SELLEN & SELLEN
[2018] FamCA 891
•1 November 2018
FAMILY COURT OF AUSTRALIA
| SELLEN & SELLEN | [2018] FamCA 891 |
| FAMILY LAW – CONTRAVENTION – Where the mother alleges the father contravened final parenting orders – Where the mother proposes the father be penalised with a fine – Where s 70NAF(3) is invoked – Where the Court finds the father either had a reasonable excuse for the breach or the contraventions were not proved beyond reasonable doubt – Application dismissed FAMILY LAW – VARIATION OF ORDERS – Where both parties seek to vary the parenting orders notwithstanding the contraventions not made out – Court’s discretion– Where the Court does not have updated expert evidence – Where it is not in the child’s best interests to vary the current parenting orders |
| Family Law Act 1975 (Cth) ss 70NAC, 70NAF, 70NBA, 70NE, 70NEA, 70NEB, 70NFA, 70NFB |
| Sellen & Sellen [2017] FamCA 275 Dobbs & Brayson [2007] FamCA 1261 |
| APPLICANT: | Ms Sellen |
| RESPONDENT: | Mr Sellen |
| FILE NUMBER: | SYC | 2350 | of | 2014 |
| DATE DELIVERED: | 1 November 2018 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns via video link to Sydney |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 14 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lam |
| SOLICITORS FOR THE APPLICANT: | Genuine Legal |
| THE RESPONDENT: | In person |
Orders
The mother’s Contravention Application filed 22 February 2018 is dismissed.
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 Sellen & Sellen 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 CAIRNS VIA VIDEO LINK TO SYDNEY |
FILE NUMBER: SYC 2350/2014
| Ms Sellen |
Applicant
And
| Mr Sellen |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 3 May 2017, for reasons then delivered,[1] Loughnan J made final parenting and property orders as between the parties. By her Application – Contravention filed 22 February 2018, Ms Sellen (“the mother”) alleges nine instances of contravention of those orders by Mr Sellen (“the father”). For reasons given during the course of the hearing before me on 14 September 2018, I dismissed four of those counts on a summary basis, as they were legally not viable, and reserved my decision in relation to the remaining five alleged contraventions. This is that decision and the reasons for it.
[1]Sellen & Sellen [2017] FamCA 275.
BACKGROUND FACTS
The father was born in Country J in 1962, and hence is presently 55 years of age. The mother was born in the Country K on 23 April 1980, and hence is presently 38 years of age. In 1991 the father moved to Australia. In 2004 the parties commenced to communicate with each other via an online dating website. At the time the mother was residing in the Country K, but she travelled to Australia in August 2005, and again in 2006, when it appears the parties’ relationship commenced. They married in Australia in 2008, and the only child to their relationship, B (“the child”) was born in 2010. He is therefore presently eight years of age. The parties separated on 17 February 2014.
Under the orders of Loughnan J made 3 May 2017, the parties were to have equal shared parental responsibility for the child, who would live with the mother, but spend substantial and significant time with the father, including extensive block periods of school holiday time. Further orders governed the arrangements for the child travelling internationally, and to ensure that he maintained connection with his European heritage.
Relevant to these contravention proceedings are the following orders of Loughnan J:
3.During school term the child will live with the father on four overnight occasions each fortnight as follows:
In week one – from Thursday after school to before school on Friday;
In week two – from Friday after school to before school on Monday;
...
5.Subject to overseas travel or special days in accordance with these orders or is otherwise agreed, the child will live with the parents on a week-about basis during the Christmas school holidays, the father’s first week commencing at 10:00am on the second Sunday of the holidays. Changeover will occur at 10:00am each Sunday thereafter.
…
15.By consent, each parent shall facilitate the child’s attendance and participation in his existing extra-curricular activities, being language School, cricket and soccer, together with any additional activities that are mutually agreed between them.
…
17.By consent, when facilitating changeovers or any other event between the parents where the child is present, the parents shall ensure that they shall greet each other and otherwise act in a polite and respectful manner.
…
THE LAW
The bulk of legislative provisions relevant to the mother’s Contravention Application are contained in Division 13A of Part VII of the Family Law Act. Numerous judicial officers have previously noted the complexity of those provisions.
At the outset it is useful to note that Division 13A differentiates between, on the one hand, less serious contraventions (dealt with in sub-division E) and on the other hand more serious contraventions (dealt with in sub-division F). Amongst other differences between those concepts, as one would expect, the range of penalties available in consequence of a finding of a more serious contravention, and their severity, are increased.
S.70NEA prescribes the circumstances in which the provisions in subdivision E apply. Relevant to these proceedings s.70NEA provides as follows:
(1) Subject to subsection (4), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies;
and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
(2) For the purposes of paragraph (1)(d), this subsection applies if no court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(3) For the purposes of paragraph(1)(d), this subsection applies if:
(a) a court has previously:
(i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
(4) This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.”
The notion of contravention is dealt with in s.70NAC. As relevant to these proceedings, that section provides as follows:
70NAC A person is taken for the purposes for 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; or
(b)…
Likewise, the notion of a reasonable excuse for the contravention is illuminated by s.70NE, which, relevant to these proceedings, provides as follows:
(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 and 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.
(3) …
(4) …
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together 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 the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
…
Both of these provisions are relevant to more serious contraventions as well.
S.70NFA details when sub-division F will apply. S.70NFA provides as follows:
(1) Subject to subsection (2), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies.
(2) For the purposes of paragraph (1)(d), this subsection applies if:
(a) no court has previously:
(i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
(3) For the purposes of paragraph (1)(d), this subsection applies if a court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB (1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4) This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5) This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
A further level of complexity is introduced because, by s.70NAF, the standard of proof required depends upon the order to be made. S.70NAF provides as follows:
(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1) that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The court may only make an order under:
(aa) paragraph 70NEB(1)(da); or
(ab) paragraph 70NECA(3)(a); or
(a)paragraph 70NFB(2)(a), (d) or (e) or
(b)paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the ground for making the order exist.
The Order under s.70NEB(1)(da) is a fine imposed consequent upon the contravener failing to enter in to a bond as required by an Order. It is one of the powers of the court applicable in the case of less serious contraventions. S.70NECA(3)(a) empowers the court to impose a fine in the course of enforcing a previously ordered and given bond. Again, it is one of the powers of the court contained within subdivision E, which deals with less serious contraventions.
S.70NFB(2)(a), (d) and (e) are all within subdivision F, which deals with more serious contraventions. Sub-paragraph (a) empowers the court to make a Community Service Order; sub-paragraph (d) empowers the court to impose a fine; sub-paragraph (e) empowers the court to impose a sentence of imprisonment.
The Full Court remarked upon the practical difficulty which the differing standards of proof generate in Dobbs & Brayson [2007] FamCA 1261. Relevant paragraphs of that decision are as follows:
31. Accordingly, we identify four categories of fact to which questions of the appropriate standard of proof relate, namely those going to:
(i) whether the alleged contravention occurred;
(ii) whether a reasonable excuse for the contravention existed;
(iii)whether a contravention without reasonable excuse was “less” or “more” serious; and
(iv) what order should be made, including whether an order should be made under s 70NFB(2)(a)(d) or (e) or s 70NFF3(a).
…
47. Returning to the interpretation first discussed, namely that, before a sentence of imprisonment can be imposed, s 70NAF requires the court to be satisfied beyond reasonable doubt of all of the following elements: the commission of a contravention, that the contravention was “more serious” and that other available orders were inappropriate; we note that each of these matters is a “step” required by provisions in Division 13A. Each “step”, in our view, is readily enough seen as a “ground” for making one of the orders in question. This interpretation we think consistent also with general principle, as emerges from the following authorities.
…
62. In any event, this discussion relates at most to what is likely to be a small “pocket” of facts that arises in a small number of cases. We have already concluded that the terms of s 70NAF of the Act mean that all the facts which the applicant must establish before an order of the type referred to in s 70NAF(3) can be made, must be proved beyond reasonable doubt. Cases where other facts are relevant to the particular order made may well be rare. However, in our view, even in respect of those facts, if adverse to the respondent, they must be proved beyond reasonable doubt.
CONTRAVENTION 1
This contravention alleges that at about 10:00am on 7 August 2017 “[the father] without reasonable excuse refused to return [the child] to [the mother] and retained [the child] on his residential premises without [the mother’s] consent.”
The facts which underpin this do not appear to be in any serious contest. 7 August was a Monday, and a school day. Under order 3, the child had been in the father’s for the preceding weekend, and was due to leave his care “before school on Monday.” It is not in dispute that the father did not take the child to school that day. The father says in his affidavit:
3. [The child] was in my care from Friday 4th to Monday 7th of August. On Sunday morning [the child] felt unwell and had a fever, we had a quiet day at home, so as [the child] could recover. [The child] had a sore throat but no fever on Monday morning, as I could not bring him to school I took the day off work and cared for him at home.
4. I informed [the mother] by text message on Monday morning and after we had been to the medical centre. In the early afternoon I asked [the mother] when she would like to pick up [the child] annexed hereto and marked with a letter “A” is (sic) text messages in regards to my communication with [the mother].
Those text messages commenced at 8:23 am, with the father saying to the mother:
Please note that I will stay home with [the child] today as he had a slight fever last night 37.5 and as a precaution will stay home today. All his homework for the week will be completed today. No fever this morning.
At 10:36 the mother messaged the father simply saying “withheld by you without my consent.” To this the father responded at 10:46:
U can pick him up after you finish work. We are just back from GP. Clear chest, clear eyes, sore throat but only rest, fluid and panodil (sic). Doctor recommends sport for kids to be healthy. He expects [the child] to be back to school tomorrow or Wednesday.
The mother says that this caused her to attend the father’s home at about 11:00 am, but the father “refused to open the door.”
The mother’s case is that she does not believe that the child required medical attention on the Monday, but rather that the father did not want to hand the child over to her, and did not want him attending school that day.
It seems to me that there are two matters which support the father’s defence of reasonable excuse. The first is that at 8:23 am on that morning he referred to a specific temperature of 37.5 degrees as having been suffered by the child on the Sunday night, and was keeping him home on Monday “as a precaution.” He advised the mother of this at 8:23 am.
The second is that it appears incontestable that the father did in fact take the child to a doctor on the Monday. These two facts satisfy me that the father was retaining the child on a genuinely held view that it was inappropriate to send him to school.
The orders do not deal with a situation where the child is believed by the father to be unwell on a Monday morning. Plainly it would be inappropriate to take the child to school, and the only two options then would be to take the ill child to the mother – who presumably is likely to be working – or to withhold the child and for the father to take a day off from work. That is what the father did here, and I am satisfied that whilst doing so comprises a technical breach of the orders, the father had a reasonable excuse for that breach because it was reasonably necessary to protect the health of the child, and further, even if it were not, then because he ought nonetheless be excused in respect of the contravention.
CONTRAVENTION 2
This contravention alleges that around 4:45pm on 17 August 2017, the father, without reasonable excuse, removed the child from afterschool care without advising the mother and without her consent.
Again the facts do not appear to be in any real dispute, in that the father accepts that he did indeed remove the child from afterschool care on that day at about that time. He says he did so, in order that the child could attend soccer training, in relation to which the father is the team coach.
Soccer would appear to be something of a vexed matter between the parties. It will be remembered that soccer was specifically one of those matters which the parties are obliged to facilitate the child’s attendance and participation in. The father asserts that the mother does not enthusiastically do so.
The father says that at 8:55 am on 17 August 2017, he sent a text message to the mother saying “plese (sic) let me know if you are going to take the child to soccer training or if I should take him? If I don’t hear otherwise I will go and pick up around 4-45pm. Training finishes at 6:00pm.”
The father’s affidavit says that he received no reply from the mother to that text message, and accordingly picked the child up as he had indicated. However he says that at about 5:30pm, the mother arrived at the soccer training and caused “a big scene” and embarrassed the child by removing him away from training. It is not altogether clear whether the mother accepts all of this, as her affidavit contains a blanket denial of paragraphs 47-59 of the father’s affidavit, in which that part appears. However I am satisfied that the father sent the text message as alleged, and that the mother did not respond to it.
There is a broader disagreement as to whether the mother was taking the child to training and games. For his part the father says that in 2017, the mother did not take the child to five soccer matches, and two and a half training sessions, and for more than half of the soccer matches when the child did play, the mother arrived five to ten minutes late. That is significant because the games only last thirty minutes.
The father’s affidavit then lists, by reference to specific dates prior to 17 August, the occasions when the mother did not take the child to soccer training, although they appear to be denied by the mother, who says “I have taken [the child] to all games and soccer training as scheduled and advised by [the father] unless [the child] was unwell. For example, there have been occasions whereby (sic) [the child] has had a fever, flu or cough.” The mother also appears to deny that the child arrives late to games, albeit again, unhelpfully, that is only raised as a blanket denial of the relevant band of paragraphs.
The issue is whether the father has a reasonable excuse for taking the child into his care from the afterschool care. He says he did so, firstly to facilitate the child’s ordered attendance and participation in soccer, and secondly, only after having given the mother forewarning of his intention to do so, to which she did not demur. I am satisfied that establishes a sufficient basis for me to find that the father ought be excused in respect of the contravention, comprising removing the child from after school care. Significant to my thinking is the lack of any response by the mother to the father’s text message advising her of his intention to do so.
CONTRAVENTION 3
This contravention alleges that, on multiple dates throughout 2017, the father, without reasonable excuse, failed to facilitate the child’s attendance at language school when the child was in his care on alternate weekends, specifically being 6 and 20 August, 3, 17 and 30 September 2017, 22 October, 5 November and 3 December 2017.
It is not altogether clear on what basis the mother asserts the father’s alleged failure to take the child to Language school on those dates. Annexed to her affidavit filed 22 February 2018 was a letter from the Language school, purportedly claiming the child had multiple absences from the school, however unfortunately that letter is in Country K, and no translation of it was provided.
For his part, in his affidavit filed 28 March 2018, the father only said that he failed to take the child to Language school on four occasions in 2017. The first was on 13 May, and he annexed to that affidavit a doctor’s certificate confirming that the child was unwell. The next was 6 August, which it will be recalled was the day before the first contravention, when the child had a fever. The third was 3 September, which was Father’s Day, and ultimately that did not appear to be pressed by the mother. The fourth was 3 December 2017, when the father says he was unable to start his car as it had a flat battery.
Further, the father says that he did not breach the orders by failing to take the child to Language school on 30 September, because the school was then on holidays, and in any event, the child was in the care of the mother for that week.
By paragraph 26 of her affidavit filed 3 May 2018, the mother appears to suggest that the date she selected as 30 September should have in fact been 1 October, but no application was made to amend the Application - Contravention.
Other than the dates admitted by the father, I am not persuaded that the father failed to take the child to Language school on the dates alleged by the mother. As regards those dates which he concedes, I am satisfied that the child’s illness, on two occasions, gives the father a reasonable excuse for non-compliance on those dates, in that taking the child was necessary to protect his health, and further, that the fact that one date fell on Father’s Day, and on another occasion when he was unable to start his car, satisfies me that the father ought be excused in respect of that contravention, and hence there was a reasonable excuse for them.
Moreover, although the mother pressed this aspect of the contravention as if each of the dates comprised an individual contravention, in my view that is not the way in which Order 15 ought be construed. Rather, the parents have a general obligation to facilitate the child’s attendance and participation in the various activities covered by that order, and a failure to attend on one instance would not necessarily, of itself and without more, comprise a failure to so facilitate. Rather, it is the overall facilitation which would need to be shown to be lacking. The evidence falls well short of that in this respect.
Further, I note that the mother seeks, amongst the orders to be imposed upon the father, a fine. Such an order could only be made if I was satisfied that there was a more serious contravention. The evidence could not possibly persuade me beyond reasonable doubt that the father breached Order 15 as alleged.
CONTRAVENTION 4
This contravention alleges that, at 10:00 am on 28 January 2018, the father breached Order 5 without reasonable excuse, by refusing to return the child into the mother’s care, but rather retained the child from 28 January until 30 January, without the mother’s consent.
The father concedes that he did indeed continue to care for the child, and did not return the child to the mother’s care on 28 January. However he says that doing so did not, on his construction of the orders, comprise a breach of them.
The mother says that on 16 January 2018, she advised the father by telephone that she and the child would be travelling to Canberra on 28 January to watch a show there. She then says that she overheard the father saying to the child that they would be staying at a family friend’s holiday house “relatively near Canberra” around that time. She then inquired of the father whether he would be willing to drop the child off in Canberra where she would be, to which she says the father responded “we will see. I will think about it.”
Pursuant to the orders enabling the father to spend holiday time with the child, the child went into his care on Sunday 21 January 2018. However shortly afterwards, at 10:09 am, the father sent the mother a text message advising that he would not be returning the child into her care the following Sunday. The mother responded that she did not consent to that, and expected the child to be handed over.
The father’s position had been made clear well prior to January 2018, in an email that he sent the mother on 13 December 2017. He had said, amongst other things:
As you can see, there is nothing in the Court Order in regards to who is picking up the child from school when his holidays starts or when it ends. Obviously the normal schedule still applies for those periods.
The father says at paragraph 35 of his affidavit that the mother did not respond to this suggestion, and on the basis of her non-reply, he assumed that she was in agreement with the schedule, and he made his plans accordingly.
To this the mother says that her lawyers had previously advised the father that departures from the orders had to be made by agreement in writing by both parties. Implicitly, she says, her absence of a response was therefore not a legitimate basis for the father to infer agreement.
It will be appreciated that the father’s defence here is twofold. Firstly, he says that on the orders as properly construed, the end of holidays ought be combined with school term time, so that the last weekend is effectively week two of the school term regime. Secondly, he says that if he is wrong as to that, then he had a reasonable excuse to the contravention, because that is what he believed the orders meant.
In my view, properly construed, the orders do not operate so that the last weekend of school holidays is to be treated as if it were week two of a school term. Given that under the orders the father is likely to always have the last week of the Christmas school holidays, and the last week of other school holidays in odd numbered years, that would see the child going back to school, either initially, or to resume a new term, from the father’s care. I do not construe the orders as being cast so as to achieve that outcome, which would be rather counterintuitive, considering that the father only has the child in his care for two school nights per fortnight, and a total of four nights per fortnight.
However I am satisfied that the father did have the belief which he contends, albeit an erroneous one. It is plain from his email of 13 December 2017 that was his construction of the orders, and he gave clear indication to the mother of his intentions to act in accordance with that construction. Her failure to respond to that email likely bolstered his belief, albeit the mother’s subsequent indication that the child should return into her care on 28 January 2018, would have undermined it. Nonetheless I am satisfied that the contemporaneous email reflects the father’s view of the orders.
I am therefore satisfied that he did not understand the obligations which the orders imposed upon him, and he ought be excused in respect of the contravention.
However it is my duty under s 70NAE(3) to explain to the father in language likely to be readily understood by him, the obligations imposed on him by the order, and the consequences that may follow if he again contravenes. Put simply, the father’s holiday time with the child concludes, pursuant to the orders, at 10:00 am on the final Sunday of the Christmas school holidays, and he will next spend time with the child Thursday night in the first week back at school. If he breaches the orders again in this way, he will almost inevitably be sanctioned.
I will consider whether or not there should be any variation to those orders in due course.
CONTRAVENTION 5
It is said that at every changeover throughout 2017 and 2018 (to the date of the application being filed) the father without reasonable excuse “refused to greet the mother in a polite and respective (sic) manner during changeovers in the presence of the child.”
In her affidavit the mother says that the father “does not greet me or behave amicably at handover and instead ignores me and behaves in a rude manner in front of [the child].”
For his part, the father denies this, and says that he is “always respectful and shows good manners” when greeting the mother and child, and says “hello” and “goodbye” or “see you later.” However he goes on to say:
I prefer not to get into any discussions with [the mother] in front of [the child] as I find [the mother] to be very argumentative. I have at those few occasions pleasantly asked [the mother] to contact me later to discuss any matter.
The father annexed to his affidavit communications which he said were abusive and provocative, including the mother accusing him of telling lies and having a personality disorder.
To this the mother disagreed, and reiterated that the father has not been greeting her at changeovers. She further denied that her communication annexed to the father’s affidavit was abusive, as “I have genuine concerns for the state of [the father’s] mental health. On at least four occasions I propose [the father] undergo a psychiatric assessment and he refused to agree to undergo this type of assessment.”
Under cross-examination the father was adamant that he greeted the mother, but emphasised that he does not engage in conversation with her beyond that. I accept that evidence. It follows that I am not persuaded that Order 17 has been breached as alleged by the mother. Certainly I could not be persuaded on the basis of that evidence beyond reasonable doubt of such a breach.
VARIATION OF PARENTING ORDER
It appears as though both parties seek, pursuant to s 70NBA, to vary the parenting orders in this case. Notwithstanding the fact that I have not been persuaded that the father has contravened the orders without reasonable excuse, the power to vary still exists. However it is a matter of discretion, informed by the child’s best interests, as to whether or not such variation should be made.
For his part, the father seeks a variation of the orders to week about during the school period, with changeovers to be on Wednesdays. He further seeks orders that the child not be required to attend Language school during the weekends, so that he can spend more time on his homework and other activities. He proposes that the Christmas school holiday period be more equally split, and that the order of which party gets to spend what weeks with the child be reversed in odd years.
Seemingly in the alternative, the father also sought orders that the child spend Tuesday evenings with him each week. He also seeks orders that the mother be obliged to offer the child to the father if there are occasions when he is put into out-of-hours care.
For her part the mother sought an order that, should the father further fail to facilitate the child’s attendance at Language school, then he is to bring the child to be changed over into the mother’s care no later than 12:00pm on each day in question, and the mother is to take him to Language school instead of the father.
The most recent Family Report in this matter is now of some vintage, being dated 14 February 2017. It supported the child’s participation in Language school and, as I read it, recommended the present regime of orders whereby the father’s alternate weekend extend to Monday morning, and there be one overnight in the “off” week.
There is simply therefore no mandate, other than the father’s wishes, for the magnitude of the primary change to the orders which he contemplates, namely, moving to week about care. Moreover, I am mindful that the orders of 3 May 2017 are still relatively fresh. It is apparent that the parties continue in high conflict, and to allow such changes to the orders is likely to only fuel further controversy between them.
Whilst it is true that Language school significantly takes up the father’s weekend time with the child, there is nothing to suggest that maintaining those cultural connections is not of advantage to the child. Whilst the father says that the time at Language school could be better used on homework for his primary schooling, one has to doubt whether or not really, on a Saturday or Sunday afternoon, an eight year old boy is going to be undertaking homework.
Whilst the father points to some difficulties with the Christmas school break not being as equal as he would prefer, I am satisfied that it nonetheless presents a sufficiently significant opportunity for the child and father to spend block periods of time together.
As for the mother’s proposal in relation to Language school, it is likely to be highly confusing for the child to be changing between the care of his parent on the father’s alternate weekend. It is an unnecessary impediment on the orders.
I am not satisfied that any variation to the parenting orders under s 70NBA is in the child’s best interests, or otherwise appropriate.
CONCLUSION
For these reasons there will be an order dismissing the mother’s Contravention Application filed 22 February 2018.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 1 November 2018.
Associate:
Date: 1 November 2018
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