THURSTON & CARDEN

[2013] FCCA 1298

FEDERAL CIRCUIT COURT OF AUSTRALIA

THURSTON & CARDEN [2013] FCCA 1298

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – application to deal with respondent for contravention of orders – one child aged 8 years residing with mother – whether orders are ambiguous – where primary orders made no provision for time with the child on the child’s birthday or either of the parties’ birthdays.

REASONABLE EXCUSE – Whether reasonable excuse established.

WORDS AND PHRASES – “the commencement of school” – whether school commences on the first day the child is required to attend school or on an earlier staff development day.

Legislation:
Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 70NEA, 70NEB, 70NEC

Applicant: MS THURSTON

Respondent: MR CARDEN

File Number: PAC 4038 of 2010

Judgment of: Judge Scarlett

Hearing date: 29 July 2013

Date of Last Submission: 29 July 2013

Delivered at: Sydney

Delivered on: 24 September 2013

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. Count 1 alleging that on 30 January 2013 the Respondent contravened Orders 3.5.1b and 5 made by consent on 29 September 2011 is dismissed.

2. Count 2 alleging that on 1 and 8 February 2013 the Respondent contravened Orders 3.1, 10 and 11 made by consent on 29 September 2011 and on 8 February 2013 contravened Order 3.1 made by consent on 29 September 2011 is dismissed.

3. Count 3 alleging that on 1 January 2013 and various occasions in 2012 the Respondent contravened Orders 8 and 9 made by consent on 29 September 2011 is dismissed.

4. Count 4 alleging that on 1 March 2012 and 24 January 2013 the Respondent contravened Orders 8 and 12 made by consent on 29 September 2011 is dismissed.

5. The Respondent did on 11 November 2012 without reasonable excuse contravene Order 11 made on 29 September 2011 by failing to inform the Applicant of distress suffered by the child [X] born [in] 2005 as soon as practicable.

6. Count 6 alleging that on 25 June 2012, 17 September 2012 and 26 November 2012 the Respondent contravened Orders 10 and 1 made by consent on 29 September 2011 is dismissed.

7. As provided by s. 70NEB of the Family Law Act 1975 the Application is adjourned to Monday 2 December 2013 at 10:00 am to allow either or both of the Applicant and the Respondent to apply for a further parenting order under Division 6 of Part VII of the Family Law Act 1975 that discharges, varies or suspends the orders made by consent on 29 September 2011.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 4038 of 2010

MS THURSTON

Applicant

And

MR CARDEN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of a girl called [X], who was born [in] 2005, claiming that the Respondent, [X]’s father, has contravened various parenting Orders made by consent on 29 September 2011. The father denies that he has contravened the Orders.

2. The Orders said to have been contravened are Orders 3.5.1b, 5, 3.1, 10, 11, 8, 9, and 12. The mother alleges some 14 different contraventions between 1 March 2012 and 1 February 2013.

3. The relevant Orders state:

   3.  That the child of the relationship lives with the Mother and spends time with the Father at the following times:

   3.1    During school terms, each alternate weekend from after school Friday or 3pm to 9am Monday or before school Monday commencing on 22 July 2011

   3.5    Each Christmas holiday period thereafter as follows:

   3.5.1 On even numbered years:

   a.  …

   b.  Each alternate week thereafter commencing from 5pm 11 January until the commencement of school.

   5.  All other exchange will take place at [H] train station or as otherwise agreed to between the parties in writing.

   8.  The parties are not to discuss these proceedings, or denigrate each other in the presence or hearing of the Child.

   9.  The parties are not to block telephone contact between the other party and the child.

   10.    That should the Child not attend school on a rostered school day each party is to notify the other party as soon as practicable.

   11.    Each party is to keep the other party informed of any distress or medical emergencies suffered by [X] other than normal childhood ailments, as soon as practicable.

   12.    That both parties shall be entitled to attend any public or school social, sporting or educational event including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and that both parties:

   a. inform the other party of such events in a timely manner;

   b.  and communicate to the other if arrangements are made for the Child to attend such an event whilst the Child is not in that parties (sic) care.

The Contraventions Alleged

1. The Applicant’s Count 1 alleges a contravention of both Orders 3.5.1b and 5 at 5:00 pm on 30 January 2013:

   (The Respondent) Failed to return the child to Mother at the commencement of the 2013 School term 1 as per order 3.5.1b at 5pm to Exchange location [H] Train Station Order 5 pursuant to court orders made on 29^th September 2011.

2. Count 2 alleges a contravention of Orders 3.1, 10 and 11 at 2:00 pm on 1 February and 8 February 2013:

   The father without reasonable excuse took/withdrew the child from school before 3pm not on his designated alternate weekend.

   The father failed to pick the child up from school on his designated alternate weekend beginning 8.02.2013.

   The father failed to notify the mother that the child was pulled from attendance during school.

   The father failed to notify the mother of the child’s distress and state of hysterics from being taken from school not on his designated alternate weekend.

3. Count 3 alleges a contravention of Order 8 and 9 on 1 January 2013 at 9:00 am on 1 January 2013:

   The father blocked contact between the mother and child for the mother to wish the child Happy New Year.

   The father failed to answer and return calls from the mother to the child during the Christmas and holiday period.

   The father and his spouse denigrated the mother and her family both (in) the presence and hearing of the child on several occasions during the 2012.

4. Count 4 alleges a contravention of Orders 12 and 8 by email on 1 March 2013 (2012) and 24 January 2013, which appears as if it should be two separate counts:

   The father failed to agree on suitable arrangements for the child’s availability during special occasions namely the child’s birthday and Australia Day.

   The father’s actions resulted in direct denigration of the child’s mother.

5. Count 5 alleges a contravention of Order 11 at 4:00 pm on 11 November 2012 at [A]:

   The father failed to notify the mother of child’s distress following the child’s attempt to run away from his home and came close to being hit by a car on the main road near his residence.

6. Count 6, which appears to be three separate complaints and should have been particularised separately, claims contraventions of Orders 10 and 11 at 3:00 pm on 25 June 2012, 17 September 2012 and 26 November 2012 at [A]:

   The father failed to notify the mother in a timely manner of child illness and being kept home from school drop off at the end of his time spent with the child alternate weekend and did not return the child to her residence at the request of the mother.

7. The Respondent maintained that he has complied with the Court Orders.

Evidence

1. The Applicant relied on her affidavit sworn on 1 March 2013. She gave oral evidence and was cross-examined by the Respondent. 

2. The Respondent relied on his affidavit dated 20 May 2013 filed in Court on the day of the hearing. He gave evidence and was cross-examined by the Applicant.

3. Each alleged contravention needs to be considered separately, as each one must be proved separately.

Count 1 – 30 January 2013

1. The Applicant deposed at paragraphs [9] and [10] of her affidavit:

   9.  The father failed to return the child at the commencement of the 2013 School term year January 29^th 2013. I repeatedly asked the father to return the child and repeatedly sent emails to make arrangements to return the child. The father Mr Carden ignored my entire attempt to have the child returned at the meeting place upon the commencement of the school term, namely at 5pm the night before school starts.

   10.    One day after returning the child directly to School on the morning of the 3^rd School day…[1]

   [1] Affidavit of Ms Thurston 1.3.2013 at paragraphs [9]-[10]

2. The Applicant annexes to her affidavit copies of a chain of emails between the Respondent and herself on 20 – 21 January 2013. The Applicant emailed the Respondent, saying:

   Upon the commencement of School Which Is Tuesday 29^th of January [X] is to be returned Home…Either we meet at [H] at 5pm on the Monday or you can drop her off at home before School in the morning.

   As [school omitted] has 2 pupil free days to the start of School I am happy for you to have [X] another Day as per above I still have to either pick her up from [H] before school starts or you are to bring her home.

   I don’t want to have to get a recovery Order.

3. The Respondent replied:

   Term 1 starts on the 31^st January for students and as per the court orders we rotate weeks UNTIL the start of school. If you fail to understand the orders please seek legal advice as I have.[2]

   [2] Affidavit of  Ms Thurston 1.3.2013 Annexure “C”

4. The Respondent relied on his affidavit dated 20 May 2013 but not filed until the day of the hearing. He annexed to his affidavit a copy of a newsletter sent by the child’s school. The message from the Principal under the heading “Change of Commencement Date for Students 2013” states:

   The school year for students in Kindergarten to Year 6 will therefore commence on Thursday 31 January.[3]

   [3] Affidavit of Mr Carden 20.5.2013 Annexure “B”

5. The Newsletter also contains a section headed “For Your Diary” which shows Term Dates for 2013, saying:

   Term 1 commences

   Tuesday 29 January      Staff Professional Development Day

   Wednesday 30 January  Staff Professional Development Day

   Thursday 31 January         Kindergarten to Year 6 commence[4]

   [4] Ibid

Count 2 – 1 and 8 February 2013

1. The Applicant deposed in her affidavit that:

   10.    One day after returning the child directly to School on the morning of the 3^rd School day, the father without reasonable excuse withdrew the child from school on the 1/02/2013 at 2pm in order to keep the child on the weekends contrary to notice of the alternate weekends schedule Annexed hereto Marked C that was agreed to the prior year and sent to Mr Carden before the commencement of the school year.[5]

   [5] Affidavit of Ms Thurston 1.3.2013 at [10]

2. Annexure “C” is a calendar for January to April 2013 with various dates marked on it with text marker. The Applicant goes on to state that the child was reportedly very distressed.

3. The Applicant goes on to depose that the Respondent was aware that she was going away on work-related travel the following week and thus she only spent the evening of 31 January with the child. The child was in the care of the Respondent without the Applicant’s agreement from 25 January to 4 February.

4. The Applicant deposed that the child was otherwise cared for by her grandmother during the school week. The first time she saw the child in 15 days was on Friday 8 February “which was in fact supposed to be the father(‘s) weekend, which he in fact failed to pick the child up from school and forfeited his alternate weekend time starting the 8^th February…[6]

   [6] Ibid at [11]

5. The Respondent deposed at paragraph [10] of his affidavit that “as per alternative weekend arrangements in the orders I withdrew the child from school 30 minutes early to avoid confrontation as the applicant had indicated to the school that she would be collecting the child from school that day….The applicant sent an ad hoc calendar which at no time was either discussed between the parties or agreed to.[7]

   [7] Affidavit of Mr Carden at [10]-[11]

Count 3 – 1 January 2013

1. The Applicant deposed at paragraph [13] of her affidavit that the Respondent has repeatedly blocked contact between her and the child when the child has been in his care:

   He has not answered the phone at all or not called back when I have left a voice mail. When he has picked up the call from me he has started talking to me about his issues with me and upset me when I redirect him to put the child on the phone so I may speak with her he has said “she is busy playing outside and not available to take your call”. I rarely call during his time…I make a point of not doing so unless it is important…or it is a special occasion such as New Year’s Day…[8]

   [8] Affidavit of Ms Thurston 1.3.2013 at [13]

2. The Respondent denied that he had blocked contact between the child and her mother, deposing at paragraph [13] of his affidavit that the child called her mother on her mobile telephone on three occasions on that day, at 11.51 am, 11.57 am and 6.07 pm. On the second and third occasions they had a conversation, the first lasting 13 minutes and 34 seconds, the second lasting 8 minutes and 49 seconds.[9]

   [9] Affidavit of Mr Carden 20.5.2013 at [13]

3. The Respondent annexed to his affidavit a copy of his itemised telephone account showing the three calls to a particular mobile telephone number.[10]

   [10] Ibid Annexure “E”

4. In cross-examination by the Respondent, the Applicant said:

   “I recall a conversation with yourself but not my child”.

5. When the Respondent was cross-examined by the Applicant on the same point, he said:

   “I recall [X] making calls to your phone.”

6. He denied having a conversation with the Applicant at all, and he specifically denied saying to her that the child was asleep and she could not speak to her.

Count 4 – 1 March 2012 and 24 January 2013

1. The Applicant gave evidence that the reference in the Application to 1 March 2013 should in fact have been 1 March 2012. She deposed at paragraph [14] of her affidavit that the Respondent has failed to agree to her spending time with the child on special occasions such as her birthday and Australia Day. She alleged that the Respondent “orchestrated his calendar” so that she had to “beg” to see the child on her birthday.  She went on to depose that:

   At best he offered me 2 hours on the day of her birthday being a Sunday in which I had to travel to his area of residence and take her somewhere in an area in which I was not familiar. I had assumed that given it was a Sunday and a special occasion that we could share the child and that I would get agreement from the father to pick her up in the evening of her birthday and take her home where she lives for some supper and to open her presents with myself and her Nana and be in bed at a reasonable time for school the next day.[11]

   [11] Affidavit of Ms Thurston 1.3.2013 at [14]

2. The Respondent denied that there had been any agreement that the Applicant would spend time with her on Australia Day. He annexed to his affidavit a copy of an email from the Applicant stating that the child would be attending an Australia Day event in [omitted] at 5:00 pm on that Day and suggesting that it would be simpler for the child to spend the day in her mother’s care.

3. The Respondent also deposed that the Applicant did have the child in her care on her birthday, as shown in her affidavit.

Count 5 – 11 November 2012

1. The Applicant deposed that the child was distressed because of an incident on 11^th December involving the child and the Respondent’s friend’s daughter. The Applicant described it in this way:

   The girls had left the residence with the dog and decided to keep walking outside the street and onto the main road. All of this happened without supervision by the father or his girlfriend…The child then went to cross the road the girlfriend’s daughter…first and near was hit by a car which slammed on its brakes and swerved. The driver also being very distressed at nearly running over the child. My child just behind her but not willing to step out in front of the car had warned the other girl whom apparently did not listen. This is a shocking incident in which I should have been informed but was not.[12]

   [12] Ibid at [15]

2. The Applicant went on to describe how the child was distressed the following day at a school function and stated:

   The importance of the Distress notification order should not be undermined as it is in there to cater for parenting to enable each parent manage the child with full awareness of both their mental and emotional state whilst in their care.[13]

   [13] Affidavit of Ms Thurston at [17]

3. The Respondent deposed that the children were not running away from home, as the Applicant claimed in her Application, but they had disobeyed instructions:

   The applicant was not initially notified as the child was extremely upset at the fact of her mother knowing. As both children involved had been suitably reprimanded and counselled about their action plus there was no physical harm to either child the matter had been dealt with appropriately at the time of the incident.[14]

   [14] Affidavit of Mr Carden 20.5.2013 at [16]

4. In cross-examination, the Respondent said that the children were reprimanded because of their failure to obey orders. He said that the child was distressed and did not want her mother told because her mother would hit her.

Count 6 – 25 June 2012; 17 September 2012; 26 November 2012

1. The Applicant describes all three of these alleged contraventions in paragraph [18] of her affidavit:

   On several occasions the father has failed to notify the mother in reasonable time frame that he has in fact not returned the child to school on the Monday and in fact kept the child home in his care. I have received notice nearing the end of the school day when getting ready to pick  the child up or making arrangements for the child only to be told she is still with the father and in addition very sick and in some cases being taken to the doctor. The father on one occasion decided not to return the child home until the following day all without agreement from me.

2. The Respondent replied to the Applicant’s claim in paragraph [17] of his affidavit:

   25/6/12 – Mother was called as soon as child returned from doctor’s visit

   Refer to Annexure I

   17/9/12 – Calls made to applicant at 9.19 am left a voicemail, 12.05pm left a voicemail

   Refer to Annexure J

   26/11/12 – Child attended school swimming carnival but was feeling ill following her events and applicant was called immediately thereafter and I dropped the child off to the applicant’s residence.

   Refer to Annexure K

3. Annexure “I” to the Respondent’s affidavit is a copy of his telephone account with three telephone calls to a particular mobile telephone number on 25 June 2012 highlighted. The telephone number is the same as the one in Annexure “E” and the Applicant does not deny that it is her telephone number. The times of the calls are shown as 12:26:59 pm, 05:38:44pm and 05:48:00pm.

4. Annexure “J” is a further page of the Respondent’s telephone account with two calls to that same mobile telephone number on 17 September 2012 highlighted. The times of the calls are shown as 09:19:31AM and 12:05:34PM.

5. Annexure “K” to the Respondent’s affidavit consists of a copy of the school newsletter which refers to the school’s swimming carnival taking place on Monday 26 November. The Annexure also includes a copy of the Respondent’s telephone account with ten calls to the same mobile telephone number on 26 November highlighted.

Submissions

1. The Applicant submitted that, whatever the outcome of these proceedings, it was clear that the Orders are somewhat ambiguous.

2. The Respondent submitted that he had complied with the Court Orders.

The Relevant Law

1. Contravention of parenting orders is defined by s.70NAC of the Family Law Act 1975 (Cth). When a person is bound by an order, he or she contravenes the order when he or she has:

   a)intentionally failed to comply with the order; or

   b)made no reasonable attempt to comply with the order (s.70NAC(A)).

1. An applicant in contravention proceedings must show that:

   a)there is an order in existence; and

   b)the respondent has contravened the order.

2. Once the contravention has been proved, it is up to the respondent to show that he or she had a reasonable excuse for contravening the order (s.70NEA(1)(c)). The applicant is not required to disprove that the respondent had a reasonable excuse.

3. Once the contravention has been established and the Court is satisfied that the respondent does not have a reasonable excuse, the Court will decide whether to deal with the matter under Stage 2of the three-stage regime prescribed by the Act, or whether Stage 2 does not apply (s.70NEA(4)). Stage 2 has both an educative and a compensatory function. It is appropriate where a party has not contravened the order before, although there may be occasions where the first breach may be of such seriousness that Stage 3 should be applied.

4. If the Court is satisfied that the Stage 2 procedure is appropriate, the Court may exercise all or any of the powers set out in s.70NEB(1). Those powers are:

   a)directing the respondent to attend a post-separation parenting program;

   b)making a further parenting order compensating the applicant for the time not spent with the child or children;

   c)adjourning the proceedings to allow a party to discharge, vary or suspend the primary order;

   d)ordering the respondent to enter into a bond in accordance with s.70NEC;

   e)making an order for monetary compensation; and

   f)making an order for costs against the respondent.

Consideration

1. In the first place, the Applicant must prove that the Respondent contravened each order. Where the Respondent leads evidence, as he has done in this case, the Court will take that evidence into account when deciding whether or not there has been a contravention of the orders.

2. In Count 1 of the Application, the Applicant claims that the Respondent contravened Orders 3.5.1B and 5 on 30 January 2013 by:

   a)not returning the child to her at the commencement of school; and

   b)not delivering the child to her at [H] Railway Station on 29 January 2013.

3. The issue between the parties is when it can be said that school commences. The Order speaks only of “the commencement of school” without taking any steps to define when school commences at the beginning of the first school term. The Applicant claims that school commenced on 29 January 2013, which is the first day of Term 1 but was a Staff professional development day, as was the following day. It is clear that the child’s school did not expect the children to attend school until Thursday 31 January, and made that clear in the Newsletter forming Annexure “B” to his affidavit.

4. At the very least, the Order is ambiguous. It is acceptable to define the phrase “the commencement of school” as meaning the day when the school term commences for the children. They are not required to attend school on staff development days.

5. A more precise definition would have assisted the parties. In the circumstances, I am not satisfied that the Respondent has been shown to have contravened Order 3.5.1b on 30 January 2013 and, consequently, he has not been shown to have contravened Order 5 by not returning the child to the care of her mother at [H] Railway Station on 29 January 2013.

6. Count 1 will be dismissed.

7. In Count 2, the Applicant claims that the Respondent contravened Order 3.1 on 1 February 2013 by taking the child from school when it was not the weekend when the child would be spending time with him according to the Orders. Consequently, she claims that the Respondent failed to collect the child on 8 February, the weekend when she would have been spending time with him under Order 3.1.

8. In my view, this allegation has not been made out because it has not been proved which weekend was the weekend when the child was supposed to spend time with the Respondent and which weekend she would have been spending with the Applicant.

9. Order 3.1 is not helpful, because it refers to the Respondent’s weekends commencing on 22 July 2011, a little over two months before the Consent Orders were made. Since then, there have been various school holidays and there is nothing in the Order that connects the alternate weekends to a fixed and easily referable point, such as the conclusion of a school holiday period.

10. There is no evidence of any agreement between the parties as to when in Term 1 2013 the alternate weekends were to start, and the wording of the Order does not help.

11. Count 2 also claims a contravention of Order 10 on, apparently 1 February 2013, which is the Order that provides:

    That should the child not attend school on a rostered school day each party is to notify the other party as soon as practicable.

12. There is no evidence that the child did not attend school on a school day. At best, the child was collected from school early, either at 2:00 pm on the mother’s evidence or 2:30 pm on the father’s evidence, but that does not constitute the child not attending school.

13. The Applicant also claims a contravention of Order 11 on, apparently, 1 February. Order 11 provides:

    Each party is to keep the other party informed of any distress or medical emergencies suffered by [X] other than normal Childhood ailments, as soon as practicable.

14. The Applicant claims in her affidavit that “the child was reportably very distressed” but provides no other evidence. This is insufficient to establish a contravention of the order.

15. It follows that Count 2 in its entirety will be dismissed.

16. The Applicant makes three claims in Count 3 of the Application:

    a)That on 1 January 2013 the Respondent contravened Order 9 by blocked telephone contact between the Applicant and the child on 1 January 2013;

    b)That during the Christmas and holiday period in 2012 the Respondent contravened Order 9 by failing to answer and return calls from the Applicant to the child; and

    c)That during 2012 the Respondent contravened Order by denigrating the applicant and her family in the presence and hearing of the child.

17. Order 9 provides that:

    The parties are not to block telephone contact between the other party and the child.

18. The parties’ accounts differ in respect of New Year’s Day 2013. The Applicant claimed that when she telephoned the Respondent he would not let her speak to the child. The Respondent, on the other hand, claimed that he did not speak to the Applicant at all that day, but the child telephoned the Applicant’s mobile telephone on three occasions and had a conversation with her on two of those occasions.

19. The Respondent’s telephone account, showing three calls to the Applicant’s mobile telephone  number on that day, two of which resulted in a conversation of some minutes, corroborates his evidence.

20. The Applicant provided no specific evidence to show that the Respondent failed to answer or return calls from her to the child on other occasions during the Christmas and holiday period.

21. Order 8 provides that:

    The parties are not to discuss these proceedings, or denigrate each other in the presence or hearing of the child.

22. Whilst the Applicant claims in her Application that the Respondent and his spouse denigrated her and her family in the presence and hearing of the child in 2012 she provides no evidence at all in her affidavit.

23. It follows that the Applicant’s claims in Count 3 have not been made out, which means that Count 3 will be dismissed.

24. Count 4 of the Application claims that the Respondent contravened Orders 12 and 8 on 1 March 2012 and 24 January 2013 by not making suitable arrangements for her to spend time with the child on the child’s birthday and on Australia Day, which resulted in direct denigration of the Applicant.

25. Order 8 has already been set out above. There is no evidence that the Respondent did or said anything to denigrate her on either Australia Day or the child’s birthday.

26. Order 12 is curious in its wording, to say the least:

    That both parties shall be entitled to attend any public or school social, sporting or educational event involving the Child including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and that both parties:

    a.  inform the other party of such events in a timely manner;

    b.  and communicate to the other if arrangements are made for the Child to attend such an event whilst the child is not in that parties (sic) care.

27. This Order permits both parties to attend functions or events at which the child is attending, such as school concerts and sporting events, but it does not provide for either party to spend any specified time with the child on significant events such as birthdays. Order 3.8 provides for the father to spend time with the child on Father’s Day and Order 7 provides for the father’s time with the child to conclude at 6.00 pm on the day before Mother’s Day, but there are no orders providing for either parent to spend any time with the child on such occasions as:

    a)the child’s birthday;

    b)the mother’s birthday; or

    c)the father’s birthday.

28. The Orders are completely silent on arrangements for any of those days, which is a strange oversight.

29. It follows that the Applicant has not shown that the Respondent has contravened Order 8 and 12.

30. Count 4 will be dismissed.

31. Count 5 of the Application claims that the Respondent contravened Order 11 by failing to notify her of the child’s distress on 11 November 2012 when the child attempted “to run away from his home and come close to being hit by a car”.

32. The Applicant’s own affidavit suggests that the statement of the alleged contravention is rather inaccurate and exaggerated, as the affidavit does not state that the child was attempting to run away from the Respondent’s home at all. Rather, she and the other girl had gone off on an excursion without consent.

33. Again, the Applicant does not depose in her affidavit that the child came close to being hit by a car. It was the other child who had gone out onto the road in front of the approaching car. As the Applicant deposed:

    My child also behind her but not willing to step out in front of the car had warned the other girl whom apparently did not listen.[15]

    [15] Affidavit of Ms Thurston 1.3.2013 at [14]

34. That said, there is evidence that the child showed signs of distress the next day at a school function and the Respondent concedes in his affidavit, and conceded in his oral evidence, that he had not informed the Applicant because the child had asked him not to.

35. In my view, there is evidence to support a finding that:

    a)The child was distressed as a result of the incident on 11 November; and

    b)The Respondent did not inform the Applicant as soon as practicable.

36. It follows that a contravention of Order 11 has been made out.

37. It is incumbent upon the Respondent to establish whether he had a reasonable excuse for contravening the order. Section 70NAE of the Act sets out the meaning of “reasonable excuse” and provides a list, but not an exhaustive list, of circumstances in which a person may be taken to have had a reasonable excuse for contravening an order.

38. Essentially, the Respondent claims that he did not tell the Applicant because the child begged him not to, claiming that her mother would hit her if she found out. The Respondent was also of the belief that he had dealt with the matter in an appropriate way by reprimanding the child and, as no physical harm had been suffered, that no further action was necessary.

39. Objectively, he may have been right. However, I am not satisfied that the Respondent decided not to tell the Applicant because he believed on reasonable grounds that his failure to inform the mother of the child’s distress was necessary to protect the child’s health or safety.

40. Accordingly, I am not satisfied that the Respondent has established a reasonable excuse. It may well be that the Order is unnecessarily restrictive and may be seen to be “micro-managing” his parenting, but the Order is in force and he consented to it, with the benefit of legal representation.

41. Count 6 of the Application claims three different contraventions of Orders 10 and 11 on 25 June, 17 September and 26 November 2012.

42. Order 10 is the Order requiring each party to notify the other as soon as possible if the child does not attend school on  school day. Order 11 requires each party “to keep the other party informed of any distress or medical emergencies suffered by [X] other than normal Childhood ailments, as soon as practicable.”

43. The Applicant claims in her affidavit that the Respondent has on several occasions failed to notify her within a reasonable time that he has not returned the child to school on the Monday but kept her home in his care.

44. The Respondent has provided evidence that on each of the three occasions he has telephoned the Applicant to advise her. He has provided copies of his telephone account showing the times when he has called the Applicant’s telephone number, which corroborates his claims.

45. I am not satisfied that on any of the three occasions the evidence shows that the Respondent has not attempted to notify the Applicant “as soon as practicable”, which is the requirement of Orders 10 and 11. Telephoning the Applicant as soon as the child returned from seeing a doctor would appear to comply with the requirement for informing the Applicant as soon as practicable.

46. The circumstances of 26 November 2012, when the child became ill at the school swimming carnival, cannot constitute a breach of Order 10, as the child was attending a school activity and was not kept home by the Respondent.

47. Whilst the evidence of the circumstances of 25 June 2012 shows that the Respondent took the child to a doctor for treatment, that does not, without more, constitute evidence of a medical emergency as set out in Order 11.

48. There is no contravention of Orders 10 or 11 established by the evidence. Consequently, Count 6 will be dismissed.

Consequential Orders

1. In my view, the Applicant was correct when she told the Court at the hearing that, whatever the outcome, it is clear that the Orders are “a bit ambiguous”. That is clearly the case. The current Orders are in my view inadequate for the requirements of the parties, who appear to have a low degree of communication with each other and a high degree of suspicion of each other’s ability and motives.

2. Whilst this situation is not good for either parent, the one whose interests really need to be considered is their daughter. The current orders do not appear to me to be in her best interests, and the Court is required by s.60CA of the Family Law Act 1975 to regard the best interests of the child as the paramount consideration when making a parenting order.

3. The current Orders are deficient for a number of reasons, as shown by this case.

4. Order 3.5 needs to be revised. Whilst there is no difficulty with the parents having the child in their care for alternating weeks during the Christmas/January school holiday period, the end point needs to be drafted with greater precision. The phrase “the commencement of school” is too vague and imprecise and has already led to confusion.

5. In my view there should be an order providing that the Christmas/holiday arrangements conclude at a set time “on the day before the first day the child is required to attend school at the beginning of Term 1 in each year”.

6. Second, if the child is to spend alternate weekends with her father during the school term, the order could provide that the time is from immediately after school on Friday until the commencement of school on the Monday PROVIDED THAT if the Monday is a public holiday then the father’s time with the child will conclude at the commencement of school on the Tuesday.

7. It would help the parties if there were an order providing that the first weekend that the child will spend time with the father is to commence on the second Friday after the commencement of the school term.

8. Again, it seems to be most odd that there are no orders covering events such as the child’s birthday and the parent’s birthdays. I would recommend an Order that would provide that the child should spend time with the father not only on alternate weekends but, say:

   a)On the child’s birthday in each year from immediately after school until 6:00 pm (say) if that day should fall on a day when the child is required to attend school or for a period of four hours if that day should fall on a day when the child is not required to attend school; and

   b)On the father’s birthday in each year from immediately after school until 6:00 pm (say) if that day should fall on a day when the child is required to attend school or for a period of four hours if that day should not fall on a day when the child is required to attend school.

9. Similarly, orders should be made to provide that if [X] is spending time with her father on a day that includes her birthday or the mother’s birthday, then a similar amount of time should be provided for the child to spend time with her mother.

10. A set of clearer and more precise orders will take a lot of the uncertainty out of the arrangements and allow the parties to:

    a)Avoid arguments with each other; and

    b)Concentrate on having more enjoyable time with their daughter.

11. The contravention that has been established has not resulted in either parent being deprived of time that they would otherwise have spent with their daughter, nor has it involved either one of them in any expense for which they need to be compensated.

12. What does need to be done in my view is to make an Order under s.70NEB(1)(c), which is to adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order.

13. In this case, one or other of the parties should apply to vary the Orders made by consent on 29 September 2011 to provide a clearer and more precise set of parenting orders.

14. I will adjourn this Application to Monday 2 December at 10:00 am for that purpose.  

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  24 September 2013