WALLACE & HUGHES
[2010] FMCAfam 1034
•29 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALLACE & HUGHES | [2010] FMCAfam 1034 |
| FAMILY LAW – Contravention application – numerous breaches of parenting orders – whether excuses for non-compliance reasonable. |
| Family Law Act1975, ss.65DA, 65N, 70NAC, 70NAD, 70NAE, 70NAF 70NBA, 70NDB, 70NEC Evidence Act1995, s.140 |
| Fooks &Clark (2004) 32 Fam LR 149; [2004] FamCA 212; (2004) FLC 93-183 In the Marriage of Stavros (1984) 9 Fam LR 1025; (1984) FLC 91-562 In The Marriage of Stevenson & Hughes (1993) 16 Fam LR 443; (1993) FLC 92-363 In the Marriage of O’Brien (1993) 16 Fam LR 723; (1993) FLC 92-396 TVT & TLM (2006) FMCAfam 20 Wallace & Hughes [2007] FamCA 256 |
| Applicant: | MR WALLACE |
| Respondent: | MS HUGHES |
| File Number: | SYC 2015 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 7 June 2010 |
| Date of Last Submission: | 29 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Self represented litigant |
| Solicitors for the Applicant: | Self represented litigant |
| Counsel for the Respondent: | Self represented litigant |
| Solicitors for the Respondent: | Self represented litigant |
ORDERS
THE COURT FINDS THAT:
The Mother did, without reasonable excuse, contravene the following paragraphs of the final parenting orders in respect of [W] born [in] 1995, [X] born [in] 1997, [Y] born [in] 1998 and [Z] born [in] 2000 (“the children”) made by the Family Court of Australia on 13 March 2007 (“the 2007 parenting orders”) on the following dates:
(i) 6 September 2009, paragraph 3;
(ii) 18 October 2009, paragraph 3;
(iii) 14 February 2010, paragraph 3; and
(iv) 28 February 2010, paragraph 3.
THE COURT ORDERS THAT:
The Father and the Mother attend and complete, as soon as practicable, a Parenting Apart post-separation parenting program (“the Program”) at Relationships Australia or an organisation recommended by Relationships Australia (“the organisation”) and:
(a)do everything reasonably necessary to enrol in, undertake and successfully complete the Program;
(b)that the Program facilitate the development of better communication skills between the parties in respect of the parenting of the children;
(c)if applicable, pay all costs associated with their participation in the Program;
(d)attend and complete, as soon as practicable, any further course or program recommended by the organisation; and
(e)provide a copy of the certificate of completion of the Program to the other party.
Paragraph 3(b) of the 2007 parenting orders be discharged and in lieu the children spend time with the Father during the school holidays:
(a)For a period of eight (8) consecutive nights during the annual January school holidays from 10:30am on Saturday until 10:30am the following Sunday week (“the January period”) and:
(i)For the purpose of paragraph 2(a) herein, the Father will, by no later than 31 July 2010 and 31 July each alternate year thereafter, nominate in writing the dates of the January period for 2011 and each alternate year thereafter;
(ii)For the purpose of paragraph 2(a) herein, the Mother will, by no later than 31 July 2011 and 31 July each alternate year thereafter, nominate in writing the dates of the January period for 2012 and each alternate year thereafter; and
(iii)For the purposes of paragraphs 2(a)(i) and (2)(a)(ii) herein, in the event that either party fails to nominate dates for the relevant January period by 31 July in the preceding year, then the other party may nominate the relevant January period.
(b)For a period of two (2) consecutive nights during the school term holidays from 10:30am Saturday until 10:30am the following Monday (“the term holiday periods”) and:
(i)For the purposes of paragraph 2(b) herein, the Father will, no later than six (6) weeks before the commencement of the relevant term holiday period, nominate in writing the dates of the term holiday period in 2010 and each alternate year thereafter;
(ii)For the purposes of paragraph 2(b) herein, the Mother will, no later than six (6) weeks before the commencement of the relevant term holiday period, nominate in writing the dates of the term holiday period in 2011 and each alternate year thereafter; and
(iii)For the purposes of paragraphs 2(b)(i) and (2)(b)(ii) herein, in the event that either party fails to nominate dates for a term holiday period as ordered then the other party may nominate the relevant term holiday period.
(c)For the sake of clarity, paragraph 3(a) of the 2007 parenting orders is suspended from the conclusion of each school term until the conclusion of the first week of the following school term.
Subject to paragraph 2 herein, the 2007 parenting orders remain in full force and effect.
The children and the Father communicate with each other at all reasonable times and as they so wish on a mobile phone or phones to be provided for and paid for, by the Father.
The Mother forthwith purchase a book to be used for essential communication between the parties about the children’s needs, including but not limited to information about their extra-curricular activities, and the book be exchanged between the parties or carried by the children each time the children move from the care of one party to the other during weekends or school holidays, and at other times should there be a need for communication about such matters.
Each party be permitted to attend at all extra-curricular activities engaged in by the children and all school events and activities which parents ordinarily are invited to attend.
Neither party denigrate the other in the presence or within the hearing of the children or permit any other person to do so.
In the event that the Father proposes that the children stay overnight at a place other than his place of residence then, not less than seven (7) days prior to that occasion, the Father advise the Mother in writing as to:
(a)the proposed destination;
(b)the details of all other persons that the children will be staying overnight with; and
(c)all details necessary for the Mother to maintain telephone contact with the children.
Where used in these orders, “writing” shall be taken to include telephone text messages and emails.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Wallace & Hughes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2015 of 2010
| MR WALLACE |
Applicant
And
| MS HUGHES |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a contravention application filed by MR WALLACE (“the father”) on 6 April 2010 alleging contravention of the current parenting orders by MS HUGHES (“the mother”). The application is defended.
There are four children of the relationship namely, [W] (“[W]”), born [in] 1995; [X] (“[X]”), born [in] 1997; [Y] (“[Y]”), born [in] 1998; and [Z] (“[Z]”), born [in] 2000 (collectively “the children”).
Pursuant to comprehensive orders made by Le Poer Trench J on 13 March 2007 (“the parenting orders”) the children live with the mother and spend defined time with the father. The parenting orders also provide for the mother to have sole parental responsibility. The relevant paragraphs of the parenting orders for this dispute are as follows:
“3. The children spend time with the father as follows:
a.during school term:
i. every second Sunday from 10.30 am until school time the following Monday, first period to commence Sunday, 11 March 2007;
ii. each Wednesday from after school until school time the next morning;
b.during school holidays:
i. during Christmas school holidays, unless the mother is taking the children away from their home with her for holidays, they will continue to see their father on the same basis as that provided for during school term, with the exception that the alternate Sunday time will conclude at 10.30 am on Monday. Weekly Wednesday time shall commence at 10.30 am on Wednesday and conclude at 10.30 am on Thursday
ii. during the school holidays by the end of the school term and the end of the school term the children are to spend one Wednesday from 10.30 am until 10.30 am the next day with their father. The mother is to choose which Wednesday it will be in each of those holidays and notify the father not less than three weeks prior to the commencement of the holidays of that particular nominated date.
4.The children spend such other time with the father as may be agreed between the parents.
5.If changeovers between the parents pursuant to these orders do not take place by the father collecting the children from or returning the children to their schools, then they are to take place at [omitted] Police Station.
6.Whenever these orders refer to commencing after school or concluding at school, the time will occur with the father collecting the children from their schools at the conclusion of the school day and conclusion will occur with the father delivering the children in their school in time for the commencement of the school date.
7. The six Wednesday periods in each calendar year and six Sunday periods in each calendar year when the father is due to spend time with the children pursuant to these orders, the father may, by giving the mother 28 days’ notice in writing, suspend the operation of the order for the period of time nominated in the notice, provided it does not exceed the period stipulated in the order.
8.In the event of the mother and the children being absent from Sydney and the children, therefore, not available to spend time with their father, the mother is to give 28 days’ notice to the father of such absence and in such event she may, by notice, suspend up to six Wednesday periods and three Sunday periods for the children to spend time with the father. In such circumstances the father may nominate any other time during the school term as makeup time for him with the children and the mother is to facilitate such makeup time. The father is to give 14 days’ notice to the mother of his intention to exercise such makeup time with the children. In the event of the children having an extracurricular event scheduled for the makeup day, the father is to ensure their attendance at that activity whilst the children are with him.”
The contravention alleges that the mother has, on more than one occasion, failed to comply with the relevant parenting orders.
The father’s application is supported by his affidavit sworn and filed on 6 April 2010. In summary, the mother is alleged to have contravened paragraph 3 to 4 of the parenting orders.
At the Court’s request, the father agreed to limit his contravention applications to four specific events being, in backdated order:
a)26 February 2010 alleging a breach of paragraph 3(a)(i) and (ii);
b)13 February 2010 alleging a breach of paragraph 3(a)(i);
c)14 October 2009 alleging a breach of paragraph 3(a)(i); and
d)7 September 2009 alleging a breach of paragraph 3(a)(i).
Furthermore, it is alleged by the father, and conceded by the mother, that the father has not spent any time with the children since February 2010.
In response, the mother argues that whilst the contravention times and dates are admitted, there were reasonable excuses for the contraventions. The mother did not file any affidavit in response to the father’s application but chose to give oral evidence.
At the hearing of the application, both parties were self-represented. Both parties were cross-examined in Court by the other party on 7 June 2010.
Background
Following a defended hearing on 22 February 2007, Le Poer Trench J made final orders on 13 March 2007. His Honour’s reasons were subsequently published in 2007 FAMCA 256. At paragraph 2 of his Honour’s published reasons it states[1]:
‘The parents commenced residing together in about 1990 and separated finally towards the end of 2002. The parents have been involved in intense conflict since the separation and the children’s time with their father has been limited.”
[1] Wallace & Hughes [2007] FamCA 256
At paragraph 3 his Honour states:
“The case presents an extraordinary set of circumstances where the father (the non-residential parent) says he is only prepared to spend time with the children on alternate Sundays from 10.30 am until school time the following morning and each Wednesday from after school until school time on the next morning during school term. He has further agreed to spend time during the Christmas school holidays on the same basis as if it was school term during that time when the children are not holidaying with their mother. During school holidays the father would see the children each alternate Sunday from 10.30 am until 10.30 am the next morning. He would also see the children each Wednesday from 10.30 am until 10.30 am the next morning. During the school holidays at the conclusion of the first term and third term of school the father says he is only prepared to spend time with the children for one Wednesday that being from 10.30 am on Wednesday till 10.30 am the next morning.”
The alleged contraventions
The father’s contravention application originally spanned events from 2009 until 2010. As has already been indicated the father agreed to limit the complaints to four particular incidents. The father briefly details these events in his supporting affidavit, and also provided oral evidence to the Court.
Incident on 13 February 2010
The father asserts that on Saturday, 13 February 2010, he received a text message from his son [X] that stated “Mummy said we have to go to soccer with Uncle [omitted]…I guess I’ll just see you at the bus stop on Wednesday.”
Three factual concessions were made by the mother in respect of this alleged contravention. Firstly, the mother does not dispute that the text message was sent to the father by [X]. Secondly, the mother does not dispute that both [X] and [Y] did not spend time with their father that day following the sending of the text message, that is to say that they did not spend time on Sunday, 14 February 2010. Thirdly, the mother does not dispute that the two boys spent part of that day attending a soccer match with her brother.
Incident on 26 February 2010
The father alleges that on 26 February 2010 he received a text message from the mother which stated “You are not seeing them anymore, starting today.”
Two factual concessions were made by the mother in respect of this allegation. Firstly, the mother does not deny sending the text message. Secondly, the father has not spent any time with the children since the email was sent.
Incident on 14 October 2009
The father asserts that on Wednesday, 14 October 2009, he received a text message from the mother that stated: “Boys want to go surfing at [P] with friends.” The father thereafter asserts that the children had allegedly said to him subsequently that they did not go to [P] that day and that they wondered why the father had not attended to collect them.
Three factual concessions were made by the mother in respect of the alleged contravention. Firstly, she admitted sending the text message. Secondly, [X] and [Y] did not spend time with the father the following Sunday, that is 18 October 2009 and, thirdly, while it had been her intention to take the two children to [P] that day, they did not go on that occasion.
Incident on 6 September 2009
The father asserts he did not spend time with all four children on Father’s Day 2009. At this point, let me state that Father’s Day last year occurred on Sunday, 6 September 2009 and not 7 September 2009 as the father asserts. That having been said, the mother does not deny that the children did not spend Father’s Day with their father. It appears they spent the day with their stepfather.
The law
In respect of the law, Part 7 Division 13A of the Family Law Act 1975 (“the Act”) deals with the consequence of failure to comply with orders and obligations that affect children.
Section 65DA particulars
By way of preliminary comment, the Court also notes that s.65DA of the Act provides that there is a duty on the Court to include in a parenting order particulars of:
a)the obligations that the order creates; and
b)the consequences that may follow if a person contravenes the order.
The duty upon the Court is to ensure that persons affected by parenting orders, other than child maintenance orders, must be firstly provided with information about the obligations these orders created and the consequences that may follow if a person contravenes the order. The information ought to be explained in a language that is likely to be readily understood by the person to whom the order is directed and, secondly, be informed of the availability of programs to help people understand their responsibilities under parenting orders. The particulars are to be set out in a standard form and annexed to the orders. The Court has a brochure setting these out. A legal practitioner representing a party can be requested to fulfil the Court’s duty to provide particulars and explanations. It is certainly clear from my reading of the orders made by Le Poer Trench J on 13 March 2007 that s.65DA was complied with and the parties were given the prescribed information when they received the parenting orders.
Section 70NAD of the Act deals with the requirements to be included in certain orders. Under s.70NAD(b) the order relevant to the contravention must be a parenting order and this includes a parenting order relating to the time that a child spends with a parent in accordance with s.65N.
Meaning of contravention order
Section 70NAC deals with meaning of “contravened an order.” It states:
“Persons taken for the purposes of this division to have contravened an order under this Act affecting children, if and only if:
(a)where the person is bound by the order, he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b)otherwise he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it or
(ii)aided or abetted a contravention of the order by a person who was bound by it.”
In other words, in relation to non-compliance with a Court order, which is the allegation in the present case, it is clear that the provision requires the Court to be satisfied that the respondent has either intentionally failed to comply or has made no reasonable attempt to comply.
The applicant to a contravention order bears the onus of proving the contravention by the respondent on the balance of probabilities. Section 140 of the Evidence Act1995 (“the Evidence Act”), which refers to the standard of proof, provides for the Court to take into account the nature of the proceedings in determining whether it is satisfied to the requisite standard. Subsection (2) states:
“Without limiting the matters that the Court may take into account in deciding whether it is so satisfied it is to take into account:
(a)the nature of the cause of action and defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.”
Meaning of reasonable attempt to comply with order
The issue of whether a respondent has made a reasonable attempt to comply with the orders has been considered in a number of cases. It is clear that a parenting order in relation to a child or children in this case spending time with a parent is not a mere declaration but casts an obligation upon the other parent, such as the respondent in this case, to take reasonable steps to deliver the child or children at the commencement of the access period.[2]
[2] In the Marriage of Stavros (1984) 9 Fam LR 1025; (1984) FLC 91-562
Whether the steps that were taken by the relevant parent were a reasonable attempt to comply with the relevant parenting order will ultimately depend on the facts and circumstances of each case. As Riethmuller FM stated in TVT & TLM (2006) FMCAFam 20 (“TVT & TLM”):
“It is accepted that the resident parent has a duty to ensure that the child not only attends but does so in a positive manner.”
Indeed, the Full Court of the Family Court stated in the case of In The Marriage of Stephenson & Hughes (1993) 16 Fam LR 443 that a primary carer, such as the respondent, must appreciate that they are not entitled to treat the other parent “as an enemy who are to be thwarted whenever possible by active steps or by passive resistance”. [3]
[3] In The Marriage of Stevenson & Hughes (1993) FLC 92-363; (1993) 16 Fam LR 443 per Fogarty J at page 450
Meaning of reasonable excuse for contravening an order
Section 70NAE deals with the meaning of reasonable excuse for contravening an order. Under subsection (2):
“A person (the respondent) is taken to have a reasonable excuse for contravening an order under the Act affecting children if:
(a)the respondent contravened an order because or substantially because he or she did not, at the time of the contravention, understand the obligations imposed by the Court on the person who was bound by it; and
(b)the Court is satisfied that the respondent ought to be excused in respect of the contravention.”
This not an issue in these proceedings, as his Honour’s orders were quite clear in their intention.
Subsection (5) of s.70NAE deals with contravening an order regarding with whom a child is to spend time with:
“A person (the respondent) is taken to have a reasonable excuse for contravening a parenting order to the extent that it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if
(a)the respondent believed on reasonable grounds that not allowing the child or person to spend time together was necessary to protect the health or safety of a person, including the respondent or the child; and
(b)the period during which, because of the contravention, the child and the person did not spend together was not longer than necessary to protect the health of a person referred to in paragraph (a).”
This paragraph is not immediately applicable to these circumstances and an excuse based upon the health and safety of the child was not raised by the mother.
As to the defence available under s.70NAE, in words similar to then s.112AC at the time, Smithers J in the case of In the Marriage of O’Brien (1992) 16 Fam LR 723 stated:
“It seems to me that the passing of section 112AC3 makes it clear that a reasonable excuse in respect of the concerns to the welfare of a child is limited to a belief on reasonable grounds that depriving a person of access pursuant to the order was necessary to protect the health or safety of a person. It is not a question as to whether the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of the person, including the child.”
There may, of course, be many situations where a child is so resistant and distressed that a refusal to spend time or communicate with the relevant person will be excused. One such example can be found in the case of Fooks &Clark (2004) 32 Fam LR 149; [2004] FamCA 212; (2004) FLC 93-183. However, such situations are rare in the absence of precipitating contact by the contact parent or otherwise changed circumstances.[4]
[4] TVT & TLM per Riethmuller FM
The circumstances often, but not always, demonstrate that the primary carer has not taken appropriate steps to ensure that the child spends time with the other parent. In any event, this is not raised by the mother to explain the decision of either [X] or [Y], or all four children, to not spend time with their father on the occasions complained of and since the end of February 2010.
Section 70NAF deals with the necessary standard of proof. Subsection (1) states, subject to subsection (3), that the standard of proof to be applied in determining matters in proceedings under this Division is the proof on the balance of probabilities. Reference is again made to s.140 of the Evidence Act.
Contravention established
If a contravention is established then, regardless of whether the contravention was reasonably excused, the Court has powers under s.70NBA to vary the parenting order and the powers under s.70NDB to make an order compensating a parent for time lost. More specifically, s.70NDB(1)(c) states:
“The Court may make a further parenting order that compensates the person for time that the person did not spend with the child or the time that the child did not live with person as a result of the current contravention.”
Indeed, the provision is clear that the Court is required to consider what will be described as a ‘time lost’ order or ‘makeup order’ provided such is in the best interest of the child.
Contravention without a reasonable excuse
Under Part 7 Division 13A, Subdivision E and Subdivision F, when read together, the Court has powers to deal with contraventions with or contraventions without reasonable excuse. Apart from a time lost order, the Court has a range of powers to deal with an inexcusable contravention that includes:
a)in the most serious cases[5]
[5] Subdivision F, particularly s.70NFB(2) of the Act.
i)a community service order;
ii)a bond;
iii)a fine not exceeding 60 penalty units;
iv)a sentence of imprisonment; or
v)a costs order
b)and in less serious cases[6]
i)an order to attend a post-separation parenting program to better understand the obligations created by parenting orders;
ii)a bond under 70NEC; and
iii)a costs order.
[6] Subdivision E, particularly s.70NEB of the Act.
Summary
It is clear from the legislation that the Court must be satisfied that:
a)there has been a contravention of the relevant parenting order;
b)the contravention was, on the balance of probabilities, without reasonable excuse;
c)where there is no reasonable excuse, the imposition of an appropriate penalty and/or a time lost order is in the best interests of the children. The type of penalty depends on whether the contravention is less serious (i.e. Subdivision E), or more serious (i.e. Subdivision F); and
d)where there is a reasonable excuse, whether a time lost order should be made and, if so, can only do so if it is in the child’s best interests.
Evidence and the parties submissions
As previously stated, the applicant father relied on his affidavit filed on 6 April 2010. He supplemented his affidavit with oral evidence, following which he was cross-examined by the mother. Overall he was generally focussed and co-operative but somewhat prone to argue the legal basis for the questions being put to him in cross-examination. He appeared genuine in his application but it was somewhat concerning when he stated that he had attempted to, in his words, “fool the family consultant who provided the family report in the substantive proceedings before Le Poer Trench J.”
As stated, the mother admitted the contraventions occurred but asserted there were reasons that explained her actions. Overall, the Court is satisfied that she was honest in giving her answers and generally cooperative but clearly wanted to see an end to these proceedings.
Alleged contravention incidents
Incident on 6 September 2009
Dealing with the contraventions in chronological order, the mother admitted that the children did not spend time with the father last Father’s Day, being 6 September 2009. Her evidence was candid. She maintained that they were special to her husband, that is her current husband, who is the stepfather of the children and that given his involvement with the children and, more importantly, his considerable financial support of the children when compared with the minimal contribution made by the father, it was appropriate for the children to spend that day with the stepfather.
Incident on 14 October 2009
In relation to the incident on 14 October 2009, the mother said the last minute change of plans had meant that the boys had not spent time with their father that day.
Incident on 13 February 2010
In relation of the incident on 13 February this year, the mother stated the boys were presented with an opportunity to go to a professional soccer match with the maternal uncle.
Incident on 26 February 2010
Lastly, in respect of the incident on 26 February 2010, the mother admits that the children have not spent time with their father since this time, that is nearly four months. Her reasons appear to be based on a mix of the children’s views and her view that the children have prospered emotionally since the children have stopped spending time with their father.
The decision
The Court is satisfied on the balance of probabilities that there were four contraventions by the respondent of the existing parenting orders in that she failed to deliver or authorise the delivery of the children to the husband on the following occasions, namely:
·6 September 2009;
·18 October 2009;
·14 February 2010; and
·28 February 2010 and since.
Contravention on 6 September 2009
As to the contravention on 6 September 2009, in her evidence the mother, as has been indicated, argues that she did not comply with the orders on that occasion because of the children’s close relationship with their stepfather and the reality that he financially supports them. Applying an objective test, the Court is not satisfied that the mother’s excuse for this contravention is reasonable in light of the evidence.
Contravention on 18 October 2009
In her evidence the mother argues that she did not comply with the orders on that occasion because the children wanted to go surfing with some friends at [P]. The mother did not present any other evidence to corroborate this defence. It is difficult to see how this explanation falls within the scope of the exceptions listed in s.70NAE. Accordingly, the Court is not satisfied that the mother’s excuse for this contravention is reasonable.
Contravention on 14 February 2010
In her evidence the mother argues that she did not comply with the orders on that occasion because the children wanted to go to a soccer match with their maternal uncle. Again, it is difficult to see how this explanation falls within the scope of s.70NAE. Accordingly, the Court is not satisfied that the mother’s excuse for this contravention is reasonable.
Contravention on 28 February 2010 and since
In her evidence, the mother states that she did not comply with the orders made on that day or since. Her reasons were largely based on the children’s views and her view that the children had prospered emotionally in the subsequent period. Again, it is difficult to see how this argument falls within the types of exceptions listed in s.70NAC. Accordingly, the Court is not satisfied that the mother’s excuse for this contravention is reasonable. The mother should, as she subsequently acknowledged, have commenced proceedings seeking an amendment of the current orders.
Conclusion
The Court is satisfied that the mother did contravene the interim orders, as alleged by the father’s application, without reasonable excuse for doing so.
Given the finding by this Court that the mother has failed to establish a reasonable excuse for the admitted contraventions the parties addressed the Court on the issue of penalty.
As previously indicated in relation to penalty the Court is guided by the provisions in Part 7 of Division 13A Subdivision E at s.70NAE through s.70NEG of the Act and, in particular, s.70NEB.
Having considered the submissions made by the parties, the Court is satisfied that there should be an order directed at both parties to attend a post-separation parenting course. Whilst it may seem unusual that the order should extend to the applicant, this is not an unusual outcome in these types of cases, particularly where the Court is concerned that there is an apparent failure between the parties to communicate between themselves as to suitable arrangements for their children and where each allege the children are disappointed by the apparent non-performance of the orders, at times, by both parties.
The Court does not propose a time lost order but simply note that following the contravention hearing earlier this month, the orders are now being complied with.
The Court does not propose making an order for the respondent to enter into a bond because the Court is satisfied that some minor changes to the existing orders are, in fact, needed, and the fact that the children’s time with the father has now been revived, such a bond would not be appropriate.
The Court is also satisfied that there should be no order as to costs.
The Court reserves the right to settle the reasons for this decision.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 29 October 2010
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