Stewart and Bain

FAMILY COURT OF AUSTRALIA

STEWART & BAIN

[2009] FamCA 1192

FAMILY LAW – CONTRAVENTION – Problems with ordering a respondent to enter into a bond – Distinction between subdivision E and subdivision F

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Ms Stewart

RESPONDENT:

Mr Bain

FILE NUMBER:

MLC

4836

2009

DATE DELIVERED:

7 December 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

17 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS GREGG

SOLICITOR FOR THE APPLICANT:

FITZGERALD & BROWNE LAWYERS

COUNSEL FOR THE RESPONDENT:

MS PHELAN

SOLICITOR FOR THE RESPONDENT:

RIGOLI LAWYERS

Orders

That the respondent father is found to have breached the orders of the Court in respect of allegations numbered 3 and 4 of the application filed 30 October 2009.
That all other allegations are dismissed.
For the purposes of Part VII of the Act, the contraventions referred to in paragraph 1 are deemed to fall into subdivision E.
That the father enter into a bond pursuant to s 70NEC for a period of two years to abide by all orders of the Court.
That after reading these orders and obtaining advice, the father, through his practitioners advise my Associate in writing whether or not he will enter into the bond and the matter be relisted before me on a date to be fixed with my Associate for the conclusion of the proceedings.
For the purposes of paragraph 5 of these orders, the mother is excused from attendance.
That any party wishing to apply for costs may do so in writing by way of written submission to be filed and served by 4.00pm on 11 December 2009 and the recipient of such submission shall have until 4.00pm on 18 December 2009 to file and serve any response and the matter be determined in chambers.
That all extant parenting applications be listed for the first day of a less-adversarial trial at 3.30pm on 22 January 2010 before me noting that the issue to be determined that day is whether or not there is any basis to re-consider the orders made on 7 November 2008.

IT IS NOTED that publication of this judgment under the pseudonym Stewart & Bain is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4836 of 2009

MS STEWART

Applicant

And

MR BAIN

Respondent

REASONS FOR JUDGMENT

Ms Stewart brought two contravention applications against Mr Bain relating to the child of their relationship born in September 1997.
The contravention applications were filed on 1 September 2009 and 30 October 2009 respectively. The mother’s explanation for bringing the second application two months after the first, including allegations that should have been contained in the first application, was that issues of telephone communication had not been resolved and therefore it was necessary to make the allegations.
The combined applications contain a total of 25 allegations of contravention of the orders. For reasons which I shall set out, I propose to dismiss all but two allegations. The wider problem is what to do with the existing orders to make the arrangement workable.
The dispute over the child is long standing. There have been two significant trials between the parties. There is no relationship between them and the child is caught in the middle. To make matters more difficult, the case is inflicted with the tyranny of distance because the mother resides in Tasmania and the father in Melbourne. The changeover point is the Tullamarine airport.
The essential elements of the allegations were:
(a)the father failed to collect the child on two occasions at the conclusion of the contact periods thereby inconveniencing the mother who was required to return to Tasmania;
(b)the father had failed to provide facilities for the child to write to his mother and had not encouraged the child to do so;
(c)the father had failed to advise the mother of a major long term issue relating to which school the child will attend in 2010;
(d)the father had failed to advise an alternate telephone number on occasions when he was not at home to enable the mother to speak to the child on the landline and then failed to make the child available for the relevant telephone call;
(e)the father had failed to allow the child to speak to his mother in private and without interruption or interference.
Both parties were represented by counsel. The proceedings were conducted with the father and his counsel in Melbourne and the mother and her counsel in Hobart. I agreed to the mother’s request for the proceedings to be conducted by video link although that proved difficult because of the lateness of the provision of documents which were to be used for cross-examination purposes.
Each party gave evidence and was cross-examined.
The unusual nature of contravention proceedings requires the applicant to declare to the Court whether there has been a previous breach found proved against the respondent. The purpose of that is to assist the Court in determining in which category of seriousness the case belongs.
In this case, the mother did not put that material in her affidavit and it therefore had to be led in evidence. Despite being aware that the father had been found to have breached orders previously, the past history did not affect any of my determinations.
Notwithstanding the diverse nature of the allegations and the length of time over which they were said to have occurred, the mother carried the onus of proof. The standard of proof is the balance of probabilities. Because of the serious nature of some of the allegations, I have applied the standard set out in s 140(2) of the Evidence Act 1995 (Cth) and where I have done so, I have indicated the reasons.
Each party endeavoured to tell the truth. Several of the mother’s complaints arise out of statements made by the child. Ironically, so did statements by the father. That creates a dilemma where the child is caught in the middle of a rancorous dispute. The orders that I made in 2008 to which I shall refer, imposed a significant burden upon the father to ensure that the child was able to benefit from a meaningful relationship with his mother. I say burden because not only did the father have to travel with the child to the Melbourne airport but because of the nature of the telephone communication orders, he had to ensure that the arrangement was facilitated on two occasions each week. The mother showed no flexibility in relation to that burden insisting that not only that when the father could not meet designated deadlines, he provide makeup time but also gave instructions to her counsel to cross-examine on every issue in dispute in circumstances where her stated position to the Court was that she did not want the father punished.
In the previous contraventions where the father was found to have breached orders, I said that he had to be very cautious about his obligations to ensure that he treated them seriously. The purpose of that was to ensure that the child continued the relationship with his mother. For reasons which I shall set out, notwithstanding the previous breach having been found proved, I do not intend to find that this time that the father falls into subdivision F but rather in subdivision E. Because of the rigid position of the mother and the reasons that I accept were the explanations of the father why various events occurred, I do not find that there was a deliberate attempt by the father to thwart the relationship between mother and son. In most of the cases referred to below, the general explanation for the breakdown of the orders could be seen to be the natural consequence of everyday family life. However, this is an unusual case and the father will have difficulty in the future convincing a court that he made mistakes.
Subdivision F is a category reserved for parents who have a conscious disregard for their obligations under court orders. The fact that a subsequent breach occurs does not automatically place the case in subdivision F as will be seen from the legislation to which I shall refer.
The relevant orders were made on 7 November 2008. Under them, I provided for the father to have sole parental responsibility for making decisions about the child but he had to notify the mother of his decision as soon as practicable after it was made. The order did not provide for a consultative process.
The 2008 orders also provided:
10. That the mother communicate with [the child] by:
(a)telephone each Wednesday and Friday on the following conditions:
(i)the calls be initiated by the mother at 7.00 pm to the father’s landline but if [the child] will not be there present at the appointed time, at a telephone number (whether mobile or landline) advised to the mother by the father no less than 1 hour before the appointed time for the mother’s call;
(ii)the duration of the call be 30 minutes and therefore conclude at 7.30 pm; and
(b)post (whether by letter, card or present) no more than once per week,
and for the purposes of (a) and (b) of this paragraph:
(c)the mother be restrained from providing [the child] with mobile telephones or credit facilities that would enable [the child] to telephone her outside of the provisions of these orders;
(d)the father shall ensure that [the child] is available to speak to the mother at the appointed time and for its duration;
(e)the father shall do all things necessary to enable [the child] to speak to the mother in private including ensuring there is no interference from extended family members;
(f)the father shall ensure that [the child] has available to him, sufficient stationery and at least one standard letter postage stamp per week;
(g)the father encourage [the child] to communicate in writing to his mother; and
(h)if [the child] does write to his mother, the privacy of [the child] in respect of any such letter be respected.
In respect of the mother’s face to face time with the child, I made orders that the arrangement was conditional upon the mother:
(a)notifying the father by email by 4 pm on the Monday before the weekend that she will be attending for the purposes of spending time with [the child];
(b)advising the father of her estimated time of arrival and departure at Tullamarine Airport;
(c)advising the father of the Airline Carrier upon which she is arriving;
(d)advising the father of the flight number of her arrival and departure.
It will be evident that changeover having regard to airline schedules was always going to be difficult. The order provided for that purpose:
18.For the purposes of all changeovers of [the child] under these orders, unless the parties otherwise agree:
(a)the father or his nominee deliver [the child] to the mother at the point of her entry into the Tullamarine Airport from her designated flight at the time advised by her under these orders provided that it is not earlier than 9 am; and
(b)the mother return [the child] to the father or his nominee at the departure drop-off point at the outside of the mother’s designated Airline carrier at Tullamarine Airport and on the basis that the mother will be waiting at the designated time and the father or his nominee will be able to drive to that spot and not have to alight from the vehicle at the conclusion of the mother’s time with [the child].
The law governing the determination of allegations of contraventions of parenting orders is set out in Division 13A of Part VII of the Act. It is worth reflecting on the purpose behind the division which can be found in s 70NAA(1) and which reads:
(1) This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
Generally, I accept there has been compliance but this current dispute is about the times that was not entirely the case. If the parties had some form of civil relationship and flexibility, the problems would not have occurred. In saying that, I take into account that in the hearing culminating in orders in 2008, I found that the mother had a borderline personality disorder.
Consistent with the tenor of the division, s 70NAA(2) provides that the Court always has the power under s 70NBA to vary an order.
Before contemplating a variation, the Court has to deal with the breach allegations. The orders which a court can make arising out of the determination of a contravention application depend on whether:
(a)a contravention is alleged to have occurred but is not established (Subdivision C); or
(b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or
(c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
In respect of the various allegations in this case, each of those provisions becomes relevant.
Section 70NAC insofar as it is relevant, provides the meaning of contravention. It reads:
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;
In this case, I find that in respect of the father’s failure to comply, it was in respect of his not making a reasonable attempt rather than an intentional failure. I have dealt with those matters in the factual determinations below.
There are circumstances in many facets of parties’ lives where orders are not carried out but the Court accepts there is a reasonable excuse. Section 70NAE(1) reads:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
It is important to note that the circumstances are not limited to those set out in the Act; the Court is at large in deciding what is reasonable.
Section 70NAE(2) provides:
(2) A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
I am satisfied there is no circumstance here where the father did not understand his obligations.
Section 70NAE(3) provides:
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
I have previously warned the father that he could not adopt a casual approach to compliance. I repeat that the obligations must be treated seriously.
Section 70NAE(5) has little operation here but it reads:
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
There is no dispute about the mother spending time with the child. Her time was not reduced. Her complaint was that the father did not collect the child at the appropriate time pursuant to the orders. The absence of a specific provision in s 70NAE dealing with that type of contravention means no more than that the Court has to look back to the unlimited nature of s 70NAE(1). Something must be found there to enable the Court to deal with such a situation.
In this case, there are allegations of breaches of orders relating to communication particularly by telephone. Section 70NAE(6) provides:
(6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
None of those provisions is relevant in this case.
The father’s argument in relation to the first two allegations is that he ought to be excused because he made an error. In respect of other allegations for which denials have been made, the Court is still permitted to excuse the respondent if satisfied that the excuse is reasonable. That becomes relevant when the facts are examined below. The standard of proof required of the applicant is the balance of probabilities as set out in s 70NAF(1). However, that onus reverts to the respondent if he or she is asserting a reasonable excuse. If as here, the respondent denies the allegations but they are found to have occurred, it must still be open to him to argue that his explanation amounts to a reasonable excuse. That is my understanding of the father’s position in this case. However, he has to prove that his excuse was reasonable in all of the circumstances.
Counsel for the mother argued that upon a finding that the father had contravened the order, I should find that the breach fell within subdivision F. If that were to be so, a court’s power to deal with outcomes such as community service orders and imprisonment could only be used if the court was satisfied beyond reasonable doubt that the provisions for making an order existed. Those provisions do not apply in this case for reasons that follow.
Subdivision C applies where the respondent has been found not to have a committed a contravention of the order. That can only arise where the facts do not support a breach as distinct from the court being satisfied that the respondent should be excused. Section 70NCB goes on to provide for courts to make costs orders against the applicant. That situation does not arise here albeit I am satisfied that there are instances where the breach has not been proved.
Subdivision D applies where a contravention is established but the respondent proves he or she had a reasonable excuse. The court is empowered to make a compensatory time order if time is what was lost. That did not occur here. The court also has power to make costs orders against the applicant but here, because of the findings I will make, that is not appropriate.

The father’s approach has been less than enthusiastic about comprehensive compliance with some parts of these orders. The complaints of the mother were at times pedantic and inflexible but her frustration gave rise to some of the complaints. Her applications were not vexatious even if they were pedantic and inflexible. The father is certainly now on notice of the mother’s desire for specific performance.
Subdivision E applies where there is a contravention of a less serious nature but without reasonable excuse. It applies where there has been no previous finding of contravention or if there has been action taken on a contravention previously, the court is satisfied that subdivision E should apply. Subdivision E should apply in this case.
Dealing sequentially with the contraventions, I propose to set out the position of each party as the evidence was given and my respective findings.
Two allegations were made by the mother that on 5 April 2009 and 26 July 2009, the father failed to collect the child at the designated time at the Melbourne airport. The circumstances in both cases do neither party credit. However, in fairness to the mother, it was the father who made the error. In respect of the first occasion, the father’s evidence was that for a number of Sundays, the collection time had been 7.00pm and on the relevant occasion, he did not diligently study the mother’s message as to the time of her flight. On the second occasion, the father had kept the various emails in his motorcar and mistakenly believed that he was on time. There can be little doubt that the lateness caused significant inconvenience to the mother. In respect of the first occasion, she stayed overnight in Melbourne, retained the child, flew back to Tasmania with him and then, over the ensuing six days, became embroiled in recovery proceedings. All of that was unfortunate but the critical issue is whether or not I accept the father’s evidence that he made a mistake. In this case I do. He had been otherwise punctual and in each case, the times had been altered.
I shall deal with the legal issues as defined by Division 13A of the Act below but I accept that the breaches did occur on both occasions and that the father had a reasonable excuse. Each of those two allegations is therefore dismissed.
The mother alleged that between 1 April 2009 and 30 August 2009, the father had failed to ensure that the child had sufficient stationery, postage stamps and the like and that he failed to encourage the child to communicate with her in writing.
The mother’s evidence was that the child said that his father was not providing him with the wherewithal to communicate. As a consequence, the child started a diary which travelled with him and in which he wrote his thoughts to be read by the mother. When questioned about the diary, the father said that he was unaware of the diary until such time as he saw it attached to the mother’s affidavit. The father’s version was that once the fortnightly time between mother and child commenced, the child indicated that there was no need to continue writing letters. The father’s evidence was that there had been a number of occasions up until that time where the order had been followed and the child had written a letter on stationery provided to him and his father had taken the letter and posted it. Although that evidence was not challenged by the mother, her complaint was that in strict terms, the father had not provided the child with a postage stamp. That reading on the orders borders on pedantic having regard to the fact that the mother did not challenge the fact that the father had sent letters up until the time that they ceased. Both parents relied upon what the child told them. Having regard to the number of telephone conversations, the regular alternate weekend time between the mother and the child and the father’s evidence that the child disliked writing, I am not at all surprised that the child would indicate a reluctance to continue that course.
There is clearly a dispute between the parties about exactly what happened and what the child said. I am not satisfied that the complaint about the postage stamps is justified. The father’s evidence was that at all times there was ample stationery available for the child to write to his mother. I could not find on the evidence that the father could be criticised for failing to encourage the child to continue writing in all of those circumstances. I am satisfied that there is no breach of the order in those circumstances. Contraventions 3 and 4 are therefore dismissed.
The fifth contravention related to an allegation that the father had failed to notify the mother of the fact that he had enrolled the child at a grammar school. The mother apparently ascertained the potential for the child to attend the grammar school from the child himself. She then embarked upon an inquiry from the school and satisfied them that she was entitled to information. The father enrolled the child at the grammar school in June 2009 and did not put on the enrolment form any of the details about the mother. The mother’s complaint was that the father had been told by the school of the acceptance of the enrolment to the extent that the school required payment of some form of deposit and it was in fact paid by the father. The father’s evidence was that all of that had occurred. He said however that at the same time as he attended the grammar school, he also attended at the reception desk of the local high school and obtained the enrolment form there. He said because of the financial circumstances of he and his present wife, he could not be confident about which school the child was going to be attending in 2010. The father was cross-examined about this issue but he satisfied me that at this stage, no definite decision has been made about which school the child will attend.
Counsel for the mother argued that the father had an obligation to tell the mother of the fact that he was contemplating one of the two schools. I reject that. Paragraphs 3 and 4 of the orders to which I have referred make it clear that it is the father who has to make the decision about the long term educational welfare of the child at which point in time, he is to notify the mother. There was no merit in the mother’s argument.
I am satisfied that no decision has been as yet made about which school the child will attend and on that basis, contravention 5 must be dismissed.
The mother filed the second batch of allegations on 30 October 2009. Those are referred to sequentially hereafter.
The first allegations relate to the weekend of 7 January 2009. The allegations were that the father failed to advise the mother that the child would not be at the telephone number of the landline and that he had not therefore made the child available when she telephoned the landline. Her evidence was that just after 7.00pm she telephoned the father’s mobile. She asserted that the father would not allow her to speak to the child because she had asked the child to call her back on previous occasions when the child had terminated the call because he needed to go to the toilet. The father’s version was substantially the same except that his explanation was that he had found that the child had been requested by the mother to terminate the call and then ring her back on the father’s telephone line. In other words, it was not the termination of the call for toilet purposes but rather so that the father could bear the cost of the call. The father was not challenged seriously about that evidence.
The father’s evidence was that the mother did speak to the child albeit for minutes only and then gave the telephone to the father. The father’s evidence which was not disputed by the mother was that he requested that she give a guarantee that she would not ask the child to telephone her back using the father’s telephone. To do that would be inconsistent with the intentions of the order. The mother said that she would not give that guarantee. I found all of this evidence rather puzzling having regard to the mother’s insistence that the father comply with the letter of the order. If the child was not able to talk to her for the requisite period of the order because of a need to go to the toilet, it is hard to imagine why the father should be responsible for making the call back. I am satisfied that the father’s evidence is the correct version namely that he was asking for a simple courtesy to ensure that his telephone was not abused by the mother. The mother asserted that she did not speak to the child on that occasion. The father was adamant that there was a telephone conversation. I accept the father’s version. Accordingly, contraventions 1 and 2 relating to 7 January 2009 must be dismissed.
The third and fourth contraventions relate to the period of 9 January 2009.
The father’s evidence was that he was travelling home from holidays with the child. He said that the trip took over two hours and on his own evidence, he did not leave sufficient time to arrive at home in time for the mother to make her call at 7.00pm to speak to the child. The mother’s evidence was that she made the calls and there was no answer. The father’s evidence was that there was no message from the mother. The mother’s evidence was corroborated by records showing that she made eight calls to the father’s landline. The father neither arranged an alternative number nor did he make the child available at the appointed time. Either of those situations could have been avoided by the father making a reasonable attempt to provide the mother with a specific time on that night which would have satisfied the requirements of the order. I am satisfied that the father did not make a reasonable effort in the circumstances and that means that contraventions 3 and 4 are proved.
Contravention 5 related to an incident on 27 February 2009 in which the mother asserted that the father failed to enable the child to speak to her in private. The mother’s evidence in relation to this incident was disputed by the father. The mother said that the child complained when he spoke to her that he was being quiet because he did not have privacy. He said “they don’t let me speak with you in my bedroom”. She said that the child would not engage in conversation with her and she could still hear voices. She said she heard the child call the child “L” who is the daughter of the father and his now wife.
The father’s evidence was that on every occasion when the call has come in, the child has taken the telephone and gone to his bedroom. He said he could not remember a single occasion in which the child L interfered in some way with the calls. I bear in mind that L is five years of age. The clear intention of the order is to ensure that telephone communication was not thwarted between the mother and the child. It is hard to see how that could be breached by the actions of a five year old child wandering in to the subject child’s bedroom. There is no evidence that the father or his wife took any steps to evade the order. There is no evidence other than the mother’s assertion that she heard voices. I am not satisfied on the balance of probabilities that that order has been breached. The contravention relating to the incident on 27 February 2009 is dismissed.
Contravention allegations 6, 7 and 8 relate to 20 March 2009. The allegations were that the father failed to provide an alternate number, failing to make the child available and failing to ensure that the child was able to speak without interference. The mother’s evidence was that she rang the home number and received no response. At 7.20pm however, the child telephoned her from a private number and spoke to her. He was apparently at his paternal grandparents home and was calling from his stepmother’s mobile telephone. He said that his stepmother was standing right next to him and he believed that she was attempting to listen in on the conversation.
The father’s evidence was that he was in the United States of America. He knew nothing of what had occurred. He said that he did not receive any telephone calls from his wife about reminding the child to ring his mother.
It was put by counsel for the mother that albeit the father was in the United States, he still had to ensure that the orders were carried out.
I am satisfied on the evidence that the father’s wife did make the necessary arrangements for the call albeit 20 minutes late. The father’s evidence was his wife was running late and in any event, the burden of complying with the order did not fall upon her. The father being in the United States, it is hard to see how there could be criticism of him in the circumstances. I found the mother’s attitude pedantic particularly having regard to the fact that the child made the call that night.
In respect of the mother’s complaint that the child’s conversation was overheard, she relied upon the statement of the child. Again because the father was in the United States, it is hard to see how he could be held responsible for what occurred on that occasion even if the mother’s version was right. I am not satisfied on the balance of probabilities that that contravention has been established. Contraventions 6, 7 and 8 are therefore dismissed.
Contraventions 9 and 10 occurred on 3 April 2009. The mother’s evidence was that at 7.04 and thereafter, she telephoned the father. Her call to the father’s landline went through to a message machine. Only moments later, she telephoned the father’s mobile telephone and his response was to say that she should ring the landline. He then terminated the call. Minutes later again, the father sent a text message to the father saying that the homeline telephone was “dead” and she was to ring the mobile. She chose not to do so. When asked why, she indicated that she had been intimidated by the father by which I understood her to mean that she had had enough of being run around by the father and he had caused her inconvenience. There was no evidence other than that of the father to show that the telephone line had been a problem. When cross-examined about the issue, the father said it had occurred twice in 2009. It was put to the father that what he should do on each occasion is check the line prior to the call being expected just to see whether the line was dead or not. Again, this indicates the pedantic nature of the mother’s instructions to her counsel.
There will always be these sorts of problems which most reasonable people would have sorted out if they had the capacity to be flexible. There is no flexibility in this case.
I am satisfied on the evidence that the father’s telephone line was dead and that he did invite the mother to ring the mobile and she declined to do so. I am not satisfied therefore on the balance of probabilities that that contravention in numbers 9 and 10 is proved. Those allegations are dismissed.
Contravention 11 relates to an incident on 24 April 2009. The mother said that she telephoned the father’s mobile. There was much noise in the background. The child was at a birthday party for his step-grandmother. She said she asked the child to pass the telephone to his father whereupon she asked the father to let the child go to the foyer to speak with her and he refused. The father’s version was that the child was in a room and took the phone to an area where he could have privacy but because of the mother’s request to hand the phone back to him, the child did so. The father’s evidence was that he made an offer for an alternative occasion but it did not suit the mother. Having regard to the fact that the mother declined to speak to the child requesting the father to do something about the situation, the matter was very much in her hands. The father’s position about not permitting the child to call her back may be seen to be unreasonable but in the circumstances, the orders were quite clear. I am not satisfied on the balance of probabilities that that allegation has been proved and it is accordingly dismissed.
Contraventions 12 and 13 relate to 29 April 2009. The mother made a number of telephone calls without leaving a message and eventually, she spoke to the father on his mobile telephone. He said that he was in Sydney and could not do anything about the fact that she could not speak to the child who was in Melbourne.
The father’s evidence was that his wife was running late. He gleaned that from a conversation with his wife. In his diary notes which were tendered in evidence, he noted that he telephoned the mother back after speaking to his wife. However an examination of his telephone records indicated no such call and he conceded that his diary entry was wrong.
Again, it was put to the father that it was his obligation to ensure that the call took place. I am satisfied that the contravention is established but because of the exigencies of his work life, he could not be present to organise the call. I am satisfied that the father had a reasonable excuse for not complying with the strict terms of the order and under those circumstances the allegation is dismissed.
Allegations 14 and 15 are most unusual. The mother telephoned at the usual time on 26 August 2009 to ascertain from the father that the child was not at home because he was at a school camp.
The father conceded that all of that was true.
Counsel for the mother put to the father that some alternate arrangement should have been made. The father’s response was that he presumed that the mother knew about the school camp because she would have been receiving the school newsletters. The mother’s position in relation to the school newsletters was that she was getting some of them but not all of them. She said that was a subject she had taken up with the school and not had a satisfactory response. I am perplexed as to how she could blame the father for that position.
The father’s evidence also was that the child was quite excited about going on the school camp for some time. He said he was puzzled that the mother had not learned of the school camp from the child.
In the circumstances, I cannot see how the father can be blamed for the position which he was entitled to presume the mother would be conscious of either through having the school newsletter or in speaking to the child. I am not satisfied on the balance of probabilities that those contraventions are established either. Those are dismissed.
Contraventions 16 and 17 relate to the day after the child birthday in September 2009.
The dispute in this particular case was simple. The child and his father and family went out for dinner the day after the child’s birthday with relatives. The mother telephoned and the father was obviously not present.
The dispute however centred around a message sent by the mother to the father on Saturday 5 September 2009. The mother’s text message which was read to the Court requested that the father provide time with the child on his birthday but for the purposes of replacing a missed telephone conversation a month before. The father’s evidence was that he responded on 6 September 2009 indicating that the call could be made on the child’s birthday. The father denied that there was any suggestion that the call was for makeup time for an incident missing a month before. Neither party was able to produce to me the text message of 6 September 2009.
I found it rather odd that there would be an insistence upon two telephone calls in successive days and it seems more probable than not that the call agreed to by the father was the substitute for the day after the child’s birthday rather than as the mother suggested for an incident a month before. I also accept the father’s position that he wanted the mother to speak to the child on the child’s birthday and that in fact was what occurred.
It also seems reasonable in the circumstances that the father should be permitted to take the child out to dinner to celebrate his birthday with relatives.

I am not satisfied on the balance of probabilities that the father adopted an unreasonable position in thinking that the obligation on the day after the child’s birthday had been substituted by the call on the night before. Those two allegations are therefore dismissed.
The final three allegations numbered 18, 19 and 20 relate to 23 September 2009. The mother’s evidence was that at 6.41 pm on that day she received a text message from the father which said that the child was not home and she should call the next day. Unfortunately because of her shift work, she said she was unable to do that. Undeterred, she then telephoned the child at the usual time to the father’s landline and the call went to an answering machine. She then telephoned the father’s mobile and spoke to the child who was in a motor car driven by his father.
The child’s reluctance to talk gave rise to the mother requesting that the telephone be given to the father but as he was apparently driving, it was given to his wife. There was some unpleasant conversation and the call was terminated. A series of calls were then made all of which went to message bank.
The father’s evidence was that the child had a friend visiting and they decided to go out for dinner as a family and for that reason, at 20 minutes before the appointed time, he suggested that the call be made on the following day. The mother obviously rejected that proposition because of the fact that she would be unable to have the call on the following day because of work commitments. However, she did not indicate any alternative.
The unusual feature of this incident apart from the inflexibility of the parties was that after speaking briefly to the child, she then requested to speak to the father. There was no suggestion that she would speak to him later. This all preceded the September school holidays and the mother’s evidence was that she wanted to speak to the child before she collected him for the holidays. A very simple solution would have been to have made some alternative arrangement either that night or at a time in the day or so that followed. It seems to me in the circumstances with the father making the effort to notify the mother in advance that the child would not be available, when she had the opportunity to speak to the child, she did not do so other than to request that he hand the phone to his father. I am satisfied that there is breach of the order but one for which the father has a reasonable excuse in the circumstances. Those allegations are therefore dismissed.
The only allegations that I must deal with are the second groups numbered 3 and 4.
Having found that subdivision E applies, the relevant powers for me to deal with the matter are set out in s 70NEB. The options are limited.
Directing a person to attend a post-separation program should only be contemplated where there is a realistic prospect of some educational value being gained. The duration of the litigation, the single mindedness of a party, the capacity for the program to have a positive impact on future parenting and the impact on the child are all issues to be contemplated. In this case, the father has already attended a post-separation parenting program. There is little point in making such an order again.
The Court can adjourn the proceedings to allow the applicant or for that matter the respondent, to file documents to seek to vary the primary orders. In this case, each party has already done that. I will deal with those issues as part of the reasons below.
Another option for the Court is to order the respondent to enter into a bond in the terms of s 70NEC which reads:
(2)      A bond is to be for a specified period of up to 2 years.
(3)      A bond may be:
(a)      with or without surety; and
(b)      with or without security.
(4)      The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a)to attend an appointment (or a series of appointments) with a family consultant; or
(b)to attend family counselling; or
(c)to attend family dispute resolution; or
(d)to be of good behaviour.
The Court also has powers to order costs against both parties.
The limited nature of s 70NEC is troubling. I have already found that the provisions of subdivision F are not appropriate. There are clearly limitations on a number of the options.
What is of serious concern is the limitation in respect of the bond provisions. Section 70NEC(5) imposes the obligation upon the Court to explain the consequences of a person entering into a bond and subsequently breaching it or failing to enter into the bond. Either of those circumstances gives rise to the question of what would happen in this case if a bond was imposed and a further breach occurred or the bond was not executed by the father. For the reasons I have outlined above, the various alternate options are very limited.
Every determination of this nature must be directed towards making the orders work. I am perplexed about the lack of options. There are no provisions to impose fines. There are no options to impose self-executing suspended sentences in this subdivision unlike in subdivision F. There is no definition in the Act as to the meaning of good behaviour.
It is pointless insisting upon compliance with orders if the opportunity to coerce people is so limited. To some extent, the categorisation of the findings creates the problem. The legislature has chosen to delineate those categories and to give the Court powers which it was felt reflected the seriousness or otherwise of the particular categories.
In this case, despite having a prior breach admitted, the type of breach does not put the case in the category of subdivision F. Even if it did, one has to contemplate the impact upon the welfare of a child in circumstances where the respondent is the primary carer of that child. It is not simply a case where having regard to the history, a court could simply hand the child over to the other parent. The legislation makes clear even in respect of compensatory time that the best interests of the child must be considered.
One of the powers of the Court in s 70NEB is to impose an order for costs. However, that power would be there regardless of that provision having regard to the very nature of the litigation. Costs in themselves are not designed as a punishment but rather as compensation for the person who has incurred the costs in having to take the matter before the Court.
In the circumstances, having regard to the limited nature of the powers, the only option open to me is to order the father to enter into the bond and to require him to attend before the Court pursuant to the provisions of s 70NEC(5). As the father is represented, I will direct his legal practitioners to advise him of the terms and conditions of Division 13A and my reasons for judgment before I call upon him to enter the bond.
I have contemplated requiring the bond to include surety and security but the vagueness of those terms does little to assist me as to how they would make the future compliance with orders any more plausible. It is important to reflect on the fact that bonds have been used for hundreds of years to quell misbehaviour but always with attendant sanctions in the event that the bond is breached. I am not convinced in this case that ordering the father to do something which he is already required by an order to do is very sensible.
I propose to also make orders that the parties provide written submissions in respect of the issue of costs.

I certify that the preceding Ninety Seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 7 December 2009

[2009] FamCA 1192

7 December 2009

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Breach

Remedies

Costs

Appeal