SHIRLEY & MOORE

[2015] FamCA 233

FAMILY COURT OF AUSTRALIA

SHIRLEY & MOORE [2015] FamCA 233

FAMILY LAW – CONTRAVENTION – where there are twenty eight alleged contraventions – where the contraventions substantially relate to the failure to provide the child – where the parties live in different states – where it is held the mother contravened the orders.

Family Law Act 1975 (Cth) Division 13A

In the Marriage of Gaunt (1978) FLC 90-468

APPLICANT: Mr Shirley

RESPONDENT: Ms Moore

INDEPENDENT CHILDREN’S LAWYER: D A Family Lawyers Pty Ltd

FILE NUMBER: PAC 3139 of 2013

DATE DELIVERED: 7 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 3 March 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Bryett
A R Walmsley & Co

COUNSEL FOR THE RESPONDENT: Mr Neaves

SOLICITOR FOR THE RESPONDENT: M. A. Kent & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Awyzio
D A Family Lawyers Pty Ltd

Orders

IT IS ORDERED THAT

1. Counts 1, 2, 21, 22 of the Application for Contravention filed 15 April 2014 are dismissed.

2. The mother, without reasonable excuse, contravened the Order made 5 December 2013 by failing to provide the child B, born … 2013, to spend time with the father on 18 January 2014.

3. The mother, without reasonable excuse, contravened the Order made 5 December 2013 by failing to provide the child B, born … 2013, to spend time with the father on 19 January 2014.

4. The mother, without reasonable excuse, contravened the Order made 5 December 2013 by failing to provide the child B, born … 2013, to spend time with the father on 1 and 2 March 2014.

5. The mother, without reasonable excuse, contravened the Order made 5 December 2013 by failing to provide the child B, born … 2013, to spend time with the father on 15 and 16 March 2014.

6. The mother, without reasonable excuse, contravened the Order made 5 December 2013 by failing to provide the child B, born … 2013, to spend time with the father on 29, 31 March 2014 and 2, 4, 6, 8 and 10 April 2014.

IT IS FURTHER ORDERED

1. The matter is adjourned to a date to be fixed, after the interim hearing, to enable the parties to be heard further in relation to the form of compensatory time orders and the father’s application that the mother pay his costs of and incidental to the Contravention Applications.

2. The parties have liberty to appear at such hearing by telephone in order to minimise cost. If the parties intend to appear by telephone at such hearing, the Court must be notified not less than 3 days prior to the hearing of such intention and a contact telephone number must be provided.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shirley & Moore 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 BRISBANE

FILE NUMBER: PAC 3139 of 2013

Mr Shirley

Applicant

And

Ms Moore

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. There are two Contravention Applications which require determination: the first, filed 15 April 2014 and the second, filed 9 May 2014. Whilst they collectively contain particulars of some 28 individual allegations of contravention, a number of these were not pursued at the hearing. The Order made 3 March 2015 particularises those allegations which were dismissed by consent.

2. The reasons which follow deal with the remaining allegations of contravention.

3. My overall conclusion is that much of the difficulty experienced by the parties in their communication and attempts to learn to co-parent the child arises out of matters inherent in their relationship. The child is the product of a relationship between his parents which occurred during the course of his father’s marriage to his wife; whatever promises may have been made, the child’s father remains in a relationship with his wife, with whom he has two other children.

   Counts 1 and 2: Application for Contravention filed 15 April 2014

4. The father alleges the mother contravened Orders 3c and 3d of the Order made by consent in the Federal Circuit Court on 15 November 2013. Those orders provided that the father spend time with the child, who was born in 2013, for 2 hours, supervised by a service in Sydney (C Org), on each of:

   a)the date of the adjourned proceedings; and

   b)the date after the adjourned proceedings.

5. The November 2013 order also provided that the child spend 2 hours with the father on 30 November 2013 and 1 December 2013 on the same terms. There is no allegation of contravention relating to either 30 November 2013 or 1 December 2013.

6. When the November 2013 order was made, the mother and the child lived in Queensland. They continue to do so.

7. Thus, compliance with the terms of the November 2013 order required the mother to travel with the child to Sydney. 

8. The date of the adjourned proceedings – to use the terminology of the November 2013 order – was, in fact, 5 December 2013. Thus, according to Orders 3c and 3d of the November 2013 order, the child was to spend time with the father in Sydney under supervision by C Org for 2 hours on each of these days. He did not do so.

9. Whilst the sealed November 2013 order provides that the matter was adjourned to 5 December 2013 “for interim hearing (part-heard)”, the document signed by the parties titled ‘Terms of Settlement’[1] contains no specific date for the date of the adjourned proceedings.

   [1]           marked ‘A’, dated 15 November 2013 and initialled by the Judge.

10. This is relevant because:

    a)the father asserts his legal representative negotiated with the mother’s  legal representative about the Terms of Settlement on the basis that potential dates for the further interim hearing were either 5 December 2013 or 18 December 2013; whereas

    b)the mother asserts she agreed to the terms of settlement – which would require the child to travel to Sydney - on the basis that the likely ‘date of the adjourned proceedings’ was 18 December 2013 and that it was not her intention to enter into terms which would have required the child to travel from Sydney to Queensland for time on 30 November 2013 and 1 December 2013 and again for time on 5 and 6 December 2013; and

    c)the mother’s solicitor outlines a ‘recollection’ that the arrangement the child spend time with the father on the day of the adjourned interim hearing and the next day was made with a hearing date of 18 December 2013 in mind and that, because of this, it was not the parties’ intention to agree to time occurring on 5 and 6 December 2013.[2]

    [2]           Annexure ‘D’, father’s affidavit filed 15 April 2014.

11. I note the mother proposed the child spend time with the father for two hours on a supervised basis on each of 18 and 19 December 2013, in a manner consistent with her assertion of the basis on which she agreed to the Terms of Settlement.

12. Whilst I accept the father’s evidence that it was always his intention for the child to spend time with him on 5 and 6 December 2013, I am left with sufficient doubt about the mother’s intention to conclude that I am not persuaded the parties were necessarily ad idem when they agreed to the Terms of Settlement reflected in Orders 3c and 3d of the November 2013.

13. For these reasons, I dismiss Counts 1 and 2 of the Application for Contravention filed 15 November 2013.

    Count 7: Application for Contravention filed 15 April 2014

14. The father alleges that the mother contravened Order 2.3 of the interim parenting order made by consent on 5 December 2013 by failing to provide the child to spend time with him on 18 January 2014.

15. Order 2 of the December 2013 order is in the following terms:

    That the child spend time with the Father as follows:

    2.1    In Sydney on 21 and 22 December for 4 hours per day such visit to be supervised by [C Org] with the Father to pay the Mother’s airfare to attend same.

    2.2    On 4 and 5 January 2014 for 4 hours each day with the Father giving the Mother 48 hours’ notice of where he will spend the time with changeover to occur at McDonalds [Suburb D] between the hours nominated by the Father.

    2.3    Thereafter each alternate weekend for 4 hours per day as nominated by the Father in the [E Town/Suburb D] area until the Interim Hearing with the Father to nominate the hours during which this will occur.

    2.4    The parties must agree to the introduction of any person into the child’s life with whom the child is not already familiar, other than for the Father’s children.

    2.5    The Mother and Father each pay half the costs of the Father’s airfares in orders 2.2 and 2.3.

16. I accept that, on 12 January 2014, the father notified the mother of his intention to spend time with the child on the upcoming weekend of 18 and 19 January 2015.[3] He also provided details of where he intended to spend time with the child and that the time would occur from 1.30pm until 5.30pm on Saturday 18 January 2014 and from 10.00am until 2.00pm on Sunday 19 January 2014. He confirmed that changeovers would occur at McDonald’s Suburb D and that, whilst his wife would accompany him to Queensland, she would not be present during the child’s time with him nor be introduced to the child.

    [3]          Paragraph 13 and Annexure ‘D’, father’s affidavit filed 25 February 2015.

17. The mother responded within the hour. Her communication asserted – wrongly - that “you were not given consecutive days in January other than the 4^th and 5^th…” Clause 2.3 clearly provides for 4 hours per day of each alternate weekend.

18. On 16 January 2014, the father told the mother he had been able to narrow the venues at which he would spend time with the child on 18 and 19 January 2014 and provided details of the same.

19. At 5.51pm on 17 January 2014, the mother responded.[4] She asserted – again wrongly – that the December 2013 order required the father give her ‘written notification of such visits a minimum of seven days in advance.’ This requirement for notice applies only to time between the child and the father which would occur pursuant to Order 3 of the December 2013 order and not to time pursuant to Order 2 of the same.

    [4]           Annexure ‘D’, father’s affidavit filed 25 February 2015.

20. Her communication advanced that she would ‘allow’ time on 18 and 19 January 2014 if the parties could come to “a further understanding’ about enumerated issues: these included that the father’s time be supervised by a person other than his wife or any other person unfamiliar to the child (unless agreed) but would involve her and the presence of another person she chose. The communication also raised a number of asserted issues associated with the father’s care of the child during their time together. It concluded with the clear statement that, if the father did not consent to ‘the visit’ being supervised, ‘we’ (clearly, the mother and the child) would not attend any ‘visitation’ until matters were addressed.

21. In correspondence sent at 5.54am on 18 January 2014, the father conveyed that he did not agree to vary the terms of the December 2013 order to impose supervision over his time with the child.[5] He also outlined that the December 2013 order specified that his time with the child occur fortnightly at times specified by him. He noted that the terms of the December order did not require supervision and confirmed he would collect the child inside McDonald’s Suburb D at 1.30pm Saturday.

    [5]           included within Annexure ‘D’, father’s affidavit filed 25 February 2015.

22. In a communication sent at 7.30am on 18 January 2014, the mother outlined her position: namely, that as the father’s wife was traveling with him to Queensland, she ‘was not consenting’ to unsupervised time. She asserted that, as the father continued to breach orders by having his wife present, she was ‘entitled’ to disallow unsupervised time until matters were sorted out as she had a reasonable excuse for doing so.  She reiterated her – incorrect – belief that the father had failed to give her ‘the required days written notice’.

23. In a communication sent at 9.10am on 18 January 2014, the father reiterated that his wife would only be present at changeover to observe from a distance. He noted that the December 2013 order prevented her introduction to the child and not her presence. He referred to the November 2013 order which provided that the child’s time with him not be in the presence of his wife.

24. In a communication sent at 9.33am on 18 January 2014, the mother responded to reassert her position that supervised contact would be given only as outlined in her message dated 17 January 2014 (being that referred to in paragraphs 19 and 20.) She further asserted that she understood the December 2013 order  meant that the father was ‘only given’ 4 and 5 January 2014 and 7 days consecutively over a 14 day period and that, to her understanding, his weekends didn’t start until ‘next month’. Nothing in the terms of the November 2013 order supports such a conclusion.

25. She reiterated her offer to facilitate a supervised visit asserting: “This is not difficult, either you forfeit the weekend by being stubborn or you accept a supervised visit till matters are address (sic) and clarified by the associate.” Such statement is a clear demonstration of her attitude to the terms of the November 2013 order – namely, that she is unilaterally entitled to impose terms not agreed to by the father as a condition of the child spending time with him.

26. In a communication sent at 9.46am on 18 January 2014, the father noted – accurately - that supervision was not required by the orders and asked that the mother review them.

27. In a communication sent at 10.00am on 18 January 2014, the mother asserted that the father’s wife’s presence was a breach of the orders and was not permitted by them. She reiterated her view that she was ‘entitled’ to make time between the father and the child supervised until matters were addressed and clarified. She proposed to ‘compromise’ her position by sending a person other than herself to supervise the child’s time with his father until matters were sorted out and ‘to assure’ no further breaches occurred and the child’s health and well-being was maintained.

28. In a communication sent at 12.03pm on 18 January 2014, the father reiterated that the December 2013 order did not contain a requirement for supervision. He expressed his view that the mother did not have the right to enforce supervision. I agree with this assertion. He confirmed he would meet her at 1.30pm that day at McDonalds Suburb D.

29. In a communication sent at 12.10pm on 18 January 2014, the mother asserted that the father had forfeited his time that day: her reasoning was that he did so because he did not accept her proposal to vary the December 2013 order by including a requirement that his time with the child be supervised. I do not accept the contention that the father ‘forfeited’ his time with the child because he did not accept the mother’s attempt to impose supervision over the same. I consider that his communications to the mother clearly outlined his intention to abide the terms of the November 2013 order and to attend to spend time with the child.

30. In a communication sent at 1.17pm on 18 January 2014, the father told the mother he was running late due to traffic problems and would be at McDonalds at 1.45pm. He said - to put the mother’s mind at rest - his wife would stay there for the duration of his time with the child.

31. In a communication sent at 1.30pm on 18 January 2014, the mother told the father she was waiting for the after-hours doctor to arrive as the child’s medicine was almost out, his tonsils had not fully cleared and the medicine would be needed that night. She said she saw the father’s wife’s presence as a breach of the order. She noted she had offered supervised time. She clearly said she would not facilitate any unsupervised time until ‘matters are addressed and sorted out properly’. She said: “It will be supervised contact by someone I choose without Carolyn and myself or no visitation will take place today.” It is hard to imagine a clearer statement of an intention to fail to comply with the terms of the November 2013 order.

32. I accept the father was at McDonalds Suburb D between about 1.46 pm and about 2.05pm on Saturday 18 January 2014. I accept that he was available to spend time with the child.

33. The mother said she went to McDonalds at 2.44pm that day. She also said she had a friend check there on a number of occasions that afternoon. I do not accept the mother’s self-serving assertion that time between the child and the father could not proceed as she was not notified of his arrival at McDonald’s and he was not observed in the McDonald’s foyer when it was checked by her unnamed friend.[6]

    [6]           Annexure ‘G’, father’s affidavit filed 25 February 2015.

34. Rather, I am easily persuaded that the time did not occur because she decided that she would not attend with the child because the father had not accepted her proposal for their time to be supervised.

35. Whilst obviously decided well before the existence of the statutory regime prescribed in Division 13A of the Family Law Act (1975) (Cth), the comments of the Full Court in In the Marriage of Gaunt[7] remain apposite:

    The essential question is this: can a party who does not agree with the court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non compliance would undermine the purpose and intentions of the Act.

    …A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause.”

    [7] (1978) FLC 90-468.

36. Having regard to the exchanges set out above:

    a)I am easily persuaded that the mother intentionally failed to comply with Order 2.3 of the December 2013 order on 18 January 2014 when she failed to provide the child to spend time with the father;[8] and

    b)I am not persuaded that her offer of time on a supervised basis amounts to a reasonable attempt to comply with the terms of the December 2013 order[9] - her attempt to impose, unilaterally, a requirement for supervision of the child’s time with the father does not constitute a reasonable attempt to comply with an order, the terms of which contain no such requirement; and

    c)I conclude that the mother contravened the December 2013 order on 18 January 2014 by failing to provide the child to spend time with the father that day; and

    d)I am not persuaded, on the balance of probabilities,[10] that the mother had a reasonable excuse for contravening the December 2013 order on 18 January 2014: I am not persuaded that the contravention was because or substantially because the mother did not at that time understand the obligations imposed by the December 2013 order on her and I do not accept that the mother believed on reasonable grounds that not allowing the child to spend time with the father was necessary to protect his  health or safety or her own health or safety. [11]

    [8] S 70NAC(a), Family Law Act (1975).

    [9] S 70NAC(a), Family Law Act (1975).

    [10] S 70NAF, Family Law Act (1975).

    [11] Sections 70NAE(1) and (5), Family Law Act (1975).

37. Additionally, I do not accept the mother’s position that the imposition of supervision over the child’s time with the father and, failing the father’s agreement to such a condition, the cessation of the child’s time with the father arose out of a belief which could be thought reasonable, given the obligation imposed by the December 2013 order and those parental responsibilities inherent in co-parenting generally and as specified by s 65N of the Act.

    Count 8: Application for Contravention filed 15 April 2014

1. The father alleges that the mother contravened Order 2.3 of the interim parenting order made by consent on 5 December 2013 by failing to provide the child to spend time with him on 19 January 2014.

2. In a communication sent at 7.05pm on 18 January 2014,[12] the mother told the father she would allow unsupervised time for the visit on 19 January 2014 “under the following parameters”:

   a)he would use only the food, drink, nappies etc. she provided in the child’s bag so the child would not suffer an allergic reaction; and

   b)the father’s wife would remain inside McDonald’s at all times: the pickup and drop-off and during the father’s time with the child; and

   c)a person would remain at McDonald’s to “monitor” the father’s wife to make sure she did not leave McDonald’s; and

   d)if the father’s wife left McDonald’s during the time proposed between the child and the father, any further “visitations” would be supervised until the parties returned to court in April.

   [12]         Annexure ‘G’, father’s affidavit filed 25 February 2015.

3. In a communication sent at 8.33am on 19 January 2014,[13] the father advised the mother of the formula he had provided the child during their time together on 6 January 2014. He also said his wife would be present to observe the change over from a distance, that he has his own bag for the child and would not be taking hers, noting that he has Huggies nappies as she insisted and Karicare stage 2 as she advised and that he had taken note of her instructions in relation to what the child ate. He also noted that the mother’s position had significantly changed from that expressed in relation to the child’s time with him on 18 January 2014 and said she had ruined the weekend at considerable expense.

   [13]         Annexure ‘G’, father’s affidavit filed 25 February 2015.

4. In a communication sent at 9.37am on 19 January 2014,[14] the mother took issue with the father’s asserted failure to provide her with information about where the child had slept during their time together and what he had eaten. She reiterated her view that the father’s wife’s presence meant that he was breaching that part of the December 2013 order which provided that the parties must agree to the introduction of any person into the child’s life with whom he is not already familiar, other than the father’s children.[15]

   [14]         Annexure ‘G’, father’s affidavit filed 25 February 2015.

   [15]         Order 2.14, Order made 5 December 2013.

5. I accept the father’s account, as set out in paragraphs 25 and 26 of his affidavit filed 25 February 2015, of what occurred on 19 January 2014 in the McDonald’s foyer.

6. The reality for the child was that he did not spend time with the father on 19 January 2014.

7. Having regard to the above:

   a)I am persuaded that the mother intentionally failed to comply with Order 2.3 of the December 2013 order on 19 January 2014 when she failed to provide the child to spend time with the father;[16] and

   b)I am not persuaded that her attempt to impose supervision over the father or his wife amounts to a reasonable attempt to comply with the terms of the December 2013 order[17] - her attempt to impose, unilaterally, such requirement does not constitute a reasonable attempt to comply with an order, the terms of which contain no such requirement; and

   c)I conclude that the mother contravened the December 2013 order on 19 January 2014 by failing to provide the child to spend time with the father that day; and

   d)I am not persuaded, on the balance of probabilities,[18] that the mother had a reasonable excuse for contravening the December 2013 order on 19 January 2014: I am not persuaded that the contravention was because or substantially because the mother did not at that time understand the obligations imposed by the December 2013 order on her and I do not accept that the mother believed on reasonable grounds that not allowing the child to spend time with the father was necessary to protect his  health or safety or her own health or safety. [19]

   [16] S 70NAC(a), Family Law Act (1975).

   [17] S 70NAC(a), Family Law Act (1975).

   [18] S 70NAF, Family Law Act (1975).

   [19] Sections 70NAE(1) and (5), Family Law Act (1975).

8. Additionally, I do not accept that the mother’s position that the imposition of supervision over the child’s time with the father and, failing the father’s agreement to such a condition, the cessation of the child’s time with the father arose out of a belief which could be thought reasonable, given the obligation imposed by the December 2013 order and those parental responsibilities inherent in co-parenting generally and as specified by s 65N of the Act.

   Counts 21 and 22: Application for Contravention filed 15 April 2014

9. The father alleges that the mother contravened Order 2.3 of the interim parenting order made by consent on 5 December 2013 by failing to provide the child to spend time with him on 15 and 16 February 2014.

10. In a communication sent at 10.54am on 6 February 2014, the father advised the mother that he intended to spend time with the child between 1 PM and 5 PM on Saturday, 15 February 2014 and between 9 AM and 1 PM on Sunday 16 February 2014. These dates are in accordance with the alternate weekend regime imposed by Orders 2.2 and 2.3 of the December 2013 order. The father also told the mother where he intended to spend time with the child on each of those days.[20]

    [20]         Annexure ‘H’, father’s affidavit filed 25 February 2015.

11. In a communication sent at 6.06pm on 6 February 2014, the mother reiterated her assertion that the father had already been told that his visits would be supervised for “the reasons already stated”. She told the father he should not cause the child stress coming to see him if he was coming “to force” her to terminate another “visitation” by “deliberate breaches”. She referred to this communication later at 9.37pm that evening.[21]

    [21]         Annexure ‘H’, father’s affidavit filed 25 February 2015.

12. In a communication sent at 4.26pm on 14 February 2014, the father asked the mother whether he was getting unsupervised time with the child this weekend. He requested that she respond within an hour so he could make the necessary bookings.

13. In a communication sent at 5.48pm on 14 February 2014, the mother said: “this has already been raised and addressed. I don’t have time to respond further. the child needs comes first in this house.”

14. In a communication sent at 6.36pm on 14 February 2014, the father responded by informing the mother that he intended to bring contravention proceedings against her.[22]

    [22]         Annexure ‘H’, father’s affidavit filed 25 February 2015.

15. After the exchange outlined above – and the events which occurred on the previous occasion - the father did not travel to Queensland to spend time with the child on 15 or 16 February 2014. He was not in the E Town/Suburb D area on these days or at the times during which he had previously informed the mother the child would spend time with him. He was not available to spend time with the child in the Suburb D area that weekend.

16. I accept that the father determined not to travel to Queensland for time with the child because the mother had clearly outlined her decision not to provide the child for such time unless he agreed to her proposal for supervision. However, the terms of s 70NAC of the Act are clear in prescribing the circumstances in which a person contravenes an Order. I dismiss this allegation of contravention on the basis that the father has failed to establish that – at the time he nominated for time with the child – the mother intentionally failed to comply with the December 2013 order or made no reasonable attempt to comply with it.

    Counts 23 and 24; Counts 25 and 26: Application for Contravention filed 15 April 2014

17. The father alleges that the mother contravened Order 2.3 of the interim parenting order made by consent on 5 December 2013 by failing to provide the child to spend time with him on 1 and 2 March 2014 and 15 and 16 March 2014. These were weekends on which the child’s time with the father should have occurred in accordance with Orders 2.2 and 2.3 of the December 2013 order.

18. In December 2013 the child’s parents agreed he would be baptised. On 19 December 2013, the mother told the father she would make appropriate arrangements for this and notify him of them.[23]

    [23]         Annexure ‘J’, father’s affidavit filed 25 February 2015.

19. On 27 December 2013, the mother emailed the father a copy of an invitation to the child’s first birthday party – scheduled to occur at 2.00pm on 15 March 2014. As noted above, this was on a weekend on which the child was to spend time with the father pursuant to the terms of the December 2013 order.

20. In a communication sent at 5.54am on 18 January 2014, the father told the mother that she had scheduled the child’s first birthday party during one of his visit weekends. He said that, as much as he did not want to disrupt her plans for the birthday party, the time he was available on each day depended on flights. He further advised that she may need to reschedule the child’s birthday party so it did not overlap with the time of his visit.[24]

    [24]         Annexure ‘L’, father’s affidavit filed 25 February 2015.

21. In a communication sent at 8.20am on 18 January 2014, the mother asserted that she had not taken any of “his” weekends with the child in March. She said – incorrectly - that he was not given specific weekends other than 4 –5 January (which he had requested for his birthday and decided not to attend because he could not afford it). She said she had left him three weekends in March which he could utilise: the weekends of 8, 22 and 29 March 2014. Of these, only the weekend of 29 and 30 March 2014 is that on which the child’s alternate weekend time with the father should have occurred pursuant to the terms of the December 2013 order. The mother was under no obligation to provide the child for time with the father on the weekends of 8 and 22 March 2014 (unless the father agreed to vary the December 2013 order to accommodate this proposed variation) and the father was entitled to spend time with the child on the weekends of 1 and 2, 15 and 16 and 29 and 30 March 2014.

22. The mother also advised that the child was being baptised at 9:30 AM on 2 March 2013 at a church in F Town and that she had moved his birthday party to 12.30pm on that day so “important people in his life” could attend. She extended an invitation to the father and his children. As noted above, the child was to spend time with the father on 1 and 2 March 2014 pursuant to the terms of December 2013 order.

23. The mother also advised the father that the child would not be available from 10 March 2014 till late on 16 March 2014 “as we will be away”. She said that if the father intended to book his time on either of these weekends, the child would not attend as he would not be there. The mother said this would amount to the father “forfeiting” his weekends.[25]

    [25]         Annexure ‘L’, father’s affidavit filed 25 February 2015.

24. I do not accept the mother’s assertion that if the father did not accept her proposed variations to the terms of the December 2013 order he would ‘forfeit’ his time. There is no basis within that order permitting the mother to unilaterally impose a change to the times at which the child should be spending time with his father – that is as provide for in the December 2013 order unless both parties agree to vary the same. It is not a reasonable attempt to comply with the terms of the order for the mother to arrange a function on the weekend on which the child was to spend time with the father, at a place other than Suburb D and then to invite the father to attend. At the child’s age, a party could occur on any day and the primary relationship to be supported and encouraged – as the Objects of the Act make clear and its relevant provisions emphasise – is that between the child and each of his parents.

25. In correspondence sent 27 February 2014, the father’s solicitors advised the mother that the father would be spending time with the child each alternate weekend in accordance with order 2.3 of the December 2013 order being: at 15 and 16, 29 and 30 March and 12 and 13 April.[26]

    [26]         Annexure ‘M’, father’s affidavit filed 25 February 2015.

26. The mother responded to this correspondence by email and attachment sent at 11.42pm that day.[27] The attached correspondence clearly states that the mother would not be in Qld for the weekend of 2 March 2014 or 15 and 16 March 2014. A clearer expression of an intent not to comply with the terms of the December 2013 order on those weekends cannot be imagined.

    [27]         Annexure ‘N’, father’s affidavit filed 25 February 2015.

27. Having regard to the above:

    a)I am persuaded that the mother intentionally failed to comply with Order 2.3 of the December 2013 order on 1 and 2 March 2014 and 15 and 16 March 2014 when she failed to provide the child to spend time with the father;[28] and

    b)I am not persuaded that she made a reasonable attempt to comply with the terms of the December 2013 order[29];

    c)I conclude that the mother contravened the December 2013 order on 1 and 2 March 2014 and 15 and 16 March 2014; and

    d)I am not persuaded, on the balance of probabilities,[30] that the mother had a reasonable excuse for contravening the December 2013 order on these days.

    [28] S 70NAC(a), Family Law Act (1975).

    [29] S 70NAC(a), Family Law Act (1975).

    [30] S 70NAF, Family Law Act (1975).

28. I do not accept that the child’s baptism could not have been arranged to occur on another day, noting as I do that the impetus for the same arose from the mother’s respect for her parents’ wishes, given that she is ‘not religious in this way’.[31]

    [31]         Annexure “J”, father’s affidavit filed 25 February 2015.

29. Additionally, the December 2013 order does not impose any obligation on the father to nominate weekends in March – or any other month – when the child is to spend time with him; the weekends are as nominated in the terms of the Order itself: namely, each alternate weekend after 4 and 5 January 2014. This is the routine prescribed by the order. Variation to the same can occur only by consent and not the unilateral imposition by one party. Similarly, the imposition of supervision over the child’s time with the father can occur only by agreement between the parties or subsequent Court order.

    Count 27: Application for Contravention filed 15 April 2014

30. The father alleges that the mother contravened Orders 2.3 and 3 of the interim parenting order made by consent on 5 December 2013 by failing to provide the child to spend time with him between 29 March 2014 and 10 April 2014.

31. By letter dated 27 February 2014, the father’s solicitors informed the mother that the father intended to spend time with the child pursuant to Order 3 of the Orders made 5 December 2013 over an extended period of time. The correspondence told the mother the father would be in Queensland for an extended period from 29 March 2014 to 13 April 2014 and that alternating days of time for the child with the father would include 29 and 31 March 2014 and 2,4,6,8 and 10 April 2014. Additionally, confirmation was provided that the father’s wife would not be present at changeovers or during the child’s time with the father.[32]

    [32]         Annexure ‘M’, father’s affidavit filed 25 February 2015.

32. Order 3 of the December 2013 order is in the following terms:

    In the event that the father is able to travel for an extended period to Queensland and gives the mother at least 7 days written notice, [the child] spend time with the father up to a maximum of seven days on an alternate daily basis. If the mother is working on such days then the father to collect and return [the child] from and to the Child’s daycare centre, [G Centre] at [H Town] QLD otherwise changeover to occur at McDonalds [Suburb D].

33. I accept that the correspondence dated 27 February 2014 provided the mother with the notice required by Order 3 of the December 2013 order. I do not accept that the correct interpretation of that order is one by which the child’s time with the father was to be limited to only one occasion per year – no such restriction or limitation is apparent from the terms of the Order. I do not accept the mother’s position – that the father had already used order 3, that it was ‘exhausted’ or that he was not entitled to spend time with the child pursuant to it on any occasion during which he was in Queensland for an extended period of time provided that he gave the mother 7 days notice of that fact.

34. I consider that the mother’s response made it clear she did not intend to comply with the terms of the order and did not intend to provide the child to spend time with the father on the dates advised by him. No other sensible conclusion can be drawn from the communication between the parents about this issue.

35. I consider that, given the history of failed attempts to spend time with the child and the mother’s determination – expressed repeatedly – not to facilitate time between the child and the father unless the father accepted her proposal for the imposition of supervision over it, the father was entitled to accept her pronouncement of a future intention not to comply with the order as the basis for his decision not to travel to Queensland.

36. I do not accept the mother’s explanation of her purported understanding of the terms of the Order 3. It is fanciful to suggest a reasonable interpretation of it is that, if the father intended to spend his extended period of time with the child in March/April then he was required to remain in Queensland for the extended period from 6 January 2014 until 10 April 2014.

37. Having regard to the above:

    a)I am persuaded that the mother intentionally failed to comply with Order 2.3 and 3 of the December 2013 order on 29 and 31 March 2014 and 2,4,6,8 and 10 April 2014 by failing to provide the child to spend time with the father;[33] and

    b)I am not persuaded that she made a reasonable attempt to comply with the terms of the December 2013 order[34];

    c)I conclude that the mother contravened the December 2013 order on 29 and 31 March 2014 and 2,4,6,8 and 10 April 2014; and

    d)I am not persuaded, on the balance of probabilities,[35] that the mother had a reasonable excuse for contravening the December 2013 order on these days.

    [33] S 70NAC(a), Family Law Act (1975).

    [34] S 70NAC(a), Family Law Act (1975).

    [35] S 70NAF, Family Law Act (1975).

    Count 1 : Application for Contravention filed 8 May 2014

38. The father alleges that the mother contravened Order 2.3 of the interim parenting order made by consent on 5 December 2013 by failing to provide the child to spend time with him on 26 and 27 April 2014. I accept that these dates were dates on which the child should have spent time with the father pursuant to the terms of the December 2013 order.

39. The parties participated in an interim hearing on 15 April 2014. The order made that day adjourned the matter to a further date in July 2014. It did not specifically discharge the December 2013 order, which was expressed to be ‘until the Interim Hearing’.

40. The mother advances that the making of the April 2014 order meant that the parties were not bound by the terms of the December 2013 order but, instead, were left to agree about the time the child was to spend with the father. The father advances that the December 2013 order remained operative because it was not discharged by the April 2014 order.

41. The difference in interpretation was such that the father’s solicitor contacted Judge Donald’s Associate asking for clarification and confirmation of his Honour’s intention given that the interim hearing had been adjourned to July 2014 and the December 2013 order provided that it was operative until the interim hearing.

42. On 23 April 2014, the father told the mother of his intention to spend time with the child on the weekend of 26 and 27 April 2014. Her response was to ask where in the current orders (no doubt the April 2014 order) he had any time set for visitation, to tell him that the weekend was not available and he had demanded it in an unreasonable timeframe and to tell him – yet again – that he would not be ‘getting’ unsupervised time with the child.

1. On 24 April 2014, the parties were informed that the Court had made no orders suspending the December 2013 order.

2. Following the receipt of such confirmation, the father sought confirmation from the mother that she would facilitate time with the child the next day. The mother reiterated her position that any time would be supervised and that she had already provided her responses.

3. I consider that, again, the mother’s response made it clear she did not intend to comply with the terms of the order and did not intend to provide the child to spend time with the father on the dates advised by him.

4. I again consider that, given the history of failed attempts to spend time with the child and the mother’s determination – expressed repeatedly – not to facilitate time between the child and the father unless the father accepted her proposal for the imposition of supervision over it, the father was entitled to accept her pronouncement of her imminent future intention not to comply with the order as the basis for his decision not to travel to Queensland.

5. Having regard to the above:

   a)I am persuaded that the mother intentionally failed to comply with Order 2.3 of the December 2013 order on 26 and 27 April 2014 by failing to provide the child to spend time with the father;[36] and

   b)I am not persuaded that she made a reasonable attempt to comply with the terms of the December 2013 order[37];

   c)I conclude that the mother contravened the December 2013 order on 26 and 27 April 2014; and

   d)I am not persuaded, on the balance of probabilities,[38] that the mother had a reasonable excuse for contravening the December 2013 order on these days.

   [36] S 70NAC(a), Family Law Act (1975).

   [37] S 70NAC(a), Family Law Act (1975).

   [38] S 70NAF, Family Law Act (1975).

Consequences of findings that the mother has contravened the orders

1. The father sought a compensation order pursuant to s 70NDB of the Act. He sought an order that the mother pay his costs of and incidental to the applications for contravention. He also sought to vary the order pursuant to s 70NBA of the Act. The orders sought would see the child live with him after a period of one month during which the child spend up to 6 hours per day with him (described as a ‘bonding period’). Such descriptor accurately captures the lack of bond between the father and the child at this time – no doubt arising from the fact that the child has not been provided with the opportunity to spend time with his father on a regular and frequent basis.

2. I note that I offered the parties the opportunity to conduct an interim hearing in place of that listed for determination in April 2015. This opportunity was rejected by both the father’s legal representative and the Independent Children’s Lawyer on the basis that additional information intended to be relied on at that hearing was not available to them.

3. I am not persuaded at this time that the orders sought by the father are orders which are in the child’s best interests. This determination may be different once the Court has the benefit of the material intended to be relied upon by the parties at a full interim hearing and the benefit of submissions by the Independent Children’s Lawyer following consideration of such material.

4. I record my intention, at this stage, to make compensatory time orders. However, I consider that the most appropriate course is that I defer the determination of the details of such orders until after the interim hearing. In that way, I can be confident that whatever compensatory orders I make are practical and in the child’s best interest given the geographic distance between his parents and the impact of this has.

5. For this reason, I propose to relist the matter at a time after the interim hearing and to afford the parties further opportunity to be heard in relation to the form of compensatory time orders and the father’s application that the mother pay his costs of and incidental to the Contravention Applications. The parties will have liberty to appear at such hearing by telephone in order to minimise cost.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 April 2015.

Associate:

Date:  7 April 2015.