SEDLEY & SEDLEY
[2018] FamCA 315
•11 May 2018
FAMILY COURT OF AUSTRALIA
| SEDLEY & SEDLEY | [2018] FamCA 315 |
| ORDERS – Contravention – where the final parenting orders drawn by the parties required mutual communication and non-denigration – where the wife failed to comply but argued the breaches were insignificant. Where as a group, the braches indicate a lack of respect and ignoring of the importance of the husband’s parenting role – where the appropriate order is a costs order. CHILDREN – Parenting – where the parties agree to attend a psychologist but the husband still seeks findings on the contributions. |
| Family Law Act 1975 (Cth) |
| McClintock and Levier (2009) FLC 93-401 Seven Network (Operations) Limited v Amber Harrison [2018] NSWSC 633 |
| APPLICANT: | Mr Sedley |
| RESPONDENT: | Ms Sedley |
| FILE NUMBER: | MLC | 6870 | of | 2015 |
| DATE DELIVERED: | 11 May 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 8, 9 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Atkinson |
| SOLICITOR FOR THE APPLICANT: | Coote Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Holmes |
| SOLICITOR FOR THE RESPONDENT: | Berry Family Law |
Orders
That UPON FINDING the wife breached the parenting orders, she pay the husband’s costs fixed at $8600.
That otherwise, the contravention application filed 9 March 2018 is dismissed.
That BY CONSENT the parties (and if required, they bring the children) attend upon Mr B for the purpose of family therapy, such attendances to be non-reportable and the costs of all such attendances be shared equally.
That Mr B be provided with the reasons for judgment and these orders by either party.
That the exhibits be returned.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sedley & Sedley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6870 of 2015
| Mr Sedley |
Applicant
And
| Ms Sedley |
Respondent
REASONS FOR JUDGMENT
Mr Sedley (“the husband”) alleges Ms Sedley (“the wife”) breached parenting orders made on 16 February 2017 on six occasions. To each allegation, the wife responded with a denial.
Having heard both parties cross-examined by counsel (each for the other), I am satisfied on the balance of probabilities that each allegation has been proved. These are my reasons.
Final parenting orders were made by Johns J on 16 February 2017 at a time when both parents had legal representation. The court then also had the assistance of an Independent Children’s Lawyer who supported the orders. Those orders were drawn by the parties and each consented to them; that is, the court was told that these orders were in the best interests of the parties’ two children. An examination of the orders will show how finite the detail was as to the parties’ obligations but the most notable thing was that the orders were mutual.
Some of the allegations of breaches were said by the wife to be “de minimis” and others “petty”. I reject those descriptions. In isolation, each allegation looks insignificant.
C and D are aged almost 15 years and 12 years respectively. As the evidence unfolded, it appears that they are caught in their parents’ conflict. It was not suggested that any endeavour had been made since February 2017 to alter the orders. Counsel for the wife did say that there is now such an application under contemplation.
Collectively , on the basis of the allegations, I find that the orders were largely ignored by the wife if it is accepted (as I do) that the parties acknowledged each had “shared” parental responsibility (whatever that means to them).
Of the six allegations, the first might be categorised as indicative of the wife’s lack of respect for the husband in the presence of one of the children. She empowered C to side with her at a time when she should have pulled him up and insisted on him staying out of the parental conflict. A second category of breaches highlighted the lack of communication between the parents and ironically, each accuses the other of being the cause. My focus here has to be guided largely by the confines of the evidence presented. Whatever complaint the wife has about the husband, I find she cannot unilaterally ignore what both parents told the court in February 2017 was a recognition of the significant role each was expected to have in raising their children.
The philosophical approach just mentioned could be drawn from the face of the consensual shared parenting order but those same orders required each to be regulated in their behaviour notwithstanding each seemed to recognise the role of the order. That position is reflected in the following orders which read:
Restraints
11. The parties, their servants and agents be and are hereby restrained from:
(a)denigrating, insulting, rebuking or otherwise speaking negatively about the other party, members of the other party’s family, to or in the presence or hearing of the children, or allowing any other person to do so;
(b)attending the residence of the other party, except for the purpose of changeover in accordance with order 10, without first having the other party’s consent;
(c)attending the children’s sporting events or other extra-curricular activities during times that the children live with the other parent, except for:
i) finals;
ii) presentation events;
iii)events which the resident parent has notified the other they will be unable or not intending to attend, each parent to notify the other of such events; or
iv)with the written consent of the other parent;
(d)enrolling the children into sporting or extra-curricular activities, or committing the children to attending functions or events (including parties), that occur during the children’s time with the other parent, without first obtaining the other party’s consent in writing, except for the children participating in basketball or football sporting teams. Each party agrees to provide the other party with copies of any invitations that they receive to parties or other extra curricular events, including but not limited to events relating to the children’s sporting activities that are to take place on the other party’s time, within 24 hours of receipt.
(e)facilitating the children’s attendance on a counsellor or psychiatrist/psychologist (except for [Ms E] or the children’s school counsellor/psychologist for predominantly school related matters), without first obtaining the other party’s consent in writing;
(f)allowing the children to be provided with prescription medication, save as prescribed from time to time by their treating medical practitioner or other appropriately qualified medical practitioner.
Information
12. The parties must:
(a)inform the other in writing as soon as practicable of any change to their respective residential addresses, contact telephone numbers or contact email addresses;
(b)as soon as practicable inform the other of any illness or injury sustained by the children whilst in their respective care requiring medical attention and or absence from school, and provide the name of the treating medical practitioner or other health professional and details of any prescribed medication or treatment as soon as practicable and authorise the other party to communicate with the treating medical practitioner or health professional (as the case may be);
(c)in the event of an emergency or accident or other serious injury suffered by the children, inform the other party as soon as practicable;
(d)provide to the other parent any invitations for the children to attend functions or events during times that the children are living with the other parent, upon receipt of such invitations.
13.The parties are permitted to attend separate parent/teacher interviews and other school appointments if permitted by the school, and if the children are not in that party’s care at the time of the interview or appointment, the party with whom the children are living shall make the children available for the purpose of attending that interview or appointment.
In recognising there was unease and that the orders were not necessarily going to resolve their underlying unhappiness with each other, the parents consented to the following:
19.The Father, Mother and the said children shall attend upon [Ms E], Clinical Psychologist for the purpose of family therapy, and her reasonable costs be paid by the Father on the basis that the Mother pay for the children's private health fund which shall include provision for a rebate for the psychologist fees.
20.The ICL shall meet with the said children to explain these Orders to them.
The last mentioned order is indicative that someone independent had to talk to the children about their parents’ approach to their care and future role in their lives. This was the only objective way the children were going to understand what their parents had agreed was good for them.
It was not long before problems arose and litigation in this court occurred in 2017 involving allegations of contraventions against the wife which were ultimately compromised and withdrawn. That order is not a relevant past breach for the purposes of categorizing the seriousness of the present breaches but it simply reflects that what took place in 2017 was an uneasy truce. That is relevant to the context mentioned above whereby the wife says that these present allegations are petty or a minimal significance.
In reality here, the internecine war has prevented the raising of the children in a positive light as the parties undoubtedly told the court in 2017 was their intention. There is no better example of that than the importance of a bar mitzvah. In the parties’ view, this was to be a significant day in not just the child’s life entering teenage years but they could not talk to one another about how it would be arranged.
Before dealing with specifics, it must be mentioned that counsel for the wife submitted before the hearing began that some of the allegations should be dismissed or struck out for what I would describe as technical reasons. I rejected his submissions and gave brief reasons at the time. Suffice to say, the contravention proceeding is not a quasi-criminal law application but rather, whether there has been a breach of its orders and if so, whether the orders should be altered to ensure the intention of the court is given effect.
A contravention process is also not about “winners and losers” as was mentioned in discussion with counsel. Counsel for the wife submitted that the Court needed to be conscious that with the degree of difficulty in communication between the parties but their now-professed desire to attend upon someone to assist them, finding one party a “winner” and the other the “loser” could be counter-productive to co-operation. I do not accept that can be the case here because of two things: first, the orders were carefully drawn and certainly dealt with minutiae but that was simply indicative of the state of the parties’ relationship at that time and how litigation had progressed subsequent to the breakdown of their personal relationship. They chose to litigate and then decided, at the door of the court, that they needed precise details written down to regulate their parenting roles to ensure that everyone knew where they stood. Many parties thereafter do not like one another or communicate and from time to time, orders are not followed but here, the concerning pattern is what enables me to find that the wife has not been co-operative and it remains to be seen whether that will change with a new psychologist involved bearing in mind paragraph [19] of the orders above.
Nor are these proceedings about punishment. The “sanctions” in the Family Law Act 1975 (Cth) (“the Act”) relate to enticing, if not coercing, parents to carry out the orders as was intended.
This process is also not one in which the parties can sit back and challenge another parent to “come and get” them. There is a positive obligation to make the orders work and if a problem arises, to rectify it whether it is technical or otherwise (see s 65DA(2) and s 62B).
Division 13A begins with a heading “Consequences of failure to comply with orders, and other obligations that affect children”. That might suggest that the provisions of the Act take a punitive approach but see the Full Court judgments in McClintock and Levier (2009) FLC 93-401.
Divisions 13A is in Part VII of the Act so the evidentiary provisions of Division 12A apply. Proceedings must be conducted with the needs of the children in mind but also the impact that their conduct on the children. Whilst the court must control that process, it is initiated by the parties and they determined to conduct the proceedings as they did. Again, the “winners” and “losers” analogy is not appropriate. Also here, it is important to recognise that both parents have responsibilities on an ongoing basis (and presumably jointly by virtue of the orders in February 2017) to raise the children so respect and communication are vital. It is clearly lacking.
Paragraph [19] of the February 2017 order was obviously intended to address the issues about implementation of the parenting regime. The wife’s evidence was that the therapy had not been successful so she ceased going and so did the children. Whatever was the cause of that dissatisfaction, nothing was done to resurrect what the order demanded of both of those parents.
The solution in 2017 was to rectify the orders to ensure a refocus of the parents addressing their problem. I raised that with the parties and in particular, referred to the power in s 70NBA. It was only at the end of bruising cross-examination of both parties that on my suggestion, the longer term solution seemed to be contemplated. Nothing of that nature appeared in the parties’ affidavit material.
In Division 12A, s 69ZN(4), (6) and (7) justify a proactive role by the court; indeed it is mandatory. Those provisions read:
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
…
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In respect of allegations of breaches said to justify intervention under Division 13A, the court is directed relevantly as follows:
S 70NAC Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order;
Division 13A also provides the following:
S 70NAEMeaning of reasonable excuse for contravening an order
(1) 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 subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
…
(7) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
It could not be said here that s 70NAE(2) applied because the wife acknowledged the facts by describing the breaches as minimal or petty. She acknowledged she knew what the orders meant and she had legal representation throughout.
At the conclusion of the evidentiary part of the proceedings, I stood the matter down to give the parties an opportunity to contemplate the “where to”. They came back with the name of the new psychologist and an agreement they would go to him. However, there must have been some misunderstanding between them because the husband then indicated he wanted “findings” whilst the wife said that the outcome overcame what the court had heard. I gave the parties overnight to contemplate.
On the second morning, counsel disagreed as to what should happen but counsel for the wife submitted that the husband had “changed his mind”. He then added that here were “absolutely amazing combustible elements” over lack of communication which was the genesis of the problem. Against that, counsel for the husband submitted that the husband had never wanted the wife punished but rather, wanted her to respect his role and for there to be compliance with orders.
In my view, the facts of this case warrant findings being made to reflect the seriousness with which the Court takes its parenting orders. Whilst all parties should endeavour to resolve matters themselves and the intervention of the court should be as miminal as possible, it is not appropriate for the court to turn away from the fact that it made the order and that it meant something.
There is something to be said for the very recent observation of Pembroke J in the Supreme Court of New South Wales (Seven Network (Operations) Limited v Amber Harrison [2018] NSWSC 633) where the following was published in a contempt application in a media case of some notoriety:
Although I retain a discretion, there is no sound reason for not making the declarations sought. The facts are beyond reasonable doubt. And there is utility in making such a declaration because it will uphold and reinforce the principle that orders of this Court must be obeyed. The declaration will represent a formal disapprobation of the defendant’s conduct in flouting the orders of the Court: Australian Securities and Investments Commission v Monarch FX Group Pty Ltd, in the matter of Monarch FX Group Pty Ltd [2014] FCA 1387 at [62]- [65]. And it means that if the defendant commits future breaches of the orders of this Court, the fact of this declaration will be taken into account.
The allegations
The first allegation
The first allegation was that the wife denigrated, insulted and rebuked the husband in the presence or hearing of C.
The nub of this dispute seemed, from the wife’s perspective, to be about whether C heard what she said to the husband. It is not controversial that near, or at, the husband’s car whilst putting C’s bags into the boot and possible even where C was in the car or close to it, the wife said to the husband:
You’re a cunt.
It was the husband’s evidence that C was about two metres away and if he was in the car as asserted by the wife, that distance was still probably right. The husband’s evidence was that C was walking behind him to the car. The wife said that she “muttered” the words under her breath but there can be no doubt that she said them because the husband heard them and incorporated them into his affidavit and they were not denied.
The wife maintained that while she “muttered” the words, C would not have heard them. Ironically, the husband subsequently seems to have received a text message from C who stated that he had not heard what his mother had said. The very fact that C had been dragged into this dispute is concerning. The inference I have drawn, is that the husband had complained to the wife about what she said and the wife had engaged C to say he did not hear anything.
Ultimately, but only in cross-examination, the wife conceded that her conduct was not appropriate. She conceded that whether or not C heard what was said, it was at least in his presence. Presence does not mean cognisance. It is a physical state whereby there is a possibility of a child hearing what an adult says or the child seeing what an adult does. It is for that reason that paragraph 11 of the orders was presumably drawn the way it was.
Counsel for the wife submitted that there was no evidence that C heard what was said and in any event, the reference in the order included the words “presence of” and that had not been defined. He submitted that whichever way the matter was considered, this was an “aberration” because there was no evidence that it had happened before. He submitted that the wife was “frustrated”. This frustration was said by the wife to have arisen because she understood that when the husband came to collect C, he was to bring D and he had not done so. The loss of objectivity on the part of the wife was therefore evident and her anger spilled over to the point that even on her version of the evidence, C may have been conscious of what was happening. As it later transpired, the message from C showed that he had become embroiled in the parental conflict.
I am satisfied that the wife breached the order.
The second allegation
The second allegation arises out of an incident on 10 February 2018. This relates to denigration despite the width with which the allegation was written. The circumstances were most unfortunate.
C was apparently contemplating a school excursion and one of the possibilities was a trip to Asia. Although the wife maintained that the school portal had contained all of the relevant details, I find that she had not told the husband anything about her plans not just in relation to registering, enrolling or organising such an excursion for C but what discussions she and C were having. Her views were not expressed to the husband. One might expect that C might bubble over with enthusiasm about the prospect of such a trip but even he was reticent to talk to his father about it. That can be seen when the husband asked C a number of questions about an information night at the school to which C wanted his father to take him during a night when C was staying over. The husband took him only to see that the wife was waiting at the school. Whilst on its face, one might conclude that there was some form of pre-arrangement between C and the wife, I am not entirely sure because the event had already been advertised on the school portal.
However, the allegation in this instant was that whilst in the husband’s care, a discussion took place between he and C about “other options” than just going to Asia and whether unfortunately or not, the husband must have said something along the lines that there would be a need for makeup time. In turn, that led to C text messaging his mother. The text messaging is in evidence (Exhibit H1) and the fact that it occurred is not controversial. It reads as follows:
C: I knew he wouldn’t just let me go to [Asia]
He wants fucking makeup time
The wife: Ignore it
It’s not for you to deal with
Don’t say yes or no
Don’t say you won’t go then to [Asia]
Just say you are not discussing it anymore
He is being ridiculous and shouldn’t be talking to you about it
Just ludicrous
Call me if u can.
My concern was attracted by the use of the words “wouldn’t just let me go”. In other words, this was not a case of C complaining that his father would not agree to the Asia trip but that there was a condition of make-up time being canvassed. The wife could not have known (but should have asked) what that was all about. What she did was to assume that what C told her was exactly what the husband had said (and having heard his challenged evidence, I accept that is not what occurred) rather than deflecting C and taking up C’s apparent anger or distress with the husband.
Leaving aside the issue of the language of C, which was not hosed down by the wife, the clear implication is that the wife was dismissing whatever C was describing to her as his father’s position. In my view, that was unwise. What she should have done was to endeavour to find out more detail from the husband or indeed from C as to what the discussion had been about.
Unfortunately, the conversation went on but the bulk of it seems to have been taken up by the wife rather than C. That can be seen from what I have set out above. The wife mentioned that whilst C would be going to Asia in his father’s time it was going to be in her time as well and she then rhetorically asked:
Who do I ask for make up time from
That unnecessarily engaged C in the adult conversation instead of saying that she would sort it out with the husband.
To add to the dilemma, the wife then used emojis which did not dignify the conversation at all. Rather than C continuing the conversation, the wife went on to say:
You are a person a human being with feelings. Not a piece of meat
The wife’s evidence was that she was trying to calm C down but objectively, I consider that she was empowering him. The reference to the piece of meat was most unfortunate because it is difficult to interpret it as anything other than a statement that that was how the husband was treating C.
Despite C’s age, what the wife should have done was said that it was not an issue for C but rather one that she would sort out with the husband. Her evidence was that she could not talk to the husband and had never been able to do so because he had been aggressive towards her. These parties have had significant legal representation but there was no indication to me why an email could not have been sent to clear up what was clearly confusion in the husband’s mind. Teenage years are difficult enough without this sort of engagement. As can be seen from the February 2017 orders, the parties were going to seek the assistance of a very experienced psychologist to endeavour to deal with these sorts of problems. In my view, it was most unfortunate that the wife withdrew from that arrangement.
Counsel for the wife submitted that the wife had no intention of denigrating the husband but in any event, the words were “on the lower end of the scale”. The word “denigrate” means to sully, defame or blacken. (Macquarie Dictionary 2nd edition). “Sully” means to soil, stain or tarnish. It is difficult to see this conversation as humorous banter. It was intended to be critical of the husband in the eyes of an unhappy teenager.
I am also satisfied that the use of the words “ridiculous”, “ludicrous” and “not a piece of meat” denigrated the husband. “Ridiculous” means preposterous or laughable. There was nothing funny about what was said here and I do not accept that this was the wife pacifying C.
The second allegation is established.
The third allegation
The third allegation is that the wife enrolled C to travel to Asia without first obtaining the husband’s consent in writing.
The wife’s argument seemed to be that she had not “enrolled” C but registered him because there were limited places and she needed to ensure C’s position was secure. I reject that having regard to the nature of the order and the circumstances under which it was made. Order 11(d) includes “committing the children to attending” and under those circumstances, the wife had an obligation to discuss the issue with the husband whether personally, electronically or indeed through a medium such as the psychologist referred to in the orders.
The sad thing about all of this is that there were proceedings brought by the husband in March 2018 in which the issue about C going to Asia was resolved. Part of the wife’s argument was that these issues had been therefore compromised and there was no basis for the contravention. I reject that submission too on the basis that these matters all show the wife’s approach to her obligations under the order.
When asked why she had not told the husband about the Asia trip, her response was that she and the husband did not communicate.
I find the third allegation proved.
The fourth and fifth Allegations
The fourth allegation was equally perplexing. On 21 December 2017, the wife made an arrangement to enrol D at his school for his religious initiation. On 18 January 2018, she went to the church and enrolled D for the same purpose. In neither case did she seek the husband’s consent. The gap between December and January may not sound much but it points to the fact that there was ample time to communicate.
There can be no dispute here that both parents, and more probably, the husband, wanted D to participate in a very significant issue for male children entering their teenage years. The wife’s explanation was that the religious and cultural event occurs as close as possible to the child’s birthday. To ensure it occurred here, she went first to the school and then later to the synagogue. However, in neither case did she discuss the issue with the husband and although in D’s case, the event would not occur for the best part of a year, a careful reading of the orders which I again stress were drawn by the parties, indicates that she could not undertake that task without the husband agreeing. More importantly, the orders can be seen to be directed towards both parties and accordingly, such an important event in D’s life should have been a combined approach even if done in different ways.
The perplexing part about these two allegations is that again in March 2018, the issue as compromised by consent of the parties. In my view, that makes little difference to the fact that what the allegations expose is the wife’s view about not involving the husband in important decisions that affect the children.
Again, she referred to the fact that the parties do not communicate and she was frustrated. That problem may have been avoided had both parties continued with the psychologist referred to in the orders. As it transpired, the husband has continued to see that psychologist.
The wife’s evidence was that these were temporary bookings and in any event, she knew she needed the husband’s approval because the court required it. She made that concession. Her complaint was that the husband did not take her telephone calls and required everything to be done through lawyers. No evidence was called to show how significant that lack of communication was on the part of the husband.
Counsel for the wife submitted that she had not enrolled D but rather, undertaken what is to become a very important event in 2019. He submitted that the wife’s evidence was that if the husband subsequently disagreed with what she had done, she would have to then change it. That ignores the basis upon which the order was founded; namely that the parties would share the parenting role presumably equally.
The unilateral action of the wife in respect of both of those allegations justifies a finding that they are proved.
The sixth allegation
The sixth allegation is that on 22 February 2018, the wife had failed to inform the husband “as soon as practicable” that D had an illness that required his absence from school. This allegation in isolation, more so than the others, might be seen as petty but it again raises the same issue about the wife’s lack of thought to the role of the husband.
On 22 February 2018, D had what the wife described as an upset tummy. She had an appointment with her lawyer that day. C was to get the school bus at 8.00am and she said that she was unable to contact the husband because her battery was “dead” on her mobile telephone. When asked about whether she thought about using D’s mobile telephone, she said she had not thought of that. To look after D so that he was not left alone at home, she drove to the home of her parents where she collected her mother to go with her to the lawyer and left D in the care of her father. She did not think to ask to use the parents’ telephone nor ask the parents to contact the husband. She went to the lawyers but did not request them to contact the husband.
Just before midday, the school emailed both husband and wife to say that D had not attended and this triggered the wife either remembering or deciding that she had better contact the husband and so a message was sent to him. The husband argued that this was not as soon as practical but the wife’s response was that she had intended to do it as soon as she got home.
As I earlier observed, this could be seen as petty and depending upon one’s view of the words “as soon as practicable”, it ought not be seen as terribly serious because it was inevitable that the husband would find out. I stress again, the parties drew these orders to reinforce the fact that both were to be involved in the children’s lives.
Counsel for the wife submitted that the wife had made a reasonable attempt to comply and the delay was explained by her being stressed that morning. He submitted that when she realised that she had not contacted him, she did so. What flies in the face of that is perhaps the unfortunate fact that the school got in first. Had that not occurred, the husband may not have found out. The seriousness of the illness was minimal but that was not to the point. This was about the responsibilities of parenthood.
I am not satisfied that the wife’s explanation is adequate having regard to the number of opportunities that she could have taken to say that D was not going to school. The fact that she was going to reassess whether or not D went to school when she got home from the lawyers which would have been around midday, is also unsatisfactory. In my view in the context of all that had gone on over the previous 12 months, I have sufficient doubt in my mind such that I am satisfied she may not have contacted the husband at all on the basis that she dismissed the issue as not being serious. On that basis I find that the sixth allegation is proved.
Conclusion
I find each allegation has been proved on the balance of probabilities.
The legal issues
Division 13A is divided into sub-divisions which categorise seriousness. I am satisfied that sub-division E applies. That is, without reasonable excuse these events occurred but they are of a less serious nature in the sense that whilst depriving the husband from participating in what were important issues, no real damage was done to his time with the children.
For the purposes of s 70NEA(7), there has been no previous “sanction” imposed by the court notwithstanding my earlier reference to what happened in 2017. There will now be a registered contravention arising from these six events.
Section 70NEB provides limited powers of the court to deal with what I earlier described as its coercive provisions. Those say:
Powers of court
(1) If this Subdivision applies, the court may do any or all of the following:
(a)make an order directing:
(i)the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
…
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
…
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division…
In the 2017 proceedings, the wife was ordered (and I note by consent) to undertake a post-separation parenting course. There seems little point in repeating that in the circumstances above.
Initially counsel for the husband contemplated that a bond would satisfy the situation but on the second morning, retracted that. I do not consider a bond is of value here. The wife now knows her approach to dealing with these issues has been rejected and she carries the findings of breaches that have been proved. The consequences will no doubt be explained to her but my focus is on making the orders of February 2017 efficient and workable.
The question remains if those two approaches are rejected, what is the sensible outcome? It seems to me the only conclusion is s 70NEB(1)(f) with a focus on altering the orders such that they work efficiently but also the wife now knows that whatever the relationship is with the husband, she bears responsibility at least in part for trying to fix that problem.
Counsel for the husband urged the court to make an order for costs which he calculated at just under $20,000. To make such an order would be on close to an indemnity basis.
Counsel urged the court to consider the pattern of the wife’s conduct because the husband had been placed in a compromised position with his children. There is some sense in that. He submitted that there had to be some impact on the wife to ensure there was no repetition. I agree with that too but the findings here and these reasons will reflect how serious this court takes the details of orders for shared parenting.
Although s 70NEB(1)(f) provides for costs orders, there is a distinct parallel with s 117 relating to costs. In both cases, the discretionary element only arises if there are justifying circumstances to make such an order. 70NEB(1)(f) does not have an equivalent of s 117(2A) but I consider that the court should also not encourage litigation when there is an obvious alternative as was apparent in [19] of the February 2018 orders and which has now been picked up to try and resolve the future problems. I do not see the circumstances here as exceptional. Sadly, they are common and the message should be clear that the court will enforce its orders but that parties (and their practitioners) have to be very careful to ensure that what the court is told is good for the children particularly relating to parental responsibility is not treated as a formality or glibly. In this case, all of the circumstances arise out of a lack of attention to the responsibilities of parenting decision-making.
In my view, there is a justification for an order being made here because the parties are not impecunious but I see no reason why the husband should be entirely out of pocket for what was simply enforcing the orders to which he had agreed.
Having rejected a form of indemnity costs, I consider something in line with the scale is more appropriate. Having looked at that scale and what was put to me about how much work had been undertaken, I consider the just amount is $8,600. The wife is ordered to contribute towards the husband’s costs in that sum.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 May 2018.
Associate:
Date: 11 May 2018
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