VELDERMAN & VELDERMAN - [2020] FCCA 85

FEDERAL CIRCUIT COURT OF AUSTRALIA

VELDERMAN & VELDERMAN

[2020] FCCA 85

Catchwords:
FAMILY LAW – Contravention – where multiple contraventions alleged – where Respondent raises reasonable excuse – where Respondent denies the contravention.

Legislation:

Family Law Act 1975 (Cth), ss.4, 70NAC, 70NAE, 70NAF, 70NBA, 70NEB 117

Applicant:

MR VELDERMAN

Respondent:

MS VELDERMAN

File Number:

SYC 7114 of 2017

Judgment of:

Judge Morley

Hearing dates:

15 July 2019, 6 August 2019

Date of Last Submission:

6 August 2019

Delivered at:

Sydney

Delivered on:

23 January 2020

REPRESENTATION

Counsel for the Applicant:

Ms Judge

Solicitors for the Applicant:

Justice Family Lawyers

Counsel for the Respondent:

Mr Johnston

Solicitors for the Respondent:

Santone Lawyers

ORDERS

That the contravention Application filed by the Father on 5 July 2019 and heard on 15 July and 6 August 2019 be further adjourned for further submissions on the issues of appropriate orders and, if relevant, penalty to 9:30AM on 31 January 2020.
That the Application of the Father that the Mother pay his costs for the interim Hearing conducted 8 and 12 April be dismissed.
That the informal Application made by each of the parents in submissions for a variation of the interim parenting orders be heard on 31 January 2020 at which time the Independent Children’s Lawyer will have an opportunity to make submissions.
That, if they have not already done so, each of the parents serve on the Independent Children’s Lawyer a copy of their written submissions on variation of the interim parenting orders as already provided to the Court in Chambers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7114 of 2017

MR VELDERMAN

Applicant

And

MS VELDERMAN

Respondent

REASONS FOR JUDGMENT

Introduction

These Reasons relate to contravention proceedings under Division 13A of Part VII of the Family Law Act 1975 (Cth), being an assertion by the Applicant Father, Mr Velderman, that the Respondent Mother, Ms Velderman, has contravened a number of interim parenting orders made in the current parenting proceedings between the parties.
The parties commenced cohabitation in 2010, married in 2012, and separated on a final basis on 20 August 2017. They remained living under the same roof until 4 March 2018, when the Mother, together with the children of the marriage X, born in 2012, and Y, born in 2015, vacated the matrimonial home at A Street, Suburb B (‘the A Street, Suburb B property’) in the Region C area west of Sydney, and took up residence with the maternal grandmother at Suburb M.
Proceedings were commenced by the Applicant Father filing an Initiating Application on 27 October 2017. The Mother filed her Response on 7 March 2018. The matter has, unfortunately, had a number of interim Hearings along the way. Following an interim Hearing, parenting orders were made by his Honour Judge Harper (as his Honour then was) on 6 July 2018, the orders relevant to this contravention matter being:
1. The children shall live with the Mother and spend time with the Father on a fortnightly basis as follows:
(a)    Week one, with the Father from 5:30pm on Thursday until such time as may be agreed between the parties in writing, and in the absence of agreement, 7:00pm Friday, with the Father to collect the children at the commencement of time, and deliver the children at the conclusion of time to the Mother’s residence; and
(b)    Week two, from 5.30 pm Thursday until such time the following Sunday as may be agreed between the parties, and in the absence of agreement, 6.00 pm, with the Father to collect the children at the commencement of time from, and deliver the children at the conclusion of time, to the Mother’s residence.
…
9. Each party shall do all things and sign all documents necessary to ensure that each of them shall receive reports and information from the school or other event providers, and medical information in relation to the children.
10.    Within 14 days of make these orders, the Mother is to do all acts or such things necessary to enrol in, and participate in the completion of a parenting after separation course.
Those orders were altered by further interim orders made by his Honour on 30 July 2018 (amended under the slip rule on 13 August 2018), the orders relevant to this contravention matter being:
1. Order 1(a) be varied by deleting the words “from 5:30pm on Thursday” and inserting the words “at any time after 4:00pm Thursday from the N Street Early Learning Centre”.
2. Order 1(b) be varied by deleting the words “from 5:30pm Thursday” and inserting the words “at any time after 4:00pm Thursday from the N Street Early Learning Centre”.
On 1 March 2019, further interim orders were made discharging all existing changeover orders and providing that changeovers between the parties would take place
… at school on Thursdays during school term and at Suburb D Supermarket on Fridays and Sundays and during school holidays, with each parent to carry out changeover unless otherwise agreed in writing.[1]
[1] Emphasis added.
On 28 February 2019, the Applicant Father filed an Application – Contravention (‘the February Application – Contravention’) asserting four occasions of contravention of the orders by the Mother:
a)That on Saturday 3 February 2018 at 5:50PM, the Mother contravened order 1(b) of the orders made 6 July 2018, in that the order required that, at the end of the Father’s time with the children, changeover would take place at the Mother’s residence, and that the Mother without reasonable excuse refused to comply with the order.
Patently, the date referred to in the February Application – Contravention as ‘3 February 2018’ was an error, as the orders referred to as having been breached were not made until 6 July 2018 and, accordingly, common sense would dictate that the date referred to was meant to be ‘3 February 2019’, a circumstance made specific in the affidavit of the Father sworn or affirmed on 26 February 2019, in which 3 February 2019 is specifically referred to in relation to the asserted contravention.
b)That on Thursday 7 February 2019 at 5:40PM at Suburb E Public School, the Mother breached order 1(b) of the orders made 6 July 2018 and order 1 of the orders made 30 July 2018 in that she failed to make the child X available to the Father at 4:00PM.
I note that order 1 of the orders made 30 July 2018 related to order 1(a) of the orders made 6 July 2018.
c)That on Thursday 14 February 2019 the Mother contravened order 1(b) of the orders made 6 July 2018 and order 1 of the orders made 30 July 2018 in that she failed to make the child X available to the Father at 4:00PM.
Once again, I note that order 1 of the orders made 30 July 2018 relates to order 1(a) of the orders made 6 July 2018.
d)That on 20 July 2018 the Mother contravened order 10 of the orders made 6 July 2018 in that she had failed without reasonable excuse to do all things necessary to enrol in, participate in, and complete a Parenting After Separation course.
With his February Application – Contravention, the Father filed his affidavit sworn or affirmed on 26 February 2019 containing his evidence in support. The February Application – Contravention was given a first return date of 9.30 am on 13 May 2019.
The substantive proceedings came before me on 8 April 2019 for Hearing of an Application in a Case filed 17 December 2018 by the Applicant Father. At the end of the interim Hearing, I reserved judgment to 12 April 2019, on which date I delivered judgment and made further interim parenting orders relating to Y’s attendance at a pre-school,[2] the time to be spent by the Father with the children during school holidays,[3] and, relevant to these contravention proceedings, the following orders:
2. That order 1 of the orders made on 30 July 2018 and amended under the slip rule under rule 16.05 on 13 August 2018 be vacated.
3. That orders 1(a) and 1(b) of the orders made 6 July 2018 be varied by deleting the words “from 5.30 pm” and inserting instead the words “from 5 pm.”
4. That orders 1(a) and 1(b) of the orders made 30 July 2018 are suspended during school holiday periods and will revive and continue in the same pattern on the first Thursday after the end of each school holiday period.
[2] Orders made 12 April 2019 by Judge Morley, [1].
[3] Orders made 12 April 2019 by Judge Morley, [7]. See also [5], [6].
On that occasion, I also made an order vacating the listing on 13 May 2019 of the February Application – Contravention and listed it for Hearing at 10:00AM on 15 July 2019.[4]
[4] Orders made 12 April 2019 by Judge Morley, [9], [10].
The costs of the parties and of the Independent Children’s Lawyer for the interim Hearing on 8 and 12 April 2019 were reserved to 15 July 2019 for consideration after the Hearing of the February Application – Contravention on that day. I made orders for the filing and service of written submissions by each of the parties in relation to costs.
Despite the order made by me on 12 April 2019 vacating the listing of the matter on 13 May 2019, the matter remained in the list on that day. An appearance was made by the solicitor for the Applicant Father with, understandably, no appearance by or for the Respondent Mother or the Independent Children’s Lawyer. On that occasion, I made an order that the Applicant Father was to file and serve any further affidavit material on which he sought to rely at the Hearing of the Contraventions by 4:00PM on 4 July 2019.
On 4 July 2019, the Father filed his further affidavit sworn or affirmed by him on 3 July 2019, in which he referred to 12 contravention assertions against the Mother. On 5 July 2019, the Father filed another Application – Contravention (‘the July Application – Contravention’) in which he asserted 12 contraventions against the Mother, repeating contraventions (1) to (3) from the February Application – Contravention, but not contravention (4) from that Application.
The matter came before me for Hearing on 15 July 2019. Ms Judge of Counsel appeared for and with the Applicant Father. Ms Santone appeared as solicitor-advocate for and with the Mother.
Following some preliminary discussion and submissions relating to service of the July Application – Contravention on the Respondent Mother, and some discussion between myself and the legal representatives regarding the asserted contraventions, I indicated that of the contraventions set out in annexure “A” to the July Application – Contravention, I would hear contraventions numbered 5, 6, 7, 8, and 9, but that in relation to the contravention numbered 9, which recited 23 different dates on which contravention was asserted to have occurred, I would only consider one date.
In that regard, one of the dates set out in the July Application – Contravention, being 3 March 2019, was nominated by Ms Judge.
I made an order granting leave to the Applicant Father to correct the date in paragraph 7 of the February Application – Contravention so as to correct if from “3 February 2018” to “3 February 2019”.
Contraventions 6, 7 and 8 in the July Application – Contravention were the same contraventions as contraventions 1, 2 and 3 in the February Application – Contravention filed 28 February 2019, except for the correction of the date from 3 February 2018 to 3 February 2019. I note that the correct date was shown in the July Application – Contravention.

The asserted contraventions

The five alleged contraventions in the July Application – Contravention that proceeded to the Hearing were as follows:
a)Contravention 5 – that in November 2018 the Mother had contravened order 9 of the orders made 6 July 2018, in that she had failed to do all things and sign all the document necessary to ensure that each of the parents received reports and information from the school or other event providers, and medical information in relation to the children, and that she, without reasonable excuse, did not provide the Father’s contact information on the enrolment forms for the enrolment of the child X at Suburb E Public School and in after-school care.
b)Contravention 6 – that at 6:00PM on 3 February 2019 the Mother was in breach of order 1(b) of the orders made 6 July 2018, in that the Mother failed to effect a changeover of the children from the Father to herself at the end of the Father’s time with the children on that day at 6:00PM at her residence, being absent from her residence and requiring the Father to effect that changeover at a Caltex Service Station on the A Street at Suburb F.
c)Contravention 7 – that at 4:00PM on 7 February 2019, the Mother was in breach of order 1(b) of the orders made 6 July 2018 and order 1 of the orders made 30 July 2018, in that the Mother, without reasonable excuse, did not deliver [the child] to the Father at the N Street Early Learning Centre at any time after 4:00PM.
d)Contravention 8 – that at 4:00PM on 14 February 2019, the Mother was in breach of order 1(b) of the orders made 6 July 2018 and order 1 of the orders made 30 July 2018, in that the Mother, without reasonable excuse, did not deliver [the child] to the Father at the N Street Early Learning Centre at any time after 4:00PM.
e)Contravention 9 – that on 3 March 2019 the Mother contravened order 2 of the orders made 1 March 2019, in that the Mother did not carry out the changeover at 6:00PM on that day at Suburb D Supermarket.

Material relied upon by the parties

The Father relied on the following documents:
i)The February Application – Contravention filed 28 February 2019, but only in the sense that contraventions 1, 2, and 3 therein were the same as contraventions 6, 7, and 8 in the July Application – Contravention once the date “3 February 2018” was corrected to “3 February 2019”;
ii)The July Application – Contravention filed 5 July 2019;
iii)The affidavit of the Father sworn or affirmed 3 July 2019;
iv)The orders of the Court made 6 July 2018, 30 July 2019, and 1 March 2019;
v)Exhibit A4, being an email dated 5 July 2019 at 10:35AM from the solicitors for the Father to the Independent Children’s Lawyer; and
vi)Exhibit A5, being an email date 4 July 2019 at 10:28PM from the Father’s solicitors to an addressee not shown thereon.
The Mother relied on the following material:
i)The Mother’s affidavit affirmed 31 July 2019, but only as to paragraphs 1 to 16 inclusive and 60 to 94 inclusive;
ii)The affidavit of Mr G (the maternal grandfather) affirmed 21 July 2019, but only as to paragraphs 1 to 4 inclusive and 46 to 54 inclusive.

The hearing

After over an hour of preliminary discussion and submissions, culminating in:
a)The elimination from Hearing of contravention 4 in the February Application – Contravention (meaning that the February did not go to Hearing, as contraventions 1 to 3 therein were repeated in the July Application – Contravention); and
b)The elimination of contraventions 1 to 4 and 10 to 16 in the July Application – Contravention; and
c)The elimination of 22 of the asserted contravention dates from contravention 9, leaving the one contravention date nominated by counsel for the Father, 3 March 2019.
On 15 July 2019, the Father was cross-examined by Ms Santone and submissions were then made on behalf of each of the parties in relation to whether or not the Applicant Father had presented a prima facie case in relation to each of the five contraventions on which he proceeded.
I found on that date that the Father had established a prima facie case in relations to Contraventions 5, 6 and 9, but that he had not established a prima facie case in relation to Contraventions 7 and 8.
I made this finding on the basis that the Father, in his evidence, was asserting a breach by reason of the Mother’s failure to make X available to him to spend time under orders 1(b) of 6 July 2018 and 1 of 30 July 2018 at “some time after 4.00 pm” at Suburb E Public School, where X had started in Kindergarten at the start of the 2019 school year with the Father’s full knowledge, not N Street Early Learning Centre as stated in the orders.[5]
[5] Emphasis added.
The matter was then adjourned part heard to 6 August 2019 at 10:00AM for the Mother to present her defence to the three contraventions in relation to which I found a prima facia case.
On 6 August 2019, Ms Judge of Counsel again appeared for and with the Applicant Father. Mr Johnston of Counsel appeared for and with the Mother, instructed by Ms Santone.
Between 15 July 2019 and 6 August 2019, the Mother filed her affidavit affirmed 31 July 2019 and the affidavit of the maternal grandfather, Mr G, affirmed 31 July 2019. The Mother also filed affidavits by two other witnesses, but on Hearing the Mother did not rely on those affidavits, and I was advised by Mr Johnston of the paragraphs in her affidavit and in Mr G’s affidavit upon which she relied, as detailed above.
Objection was taken by Ms Judge for the Father to certain of the evidence contained in the paragraphs relied upon in the Mother’s affidavits and I dealt with those objections.
The Mother then gave oral evidence, being examination-in-chief by Mr Johnston, cross-examination by Ms Judge, and a short re-examination by Mr Johnston.
Mr G was then cross-examined by Ms Judge.
Most helpful oral submissions were then made by Ms Judge on behalf of the Applicant Father, and by Mr Johnston on behalf of the Respondent Mother, including submissions in relation to penalty in the event that I found any of the three contraventions proved against the Mother.
I reserved judgment in relation to each of the three asserted contraventions. Both parties indicated that they were also seeking variation of the interim orders and I made directions for written submissions in relation to any variation of the interim parenting orders to be provided to Chambers on behalf of the Applicant Father by 16 August 2019, and by 23 August 2019 on behalf of the Respondent Mother.

The law

The relevant legislation relating to contravention proceedings is contained in Division 13A of Part VII of the Family Law Act1975 (Cth) (‘the Act’).
Section 70NAC provides that a person is taken to have contravened an order affecting children “if, and only if where the person is bound by the order he or she has intentionally failed to comply with the order, made no reasonable attempt to comply with the order”.[6]
[6] Family Law Act 1975 (Cth) s 70NAC.
The circumstances in which a person may be taken to have had a reasonable excuse for contravening an order affecting children include, but are not limited to, the circumstances set out in section 70NAE(2), (4), (5), (6) and (7).[7]
[7] Family Law Act 1975 (Cth) ss 70NAE(2), (4), (5), (6), (7).
In deciding whether a person has contravened an order under the Act, and in deciding whether a person has a reasonable excuse for contravening an order under the Act, the applicable standard of proof is on the balance of probabilities,[8] unless the Court, upon conviction of a person for contravention without reasonable excuse, intends to make an order of the sort referred to in section 70NAF(3), in which case the Court must be satisfied beyond reasonable doubt that the grounds for making the order exist.[9]
[8] Family Law Act 1975 (Cth) s 70NAF(1).
[9] Family Law Act 1975 (Cth) s 70NAF(3).
The Respondent Mother has not been convicted of any previous contravention under the Act. Accordingly, in the event that she is convicted in relation to any of the three asserted contraventions in relation to which I found a prima facie case had been established, the matter will fall within Subdivision E of Division 13A of Part VII of the Act, being “Contravention without reasonable excuse (less serious contravention)”. The powers of the Court and applicable penalties are set out in section 70NEB, and none of those powers (other than section 70NEB(1)(da) which relates to a failure without reasonable excuse to enter into a bond) is referred to in section 70NAF(3). Accordingly, the applicable standard of proof for each of the three contraventions under consideration is proof on the balance of probabilities.

Contravention 6 – 3 February 2019

The Father alleges that the Mother was in contravention of order 1(b) of the orders made 6 July 2018 in that on 3 February 2019 at 6:00PM, she failed to effect changeover of the children from the Father to herself at her residence.
When the orders were made by the Court on 6 July 2018, the Mother’s place of residence was the home of the material grandmother at Suburb M.[10] Order 1(b) of the orders made 6 July 2018 provided that the children live with the Mother and spend time with the Father on a fortnightly basis:
… from 5.30 pm Thursday until such time the following Sunday as may be agreed between the parties, and in the absence of agreement, 6 pm, with the Father to collect the children at the commencement of time from, and delivery the children at the conclusion of time, to the Mother’s residence.
[10] Mother’s affidavit affirmed 31 July 2019, [5]. See also Mother’s affidavit sworn 14 June 2018, 1.
On 30 July 2018, that order was varied by deleting the words “from 5.30 pm Thursday” and inserting the words “at any time after 4 pm Thursday from the N Street Early Learning Centre”, and reads as follows:
~~… from 5.30 pm Thursday~~ at any time after 4 pm Thursday from the N Street Early Learning Centre until such time the following Sunday as may be agreed between the parties, and in the absence of agreement, 6 pm, with the Father to collect the children at the commencement of time from, and delivery the children at the conclusion of time, to the Mother’s residence.
I am satisfied that 3 February 2019, was a day on which the Father was spending time with the children pursuant to the interim orders, being a Sunday and his time on that occasion having commenced on the previous Thursday. Pursuant to the orders prevailing on 3 February 2019, changeover was to take place at the end of the Father’s time at 6:00PM at “the Mother’s residence”.
At some time prior to 1 February 2019, the Mother changed her place of residence from the maternal grandmother’s home at Suburb M to the former matrimonial home at A Street, Suburb B.[11] The Father had vacated those premises.[12]
[11] Mother’s affidavit affirmed 31 July 2018, [7].
[12] Father’s affidavit sworn or affirmed 4 July 2019, 1; cf Father’s affidavit sworn or affirmed 26 February 2019, 1.
The Father deposes that on 1 February 2019, he sent an email to the Mother asking that she indicate her preference in relation to a place for changeover at the end of his time with the children, as either the Mother collecting the children from the Father’s residence at H Street, Suburb J, or the Father delivering the children to the former matrimonial home at A Street, Suburb B (the Mother’s intended place of residence from 2 February 2019).[13] In her evidence, the Mother confirmed that she took occupation of the A Street, Suburb B property as her place of residence on 2 February 2019.
[13] Father’s affidavit sworn or affirmed 4 July 2019, [33].
The Father deposes that he did not receive a response to that email, and that accordingly, at 5:50PM on 3 February 2019, he arrived in A Street, Suburb B and in the area of the Mother’s place of residence, but that when he was about 200 metres away from the A Street, Suburb B property, he saw the Mother’s car pulling out of the driveway of that property, driven by the Mother, and with the maternal grandfather, Mr G, in the passenger seat.[14] The Father deposes that he pulled his car over in anticipation of a changeover occurring, but that the Mother drove past his car and continued on, away from her place of residence.[15]
[14] Father’s affidavit sworn or affirmed 4 July 2019, [35].
[15] Father’s affidavit sworn or affirmed 4 July 2019, [36].
The Father then continued on to the Mother’s place of residence and arrived there at 5:54PM.[16] He rang the doorbell and waited, but the doorbell was not answered.[17] At 5:56PM, the Father sent a text message to the Mother in words to the following effect: “In front of A Street with the children”.[18] At 6:00PM, he again rang the doorbell and there was no answer.[19] At 6.05PM, the Father received a text message from the Mother in words to the following effect:
Why are you there? The police told you not to go to the house. I am waiting for the children at Suburb F Service Station.[20]
[16] Father’s affidavit sworn or affirmed 4 July 2019, [37].
[17] Father’s affidavit sworn or affirmed 4 July 2019, [38].
[18] Father’s affidavit sworn or affirmed 4 July 2019, [39].
[19] Father’s affidavit sworn or affirmed 4 July 2019, [41]
[20] Father’s affidavit sworn or affirmed 4 July 2019, [42].
At the relevant time, 3 February 2019, there were no orders in place by any Court preventing the Father from lawfully attending at the A Street, Suburb B property or at any place of residence of the Wife.[21]
[21] See also Father’s affidavit sworn or affirmed 4 July 2019, [43].
The Father says that, at 6:08PM, he and the Mother had the following text message exchange in words to the following effect:
The Father: “Kindly collect the children in front of the house as per the Court orders. Children are waiting here confused.”
Mother: “Please meet me at Suburb F as it is a public place. I am sure the children will understand once you explain. I would like to start dinner and prepare X for school tomorrow.”
The Father: “Okay. Driving children back to gas station so you can take them back here. Children are confused. You are not enabling me to fulfil the Court order.”[22]
[22] Father’s affidavit sworn or affirmed 4 July 2019, [45].
The Father annexed to his affidavit a print of the relevant text messages from his mobile phone.[23]
[23] Father’s affidavit sworn or affirmed 4 July 2019, annexure M.
Changeover of the children from the Father to the Mother occurred at the Caltex Service Station in Suburb F.[24]
[24] Father’s affidavit sworn or affirmed 4 July 2019, [47]; Mother’s affidavit affirmed 31 July 2018, [14].
In her affidavit, the Mother says:
In respect to changeover on 3 February 2019, I acknowledge that I did not facilitate changeover at A Street, Suburb B (the A Street, Suburb B property).[25]
[25] Mother’s affidavit affirmed 31 July 2018, [4].
On 31 January 2019, the Mother caused correspondence to be sent by her solicitors to the Father’s solicitors proposing that all Sunday changeovers occur at Caltex Suburb F Service Station at 6:00PM.[26] On 1 February 2019, her solicitors received correspondence from the Father’s solicitors conveying the Father’s disagreement with her proposed changeover location of Suburb F Service Station. She highlights the following passage from their correspondence:
Our client is not amenable to changeover at Caltex Suburb F Service Station for the following Reasons:
(1) The location is inappropriate and unsafe with high traffic, being situation [sic] near a main highway;
(2) Loading and unloading the children into multiple cars can be stressful and provoke anxiety for the children. Our client does not wish for them to be adversely affected by the already difficult emotional experience of changeover.
In the alternative, our client suggests that changeover take place at his place of residence. In the event that this is unsuitable, he will return the children to the former matrimonial property once his time with the children concludes. This changeover shall take effect from Sunday, 3 February 2019.[27]
[26] Mother’s affidavit affirmed 31 July 2018, [9], annexure B.
[27] Mother’s affidavit affirmed 31 July 2018, [10]. See also annexure C.
The Mother says that:
Accordingly, as I had informed Mr Velderman in correspondence, at approximately 5.50 pm on 3 February 2019, I drove out of the A Street, Suburb B property, with my Father in the passenger seat. We proceeded along the access road. Approximately 200 metres from our driveway, we were passed by Mr Velderman, whom I observed in the vehicle, driving toward the A Street, Suburb B property… When I saw Mr Velderman, my heart started racing. I felt afraid but tried to keep calm to drive the car ...[28]
[28] Mother’s affidavit affirmed 31 July 2018, [13].
The Mother agrees that she drove to the Suburb F Service Station and waited there for the Father to collect the children.[29] Changeover occurred at 6:30PM.[30]
[29] Mother’s affidavit affirmed 31 July 2018, [14].
[30] Mother’s affidavit affirmed 31 July 2018, [14].
In cross-examination by Ms Judge in relation to this asserted contravention, the Mother gave evidence that she had returned to reside at the A Street, Suburb B property on 2 February 2019, that she recalled the letter from the Father’s solicitors in which they conveyed his rejection of her proposal for a changeover at the Caltex Suburb F Service Station, and that she was aware of the orders made by the Court on 6 July 2018.
She gave evidence that she was aware that those orders provided that changeover at the end of the Father’s time at 6:00PM on Sunday would occur at her place of residence, and she acknowledged that on 3 February 2019, she was aware that there was no order of any nature preventing the Father from attending at her place of residence at A Street, Suburb B.
On the whole of the evidence of the Applicant Father and the Respondent Mother, I am satisfied that at 6:00PM on 3 February 2019, the Respondent Mother contravened order 1(b) of the orders made 6 July 2018 in that she failed to effect the changeover of the children at the end of the Father’s time at her place of residence.
The Mother admits that contravention in paragraph 4 of her affidavit affirmed 31 July 2019.[31] I find that the Mother has not established a reasonable excuse for contravening that order on that occasion. The Mother was aware of what the applicable order required. The Mother was aware that the Father had rejected her proposal that the parties effect changeovers at a place other than that required in the order.
[31] Mother’s affidavit affirmed 31 July 2018, [4].
The Mother was at her place of residence on 3 February 2019 until 5:50PM at which time she left, accompanied by her Father, to travel to the Suburb F Caltex Service Station,[32] despite there being no agreement between the parties for changeover at that place, no agreement between the parties for a variation of the changeover arrangements set out in the order.
[32] Mother’s affidavit affirmed 31 July 2018, [13].
Further than that, the Mother observed the Father driving towards her place of residence shortly after she had left that place and yet she proceeded on to the Suburb F Caltex Service Station.[33] The Mother was advised by the Father that he was at her place of residence to effect the changeover in accordance with the orders,[34] but she did not return to her place of residence and she required the Father to leave that place and travel to the service station to effect the changeover.
[33] Mother’s affidavit affirmed 31 July 2018, [13].
[34] Father’s affidavit sworn or affirmed 4 July 2018, [39].
A ‘stand-off’ may have ensued with the Father remaining at the Mother’s place of residence and the Mother remaining at the Suburb F Caltex Service Station, but that circumstance was prevented by the Father’s action in conveying the children to the Suburb F Caltex Service Station and effecting changeover there.[35]
[35] Father’s affidavit sworn or affirmed 4 July 2019, [45]-[47].
The Mother had no confusion about the requirements of the applicable order; rather, she appears to have simply decided that as she had proposed an alternate arrangement, it had to be followed by the Father notwithstanding the requirements of the order.
Accordingly, I find that at 6:00PM on 3 February 2019, the Mother contravened order 1(b) of the orders made on 6 July 2018 without reasonable excuse.

Contravention 9 – 3 March 2019

The Father asserts that on 3 March 2019, a Sunday, the Mother breached order 2 of the orders made on 1 March 2019, which provided:
Changeover shall take place at school on Thursdays during school term and at Suburb D Supermarket on Fridays and Sundays and during school holidays with each parent to carry out changeover unless otherwise agreed in writing.
The Father’s assertion is that, though the changeover did take place at 6:00PM on Sunday 3 March 2019 at Suburb D Supermarket, the Mother failed “to carry out changeover”, there being no other arrangement agreed in writing between the parties.[36]
[36] Father’s affidavit sworn or affirmed 4 July 2019, [76].
The Father gives evidence that on 1 March 2019, when the order was made, the Mother was present in Court.[37] That assertion is not contradicted by the Mother in her evidence.[38] The Father deposed that he attended changeover on 3 March 2019 and he did not observe the Mother to be present to carry out changeover.[39]
[37] Father’s affidavit sworn or affirmed 4 July 2019, [74].
[38] See, esp, Mother’s affidavit affirmed 31 July 2018, [84].
[39] Father’s affidavit sworn or affirmed 4 July 2019, [76].
In the Mother’s affidavit at paragraph 85 she deposes:
With respect to changeover at Supermarket D on 3 March 2019 I say that I was physically present at the Supermarket D at Suburb D on this date. I drove the children in my motor vehicle to Supermarket D and parked in the car park adjacent to one of the entrances to the Supermarket D ... My Father also travelled in the motor vehicle with me. I had been present in Court when Mr Velderman had sought an order preventing my Father from facilitating changeovers, but I understand that Judge Harper had not made those orders. The Court orders did not prevent my Father from personally attending changeovers.[40]
[40] Mother’s affidavit affirmed 31 July 2018, [85].
In paragraph 86, the Mother deposes:
I asked my Father to walk the children the short distance from the car park to the entrance to Supermarket D to personally hand the children over to Mr Velderman because I was still concerned for my safety. I knew that having my Father attend changeover was not ideal, given the fact that the police had been called to the A Street, Suburb B property in August 2018. However, in the circumstances, this was the best option available to me. I do not have any other family members who live close enough to facilitate changeovers, or friends that could assist.[41]
[41] Mother’s affidavit affirmed 31 July 2018, [86].
In paragraph 87, the Mother deposes:
When my Father returned to my motor vehicle, I had a conversation as follows: Me: “All good?” Dad: “Yes.”[42]
[42] Mother’s affidavit affirmed 31 July 2018, [87].
In cross-examination by Ms Judge, the Mother later clarified that as this was a changeover on a Sunday, she was attending Suburb D Supermarket to collect the children from the Father, and not to hand them over as indicated in her affidavit affirmed 31 July 2019.
At the Hearing on 6 August 2019, video of CCTV footage obtained under subpoena from Suburb D Supermarket was played in open Court and then entered into evidence as exhibit A7. The video evidence was accepted by the Mother as showing a changeover of the children between the Father and the paternal grandfather inside the street-front entrance to Suburb D Supermarket on 3 March 2019. There is no appearance in the video by the Mother.
The totality of the evidence of the parties in relation to the occasion indicates that at about 6:00PM on 3 March 2019, the Father was waiting just inside the depicted entrance with the children and that the maternal grandfather entered the building, accepted the children from the Father, and left the building with the children.
In the Mother’s evidence, she accepted that she was not present at the precise point of changeover just inside the entrance to the Supermarket D, that she did not come into the presence of the Father at all, and that she had entered the car park area beside the Supermarket D building, had parked her car at the side of the building, that her Father exited the car and attended the precise point of changeover and then returned to the car with the children.[43]
[43] Mother’s affidavit affirmed 31 July 2018, [85]-[86].
An aerial photo of the relevant area depicting both the building housing the Supermarket D store and the car park beside it was entered as exhibit A8. The Mother accepted that the changeover occurred just inside an entrance marked with a green star on the aerial photograph, being along the frontage of the store fronting K Street at Suburb D, and that she was parked at the side of the building at a site marked by an orange star.
In cross-examination, the Mother agreed that she was not in sight of the changeover of the children between the Father and the maternal grandfather, that at the time of changeover, the children could not see her and that as far as the children would have been aware, their maternal grandfather was collecting them. The Mother conceded that she did not see the Father at all on the occasion of the 3 March 2019 changeover at the end of the Father’s time with the children. When it was put to the Mother by Ms Judge that the Mother did not personally attend changeover, the Mother responded that she was present in the car adjacent to the Supermarket, that she could see the side entrance and that the changeover could have occurred there.
However, as the evidence shows, the changeover did not occur at a side entrance, but occurred just inside the front entrance of the store. It was put to the Mother by me that she was aware on the relevant day that there were two entrances to the store, a side entrance that she gave evidence could be seen from where she had parked her car and a front entrance and that she knew that she could not see the front entrance from where she had parked. The Mother agreed with each of these propositions.
The relevant order made 1 March 2019, the Friday immediately before the Sunday the subject of this asserted contravention, required:
… each parent to carry out changeover unless otherwise agreed in writing.[44]
[44] Orders made 1 March 2019 by Judge Harper, [2].
The Mother denied the contravention in that she asserted that her parking her car in the car park at the side of the supermarket building and remaining in that car throughout, out of sight of the entrance inside which the exchange of the children took place, constituted her carrying out the changeover. As the Mother denied the contravention itself as her defence, she raised no defence of reasonable excuse.
In submissions on behalf of the Mother by Mr Johnston, I was referred to some legal definitions of “carry out” and provided with printouts from a dictionary and a legal textbook in support of a submission that the Mother was able to “carry out” changeover “either personally or by some person on [her] behalf.” I find that the submission fails in that the particular legislation under consideration in the legal text for definition of “carry out”, being legislation relating to the management of mine sites, is not applicable in any way to the use of “carry out” in order 2 made on 1 March 2019.
I find that as the Mother did not attend the actual point of changeover and did not receive the children from the Father herself, she did not “carry out changeover” as required by the order.
As I have found that the Mother did not carry out changeover at 6:00PM on Sunday 3 March 2019, I accordingly find that she contravened order 2 of the orders made 1 March 2019 without reasonable excuse.

Contravention 5 – November 2018

The Father asserts that the Mother contravened order 9 of the orders made on 6 July 2018, that order being in the following terms:
Each party shall do all things and sign all documents necessary to ensure that each of them shall receive reports and information from the school or other event providers, and medical information in relation to the children.[45]
[45] Orders made 6 July 2018 by Judge Harper, [9].
The Father asserts that in November 2018, the Mother took steps to enrol the child X (often referred to in the evidence as X) in Suburb E Primary School for the 2019 school year, in anticipation of her relocation from the maternal grandmother’s home at Suburb M to the former matrimonial home at A Street, Suburb B.[46]
[46] Father’s affidavit sworn or affirmed 4 July 2019, [21].

The Father, in making the assertion of contravention, referred to both the enrolment forms for X at Suburb E Public School and the enrolment or Application for X to participate in after school care provided by P at the school.[47] The Father asserts in his evidence that a copy of the orders made 6 July 2018 was emailed to the parties by the Associate to his Honour Judge Harper (as his Honour then was),[48] and he annexes a copy of the email.[49] The email is not to the parties themselves, but to their legal representatives. Nevertheless, the whole of the evidence of the Mother and of the Father indicates that the Mother was at the relevant time, being November 2018, aware of the content of the orders made on 6 July 2018.
[47] Father’s affidavit sworn or affirmed 4 July 2019, [24]-[25].
[48] Father’s affidavit sworn or affirmed 4 July 2019, [20].
[49] Father’s affidavit sworn or affirmed 4 July 2019, annexure B.
On 28 November 2018, the Father’s solicitors received correspondence from the Mother indicating that she had enrolled X at Suburb E Public School.[50] The correspondence indicated that Suburb E Public School accepted X’s enrolment on 27 November 2018 and advised that the school was running a final orientation session for 2019 kindergarten students at 9:00AM on Friday 30 November 2018. In this correspondence the Mother continued:
As the children will not be in my care on this day, I invite your client to take X to attend the orientation session. I think this would be beneficial for X, as otherwise he will not get to meet prospective classmates before starting school in 2019, which I believe will cause him anxiety. It would also enable him to get to know the kindergarten teacher.
I have advised Suburb E Primary School that the children are not in my care on that day and that I would be inviting your client to take X to the orientation session.
Please contact Suburb E Primary School on … to let them know if X is able to attend.[51]
[50] Mother’s affidavit affirmed 31 July 2018, annexure K.
[51] Mother’s affidavit affirmed 31 July 2018, annexure K.
On 30 November 2018, the Father went to Suburb E Public School to meet the teachers.[52] He also attended the school’s after school care program, referred to as ‘P.[53] While speaking to an operative of P, he was shown X’s enrolment form for the after school care and he observed that the section for “Father” was left blank and none of his contact information had been provided. He was not added as an authorised person to collect the children or listed as a person to contact in case of emergency. At the request of the operative, he completed a separate enrolment form so that P would have his contact details.[54]
[52] Father’s affidavit sworn or affirmed 4 July 2019, [22].
[53] Father’s affidavit sworn or affirmed 4 July 2019, [22].
[54] Father’s affidavit sworn or affirmed 4 July 2019, [24], annexure H.
On 21 January 2019, the Father emailed Suburb E Public School asking for more information in relation to X’s first day at school, specifically when his first day at school would be, and whether X would be having orientation class with his teacher either the following Friday or the next Friday after that.[55]
[55] Father’s affidavit sworn or affirmed 4 July 2019, [21], annexure I.
On 1 February 2019, the Father received an email from the school administrative officer asking that the Father supply the school with his mobile phone number so he could be contacted should there be an emergency, and also asking that he supply the school with his residential address so that a copy of X’s mid-term and end of year reports could be sent to him.[56] Attached to the email was a copy of instructions as to how to download the SkoolBag app, an application the school uses to keep in contact with parents. The email advised that the school newsletter is also sent home via that app.[57]
[56] Father’s affidavit sworn or affirmed 4 July 2019, [26], annexure J.
[57] Father’s affidavit sworn or affirmed 4 July 2019, annexure I.
On that same day, 1 February 2019, the Father attended at Suburb E Public School and met with X’s kindergarten teacher and the school administrative officer.[58] He asserts that the school administrative officer said to him words to the following effect:
I don’t have any of your contact details. When I called the Mother to ask for your information, she told me she was not in possession of your email, phone number or address. The only reason we were able to contact you is because you had previously written to us.[59]
[58] Father’s affidavit sworn or affirmed 4 July 2019, [27].
[59] Father’s affidavit sworn or affirmed 4 July 2019, [28].
The Father deposed that he has maintained the same “number and email” since the parties separated.[60] The Father annexed to his affidavit as annexure ‘K’ copies of emails and text messages that the Mother had previously sent to his email address and to his mobile telephone number.[61] Of the three documents so annexed, one is an email dated 31 March 2018 from the Father to the Mother, the second is an email dated 25 October 2018 from the Mother to the Father at three different email addresses, and the third is a print of text messages purported to have been received between 28 February 2018 and 4 March 2018 but without any detail being given as to the relevant mobile telephone number.[62]
[60] Father’s affidavit sworn or affirmed 4 July 2019, [30].
[61] Father’s affidavit sworn or affirmed 4 July 2019, annexure K.
[62] Father’s affidavit sworn or affirmed 4 July 2019, annexure K.
In her affidavit at paragraph 66, the Mother deposed that she attended Suburb E Public School on 27 November 2018 and spoke to “the office lady Ms O”[63] and filled in a form entitled “Application to Enrol” and handed it to Ms O, together with a copy of “the Court orders”, proof of residence and birth certificate for X.[64]
[63] Mother’s affidavit affirmed 31 July 2018, [65].
[64] Mother’s affidavit affirmed 31 July 2018, [66].
The Mother deposes that she did not understand that she was actually enrolling X, but thought that she was putting in an Application to be considered.[65] It is her evidence that she filled in the form so that the Application would be considered and she would know if there was a potential spot for X.[66]
[65] Mother’s affidavit affirmed 31 July 2018, [66].
[66] Mother’s affidavit affirmed 31 July 2018, [66].
The Mother deposes in paragraph 67 that she had the following conversation with Ms O:
[Mother]: X’s Father and I have no contact. There are Court orders in place. We communicate through our solicitors. Here’s a copy of the Court orders. You can see he has X every Friday. I will invite him to take X to the orientation on Friday.
Ms O: Okay. I will accept the Application.
Exhibit A6 is a copy of the “Application to Enrol in a NSW Government School”. In that form, conceded by the Mother to have been completed in handwriting by her, the Mother provides at the relevant place the Father’s name and where asked for his country of birth provides “NB. I don’t have consent to disclose his personal information”.
The form does not contain any information that would enable the school to contact the Father in the section headed “D. Parents/Carers not living with this student”. In the section headed “E. Additional Emergency Contacts” I am not able to say whether or not the form contained any information that would enable the school to contact the Father, as all detail provided therein for “Contact details (first preference)” and “Contact details (second preference)” have been redacted before production of the document by the Department of Education.
On the evidence, including the evidence of the Mother, I find that the Mother did not provide any contact details by way of address, email address or addresses or telephone numbers for the Father to Suburb E Public School or to the after-school care run by P. However, the relevant order refers to “each party” as being required to do all things and sign all documents necessary to ensure that “each of them” shall receive reports and information from the school or other event providers.[67]
[67] Orders made 6 July 2018 by Judge Harper, [9].
The order is not framed in terms that require the Mother alone to “do all things and sign all documents necessary to ensure” that the Father receives reports and information from the school or other event providers, or, conversely, that the Father “do all things and sign all documents necessary to ensure that” the Mother receive reports and information from the school and other event providers.
The Mother advised the Father through his solicitors specifically of the steps she had taken to enrol X at Suburb E Public School.[68] She advised the Father through his solicitors that there was an orientation session at the school for X on 30 November 2018 when the children would be in the Father’s care and encouraged the Father to attend that occasion with X.[69] The Father did attend at the school on that day, met with X’s teachers, and spoke to the providers of the after-school care.[70] The Father provided his contact details on that day to the after-school care provided by P. The Father provided his contact details to the school, at the request of the school administrative officer, on 1 February 2019.[71]
[68] Mother’s affidavit affirmed 31 July 2018, annexure K.
[69] Mother’s affidavit affirmed 31 July 2018, annexure K.
[70] See, esp, Father’s affidavit sworn or affirmed 4 July 2019, [22]-[23].
[71] See, esp, Father’s affidavit sworn or affirmed 4 July 2019, [26], [28].
The Father was aware from no later than 30 November 2018 that X would be attending Suburb E Public School for kindergarten in 2019. He was aware on that day that the Mother had provided a form to the after school care providers that did not include his details, and it was open to him to provide those details to the after school care providers, which he did, and it was open to him to provide his details to the school, which he apparently did not do until asked for those details on 1 February 2019.
Given the specific wording of the order, “each party should do all things and sign all documents necessary to ensure that each of them shall receive reports and information from the school or other event providers…”, I cannot find that it was solely incumbent on the Mother to provide the Father’s details when completing the initial enrolment form for the school or to provide the Father’s contact details when completing the enrolment for after school care.
It was the evidence of the Mother that she understood that order to mean that both parents should provide their details as referred to in that order, and on that understanding, she made the school and the after school care providers fully aware of the name of the child’s Father and the prevailing family law circumstances. She also informed the Father of an opportunity to attend at the school and the after school care providers during which he could provide his details.
On the specific wording of that order, I find that it is impossible interpretation of the words “each parent” that it was incumbent on each of the parents to do all things necessary to make sure that the school had the informing parent’s details. Accordingly, I cannot be satisfied on the balance of probabilities that the Mother has contravened order 9 of the orders made on 6 July 2018.

Penalty

I have found that the Mother, without reasonable excuse, contravened order 1(b) of the orders made 6 July 2018 at 6:00PM on 3 February 2019, and I have found that the Mother contravened, without reasonable excuse, order 2 of the orders made 1 March 2019 at 6:00PM on 3 March 2019.
The Mother has not previously been convicted of contravening an order affecting children made under the Act. Accordingly, the matter falls within subdivision E of division 13A of part VII of the Act, being a contravention without reasonable excuse (less serious contravention).
I find that each of the contraventions to be a less serious contravention, in that:
a)The contravention occurring on 3 February 2019 did not result in the Father not spending time with, or spending less than time required by the orders with the children, but relates to place of changeover, the Mother’s contravention having caused the Father some inconvenience. I note, however, that the extent of that inconvenience is minimal, given that in complying with the order, the Father was required to travel to the Mother’s place of residence at the A Street, Suburb B property, and then in travelling from there to Suburb F Caltex Service Station to effect changeover, the Father was, in fact, travelling back toward his place of residence at H Street, Suburb J.
b)The contravention occurring on 3 March 2019, wherein the Mother did not, herself, carry out changeover in accordance with order 2 made 1 March 2019, also did not result in the Father missing out on or spending any less time with the children than that provided for in the orders, but relates to the personnel attending changeover, which otherwise did occur at the right place at the right time.
That subdivision applies because in relation to each contravention, a primary order had been made.[72] I am satisfied that:
a)The Mother has committed a contravention of that primary order;
b)The Mother did not have a reasonable excuse for the contraventions; and
c)No Court has previously made an order imposing a sanction or taking an action in respect of a contravention by the Mother of a primary order.
[72] “Primary order” means an order under this Act affecting children and includes such order as varied; Family Law Act 1975 (Cth) s 4.
Section 70NEB set outs the powers of the Court in relation to dealing with a person under subdivision E of division 13A of part VII of the Act.[73]
[73] Family Law Act 1975 (Cth) s 70NEB.
On 6 August 2019, submissions were made by Ms Judge on behalf of the Father and by Mr Johnston on behalf of the Mother. Ms Judge submitted that the appropriate penalty if the Mother is convicted of any of the asserted contraventions is the imposition of a bond pursuant to section 70NEB(1)(d), being a bond in accordance with section 70NEC.
In relation to costs of the contravention proceedings, Ms Judge submitted that it was an appropriate case for an indemnity costs order to be made against the Mother. Mr Johnston submitted that if the Mother was convicted of any of the asserted contraventions, it would be her first breach and that the breaches would be in a class that may be termed “trivial” and therefore not an appropriate case for the imposition of a bond or indemnity costs.
Mr Johnston submitted that in the event of the Mother being convicted of any of the asserted contributions, the appropriate penalty would be under section 70NEB(1)(a) by an order directing the Mother and the Father to attend a post-separation parenting program.[74]
[74] Family Law Act 1975 (Cth) s 70NEB(1):
However, before proceeding further, I note that in his written submissions on behalf of the Mother as to variation of the interim parenting orders, Mr Johnston submits under the heading “Penalty Phase”.
The matter is listed for further mention and directions on 31 January 2020. As will be detailed later in these Reasons, I intend to give the Independent Children’s Lawyer an opportunity on that day to make submissions in relation to the informal Applications by both of the parents for variation of the current interim parenting orders.
The Mother’s ability to renew her qualifications will have a bearing upon her financial circumstances, and will therefore have a bearing upon financial support available for the children. I intend to give the Mother the opportunity to make further submissions in relation to penalty as requested in Mr Johnston’s written submissions, and to give the Applicant Father the opportunity to make submissions in response. That can also occur on 31 January 2020.

Variation of parenting orders

I am asked to consider the informal Application made by each party for variation of the current interim parenting orders.
Section 70NBA of the Act provides that the Court may vary a primary order in circumstances where the Court has heard an Application - Contravention and has found that a person has committed a contravention of the primary order.[75] The term “primary order” is defined in section 4(1) of the Act as meaning:
An order under this Act affecting children and includes such order as varied.[76]
[75] Family Law Act 1975 (Cth) s 70NBA(1)(b)(ii).
[76] Family Law Act 1975 (Cth) s 4.
Within the strict meaning of the terms of section 70NBA, the Court may vary a primary order, being the primary order that the Court has found the person to have contravened. However, the informal Applications by each of the parties for variation of the current parenting orders go beyond what would be referred to as the “primary order” in terms of section 70NBA, as on my understanding of the strict meaning of the wording of that section, it would relate only to order 1(b) of the orders made 6 July 2018 (regarding the location of changeover) and order 2 of the orders made 1 March 2019 (regarding the personnel required to carry out changeover).
However, it is clear that the parties both desire that there be a variation of more than the primary orders contravened by the Respondent Mother, and noting that section 70NBA(3) provides:
This section does not limit the circumstances in which a Court having jurisdiction under this Act may vary a primary order.[77]
[77] Family Law Act 1975 (Cth) s 70NBA(3).
I intend to grant leave to each of the parties to bring their informal Applications for variation of the orders as set out in their case outline documents and to consider those competing Applications. If I determine that it is in the best interests of X and Y to vary the orders, I will make orders accordingly.
However, there is an Independent Children’s Lawyer appointed in these proceedings, Ms Renshall. On setting down the Father’s Application – Contravention for Hearing (the February Application – Contravention), an order was made by me on 12 April 2019 that the Independent Children's Lawyer was excused from personal attendance at that Hearing, and granting leave for the Independent Children's Lawyer to appear by telephone in relation to directions in relation to the substantive parenting matter.[78]
[78] Orders made 12 April 2019 by Judge Morley, [11].
Accordingly, the Independent Children’s Lawyer did not appear and was not represented before the Court at the Hearing of the contravention matter on both 15 July and 6 August 2019, and I have no evidence before me that the case outlines of the Applicant Father and Respondent Mother, addressing their competing informal Applications for variation of the current interim parenting orders, have been served on the Independent Children’s Lawyer.
This matter is listed before the Court for mention for further directions on 31 January 2020 and it is to that date that I propose to adjourn the contravention matter for the further submissions in relation to the question of how I should proceed by way of orders, having found that the Mother has committed two contraventions of the interim orders, and to give the Independent Children’s Lawyer an opportunity to make submissions in relation to variation of orders.

Costs of the interim hearing on 8 and 12 April 2019

On 8 April 2019, I conducted an interim Hearing in relation to the parties’ competing Applications for further interim parenting orders, particularly in relation to time to be spent by the Father with the children during school holidays. I gave judgment and made orders on 12 April 2019.
At the Hearing on 8 April 2019, the Applicant Father was represented by Mr Shkara, solicitor advocate, and the Mother was represented by Ms Santone, solicitor advocate. Ms Renshall appeared on her own behalf as the Independent Children’s Lawyer. On 12 April 2019, legal representatives for each of the parties and Ms Renshall as the Independent Children’s Lawyer, appeared by telephone link.

On 12 April 2019, I ordered that the question of costs of the parties and the Independent Children’s Lawyer for the interim Hearing on 8 and 12 April 2019 be reserved to 15 July 2019 at 10:00AM, to be considered after Hearing the contravention that day.[79] I directed that written submissions in relation to the question of those costs be provided by the Applicant Father by no later than 4:00PM on 17 May 2019, and by the Respondent Mother by no later than 4:00PM on 14 June 2019.[80]
[79] Orders made 12 April 2018 by Judge Morley, [10].
[80] Orders made 12 April 2018 by Judge Morley, [12]-[14].
No Application for costs relating to the interim Hearing has been made by the Independent Children’s Lawyer. Properly, the Independent Children’s Lawyer has not made any submissions in relation to the Application by the Father that the Mother pay his costs of the interim Hearing. There is no Application by the Mother that the Father pay her costs of the interim Hearing. The Mother opposes the Father’s Application that she pay his costs of the interim Hearing.
I have received and considered the written submissions on behalf of each of the parties relating to the question of the Father’s Application that the Mother pay his costs of the interim Hearing.
The general rule in relation to costs in proceedings under the Act is found in section 117. Subsection (1) provides that subject to further subsections (and other sections of the Act not relevant to this Application):
Each party to proceedings under the Act shall bear his and her own costs.
Subsection (2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to subsequent subsections and the applicable rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.[81]
[81] Family Law Act 1975 (Cth) s 117(2).
Subsection (2A) sets out matters to which the Court must have regard in considering what order, if any, should be made in relation to costs and I consider each of the matters set out in that subsection hereunder.

Financial circumstances of each of the parties to the proceedings

Section 117(2A)(a) provides that the Court shall have regard to the financial circumstances of each of the parties to the proceedings.
I do not have any detailed evidence in relation to the financial circumstances of the parties, but only some general information contained in an affidavit by each of the parties filed in support of the party’s contention in relation to this costs Application by the Father. The Father does not provide any detail in relation to his income, expenses, assets, or liabilities as they currently stand, but gives detail that he is currently participating in a hardship arrangement with St George Bank in relation to certain loan accounts.[82]
[82] Father’s affidavit affirmed 17 September 2019, [17].
The Mother gives some evidence that her continued employment with the Employer Q at the end of her period of maternity leave (2020) is uncertain, as the position she held before commencing with her leave has ceased to exist under a restructure of the employer.[83] She is currently on maternity leave on a half-pay basis. The Mother’s solicitor, Ms Santone, annexes to her affidavit a copy of a payslip relating to the Father’s employment with Employer L.[84]
[83] Affidavit of Tina Santone sworn or affirmed 9 September 2019, annexure B.
[84] Affidavit of Tina Santone sworn or affirmed 9 September 2019, annexure C.
The substantive proceedings currently before the Court include proceedings relating to financial matters between the parties and, in particular, a property settlement. In accordance with the rules, each of the parties has filed a Financial Statement in the proceedings, but such Financial Statements are now of limited use in relation to the current financial circumstances, the Mother’s most recent Financial Statement having been filed on 7 March 2018, and the Father’s most recent Financial Statement having been filed on 27 October 2017.

Whether any party to the proceedings is in receipt of assistance by way of legal aid

Section 117(2A)(b) provides that the Court shall have regard to whether any party to the proceedings is in receipt of assistance by way of a grant of Legal Aid.
Neither of the parties is in receipt of a grant of Legal Aid in relation to the proceedings.

Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court

Section 117(2A)(d) provides that the Court shall have regard to whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.
The proceedings to which the Father’s Application for costs order relate were not necessitated by the failure of a party to the proceedings to comply with a previous order of the Court, but were an Application by the Father for an increase in his time by addressing school holiday periods, and a response to that Application by the Mother addressing the same issues.

Whether either party to the proceedings has made an offer

Section 117(2A)(e) provides that the Court shall have regard to whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer.
I am not given any evidence of any offers in writing made by either party to the other to settle the proceedings outside of each party’s formal Application filed with the Court.

The conduct of the parties to the proceedings

Section 117(2A)(c) provides that the Court shall have regard to:
the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters.[85]
[85] Family Law Act 1975 (Cth) s 117(2A)(c).
The Father asserts that his Application for costs is strengthened by relying on consideration of the conduct of the Mother in the proceedings, in that he asserts in his Case Outline that the Mother failed or refused to engage in negotiations with him on the question of time to be spent by him with the children during school holidays, and that such failure or refusal by the Mother necessitated his interlocutory Application for orders addressing that issue.
There is some strength in that assertion found in his affidavit affirmed 17 September 2019, in that he gives evidence that on his instructions letters were sent by his solicitors to the Mother and thereafter to the Mother’s solicitors on 17 October 2018,[86] 20 December 2018,[87] and 27 February 2019,[88] making proposals in relation to orders for time between the Father and the children during school holidays. The Father also deposes that he sent an email to the Mother on 14 March 2019 proposing, amongst other things, that they meet to discuss the issue of school holiday arrangements, and that neither he nor his solicitors received a response to any of that correspondence.[89]
[86] Father’s affidavit affirmed 17 September 2019, [6], annexure A.
[87] Father’s affidavit affirmed 17 September 2019, [20], annexure B.
[88] Father’s affidavit affirmed 17 September 2019, [8], annexure C.
[89] Father’s affidavit affirmed 17 September 2019, [9], annexure D.
However, I note that when the Father made his Application by filing a further amended Application on 4 April 2019, the Mother responded seeking orders on the issue different to those proposed in the correspondence referred to by the Father had sought in his further amended Application. It is not the Mother’s failure to respond to the earlier correspondence that lead to the Father filing his further amended Application on 4 April 2019 and to the interim Hearing, but the disagreement between the parties that self-evidently subsisted throughout the period of the Father’s unanswered correspondence and the filing of an Application in Response and up to the making of orders on 12 April 2019 – self-evident because the matter went to interim Hearing on 8 April 2019. I find that there was no conduct on the part of the Mother that leads me to form an opinion that there is a consequent circumstance that justifies the making of a costs order in favour of the Father.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

Section 117(2A)(f) provides that the Court shall have regard to whether any party to the proceedings has been wholly unsuccessful in the proceedings.
In his submissions on the question of costs, the Father also relies heavily on an assertion that he was wholly successful and the Mother wholly unsuccessful in the interim Hearing. That contention is not correct. The orders sought by the Father in his further amended Application, filed 4 April 2019, were not the orders made on 12 April 2019. The Father sought the immediate commencement of an equal sharing of the children’s school holiday time between the parents.[90] The orders made on 12 April 2019 in relation to time between the Father and the children during school holidays provided for a lead-in period,[91] during which the Father would have less than equal care of the children than the Mother during school holiday time for the April 2019 and the July 2019 school holidays, with an equal sharing of time with the children commencing in the holidays at the “end of term 3 in 2019”.[92] The Father was not wholly successful and the Mother was not wholly unsuccessful.
[90] See, esp, Father’s Amended Application in a Case filed 4 April 2019, sought orders [1](a), (b).
[91] Orders made 12 April 2019 by Judge Morley, [5], [6].
[92] Orders made 12 April 2019 by Judge Morley, [7].
In consequence of the interim Hearing on 8 April 2019, orders were made in addition to the orders addressing time between the Father and the children during school holidays. Another issue litigated at the interim Hearing related to the preschool to be attended by the child Y, though ultimately at the interim Hearing the parties were able to come to agreement on the identification of the preschool for Y to attend, but not in relation to the duration of her attendance. Orders were also made varying the Father’s regular weekly time with the children pursuant to the orders made 6 July 2018, so as to commence that time at 5:00PM in place of 5:30PM.[93]
[93] Orders made 12 April 2019 by Judge Morley, [3].
I find that there are no circumstances that justify the Court departing from the general rule as to costs in section 117(1) and accordingly I dismiss the Applicant Father’s Application that the Mother pay his costs relating to the interim Hearing on 8 and 12 April 2019.

Relevant Orders

In view of the request of the Mother contained in her written submissions in support of variation of the parenting orders prepared on her behalf by her counsel, Mr Johnston, that the matter be relisted for submissions in the event that I find that she has contravened orders, the only orders I will make as a result of these Reasons at the present time is that:
a)The contravention Application filed by the Father on 5 July 2019 and heard on 15 July and 6 August 2019 be further adjourned for further submissions on the issues of appropriate orders and, if relevant, penalty to 9:30AM on 31 January 2020; and
b)The Application of the Father that the Mother pay his costs on an indemnity basis for the interim Hearing conducted 8 and 12 April 2019 be dismissed.
I note that any question of costs relating to the contravention proceedings may be further raised with the Court at the mention on 31 January 2020 following my determination on that day of the appropriate orders consequent upon the contravention proceedings.
Accordingly I make the orders outlined at the commencement of these Reasons.

I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Morley

Date: 23 January 2020

(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or

(ii)that person and another specified person;

to attend a post-separation parenting program; …