Stamp & Stamp
[2014] FCCA 1269
•19 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STAMP & STAMP | [2014] FCCA 1269 |
| Catchwords: FAMILY LAW – Contravention – reasonable steps to comply – children’s order – physical contact – impossibility of compliance with orders. |
| Legislation: Evidence Act 1995, s.140 |
| Ackersley & Rialto [2009] FamCA 817 Bainrot and Bainrot (1976) FLC 90-003 Filipovic and Filipovic (1977) FLC 90-266 Fooks & Clark [2004] FamCA 212; (2004) FLC 93-183; (2004) 32 Fam LR 149 Jets & Maker [2010] FamCAFC 55 O'Brien&O’Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC 92-396 at [13] Raider & Raider [2011] FamCA 488 Stavros and Stavros [1984] FLC 91-562; (1984) 75 FLR 323; (1984) 9 Fam LR 1025 Stevenson & Hughes [1993] FamCA 14; [1993] FLC 92-363; 112 FLR 415; (1993) 16 Fam LR 443 TVT & TLM [2006] FMCAfam 20 Webber and Budd (No 2) [2011] FamCA 539 WJP & TP [2002] FMCAfam 315 (Unrep.) |
| Applicant: | MR STAMP |
| Respondent: | MS STAMP |
| File Number: | MLC 2421 of 2011 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 27 June 2013 |
| Date of Last Submission: | 27 June 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Vohra |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Mr O'Connell |
| Solicitors for the Respondent: | Macpherson & Kelley Lawyers Pty Ltd |
ORDERS
The matter be adjourned for further hearing with respect to consequential orders on 14 August 2014 at 10am.
IT IS NOTED that publication of this judgment under the pseudonym Stamp & Stamp is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2421 of 2011
| MR STAMP |
Applicant
And
| MS STAMP |
Respondent
REASONS FOR JUDGMENT
This is an Application-Contravention filed by the Husband on 6 February 2012, which alleges 13 contraventions by the Wife of final parenting orders made on 17 August 2011 by consent.
At the hearing on 27 June 2013, Counsel for the Husband indicated that they would only be proceeding with counts 1-6 and counts 10-11 (a total of 8 counts).
Background
The parties were married in 1991 and divorced in 2011. There are three children of the marriage: [R] born (omitted) 1996 (now 17), [J] born (omitted) 1998 (now 16) and [G] born (omitted) 2000 (now 13). Final parenting orders were made by consent on 17 August 2011, providing for [R] to reside with the Husband and [J] and [G] to reside with the Wife. Orders were made for the children to spend time with the non-resident parent.
The Contraventions Alleged
Of the contraventions alleged, counts 1-6 refer to an alleged failure by the Wife to facilitate and encourage time between the children and the Husband pursuant to para.18(a) of the Orders made 17 August 2011.
Counts 10 and 11 refer to an alleged failure by the Wife to keep the Husband informed of the child [J]’s mental health issues and to consult with him about medical appointments pursuant to para.14 of the Orders made 17 August 2011.
The relevant parts of the consent parenting orders provide:
14. The husband and the wife have equal shared parental responsibility for the children, [R] born (omitted) 1996, [J] born (omitted) 1998 and [G] born (omitted) 2000.
…
18. [J] and [G] spend time with the husband:
(a) each alternate Sunday from 10.00am until 2.00pm commencing 11 September 2011;
Alleged Contraventions 1-6
The Husband alleges that the Wife ‘failed to fulfil her responsibility to facilitate and encourage the children to spend time’ with the Husband on 6 occasions:
a)11/09/11 at 10.00am;
b)25/09/11 at 10.00am;
c)09/10/11 at 10.00am;
d)23/10/11 at 12noon (midday);
e)6/11/11 at 12noon (midday);
f)20/11/11 at 12noon (midday).
There is no dispute that each occasion was a time that the children were ordered to spend with the Husband pursuant to Order 18 of the Orders made 17 August 2011.
Material relied upon and other applications
The Wife made no application to suspend or vary the contact orders either before or after the Contravention Application was filed and served, and did not file a responding affidavit until 28 May 2013.
The Husband filed an Initiating Application on 13 May 2013 seeking final parenting orders. Final parenting Orders were made on 28 May 2013 by consent, largely in the terms of the Husband’s Application.
At the hearing of the contraventions the Husband relied upon:
a)Contravention application filed 6 February 2013; and
b)The Husband’s Affidavit filed 6 February 2013.
The Wife relied upon her affidavit filed 28 May 2013.
The Law
The meaning of ‘contravened’ is defined in s.70NAC of the Family Law Act 1975 as follows:
70NAC [Meaning of contravenedan 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; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is
(ii) aided or abetted a contravention of the order by a person who is bound by it.
The Applicant bears the onus of proving the contravention on the balance of probabilities: see Jets & Maker [2010] FamCAFC 55 per O’Ryan J.
Section 140 of the Evidence Act 1995, which refers to the standard of proof, provides for the court to take into account the nature of the proceedings in determining whether it is satisfied to the requisite standard. Subsection (2) says:
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In applying s.140(2) of the Evidence Act 1995, one must be mindful of the seriousness of contraventions of parenting orders, and the penalties that may be ultimately imposed.
The meaning of ‘reasonable attempt’
In many contravention cases involving contact orders, consideration must be given to what is necessary to make a ‘reasonable attempt to comply with the order.’ The extent of the obligation has been discussed in a number of cases. In Filipovic and Filipovic (1977) FLC ¶90-266 the Judge emphasised that it was the wife’s ‘duty’ to explain to the children that they will have an enjoyable time during the visit. In Bainrot and Bainrot (1976) FLC ¶90-003 Watson, J noted in making an order for access, that:
…it is implied in this order that the father both personally and by persuasion of his relatives will ensure that the children are dressed and ready to go with their mother and that nothing has been done physically, or emotionally to spoil these periods of access.
More recently, in Webber and Budd (No 2) [2011] FamCA 539, Watts J found that the mother contravened the orders for the children to spend time with the father on a particular occasion, saying:
7. … even accepting the version the mother has given, there was nothing in that version about any encouragement that the mother gave to the children to go with their father on that day, or about anything the mother did to prepare the children, so that they would happily go with their father on that day.
The starting point is that an order for a child to spend time with a parent is not a mere declaration – it is implicit in the order that reasonable steps must be taken to ensure that the time as ordered takes place: Stavros and Stavros [1984] FLC ¶91-562; (1984) 75 FLR 323; (1984) 9 Fam LR 1025; and followed in Stevenson & Hughes [1993] FamCA 14; [1993] FLC ¶92-363; 112 FLR 415; (1993) 16 Fam LR 443.
As I noted in TVT & TLM [2006] FMCAfam 20, ‘the absence of detailed orders providing for the mechanics for changeover does not make the orders inoperative or incapable of enforcement’.
Whether steps taken are a ‘reasonable attempt to comply’ with a ‘children’s spend time with’ order will ultimately depend upon the facts and circumstances of each case. However, it is accepted that the parent with whom the children ‘live with’ has a duty to ensure that the children not only attend, but do so in a positive manner. The way that the obligation has been expressed in different cases throws further light on the extent of the obligation:
a)The ‘live with’ parent must actively encourage the child to attend time with the other parent as ordered (see Webber and Budd (No 2) [2011] FamCA 539).
b)‘The courts have been careful to consider whether in reality, not just on the face of things, the [live with] person has taken reasonable steps to deliver the child for [spend time]’: see O'Brien&O’Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC ¶92-396 at [13]. In Ackersley & Rialto [2009] FamCA 817, at para [102], Cronin, J referred to the ‘Parenting orders – obligations, consequences and who can help’ statement, which is annexed to every parenting order of this Court and includes the following statement:
Your legal obligations
§ You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders.
c)‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite [the child] to walk of [their] own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep. See: Stevenson & Hughes [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [25].
d)‘Similarly, a mere request that the child telephone, or come to the telephone is insufficient’, see: TVT & TLM [2006] FMCAfam 20 at [33].
e)Once an order for the child to spend time has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O'Brien&O’Brien (1993) FLC ¶92-396 at [11].
f)A ‘live with’ parent ought to make ‘the child understand that it was the [live with parent’s] attitude that the child had to [spend time]’: see O'Brien&O’Brien (1993) FLC ¶92-396 at [8].
g)The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See WJP & TP [2002] FMCAfam 315 (Unrep.) at [12] and [14].
h)It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.’ Such an invitation is insufficient: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [26].
i)‘[I]t is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the [live with parent] of compliance with the obligation’: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [6].
j)‘It is not a sufficient discharge of [live with parent’s] obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [6].
k)The ‘live with’ parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [8].
If satisfied that the Wife contravened an order, either intentionally or by making no reasonable attempt to comply, the court must then consider whether the Wife has a reasonable excuse for the contravention.
In this matter the Wife made a case that she had taken all reasonable steps to comply with the Orders, although her Counsel, in submissions noted (27 June 2013, Trans.p6,lines 29-32):
Yes, but to assess “reasonable steps”, of course, you’ve got to take into account the history, this child’s condition, the position she was in at the time, and also the fact that family therapy hadn’t commenced at the start of the time.
Of course there may be cases where a child is so ‘upset’ or distressed that a refusal of time with a parent will be excused: Fooks & Clark [2004] FamCA 212; (2004) FLC 93-183; (2004) 32 Fam LR 149 at [45] and Raider & Raider [2011] FamCA 488 are two such examples. Distress of a child may give rise to a claim of reasonable excuse, if it results in risk of harm to the child’s emotional wellbeing. However, as I set out in TVT & TLM [2006] FMCAfam 20 at [40], ‘such cases are rare in the absence of precipitating conduct by the contact parent, or otherwise “changed circumstances”.’ Otherwise, it would simply be a flagrant challenge to the findings of the Court when making the contact orders as the original orders must have been found by the Court to be appropriate parenting orders at the time they were made.
First alleged contravention
The particulars of the first contravention allegation are set out at paras.18-23 of the Husband’s affidavit sworn 6 February 2013, in the following terms:
18. The first occasion upon which the children were due to spend time with me pursuant to the Orders was on 11 September 2011. On 6 September 2011, I send [the Wife] an email entitled “Kids arrangements for Sept 11th” in which I said “Just wanted to firm up arrangements for pick up of [J] and [G] on Sunday. I am happy to pick them up from the front gate at 10am if that is suitable for you. I will drop them back at 2pm after footy presentations When [the Wife] responded on 8 September 2012, she did not refer to this aspect of my email, save to say “please be aware that all conditions of Intervention order still apply.”
19. At 9.27am on 11 September 2011, just over half an hour before my scheduled time with [J] and [G] was to commence, I received an email from [G] saying [J] and I don’t want to see u because we don’t feel like seeing u.”
20. At 9.34am, I sent a text message to [the Wife] saying “[Wife’s name], I just received email from [G]. May I remind u t terms of our court order. Please ensure t kids r ready for collection this morning otherwise u will be in breach of our order and this matter will be referred to court.” [The Wife] responded at 9.36am and said “the kids are ready to go. I am not in breach of anything. What about your breaches of the court orders. Do not threaten me.” I responded at 9.39am, saying “I’ll pick them up at corner of (omitted) rd at 10am. (omitted) is the road that [the Wife] and the children were living in at that time.
21. The children were not at the corner at 10.00am. [R] went to the front door of [the Wife’s house to collect [G] and [J]. Although I was reluctant to involve [R], given [the Wife’s] email earlier that week, I feared that she would accuse me of breaching the Intervention Order that was then in place if I approached her house. I stayed in the car approximately 50 metres away. [R] telephoned me from the front door and then placed the phone on speaker phone so that I could speak with [J]. [J] told me that he did not want to go, told me to stop wasting 4 hours of his time and then told me to “fuck off”.
…
23. … I did not see [J] or [G] that weekend.
Location for Changeovers
At the hearing Counsel for the Respondent Wife made a no case submission with respect to Count One of the Contravention, stating:
…it would be, in my respectful submission, not possible to contravene an order if there is no location specified in the order as to where the children are supposed to be handed over. [Trans. p9(25)]
In response, Counsel for the Applicant Husband stated:
… Fatal to my friend’s submission, my respectful submission is paragraph 23, where the wife says, by way of text to my client, “I have complied with the orders. Kids were ready and waiting at 10.” Implicit in that is that she expects my client to collect the children from where they were. They weren’t anywhere else. She wasn’t on the road to his house. She wasn’t at a McDonalds. She says that the children were there, ready and waiting to be collected, that that was her anticipation.
…
So, despite the fact that there’s no changeover, that’s where the children were, where she anticipated they would be. [Trans.13.3.13 p.12(1)]
At the time of the hearing, I ruled that the fact that the Orders do not specify a particular handover point is not fatal to a contravention. As I had previously stated in TVT & TLM [2006] FMCAfam 20, the common law has a long history of pragmatic enforcement of bargains. For example, in contract only the identity of the parties, subject matter and price are necessary elements: all else will be implied as reasonable people can determine the remainder. In is inimical to the concept of family relationships that every minute detail must be contained in every order. Of course, in very high conflict cases detailed orders may assist, but in most cases a return to normal interactions must be the goal. The Orders here identify the parties, the children and the times of contact. In the absence of any other factor, collection from and return to where the children live is implicit. If this is inconvenient then the primary carer can suggest a reasonable alternative (a suitable location a similar distance from the contact parent would ordinarily be reasonable to effect compliance).
Whether the Parent Must Collect Personally
The next point raised by Counsel for the Respondent Wife was as follows:
…the point is, sir, that at the changeover, wherever the changeover may have been in this particular instance, [R] was the one who was sent by the father to collect the children. The father was not there. He was 15 metres away. He’s in no position to give the court any evidence in relation to what my client was doing at or before the time of changeover. He cannot say to the court that she made no reasonable attempt to comply with the order.
…
There’s no affidavit - ….. should be an affidavit from [R], but there’s no affidavit from [R]. He’s not there. He can’t give evidence. [Trans. p13(6)]
There is no dispute that:
a)[R] is a sibling of the child;
b)The children did not go;
c)That [R] went to the door whilst the Husband was in the car waiting.
I find nothing unreasonable about this course. [R] was, on the facts here, an appropriate agent of the Husband. If anything, [R]’s involvement was likely to have reduced the conflict as it saved the Husband having fact-to-face interactions with the Wife. The Husband does not fail on this basis.
Reasonable Excuse
With respect to this allegation, the Wife said, in her affidavit filed 24 May 2013:
12. … I spoke to [J] and [G] and was informed by [G] that she had sent an email to the [Husband] which said “[J] and I don’t want to see u because we don’t feel like seeing u”. After being informed of this I explained to [J] and [G] that there were Court Orders requiring them to spend time with the [Husband] and I encouraged them to spend time with him. …
13. After [R] arrived, I continued to encourage [J] and [G] to spend time with the [Husband] however despite my encouragement [J] adamantly refused to go. At this point [R] telephoned the [Husband] and put the phone on loud speaker. As my attempts to encourage [J] and [G] to go had been unsuccessful I decided to go inside and give the children some space to talk to the [Husband] and [R]. I had hoped that they would be able to persuade [J] and [G] to go. As I was going back into the house I heard both [J] and [G] say to [R] that they would not go. … After [R] left I again attempted to persuade [J] and [G] to go with the [Husband] and explained it was only for a short time however they still refused to go. …
In her evidence at the hearing, the Wife explained how, on her case, she encouraged the children to spend time with their father, saying:
Well, again, I said to [J] that I wanted him to have time with his father, that he should go, it was also to spend time with [R], and he just refused. [Trans. 5 June 2013, p.80(29)].
Counsel for the Husband made the following closing submission with respect to this charge (Trans. 26 June 2013, p.22(2-8) and (37-46)):
She didn’t know why they suddenly decided that they wouldn’t go. Her evidence was that they were told by her first thing in the morning to get ready and they did, that she then was taking them outside the house and that they were going to go until [R] appeared and then suddenly they wouldn’t go and she didn’t know why. Well, it may well obviously be, your Honour, that they were being expected to walk by themselves out of sight of the wife to meet my client and were receiving from her absolutely no comfort, assistance, or encouragement to do so.
…
The wife’s evidence is she told the children, “Well, you know, you should go”, but they still wouldn’t. [J] admits to her that he told his father to ‘f’ off. She is outraged because he did it in front of [G]. I then put to her she should also be upset, shouldn’t she, because it showed disrespect to his father and she agreed that was another reason that she thought it was a bad thing to do. As a consequence she says she took away [J’s] computer and Xbox. So for [J] there is a very clear consequence for using bad language in front of his sister, but no consequence at all of failing to abide by orders of this court, seeing his father. The wife’s evidence and the submissions my learned friend made was that she did not punish the children or provide any consequence for them defying her and this court…
The orders were recently made by consent. The orders were not detailed or structured in a way one would expect if there was any indication of difficulty with compliance.
Counsel’s submissions highlight the fact that the conduct of the Wife would not have shown the children that she expected them to go with the Husband, nor that it was what she actually wanted them to do. The first visit was soon after undisputed orders. There is nothing substantive to show why the children refused, nor what the Wife did to encourage or direct them to go beyond a bare statement. I found the Wife’s evidence appeared to be without conviction on this issue. Without more I am not persuaded that the Wife fulfilled her obligations. If one views the subsequent conduct of the Wife the case for the Husband is much stronger in this regard, however I have determined this contravention on the basis of the evidence at that point in time.
With respect to the first contravention allegation I find that the Wife has not complied with the orders and has not made reasonable attempts to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has any reasonable excuse for the contravention.
Second alleged contravention
The particulars of the second contravention allegation are set out at para.26 of the Husband’s affidavit sworn 6 February 2013, in the following terms:
26. On 25 September 2011, I arrived at the house at 10.00am and parked approximately 25 metres past the driveway. [J] and [G] approached the car and told me that they did not want to spend time with me. I asked them to at [least] give me a few moments with them and expressed my sorrow that things had turned out this way. I told them that my separation was from their mother, and was not from them. I asked them to tell me what they were angry about. [J] said that I had lied about my new girlfriend but would not be more specific. [G] said that each time she came to my place I would be talking about boy things and cricket. I apologised to them for the situation having worked out this way and gave them each a small gift I had bought them on a recent trip to the (country omitted) and then left. I spoke to them for a total of approximately 3 minutes. In the background, [the Wife] was peering through the front fence while I was speaking with the children.
With respect to this allegation, the Wife says the following in her affidavit filed 24 May 2013:
16. I did not approach [the Husband] or participate in his conversation with [J] and [G]. I was intimidated by his actions in parking so close to my driveway. At the time there was an Intervention Order in force which provided that he must not come within 200m of my home. …
…
18. Prior to the [Husband] arriving at my home I had told [J] and [G] that their father would be picking them up. They said that they did not want to go. I encouraged them to spend time with him and said that he was their father and they should spend time with him and [R].
At the hearing, Counsel for the Respondent Wife made the following submission:
[J] and [G] actually went to the father’s car and spoke to the father at the father’s car. The father had them, strictly speaking, as a parent, under his control. So in my submission, there was a changeover – which turned out to be unsuccessful – but a changeover had taken place. [Trans.13.3.13, p.17(12)]
…
…I will submit there’s nothing in this paragraph which indicates my client was in breach. There’s nothing about her not encouraging the children. There’s nothing about – they’re there. [Trans. 13.3.13, p.18(32)]
I do not accept the technical point raised by the Wife’s counsel. The children went to communicate a refusal. They never entered his car, nor was their attendance on the footpath intended or understood by anyone to be a ‘change over’.
That the Wife would choose to be washing her car at the time of changeover, knowing the Husband was coming (and on another later occasion not agreeing to the children seeing him at school basketball courts but insisting on handover at the house) indicates the claims of fear to be simply a ruse. Her presentation in the witness box on these issues was unimpressive.
To justify to children they ‘should’ time with the Husband is far below the reasonable conduct expected. There was a Court order in place, without any application to vary it. The word ‘should’ fails to convey in any real sense, the reality of an order that the children had to spend time with the Husband – it was no longer a decision for any of the children or adults.
Counsel for the Husband made the following closing submission with respect to this charge (Trans. 26.6.13, p.23(43-45):
Her evidence was she had done all that she could, and that means her evidence is by standing outside and washing her car and watching the children talk to their father but not get in that was all that she could do.
With respect to the second contravention allegation I find that the Wife has not complied with the orders and has made no reasonable attempt to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has any reasonable excuse for the contravention.
Third alleged contravention
The particulars of the third contravention allegation are set out at paras.28-29 of the Husband’s affidavit sworn 6 February 2013, in the following terms:
28. On 9 October 2011, I sent [the Wife] a text message at 9.02am saying “[Wife’s name], confirming pick up of kids at 10am as per court order. I’ll pick them up close to front gate. [Husband’s name].” I did not receive a response.
29. [R] and I arrived at [the Wife’s] house at 9.58am on 9 October 2011. [The Wife] was in the front garden. [R] walked towards the front of the house. [The Wife] hurried to the front porch and picked up a camera and took a photograph of me while I was in the car. She then loudly announced that I was in breach of the Intervention Order and she was calling the Police and proceeded to do so. In the meantime, [R] talked with [J] and [G] at the front porch. After a few minutes, [J] and [G] walked over to the car and told me that they did not want to spend any time with me that day. They said it would be discussed in the family therapy sessions. No family therapy sessions had yet been arranged. [J] and [G] returned to the house. [The Wife] proceeded to yell at me in front of [R], calling me a “liar” and a “cheater”. When the Police arrived, they approached my car and mentioned the Intervention Order to me. I explained the existence of the parenting orders and my text message to [the Wife] that morning, to which I had received no response. The Police then told me that they did not need to hear further from me and that they would go into the house and talk to Ms Stamp. I did not hear from the Police again in relation to this incident.
With respect to this allegation, the Wife says the following in her affidavit filed 24 May 2013:
19. In response to the allegation that I failed to facilitate and encourage [J] and [G] to spend time with the [Husband] on 9 October 2011, I say that the [Husband] arrived at my house at approximately 10:00am and again parked at the front of my driveway. At the time I was outside gardening.
20. Prior to this date I had spoken to my lawyer about the [Husband] coming within 200m of my home at pickup as a result of the [Husband] parking near my driveway on 25 September 2011. My lawyer had advised that I should take a photo to show that the [Husband] was breaching the Intervention Order so I went inside my house to get my camera and then took a photo of the [Husband]’s car. The [Husband] shouted that “[the Wife] could take as many photos as [she] liked” and that “[the Husband] was not doing anything wrong.” After taking the photo I went inside to call the Police as I was again intimidated and scared by the [Husband] parking so close to my home and yelling that he had done nothing wrong.
21. When I went back inside [J] and [G] went outside and approached the [Husband]. I did not hear their conversation.
22. When the Police arrived they spoke to the [Husband] and he left. The Police did not take the matter further.
In oral evidence before me, the Wife added further evidence regarding the incident with the camera [5.6.2013 Trans. p.93(10-36)] which indicated that the children were actually on the veranda while the Wife was taking photos of the husband’s car and the two of them were shouting at each other. The following relevant exchange then took place between Counsel for the Husband and the Wife [5.6.2013 Trans. p.94(30-47)]
And that’s your evidence of how you encouraged the children to see my client on 9 October 2011? --- No, that’s not encouragement.
No? --- But that’s not what I said to them.
No. You said to them “You should go and see your father. It’s good that you should go and see your father. Talk about your issues with him” – correct? --- That’s correct.
And although you said that to them, your evidence as to your actions against my client would have given them an entirely different message, wouldn’t they? --- Well, I don’t know that they saw that.
It should be noted at this time that I have no evidence of whether or not the Wife did receive advice from her solicitor suggesting that she ought to be taking photos of the Husband’s car. There was also no evidence of the Wife or her solicitors writing to the Husband to suggest an alternative changeover point given it was the Wife who was concerned that the Husband not attend at the home (see Trans.27.6.2013, p.13(15-20)). I do not accept the Wife’s evidence that she was given such advice.
In submissions, Counsel for the Wife argued that the children were unaffected by the taking of the photographs, so much so that the taking of the photographs was “an unfortunate side story” (see Trans.27.6.2013, p.15(40-46)) and that the Husband “was left free rein to persuade the children to come with him on time and he wasn’t successful in doing that.” (see Trans.27.6.2013, p.16(4-5)). I reject this submission.
Counsel for the Husband made the following closing submission with respect to this charge (Trans. 26 June 2013, p.24(17-27)):
Clearly, on her own evidence, at that stage the orders of this court are so meaningless that it’s not worth getting advice with respect to how they may work. The only advice she wants to obtain is how to have my client charged with the breach. How to prove that he has breached an intervention order which she says she needs for her safety and, clearly, when she got that advice, if she did – and I will be asking your Honour to find adversely with respect to that – the wife’s own evidence would be that she was not capable enough of sufficient and independent child focus thought to conclude that it was bad advice, that what her solicitor was telling her to do in front of two children who already had a bad relationship and an entirely fractured relationship is to take the photo of their father breaching an order which she says she requires for her protection because he is a dangerous and scary man. [emphasis added]
With respect to the third contravention allegation I find that the Wife has not complied with the orders and has made no reasonable attempt to comply with the orders. Indeed, her conduct appears (consciously or subconsciously) calculated to undermine any reasonable handover. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has any reasonable excuse for this contravention.
Fourth alleged contravention
At para.31 of the Husband’s affidavit sworn 6 February 2013, the Husband sets out that the parties agreed to vary Order 18(a) so that the time spent would be between 12.00pm and 4.00pm. It was also agreed between the parties ‘that changeovers occur at (omitted)’. The Husband annexed to his affidavit a letter from the Wife’s solicitor which sets out these requests. The husband concedes, at para.31 of his affidavit sworn 6 February 2013, that he agreed to these changes.
The particulars of the fourth contravention allegation is set out at para.32 of the Husband’s affidavit sworn 6 February 2013, in the following terms:
32. On 23 October 2011, [G] and [J] were waiting at the front of (omitted) at midday. As soon as I arrived, [J] said “we don’t want to see you” and they both walked away. I asked them to stay for a few moments but they simply walked away, crossed the road and entered a car park. I waited outside of (omitted) for a few moments and saw [the wife] emerge from the car park into which the children had walked.
With respect to this allegation, the Wife says the following in her affidavit filed 24 May 2013:
25. On 23 October 2011 I parked near the shops where the (omitted) was located and I walked with [J] and [G] to the spot opposite the (omitted) and the children crossed the road at the pedestrian crossing. At this time I did not see the [Husband] and believe that he had not yet arrived. I then went into the green grocer’s to buy fruit for the children’s lunches that week. I was there for quite some time due to long queues.
26. Shortly after I left the green grocer’s, I received an SMS text message from [J] to say that they had not gone with the [Husband] and were waiting by my car. I walked back to meet them. After I returned to my car I expressed concern to [J] and [G] that they did not go and they again said that they did not want to spend any time with the [Husband]. … I had been hopeful that they would go with the [Husband] as they had agreed to come to the shops with me and be dropped off.
At the hearing, Counsel for the Respondent Wife made the opening submission, with respect to this Count that the children were in the control of the father at the time of changeover (see para.49 above and Trans. 13.3.2013 p22(35).
In evidence before me, the Wife added the following evidence (see Trans.5.6.2013, p.97(42-47):
When you met them at the car, what did you do then? --- I asked them to go back to (omitted) and they refused to go.
Did you take them? --- No.
Why not? --- Because they wouldn’t go.
Counsel’s final submissions on this alleged contravention add nothing further to the Wife’s evidence, although again Counsel for the Wife places the onus on the Husband to encourage the children to go with him (see Trans.27.6.2013, p.16(27).
Counsel for the Husband made the following closing submission with respect to this charge (Trans. 26 June 2013, p.25(28-36)):
… I then put to the wife that there were consequences beyond their relationship with their father for these children in breaching court orders. That she had explained to them on a number of occasions that these were court orders and by allowing them to breach and breach and breach them again, by allowing them to be in control of whether these orders were given effect or not that she was telling them, in effect, that court orders were meaningless and that they did not need to abide by any rule of law. I asked her if she had explained the significance in that sense of the court orders, given that she understood that that was so to the children, [J] and [G], and she said that she had not. [emphasis added]
I accept the submissions of the Husband’s counsel with respect to the fourth contravention allegation I find that the Wife has not complied with the orders and has made no reasonable attempt to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has any reasonable excuse for the contravention.
Fifth alleged contravention
The particulars of the fifth contravention allegation are set out at para.33 of the Husband’s affidavit sworn 6 February 2013, in the following terms:
33. On 6 November 2011, being the second occasion when changeover took place at (omitted), [the Wife] dropped [J] and [G] off in a side street near (omitted). They walked around the corner and past (omitted). As they passed me, I greeted them warmly and [G] told me that they did not want to see me. [J] told me “go back to (country omitted).” I suggested that they at least spend a few minutes with [R] and told them that I would wait outside. They ignore me and continued walking. They turned in the opposite direction from their home and ultimately disappeared from sight.
With respect to this allegation, the Wife says the following in her affidavit filed 24 May 2013:
27. In response to the allegation that I failed to facilitate and encourage [J] and [G] to spend time with the [Husband] on 6 November 2011, I say that on this occasion I dropped [J] and [G] off at the (omitted) and then drove straight home. I had discussed the children’s refusal to go with the [Husband] with [LS] and she recommended that if I was not nearby then [J] and [G] would be more likely to go with the [Husband].
28. I did not hear from [J] or [G] until approximately 20-30 minutes later when they arrived home and told me that they had told the [Husband] that they did not want to see him and left. They had not given me any indication beforehand that they were not going to go with the [Husband] and I was surprised when they arrived home as I had not received any messages from the [Husband] to say that they had not gone with him. [J] and [G] said that initially the [Husband] had followed them until they turned left down another road to take an alternative route home.
At the hearing, Counsel for the Respondent Wife made the submission, with respect to this Count, that the children were in the control of the father at the time of changeover (see para.49 above and Trans. 13.3.2013 p22(35)).
Counsel for the Husband made the following closing submission with respect to this charge (Trans. 26 June 2013, p.26(1-5)):
… There can be no sense to [J] and [G] that their mother was encouraging of their time with their father. She drops them off on a side street and drives home; children who haven’t seen him since February and who certainly haven’t seen him since the orders were made in August of that year.
Again I accept the submissions of counsel for the Husband with respect to the fifth contravention allegation. I find that the Wife has not complied with the orders and has made no reasonable attempt to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has a reasonable excuse for the contravention.
Sixth alleged contravention
At para.34 of the Husband’s affidavit sworn 6 February 2013, the Husband sets out that he requested a change in the changeover location, suggesting a basketball court at a local school, and that the Wife responded with ‘the corner of (omitted).’ It appears the Husband agreed to this change.
The particulars of the sixth contravention allegation are set out at para.35 of the Husband’s affidavit sworn 6 February 2013, in the following terms:
35. On 20 November 2011, the children walked up the end of the street where I was waiting. [G] told me that they did not want to see me and they both turned and walked away.
With respect to this allegation, the Wife says the following in her affidavit filed 24 May 2013:
29. In response to the allegation that I failed to facilitate and encourage [J] and [G] to spend time with the [Husband] on 20 November 2011, I say that the children walked up to the corner of [N] (omitted) and [H] (omitted) at approximately 10:00am where the [Husband] was waiting. They returned shortly after. I did not hear what they said to the [Husband] however the children told me that they said they did not want to see him.
30. I had spoken to [J] and [G] prior to this occasion and encouraged them to go. They assured me they were going to go and meet the [Husband] at the corner of [N] (omitted) and [H] (omitted).
It should be noted that the location of changeover was changed after the Husband suggested a school which had a basketball court. It was the Wife’s oral evidence at Trans. 5.6.2013 p104(24-39) that the children did not want to go to the school, as follows:
So my client says, on 15 November:
Let’s do something that they really like doing. Maybe then they will spend some time with me. Let’s go play basketball.
And you say:
No, they want to go back to meeting you outside on the street near my house.
The place where they had failed to attend at least twice before?‑‑‑Yes.
Why didn’t you let them meet their father at the basketball courts?‑‑‑They didn’t want to meet him there.
Are you saying that they chose the changeover point, are you?‑‑‑No. They just said that they didn’t want to meet him at the - at the basketball courts.
Counsel for the Husband questioned the Wife as to her allowing the children to dictate where they met the Husband for time, at Trans.5.6.13, p.105(1-4):
By this time though, you wouldn’t have been listening to what they wanted, because you would have known by this time they hadn’t seen him five times in a row. You would have known, by this time, it was up to you to take control. Correct? --- Yes, I probably should have, in hindsight.
In closing submissions, Counsel for the Wife again placed the onus on the Husband to persuade the children to spend time with him, saying at Trans.27.6.2013 p.16(32-35):
The children walked independently to the appointed time, and the father could not persuade the children to go on time with him. Once again, she left him with a free rein in order to that.
The fact, as occurred more than once, that the children walked to the Husband shows this is not about them having any fear of him.
Counsel for the Husband made the following closing submission with respect to this charge (Trans. 26 June 2013, p.26(22-34)):
In my respectful submission, your Honour, the wife rejected the notion of the school and basketball and the corner was suggested instead because it allowed the children to do exactly what they did. She could say, “I’ve encouraged”, she could say, “I sent them. It was them who made the decision. They just decided to walk back. I haven’t done anything to breach these orders.” But it is clear, in my respectful submission, that the pattern from the time of the commencement of contact was that the wife was not going to do anything to encourage these children to go. These orders were an afterthought, they were not considered seriously by her. That is her own evidence. … there was never any intention by her to take them seriously and to do what she knew she needed to do, which was to work hard on these children to encourage them to spend time with their father. [emphasis added]
With respect to the sixth contravention allegation I find that the Wife has not complied with the orders and has not made a reasonable attempt to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has any reasonable excuse for the contravention.
Alleged Contraventions 10-11
The Husband alleges that the Wife:
a)‘failed to inform and consult with the [Husband] regarding the child [J]’s mental health problems. The [Wife] arranged for the child [J] to attend upon a mental health practitioner without consultation with the husband’; and
b)‘failed to keep the [Husband] informed in relation to ongoing problems with the child [J]’s mental health.
Counsel for the Husband provided the following particulars to the Court on 13 March 2013 with respect to Charge 10:
a)The [Wife] failed to consult with the [Husband] before organising new appointments for the child [J] to see [ER] psychologist for his mental health issues in October 2012.
b)The [Wife] failed to make any genuine effort to reach a joint decision with the [Husband] as to whether the child [J] should attend upon [ER] in October 2012, or the reasons for psychological assistance for [J].
c)The [Husband] learnt of [J’s] attendance and treatment by [ER] through [Ms W] [J’s] school counsellor that he was receiving current treatment for mental health issues on 16/10/12.
d)The [Wife] failed to consult with or make any genuine effort to reach a joint decision with the [Husband] regarding any recommendations for [J’s] treatment by [ER] prior to 19/10/12.
Counsel for the Husband provided the following additional particulars to the Court on 13 March 2013 with respect to Charge 10:
a)From 30 November 2012 until the present the [Wife] has failed to consult with or generally attempt to reach any joint decision with [the Husband] regarding the following decisions with respect to [J]:
i)His ongoing treatment including diagnosis, prognosis, medication and/or therapy with [ER];
ii)His ongoing difficulties with school performance and attendance and any strategies to address these with respect to his mental health.
Further particulars of the allegations relating to Charge 10 are set out at para.43(m) of his affidavit, in the following terms:
43. …
(m) On 16 October 2012, I rang [SW], School Counsellor, and she told me that [J] had seen a doctor about mental health difficulties he had been experiencing (details of which are set out later in this affidavit) and had been referred to a psychologist and prescribed medication. [The Wife] had not informed me of this. She subsequently arranged for him to see [ER], a psychologist he had seen previously. I was also not informed of this until I emailed [ER] on 17 October 2012 to ask her if [J] had been to see her and she responded to advise me that he had.
His evidence of the events leading up to the allegation contained in Charge 11 are set out at paras.45-49, and 52-54 of the Husband’s affidavit sworn 6 February 2013, in the following terms:
45. On 27 November 2012, I telephoned [ER] to discuss [J]’s progress. I advised her that [J] had not been at school and asked her when her next appointment with [J] was. [The Wife] was not happy that I had telephoned [ER]. On 27 November 2012, she emailed me and said, “if you have a questions [sic] about [J] seeing [ER] and about [J’s] school attendance then you can ask me as you have been. Do we have an issue here? I feel that I have updated you, why did you not tell me that you rang [ER]?” …
46. I responded to [the Wife] the same day and told her that there was no issue and no need to be terse. I apologised for not having advised her that I had telephoned [ER] and explained that I had not been given an update on [J]’s most recent appointment with [ER]. I assured her that there had been nothing sinister in my telephone call to [ER], and told her that I had been keen to obtain [ER]’s perspective about [J]’s problems directly. I asked [the Wife] whether she had a concern about me contacting [ER] directly.
47. [The Wife] responded… She said “I am not being terse. I am simply asking a question. …I have already advised you that [J] does not like you emailing/speaking to [ER]. Its [sic] not about me having concerns. You could have easily asked me about the visit with [ER]. Nothing really came out of the last session. I forgot to mention it. … I really don’t want to have to look for a new Psychologist.” [The Wife] did not explain why she would have to look for a new psychologist.
48. On 30 November 2011, I emailed [the Wife] and enquired about [J]. I asked how his consultation with a paediatrician had gone and told her I would appreciate an update on how he was going. [The Wife] responded and said “well, I would like an apology for your email the other day…I do not need your remarks or any other negativity as this is not helping anyone…I will update you but…I have been busy this afternoon. I do have [G] to deal with and other things going on. I am out at the moment but will send you a more detailed email tomorrow.”
…
52. On 4 December 2012, I emailed [the Wife] again and said “I haven’t heard from you on how [J] is going and how his consultation went last week? What did the [blood] test find?” … Again, [the Wife] did not respond. [The wife] has not provided me with any information about the welfare of either [J] or [G] since that time.
53. On 6 December 2012, [the Wife] received a letter from [J]’s school expressing serious concerns about his progress and referring to a meeting that had been arranged for 7 December 2012. … [The Wife]did not provide me with a copy of the letter or advise me of the meeting. I subsequently received a copy of the letter from the school.
54. On 11 December 2012, in response to a request for help in supporting [J], I received an email from [ER] indicating that she did not think that she was the appropriate person to be providing me with information about [J], that she was in “ethically very tricky territory” and that she would prefer not to provide reports on when he attends. …
Tenth alleged contravention
With respect to this allegation, the Wife says the following in her affidavit filed 24 May 2013:
35. The [Husband] knew that [J] had ongoing sessions with [ER] and made no complaint about these being arranged. …
36. Because of the foregoing, I did not immediately inform the [Husband] that I had made an appointment for [J] to see [ER] on 12 October 2012. I had no intention of leaving the [Husband] out of the loop…
37. … I understand the [Husband] then contacted [ER] on 17 October 2012 and he contacted me on 19 October 2012. …
38. I then provided the [Husband] with regular updates on [J’s] progress with [E] and medical appointments.
In evidence before me, the Wife was questioned about her failure to discuss [J’s] health issues with the Husband, at Trans.5.6.2013 p.110(19-25) as follows:
So you would know that something as significant as [J] having a mental health plan, missing school, not sleeping, and needing to see a psychologist is something you tell his father. It’s pretty simple. You knew that, didn’t you?---No, because I didn’t know what was causing it. If I knew that it was - - -
No one is ask - - -?---If I knew that there was a mental health issue, I would have advised him. But I wasn’t - I wasn’t sure what the situation was.
At the hearing, Counsel for the Respondent Wife made the following closing submission with respect to this charge at Trans.27.6.2013 p.17(5-15) and (41-46):
MR O'CONNELL: … He also agreed, in evidence, that he gave his ex-wife carte blanche to arrange sessions with [ER] on an as-needs basis. That was put to him and he agreed with that, and said further that, "In the interests of the child, I encouraged it." That was his evidence. He agreed that he made no complaint in relation to the wife arranging the appointment with [ER] in October 2012. In fact, he commended her for having done so without a word of complaint that he wasn't consulted beforehand.
HIS HONOUR: But that's not the charges levelled against her, is it?
MR O'CONNELL: Well, the charge includes - it was a very broad charge, but it includes that he wasn't consulted, yes.
…
… Now, in my submission, bearing in mind what had occurred over the last two years with the child seeing [ER] on an as-needs basis organised by my client, no complaint about that by the husband. She has received an implied permission to do that on her own bat, just by virtue of his conduct and lack of complaint during and after. That would be my submission. So I would say that the court cannot, in the context of that consent and lack of complaint, say that she intentionally failed to comply with the order pursuant to that Act, particularly when he admitted she was given carte blanche to make these appointments.
Counsel for the Wife concluded that (at Trans.27.6.2013 p.18(25-31)):
…I submit that in the light of [J’s] concern for privacy and the developing deterioration in his health, and the fact that it wasn’t clear whether it was a mental health issue, and the fact also that the husband, at that time, before 19 October, had been liaising directly with [ER], that my client acted reasonably in October in relation to involving the father in what became a long-term issue. At the time of the appointment with [ER], it may not have been a mental health issue or even a long-term issue.
Counsel for the Husband made the following closing submission with respect to this charge (Trans. 26 June 2013, p.27(15-22)):
His evidence is, your Honour, that he finds out from the school on 16 October that [J] is again engaging with the psychologist. The wife’s evidence is that as of 12 October she took [J] to see a GP for a mental health plan and on 12 October he had again seen [ER], someone he hadn’t seen since August of the previous year, so over 14 months or so ago. My client ought not find out from the child’s school that which he doesn’t know, which is that [J] again is experiencing such significant difficulties that his mother considers it appropriate, as does the school, that he attend upon a GP for a mental health plan and a psychologist. [emphasis added]
With respect to the tenth contravention allegation I accept the submissions from counsel for the Husband. Whilst the Wife has adopted a technical interpretation of her actions, the practical reality is that the child was referred for a mental health plan but the Wife maintains that is she knew it was a mental health issue she would have informed the Husband. It is difficult not to see this as another ruse of the Wife. I find that the Wife has not complied with the orders and has made no reasonable attempt to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has any reasonable excuse for the contravention.
Eleventh alleged contravention
With respect to this allegation, the Wife says the following in her affidavit filed 24 May 2013:
41. In relation to the [Husband’s] complaints that he was not provided with information relating to [J’s] schooling issues I state he had ready access to the school at all times and indeed his affidavit makes it clear he did contact the school…
42. The information I have provided to the [Husband] in relation to [J’s] health and schooling has been superior to the information the [Husband] has provided to me in relation to [R]…
43. Although I maintain that I did keep the [Husband] informed in relation to [J’s] health it was not my understanding that such notifications formed part of the Order for shared parental responsibility.
In evidence before me, the following exchange took place (see Trans.5.6.2013 p.119(10-20)):
And from that time, my client doesn’t hear anything more from you ‑ ‑ ‑?‑‑‑Well then - - -
- - - about [J’s] attendance or otherwise at [ER], does he?---He hasn’t had any updates on - any more appointments with [ER].
Well, he doesn’t know that. He doesn’t hear anything from you about it, does he?---Well, then he shouldn’t send me abusive emails.
HIS HONOUR: I think that must mean: yes, he has heard nothing more from her about it.
At the hearing, Counsel for the Respondent Wife made the submission that (see Trans.27.6.2013 p.19(4-8)):
What has not been shown by the husband, your Honour, is that my client had any further information after late November/early December to impart to him in relation to [J’s] health. And, in my submission, she acted very reasonably under the difficult circumstances of [J] not wishing the husband to be told about matters pertaining to his health.
Counsel for the Husband made the following closing submission with respect to this charge (Trans. 26 June 2013, p.28(31-47)):
The wife, with respect to [J’s] ongoing issues – it was put to you that there is no evidence that [J] has any ongoing issues – your Honour, the real problem for my client with respect to that is … the parties have agreed to orders on 24 May as a result of these issues continuing with respect to [J], such as an assessment of [J] via a psychologist to see if a diagnosis can be made, but the wife agrees that as at 12 December 2012 she sent an email to my client saying:
We are done.
as far as communicating about [J] was concerned, and she did that because she thought my client had been terse to her in previous emails and had not apologised. He should have apologised was her evidence. He shouldn’t send offensive emails was her evidence, and if he does he is punished. He is not going to know anything about his son, what is happening with his son, about the very significant mental health issues this child has because he has offended her. That is the evidence with respect to those counts, in my respectful submission, from the wife.
With respect to the eleventh contravention allegation I find that the Wife has not complied with the orders and has made no reasonable attempt to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has shown a reasonable excuse for the contravention. If [J]’s wishes were at the heart of things (which seems unlikely in light of the other events) she could easily have advised the Husband that there were issues she was asked not to advise him about, with her assessment of the seriousness. Ultimately, however, the child’s wishes about non-disclosure could never be respected as the parties shared parental responsibility and any application to the Court on the issue would have resulted in the Husband being aware of the relevant matters. To discuss it with the child on any basis other than that the child’s parents were responsible for the child and must be told was just not acceptable or reasonable in the context of this case.
The Role of Rewards and Consequences Generally
The Wife raised objections to ever providing rewards or penalties to the children with respect to attending contact. To put it so starkly as saying it is bribing or punishing gives a negative connotation to what are important parenting tools. Notably, it is rare that children enjoy attending school or the dentist, or doing their homework. It is common that children get anxious about exams or performances. Parents regularly associate positive support and events with challenges children face. Small gifts are commonly given before or after significant events that a child may be anxious about, not to bribe a child, but to reflect the parents pride and admiration that a child has pushed through a difficult or stressful event. Rewards remain an important part of life even for adults. Similarly, firm consequences are important, as is proper explanations of the real benefits that often flow from facing challenges – as a simplistic example being a filling for a tooth at the dentist, a more complex one attending school regularly and studying. Parents do not present these things as simply ‘should’ but in context and with support and explanation, together with more immediate rewards and consequences.
The Wife has not done this, despite what appeared to be a case without difficult parenting issues at the time of the parenting orders. This is the core issue in this case and an issue on which the Wife has failed.
Conclusions
I therefore make formal findings that the mother did contravene the Orders as alleged without reasonable excuse for doing so.
It is appropriate that I hear submissions on what consequential orders are appropriate in the circumstances.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 19 June 2014
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