen, that order suspends earlier orders made on 12 April 2006 with the exception of Order 15 and “any order relating to school holidays (subject to these orders)”. Order 15 is not relevant for present purposes. The provisions of the 12 April 2006 orders relating to time between the father and the children during school holidays provided relevantly:

   (e)During the school holiday periods other than the Christmas school holiday period, for a continuous period of half of each school holidays and in the absence of agreement between the parties, the periods shall be the first half of the holiday period.

The Alleged Contraventions

1. Four contraventions of the orders just referred to are alleged in the father’s application. They are as follows:

   The respondent mother without reasonable excuse, failed to make the two children available on 8 April 2011 at or around 6.00pm at the commencement of the April 2011 school holidays to exercise residence with the applicant father, in accordance with the Family Court Orders.

   It alleges a date of contravention of 8 April 2011, a time of contravention of 6.00pm and a place of contravention as Sydney Suburb P.

2. The second contravention alleges:

   The respondent mother without reasonable excuse, failed to make either of the two children available on 27 May 2011 at or around 6.00pm at the commencement of the fortnightly weekend to exercise residence with the applicant father, in accordance with the Family Court Orders.

3. The remaining two alleged contraventions are in identical terms, but allege contraventions on, respectively, 24 June 2011 and 5 August 2011.

4. The mother (who although self-represented, has considerable experience as a litigant in this Court) confirmed that she understood the nature of each alleged contravention and the circumstances said to pertain to each as alleged by the father.

5. It might be observed that the first alleged contravention asserts as a particular that the mother failed to make the children available “at or around 6.00pm” at the commencement of the April 2011 school holidays “in accordance with the Family Court orders”. Reference to the orders reveals that, in respect of that specific school holiday period, no commencement time is specified either in the 2006 orders or in the orders made on 6 September 2010.

6. Reference to the latter orders reveals a commencement time for weekend time and specification of what constitutes the “first day” and the “last day” of the Christmas school holidays (para 5.2 of the orders). As I have earlier indicated, the commencement date of holidays is, apparently, a live issue between these parties.

7. The father prepared his own application. The mother indicated that she clearly understood the gravamen of the father’s complaint to be that the children were delivered on Saturday (i.e. the first day of the holidays) for that school holiday time, rather than on the last day of school.

8. Whilst breach is asserted with respect to a particular time (being the commencement time common to non-holiday time within the orders) it seems to me that it is not a relevant particular of the contravention as otherwise particularised. Contravention as alleged pertains to the failure to make the children available on 8 April 2011 with the time being irrelevant both to the orders and the alleged contravention.

9. The alleged contravention does not fail by reason of its form.

10. I am satisfied that the four contraventions contain sufficient particularity and are clearly understood by the mother.

11. The mother’s response to all four contraventions were sought. She denied each.

Relevant Principles

1. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) defines the expression “contravened an order” insofar as orders affect children. Contravention occurs, relevantly, “if, and only if” a person “intentionally failed to comply with the order” or “made no reasonable attempt to comply with the order”.

2. Parenting orders contain inherent obligations set forth in the Act (see, relevantly, s 65M). Those obligations are to be taken, for the purposes of contravention proceedings to be included as a requirement of the orders (s 70NAD).

3. Section 70NAE defines the meaning of “reasonable excuse for contravening” an order. A number of specified circumstances are dealt with in the subsections of that section. In The Northern Territory of Australia v GPAO and Others (1999) 196 CLR 553; 24 FamLR 253 at 258) Gleeson CJ and Gummow J held:

   However, the authority of the Family Court under s 112AD is conditioned upon its satisfaction that a person has contravened the order “without reasonable excuse”. The circumstances in which a person may be taken to have had, for the purposes of Pt XIIIA a reasonable excuse include but are not limited to those specified in s 112AC: s 112AC(1). [Emphasis added].

4. The specific reference there is to the provisions of s 112AC(1). However, the same legislative expression is used in s 70NAE:

   The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in [the succeeding subsections]. [Emphasis added].

5. It should, of course, be noted that a respondent bears the onus of proof with respect to establishing “reasonable excuse”.

6. Whilst the definition in s 70NAE is inclusive, regard must be had to the specific matters set forth in the subsections to that section in seeking to ascertain the parameters of “reasonable excuse”. So, too, reasonable excuse cannot merely be the subjective decision by one party that the best interests of children do not require compliance with the order (see e.g. In the Marriage of Gaunt (1978) 4 FamLR 305 at 308; Childers & Leslie, at 384-385.) The parameters of the excuse or the reasonableness of the excuse ought involve measuring the excuse against the terms of the section (see e.g. Childers, at 384).

Prima Facie Case?

1. Having heard the evidence supporting the allegations (see rule 21.08(c)), in my judgment the respondent has no case to answer in respect of the alleged contravention pertaining to the weekend of 27 May 2011.

2. The events of that weekend were preceded by a note from the mother to the father’s solicitors advising of a dance at which the children had been selected to perform. That dance occurred on the weekend during which the father was due to spend time with the children.

3. The note (which forms part of the documents comprising Exhibit D to the affidavit of the father) makes it plain that “alternatively, the father can drive the girls to [Town T] and spend the weekend there”. A programme was attached indicating events at which the children were due to perform on each of Friday, Saturday and Sunday, 27 – 29 May.

4. The Exhibit to the father’s affidavit also includes a hand-written note from M (who, it might be noted, was at that time about 13½). It says (emphasis in original):

   Dad,

   We have been invited to dance at [Town T dance] in the groups. I have said yes, and so has [L]; as we thought it was on Mum’s weekend. Since we can’t let the groups down, and I have a lead role, can we swap weekends? We really want to go. It’s important to us.

5. One of the documents in Exhibit D is a note from the B Dance School advising that the dress rehearsal “for all [Town T] groups” was to be held on Sunday 15 May. Appended to it is a note from the mother: “[The husband’s first name], can you get the girls to these rehearsals”. The husband instructed his solicitor to respond and the solicitor’s letter dated 12 May 2011 also forms a part of the Exhibit. It is I think, instructive and important to quote that letter in full:

   I refer to your facsimile transmission addressed to the writer and to my client dated 6 May 2011 which was received by my client on 10 May 2011.

   I note that in the past you have been unprepared to entertain any reasonable requests from my client such as you are making of him. In any event my client is presently giving consideration to your request.

   In order to enable my client to assess whether your proposals are in the children’s best interest, please provide the following:

   1.Please provide a full and complete history of the children’s health care matters for the past 3 years. My client requested this on 25/09/10 by email and Australia Post. I made the same request on behalf of my client on or around 3/03/2011. Please also respond in full to my letter dated 3/03/2011.

   2.Please forward a complete schedule of all dance, […] and other extracurricular classes the children are currently enrolled in, including a specific and itemised account of the costs for those activities.

   3.Please forward a complete history of the children’s enrolments in any and all [dances] in the past 5 years, including a detailed schedule of their performance results and overall standing(s).

   4.Please advise as to your working hours, hourly wages, and name and details of all of your employers, both current and in the past 3 years.

   5.Please advise as to who took care of the children on 9 May 2011 whilst you were in Sydney – including who took them to school, picked them up, and in whose care they were in when not in yours.

   Please provide your response by no later than Friday 13 May 2011. I am instructed that should you not respond in full to the above by that date, your request is denied.

   I am instructed that it is my client’s preliminary view that the children’s participation in [dance] is only of interest to you. Finally, it is of great concern to my client that you have clearly involved [M] in your dispute with my client. I in particular refer to the letter apparently signed by [M] which you have included in your facsimile.

6. Given that the letter is presumed to have been written on the instructions of the father and is written in response to a request for the children to be permitted to perform at a dance, one might imagine that the contents of that letter will provide at least some grist for the mill in the parenting proceedings to be held before Watts J.

7. For present purposes, it should first be observed that the father had notice of a request that time not take place in accordance with the order in respect of a weekend to which, otherwise, the order would plainly pertain.

8. The father accepts that there was a conversation between he and M and he and the mother. On the father’s own evidence it was plainly open to the mother to conclude that, as a result of the conversation between the father and M, the father had agreed to the participation of the children at a dance in Town T in lieu of them spending time with him as contemplated by the orders.

9. Accordingly, I am not satisfied to the requisite standard that the father makes out a case of contravention in respect of this weekend. In my view, the respondent has no case to answer in respect of it.

10. I have considered that, if the prevarication evidenced by the father in the witness box in respect of this contravention is indicative (as I suspect it might be) of the communications occurring between he and (at least) the children, and probably the mother, that there may have been a similar agreement (and thus no contravention) in respect of the weekend of 5 August. However, on balance, I am satisfied that the contravention in respect of that weekend is made out.

11. I am similarly satisfied that a prima facie case is made out in respect of the contraventions relating to what I will call the holiday time and the remaining weekend time.

Does the Mother have a “Reasonable Excuse”?

1. Upon advising the parties that I considered that the mother had a case to answer in respect of the three alleged contraventions to which I have just referred I enquired of the mother whether she wished to adduce evidence in respect of those contraventions so as to seek to establish “reasonable excuse” (rule 21.08(d); (e)).

2. The mother indicated that she intended to adduce evidence and sought to do so by way of affidavit which she produced to the father at that time. I stood down to permit both the father and myself to read that affidavit.

(a)      Holiday Time – April 2011

1. The mother’s case in respect of this contravention can be expressed simply. She says that the orders made by Watts J contain a “grey area”. She describes this as being her understanding, based on the terms of the orders and what she asserts Watts J said in Court, that the orders in respect of all holiday time were confined by the provision at paragraph 5.2 of the orders that “the first day of the holidays is the day after the children cease to go to school and the last day of the holidays is the day before they go back to school.”

2. The mother says that she received advice “from a barrister” about the meaning of the orders.

3. The father asserts that the terms of paragraph 5.2 are clear in that the provision just referred to pertains only to the Christmas school holidays. It does not pertain to any other period of holidays. Indeed, the father says, the commencement and cessation days of the school holiday time is a live issue in the parenting proceedings to be heard before Watts J, as the mother well knows.

1. In my respectful view, the father’s assertion with respect to the meaning of the order is correct.

2. In respect of school holiday time, the orders made by Watts J on 6 September 2010 speak, in terms, only of the “Christmas school holidays” as to commencement. His Honour’s orders make clear that, otherwise, the orders of 12 April 2006 govern school holidays (subject to his Honour’s order with respect to the Christmas School holidays). Those April 2006 orders make no provision with respect to when school holiday time shall commence. In that respect, the father says that the commencement time has historically been the day school finishes as distinct from the following morning.

3. The father asserts that it is the very conflict about that issue that is an indication that the mother is being, at best, disingenuous in asserting that the orders made by Watts J make provision for the commencement of time as she asserts or that she had the understanding that she asserts.

4. I do not accept that contention on behalf of the father. As I said to the father during the course of argument, the biggest impediment he faces in maintaining that argument is to be found in Annexure E of the affidavit of the mother. That is a letter addressed to his solicitor dated 4 April 2011 (that is, prior to the commencement of the holidays).

5. In response to an assertion by the father’s solicitor that should the mother “withhold the children on Friday 8 December [sic] 2011 my client will be giving consideration to filing a contravention application”. The wife, in response to an earlier letter from the husband’s solicitor dated 30 March, said:

   The orders of 6 September 2010 state very clearly when the holidays BEGIN and when they END, irrespective of what holiday period is being discussed. The order is 5.2 and it states:

   The first day of the holidays is the day after the children cease to go to school and the last day of the holidays is the day before they go back to school.

   This has been an issue for some time and was clearly discussed in Court for the benefit of the children.

6. The mother went on to say:

   Concerning the arrival of [the father’s] brother, learned from your letter, your client’s family arrangements and his misinterpretation of the orders are consistent with each holiday changeover. That is why HH spelt out specifically in 5.2 how the holidays began and ended and these are the current orders.

7. The wife repeated in the witness box before me her understanding, based on her interpretation of the orders and based on what she says transpired before Justice Watts when the orders were made, that the commencement time for school holiday time was to be the day after school finished.

8. The father says that in respect of a later holiday period, the mother delivered the children on the last day of school. He says that this is further evidence of the mother’s disingenuousness or dishonesty in the assertion she makes about the orders. The mother says that she did this to “keep the peace” and to prevent arguments. I accept the evidence of the mother. I reject the contention made by the father.

9. I consider that the contravention occurred because, or substantially because, the mother did not at the time of the contravention understand the obligations imposed by the order. I consider that, although in my view erroneous, her contended position is honest and reasonable.

10. I am satisfied that the mother ought be excused in respect of the contravention.

11. As I have said, the non-exclusive definition provided in s 70NAE means that the terms of s 70NAE(2) need not be precisely complied with. However, in my view they are, in any event, met here.

12. Irrespective of that finding, I would, by reference to that subsection, excuse, in any event, the contravention on the basis that the mother had an honest and reasonable but mistaken belief in what the order provided for in terms of the delivery of the children.

13. My conclusion that the belief was reasonable and that it was honest (arrived at in any event by reference to my assessment of the mother’s evidence) is fortified by reference to Exhibit E to which I have earlier referred.

(b)      Weekend Time – 24 June 2011

1. Ahead of this weekend, the mother had advised the father that M had a music examination scheduled in Newcastle on Saturday 25 June.

2. That information was forwarded both to the father’s solicitor and to the father. The letter to the father is Annexure J to the mother’s affidavit. It is also exhibited to the father’s affidavit. The father also includes in his exhibit the relevant notice of that examination.

3. The measure of what may or may not be reasonable must have some reference to the context in which the events occur.

4. In that respect it is important to understand that the mother asserts a barrage of offensive messages from the father. He says that she too sends offensive messages. An interesting interchange occurred during the hearing.

5. Initially the father “could not recall” receiving certain text messages from the mother. Indeed, he went so far as to deny that he had received them. As it happened, the mother had her mobile phone available in Court and was able to produce the text messages to the father on that phone. Having seen them, the father accepted that they were sent by him and to him.

6. A context for what may, or may not, be reasonable comprises, at least in part, the environment in which conduct did or did not occur. It is in that context instructive, to refer to the text messages which the father initially denied receiving but was subsequently forced to admit (these particular text messages pertain to the August 2011 weekend):

   Mother: “The girls have told you what they have, you have lied to them again.”

   Father: “You are a wretched pig and I am drafting a letter to [Dr Q] accordingly.”

   Father: “Give off you fucking loser”.

   Father: “Ha ha. Lots of dittos, eh? I just finished working on a quote. Have meetings tomorrow with clients, have to go to WORK, pay taxes so that the dole and CSA bludgers can wallow in their own crap, and oh yes, will have a great root. You too?”

7. As it transpired, on that weekend both the mother and M contracted what the mother described as “swine flu”. The mother swears that she was so ill that she could not get out of bed. M, too, was very ill. Indeed, it transpired that M’s illness prevented her from attending the music examination which was the initial reason why a request was made for time not to occur on that weekend. The mother sent to the father what might be described as “standard form” medical certificates in respect of both M and her.

8. In his affidavit, the father deposes “I had arranged to obtain tickets to see the Sydney Swans on Saturday 25^th at the ANZ stadium, which I had to forego because neither child came to Sydney that weekend.” “I say the children were not made available for the weekend residence of 24-17 June 2011 [sic] and there was no communication from [the mother] with regard to a proposal to swap weekends”.

9. No mention is made in that affidavit by the father of a concession made by him during the proceedings before me, namely that he “accepted” that “[M] couldn’t come” on that weekend. Having made the concession referred to, the father’s attention then turned to an assertion that L was not made available.

10. Since the mother moved to reside in Newcastle with the children, time is facilitated by the mother driving the children to Town E where they catch public transport to Sydney Suburb P. It seems to be accepted that the journey from Newcastle to Town E is between two and two and a half hours – that is to say a four to five hour round trip for the mother so as to facilitate time between the children and their father. For his part, the father needs to travel a short distance from his home to where the public transport delivers the children at Sydney Suburb P.

11. I accept the evidence of the mother that her illness was such that she was “bed-ridden” with the flu at the time of this weekend. She deposes to the fact that the father does not believe that she was sick – an assertion he appeared to continue to make in the proceedings before me. (It transpires that M was so ill that she missed school for two weeks.) The mother says, and I accept, that she was bedridden and unable to undertake the driving required to get (relevantly) L to the public transport. I accept this evidence.

12. An exhibit to the mother’s affidavit (Annexure F) details a series of abusive and frankly disgusting, text messages forwarded by the father to the mother. Some of the things said by the father to the mother of his children include, in respect of the weekend currently under discussion “Well then do something about it, you whore. Yes I see you have medical leave from work too! That’s a fucking laugh isn’t it”.

13. I interpolate here that, the mother asserts that L is frightened of her father and refuses to attend time with him if M is not present. Plainly enough, this will be a live issue in the parenting proceedings before Watts J and I would anticipate it being an issue raised by either the children or the mother with Professor Q. It is not necessary for me to come to a conclusion about that assertion in these proceedings and I am reluctant to do so in the absence of any Family Report or similar expert evidence and all the more so when parenting proceedings will take place in about 12 weeks time.

14. Although in his affidavit plainly implying to the contrary, the father now accepts that it was not possible for M to attend that weekend time. Whether that is expressed as saying that there is no contravention in respect of M or that the mother has a reasonable excuse for any such contravention as might have occurred matters little in the current context.

15. The assertion by the father must, then, be that there is a contravention in respect of L.

16. Insofar as that is the case, I have accepted the evidence of the mother that she was unable to facilitate the five hour return journey necessary so as to make L available for time by reason of her ill-health. Due to the nature and severity of the illness suffered at the time by the mother and M, the mother contends that L was cared for by members of her family. I accept that evidence.

17. In all of the circumstances by reference to the ill-health of both the mother and M, I consider that the mother was not reasonably able to comply with the terms of the order on that particular weekend with respect to either child.

18. The criterion is not whether it is now possible to suggest alternative means by which the mother, in those same circumstances, might have availed L of the time. The legislative criterion is the reasonableness of the conduct or the omissions referenced to s 70NAE and the authorities to which I have earlier referred.

19. In my judgment, the mother establishes a reasonable excuse for the contravention which occurred on this occasion.

(c)      Weekend Time – 5 August 2011

1. In respect of the weekend of 5 August 2011, the father annexes to his affidavit a plaintive handwritten letter from his younger daughter. It is as follows:

   Dad,

   It’s my friends birthday party on Saturday the 6^th. Because, since where with you, you need to help me get there erly. It is going to be fun she wants me there. Its only this time/once i’ve been to a party up there.

   [L] GGGRRRRR

   Please, please, please.

   Turnover

   The second page of the note says:

   [L] you’re invited to “[H’s] Disco”

   For her […]^th birthday

   When: Saturday 6 August 2011

   Where: [Address in Newcastle]

   Time: 5.30 – 7.30pm

   R.S.V.P.: […] by Thursday 4 August.

2. This is the father’s response to the plaintive pleas of his daughter as deposed to by him in his affidavit:

   I told them both it was up to their mother to request a weekend swap and in the absence of any agreement they should be coming to [Sydney Suburb P] in accordance with the normal schedule. Both girls said that they’d ask their mother accordingly.

   I did say that on Saturday 6 August 2011 in the morning I called the phone number on [L’s] “invitation for a disco party” and spoke with a lady who identified herself as “[H’s] mother”. I asked the lady when [H’s] birthday party invitations were sent out and she replied “on Monday” (1 August 2011).

   I say the girls were not made available for the weekend residence of 5 August 2011 and there was no communication from [the mother] with regard to a proposal to swap weekends.

3. The pleas of each of his daughters do not seem to figure in the complaint thereafter made by the father in this affidavit:

   I say that I cannot plan on activities with the children during the weekend or holiday periods of residence because of [the mother’s] unreliability and blatant disregard for the orders. I feel this impacts significantly and detrimentally on my relationship with my children.

4. The father’s evidence of what he said to his own children consequent to the receipt of the letter to which I have just referred is a little less clear. After initial prevarication, the father said later in his cross-examination by the mother:

   The Court:I think the first proposition that you put was that [the father] agreed that [L] could go to the party in lieu of coming to his place for the weekend. Is that the proposition that you want to put.

   Mother:Yes your Honour that is.

   The Court:OK, stop. Do you understand the proposition that is being put to you? The proposition that is being put to you is, that you agreed that [L] could do to the party in lieu of spending time with you that weekend. What do you say to that.

   Father:No. Holus bolus no.

   The Court:Right, the answer is no.

   Father:If that’s all there is no, I don’t agree with that.

   The Court:What do you mean if that’s all there is.

   Father:Well, if you were to go on and say yes she could, I did agree if they come another weekend, or if there is a substitute, yes. There is an unfinished sentence.

   The Court:Right. It seems I think the prevarication of this witness in the witness box is to the effect that his answer is, that in answer to your proposition, he told the child that she could go if there was a makeup weekend. Is that right?

   Father:Yes.

   The Court:That’s the answer to the first proposition. Now the next proposition that you want to put is what?

   Mother:Is what, sorry your Honour?

   The Court:The next proposition that you want to put is what? What’s the next proposition. Try and break them down one at a time.

   Father:There is more to it, I mean, yes that is, but I think I said that we have to agree which weekend it is, before the weekend, before they just don’t come.

   The Court:Sorry, and have to agree which weekend what, sorry.

   Father:Which weekend because then they just don’t come and then there’s virtually the weekends, kind of they run out, and then you go into school holidays, and then it carries on and on. So there’s never been a reasonable attempt to negotiate weekend swaps.

   The Court:Well that’s a separate proposition. … I want to try and understand your evidence. I think your evidence is that you accept that [L] asked you whether she could go to this party, and your response was, yes provided that there is another weekend in makeup and we have to agree on the makeup weekend because otherwise the situation will go on and on.

   Father:Well, I think if I say yes, that you’re going to say, well then I just told [L] that yes, and I basically relinquished my weekend.

   The Court:Look, I am trying to do the very best I can to understand your answer. You can sit there and prevaricate all you like.

   Father:I am not trying to prevaricate I am saying that my answer was probably then, and I am sorry, but as I recall, I said not unless we agree to another weekend.

   The Court:Well let’s just try and do it again. You accept the proposition that [L] asked you whether she could go to that party in lieu of coming to your weekend. Is that right?

   Father:Yes.

   The Court:OK, now, in respect of that, what was your response to her, as best you recall.

   Father:I said words to the effect that, not unless we can agree to make up this time another weekend. And then I said, it is unfortunate that you live in Newcastle and I live in Sydney, but, you have to understand that you are not going to be able to go to a friend’s house or skating party or disco every weekend that you are with me.

   The Court:Yes, anything else.

   Father:I would have said there are going to be weekends that you can, and there are also going to be weekends that you can’t do things with your mother when you are with me, just like you can’t do things with me when you are with your mother.

   The Court:Right, anything else.

   Father:Not that I recall.

   The Court:So am I right then in thinking that you have exhausted your recall as to what was said between you and [L] about that topic on that occasion.

   Father:Yes.

   The Court:Thank you.

5. As I have said, I am in fact significantly troubled that there was in fact no breach by reason of an agreement on the part of the father that the children did not need to attend on that weekend. Reference to the precise terms of the evidence just quoted will reveal how difficult it is to make a finding in that respect. Nevertheless, I was tolerably satisfied that the alleged contravention should be permitted to proceed on the basis that on balance, it was established.

6. The mother deposes that she actively encouraged the children to go on their weekend. The effect of her evidence was that doing so might provide, as it were, “the course of least resistance” for the children in terms of their father’s reactions.

7. The mother deposes that M was extremely angry at her father. She says “I am in a precarious position” and reiterated that L is frightened of the father and won’t attend without M. The mother says that M adamantly and persistently refused to go because of her desire to attend the event to which reference has earlier been made.

8. I accept the evidence of the mother that her position with a child then 13½ whose maturity is indicative of respect being paid to her views, is in a difficult position.

9. It cannot be asserted, in my view, that the children not attending is related to the health or safety of them or, indeed, of any other person.

10. It might well be thought that if the children themselves perceive that the father is placing his interests and needs ahead of theirs, that he, like every parent who has ever parented, will reap what he sows. That, however, is not the issue before me.

11. The issue before me is, by reference to the statutory parameters of the non-exclusive meaning of “reasonable excuse”, does the mother establish that she has a reasonable excuse for the children not attending with the father on this occasion?

12. In my view, and despite the difficulties inherent in this situation, the mother does not have a reasonable excuse in respect of that refusal.

13. The reason why the law may not look benevolently upon what the mother describes as her “precarious position” is, of course, founded in the fact that if children were able to determine whether they attended pursuant to an order which binds their parents to obligations in respect of them, then orders would never have any utility.

14. If the contention is that, for example, the views of children (together with other relevant factors) are indicative of the need for a variation in parenting arrangements or orders then, in the absence of agreement (which, it needs to be said, is forthcoming in the vast majority of co-parenting arrangements) it is, unfortunately, necessary for the matter to return for determination by a stranger to the children with a prescriptive result that, in the absence of common sense and intelligence on the part of parents, is likely to be productive of yet more conflict for the children.

15. In my view, the mother does not make out reasonable excuse in respect of this contravention. I find it established.

Penalty and Costs?

1. Three of the four contraventions alleged by the father are not made out. In respect of the contraventions that were not established, s 70NCA requires me to apply Subdivision C of Division 13A of the Act. Section 70NCB permits me to make an order that the party who brought the application pay some or all of the costs of the other party. Each of the parties are here self-represented. No order for costs arises.

1. I do not propose to make a further parenting order (pursuant to s 70NBA) in respect of the contraventions which are established but in respect of which reasonable excuse has been made out. Little more needs to be said in that respect other than that a parenting trial will occur in about 12 weeks time at which issues central to the best interests of these children, informed by such expert opinion as might be available to the trial judge and input from an Independent Children's Lawyer, will be heard.

2. It is plain that the contravention which I have found established and in respect of which there is no reasonable excuse should be described as a “less serious contravention” thus attracting the provisions of Subdivision E of Division 13A of the Act. In that respect, the evidence before me is that although earlier contravention proceedings have been brought, no findings in relation to contravention or sanction occurred.

3. It is plain that s 70NEA(4) does not apply; in my view it could not possibly be asserted that the mother “has behaved in a way that showed a serious disregard for his or her obligations under the primary order.” Indeed, I am satisfied (despite the assertions by the father to the contrary) that the mother has overwhelmingly, if not always, attempted to ensure that when time between the children and the father has not occurred that “make-up time” has been offered and, usually, facilitated.

4. Section 70NEB sets out the powers of this Court in circumstances where Subdivision E applies, as it does here, in respect of the contravention occurring on 5 August 2011.

5. The contravention cannot be divorced from its context and the circumstances in which it occurred. The evidence before me does not justify a finding of intentional recalcitrance on the part of the mother or, indeed, anything other than an intention to comply with the orders and their inherent obligations.

6. Were it not for the fact that there are parenting proceedings listed to occur in some 12 weeks time, I would make an order pursuant to s 70NEB(1)(c) adjourning the proceedings to allowing either or both of the parties to the primary order to apply for a further parenting order that discharges, varies or suspends the primary order.

7. Those matters are precisely the matters to which attention will be addressed in the parenting proceedings before Watts J in 12 weeks time. Accordingly, it is plainly inappropriate to adjourn these current proceedings to allow that application to be made when there is already an existing application on foot and procedural orders made, including the appointment of an Independent Children's Lawyer and orders for the preparation of an expert’s report that will inform those proceedings.

8. I propose to make no order whether as to “penalty” or otherwise in respect of the contravention.

9. That being the case, the provisions of s 70NEB(1)(g) must be considered. In that respect, by reference to s 70NEB(7), it seems to be accepted by both parties that, as I have said earlier, the father has previously brought a contravention application. It is by no means clear on the evidence before me what occurred with respect to that application, but it seems to be accepted that, in one way or another, no contraventions were established nor, as a result, was any sanction imposed.

10. The evidence does not allow me to make the findings necessary so as to consider whether s 70NEB(7) is established, but, in respect of the mandatory obligation that might otherwise have been activated by the application of that subsection, I would not in the circumstances of this case, (particularly given that each of the parties is self-represented) make any order for costs as that subsection contemplates.

11. I order accordingly.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 12 March 2012.

Associate: 

Date:  12 March 2012