Welsh & Welsh
[2021] FCCA 149
•2 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Welsh & Welsh [2021] FCCA 149
File number(s): MLC 5422 of 2017 Judgment of: JUDGE CARTER Date of judgment: 2 February 2021 Catchwords: FAMILY LAW – parenting – Contravention Application – face-to-face time not facilitated – children unilaterally enrolled in a new school – Father denigrated in front of the children – assertion of reasonable excuse – obligations created by parenting orders – obligation to take reasonable steps not met. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), Div 13A, sub-div E, ss 70NAC, 70NAE.
Cases cited: Ackersley & Rialto [2009] FamCA 817
Gaunt and Gaunt [1978] FamCA 97
In the Marriage of O’Brien [1992] FamCA 52
Stamp & Stamp [2014] FCCA 1269
Stevenson & Hughes [1993] FamCA 14
Number of paragraphs: 83 Date of last submission/s: 15 December 2020 Date of hearing: 4 & 15 December 2020 Place: Melbourne Counsel for the Applicant: Mr Carne Solicitor for the Applicant: J S Law Solicitor Advocate for the Respondent: Ms Eastwood Solicitor for the Respondent: Genuine Legal WA ORDERS
MLC 5422 of 2017 BETWEEN: MR WELSH
Applicant
AND: MS WELSH
Respondent
ORDER MADE BY:
JUDGE CARTER
DATE OF ORDER:
2 FEBRUARY 2021
THE COURT DECLARES THAT:
1.The Respondent Mother has without reasonable excuse contravened the orders made by the Federal Circuit Court of Australia on 12 July 2018 (“the primary order”) as follows:-
(a)on 23 November 2019, being breach of the order 12.3 of the primary order;
(b)by changing the children’s enrolment from B School (“B School”) to C School (“C School”), being a breach of orders 1 and 12.1 of the primary order; and
(c)on 20 March 2020, being the breach of order 3.1 of the primary order.
2.The Court is satisfied that subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) applies.
THE COURT ORDERS THAT:
3.Pursuant to section 70NEB(1)(a) of the Act, the Mother:-
(a)attend and complete as soon as practicable a Parenting Orders Program facilitated by D Families;
(b)sign all such documents, follow all recommendations of the program and complete all aspects of the program as directed by the provider of the program;
(c)meet the costs of her attendance at the program; and
(d)forthwith upon completion provide the Father’s solicitors a certificate of completion of the program.
4.Pursuant to section 70NEB(1)(b) of the Act, the children spend from 5.00pm on Friday until 5.00pm on Sunday with the Father by way of make-up time on one weekend as agreed and failing agreement:-
(a)within seven days of this order, the Father shall nominate two proposed weekends in February/March 2021 for that make-up time; and
(b)within a further seven days the Mother shall advise as to her preferred weekend for make-up time. In the event the Mother does not provide that advice, makeup time shall occur on the first of the weekends nominated by the Father.
5.Pursuant to section 70NEB(1)(f) of the Act, the Mother pay the Father’s costs fixed at $2,200 within 60 days.
6.The Contravention Application filed 8 April 2020 is otherwise dismissed.
7.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, 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 the Fact Sheet attached hereto and these particulars are included in these orders
AND THE COURT NOTES THAT:
A.The matter remains listed for Final Hearing before Judge Harland commencing on 11 February 2021.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Welsh & Welsh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTER:
INTRODUCTION
The parties have three children, being seven year old twins X and Y, and six year old Z. The parties were engaged in previous parenting proceedings that were resolved on 12 July 2018 when the parties made final parenting orders (“the primary orders”). Those orders provided, inter alia, for the parties to have equal shared parental responsibility for the children, for the children to live with the Mother and spend alternate weekends with the Father, as well as time on school holidays and some special occasions.
The Father says there have been significant issues with the implementation of the primary orders. He filed a Contravention Application on 19 February 2020, which was withdrawn on 23 March 2020, and a subsequent Contravention Application was filed on 8 April 2020 (“the Contravention Application”). The Father also filed an Initiating Application on 4 June 2020 seeking to vary the primary orders. The parties do not agree as to the care arrangements for the children, and the matter will proceed to a Final Hearing on 11 February 2021 before her Honour Judge Harland.
BACKGROUND
The Father is 50 years of age. He is a farmer and lives in Town E. The Mother was working as a hospitality worker, at Employer F and at the Employer G. She lost her job in around March 2020 as a result of the COVID-19 pandemic. She lives in Suburb H with the children and the maternal grandmother. It takes approximately one and a half hours to drive between the parties’ respective homes.
The Mother is originally from City J, Country K, and migrated to Australia in 2011. The parties were married in 2012, and separated on a final basis on 14 May 2017. They are not divorced.
At the time the primary orders were made, the children were enrolled at B School (“B School”). They have now been enrolled in and attend at C School (“C School”).
THE ALLEGED CONTRAVENTIONS
The only matter before me is the Contravention Application, which contained over 30 counts of alleged contraventions. At the outset, Counsel for the Father indicated that his client was pursing only the following alleged contraventions:-
(a)on 1 November 2019, the Mother contravened order 3.1 of the primary orders when she refused to allow the children to spend time with the Father (“Count 1”). Order 3.1 of the primary orders provides that the children shall spend alternate weekends with the Father;
(b)on 23 November 2019, the Mother contravened order 12.3 of the primary orders when she denigrated him in the presence of the children (“Count 2”). Order 12.3 of the primary orders restrains each party by injunction from denigrating the other party or member of the other party’s family in the presence or the hearing of any of the children;
(c)on 29 November 2019, the Mother contravened order 3.1 of the primary orders when she refused to allow X to spend time with the Father (“Count 3”);
(d)on 30 January 2020, the Mother contravened orders 1 and 12.1 of the primary orders when she attempted to enrol Z at C School without the Father’s consent (“Count 4”). Order 1 of the primary orders provides the parties have equal shared parental responsibility for the children. Order 12.1 of the primary orders restrains either party from enrolling the children in any school without both parties written consent;
(e)on 31 January 2020, the Mother contravened orders 1 and 12.1 of the primary orders where she attempted to enrol Y and X at C School without the Father’s consent (“Count 5”);
(f)on 6 March 2020, the Mother contravened order 3.1 of the primary orders when she refused to allow the children to spend time with the Father (“Count 6”);
(g)on 20 March 2020, the Mother contravened order 3.1 of the primary orders when she refused to allow the children to spend time with the Father (Count 7”); and
(h)on 3 April 2020, the Mother contravened order 3.1 of the primary orders when she refused to allow the children to spend time with the Father (“Count 8”).
The Mother was assisted by an interpreter throughout the proceedings. She substantially gave her evidence in Language L. She pleaded not guilty to each of the counts, and asserted as follows:-
(a)in relation to Counts 1 and 3, the Mother says these were not the Father’s weekends, and accordingly there was no obligation upon the Mother to make the children available. She also asserted that on the weekend of 1 November 2019, the text message she sent telling him “don’t come Friday” meant that he should not attend at the house to collect the children, not that he should not attend to collect the children at all. She also asserted that on the weekend of 29 November 2019, X was unwell and unable to travel;
(b)in relation to Count 2, the Mother denied that she had denigrated the Father as alleged;
(c)in relation to Counts 4 and 5, the Mother admits she enrolled the children at C School, but says she had a reasonable excuse for doing so. She says she did discuss the change of schools with the Father and he was well aware of the issues. She says she had to change their enrolment for a number of reasons, including that the children were unhappy at B School, and as a result of the Mother moving homes, it was not practicable for them to continue at that school;
(d)in relation to Counts 6 and 7, the Mother admitted the children did not attend. However, she said she had taken reasonable steps to comply with the primary orders by making them available for time, and doing all she could to get them to go with the Father. She says that the Father determined not to take the children with him; and
(e)in relation to Count 8, the Mother admitted the children did not attend. She says she has a reasonable excuse for not complying as the children were unwell and quarantining on medical advice.
The Mother confirmed that whilst English is not her first language, she understood the Court orders and the obligations these imposed. She said she also understood that both parties were obliged to comply with the Court orders.
In her material, the Mother sets out a number of concerns she has about the Father’s parenting of the children. She says that he leaves the children home alone frequently, that he does not provide them with appropriate food, that he takes them to his farm which they do not enjoy, that he has failed to give Z her required medication and that, on occasion, the children have suffered physical injuries in his care. According to the Mother, she reported her concerns to the Department of Health and Human Services (“DHHS”) who declined to investigate her allegations. I note the Father strenuously denies these allegations as to neglect and poor parenting.
THE RELEVANT LEGAL PRINCIPLES
The legislation
Pursuant to section 70NAC of the Family Law Act 1975 (Cth) (“the Act”), a person is taken to have contravened a parenting order if and only if a person bound by the order has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order.
Relevantly, section 70NAE of the Act sets out that a person will have a reasonable excuse for contravening an order if they did not understand the obligations imposed by the order, or if they believed, on reasonable grounds, that the contravention was necessary to protect the health and safety of a child.
The relevant standard of proof is generally the civil standard. That is, to find a contravention proven, I must be satisfied on the balance of probabilities that the contravention occurred. A higher standard of proof is required if certain penalties, that were not sought in this matter, were to apply. The Applicant bears the onus of proving the contravention.
Section 140 of the Evidence Act1995 (Cth) sets out that in applying the relevant standard of proof, the Court must take into account the nature of the proceedings and the gravity of the matters alleged. Contraventions of parenting orders are serious matters and the penalties that can be imposed can also be significant.
Reasonable excuse
If a person asserts they had a reasonable excuse for a contravention, the relevant standard, again, is the balance of probabilities. The Respondent bears the burden to prove she had a reasonable excuse. If the assertion is the contravention was necessary to protect the health or safety of the children, the Respondent must prove both that they genuinely held that belief as well as that the belief was reasonably held. Additionally, the Respondent must show that the contravention was only for the period of time necessary to protect the children.
The case law makes it clear that a reasonable excuse will not be established simply because a party disagrees with an order: see e.g. Gaunt and Gaunt [1978] FamCA 97. Nor is it a reasonable excuse if a party believes an order is not in the child’s best interests: see e.g. In the Marriage of O’Brien [1992] FamCA 52.
Obligations to make reasonable attempts to comply
Additionally, attached to all parenting orders is the fact sheet entitled “Parenting Orders – obligations, consequences and who can help”. That sets out the legal obligations imposed on parties by orders as follows:-
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders.
The case law confirms the requirement of that positive obligation. For instance, in Stevenson & Hughes [1993] FamCA 14, Nygh J (with whom Fogarty and Gun JJ agreed) said at paragraph 25:-
It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it.
Cronin J made similar observations in Ackersley & Rialto [2009] FamCA 817. His Honour said that the Mother had the responsibility of ensuring:-
…that if the children claimed that they would not accept the orders, as a responsible parent, she would discipline them in the same way as any other parent would discipline a child by removing privileges if the child was defiant.
In the matter of Stamp & Stamp [2014] FCCA 1269, Riethmuller J very helpfully sets out observations made in a number of cases with respect to the meaning of ‘reasonable attempt’ which includes:-
(a)the live with parent must actively encourage the child’s attendance;
(b)the Court needs to consider whether, in reality, the primary carer has taken reasonable steps, rather than just looking at what has occurred ‘on the face of things’;
(c)a mere request that a child telephone or come to the telephone is insufficient;
(d)it is not sufficient for the primary carer to say it is up to the child, or to imply so;
(e)the primary carer ought to make the child understand that they require the child to spend time with the other parent;
(f)delivering a child to the changeover location and doing nothing further to encourage or discourage is not sufficient;
(g)the primary carer is expected to bring to bear all the authority they have over the child to ensure they attend;
(h)the primary carer’s invitation to attend should not suggest that the primary carer does not mind if the child does not wish to attend; and
(i)token efforts at compliance by uttering a few phrases is insufficient.
Whether the Court is satisfied reasonable attempts have been made to comply will ultimately depend on the facts and circumstances of each case.
THE EVIDENCE AND FINDINGS
The Father gave his evidence in a calm and reasonable manner. He impressed as honest and forthcoming.
The Mother was frequently agitated and distressed during her evidence. At times she was dismissive, aggressive and belligerent. She argued with Counsel, and was, at times, non-responsive. She was repeatedly critical of the Father, saying at one time that she was “sick and tired of Mr Welsh ruining my life”. I accept there may be cultural issues and language issues at play. Taking those matters into consideration, I still formed the impression that the Mother was not entirely upfront and honest in her evidence. It is clear she feels significant resentment towards the Father. It was also clear that she views herself as the superior parent, and that she is better placed to make the right decisions for the children.
Counts 1 and 3
It is common ground that following the making of the primary orders, the parties had an informal agreement that the children would spend each weekend with the Father, rather than each alternate weekend as set out in the primary orders. However, that arrangement broke down at the end of 2019.
As set out, the Father’s Contravention Application asserts in Counts 1 and 3 that the Mother breached order 3.1 of the primary orders which provides that the children are to spend “each alternate weekend” with the Father. He says the Mother breached the primary orders on 1 November 2019 (Count 1) and on 29 November 2019 (Count 3) by not allowing the children to spend time with him on the first occasion, and by not allowing X to spend time with him on the second.
It is common ground that the children spent time with the Father on the weekends before and after the weekends of 1 November and 29 November 2019. That is, time was occurring on alternate weekends as contemplated by the primary orders. Accordingly, I am not satisfied that there has been a breach of the primary orders on those dates. That means I do not need to determine whether or not the Mother had a reasonable excuse in relation to her assertion that X was unwell on 29 November 2019.
I also do not need to make any further determination in relation to the alleged contravention on 1 November 2019 and what the Mother meant when she sent the text message telling the Father not to come. I note, however, that I have reservations regarding the Mother’s veracity in regards to her evidence about the events on these days. Whilst English is not the Mother’s first language, there appears to be little room for misunderstanding the meaning of the text “do not come”, particularly when there was no other communication from the Mother nominating an alternative changeover point. She was critical of the Father in her oral evidence that he did not ask for an alternative proposal for changeover, and said that he could have checked.
I note also that in relation to X being unwell, the Mother did not obtain a medical certificate to support her assertions. She said there were no appointments available. I have some reservations about the Mother’s evidence in this regard. X had been well enough to attend school that day. At any rate, I do not accept that the Father could not also have provided appropriate care and attention if X was a little unwell that day.
Count 2
The Father says that on 23 November 2019, the Mother denigrated him in front of the children at his home in City M. He says he had collected the children the day before from the Mother’s home in Suburb H, and that she attended at his home the following day. He says she appeared to inspect his home and then spoke rudely to the Father, calling him “bad”, saying that he does not look after the children and that residents of City M – where the Father lives – are “dumb fuckwoods [sic]”. The Father says the Mother asked the children if he had taken them to the farm and said she did not want the children to go to a “dirty farm” as they were “city girls” and not interested in the “smelly fuckwoods [sic]” of City M. He says the Mother said that “only dumb fuckwoods [sic]” would want to live in City M. The Father says Z was very upset by the Mother’s comments and behaviour. The Father said he also became very upset and worried when the Mother said if he did not listen to what she said, he would never see the children again. He says he then requested that the Mother leave.
The Father referred to a number of text messages exchanged between the parties six days later, on 29 November 2019. In those communications, the Mother refers to the Father as a “useless dad”, a “selfish prick who cares only about yourself”, that he is “uneducated”, that he is “useless and poor”, and a “fucking businessman with no money” with a laughing/crying emoji. She referred to City M, calling it “stinky”, and said of the children “they not be like you trust me… they hate it its shame to be like you [sic]”. She said he had “bad genetics” that he is “not smart and social like me” and that he is the “biggest mistake in my life”. The Father said the Mother frequently denigrated him during the relationship and she has continued to do so post-separation including on 23 November 2019. I note the Mother does not refer to X’s state of health in any of those messages, notwithstanding her evidence that X had been too unwell the evening before to spend time with the Father.
In her affidavit, the Mother simply denies denigrating the Father on 23 November 2019 as alleged. She says she did, however, have concerns for the children staying with the Father on his farm as the children had complained that they were not fed properly when they were there. In her oral evidence she said she did not remember that day, but that she cannot recall a conversation in which she called him a “dumb fuckwood [sic]” or anything similar. She said he verbally abused her on the telephone, calling her a Country L prostitute, that he hates Country L and that he banned her from speaking Language L. She acknowledged having sent the text messages on 29 November 2020, but says that was in answer to him having insulted her on the telephone. She says she sent the message to defend herself. She denied ever speaking negatively about him in front of the children.
In her oral evidence, the Mother also said that she did not attend his home that day as deposed by the Father. She said she has never been to his house and that she has not been to City M. It was not put to the Father that the Mother had not been at the home. She also said that the phrase “dumb fuckwood [sic]”, is the Father’s “favourite word” and that she “picked it up and learned it from him”. She denied ever having been rude about City M or the people who live there, although she also acknowledged that she had called it “stinky” in her text messages. She was very dismissive of the allegations she had been denigrating, and was quite aggressive in her responses both denying the allegations, and saying “people argue”.
I prefer the Father’s evidence over the Mother’s evidence in relation to the incident on 23 November 2019. On the balance of probabilities, I am satisfied that the Mother attended at the Father’s home, and that in front of the children she demeaned and denigrated him as asserted by him. I further accept his evidence that he found this very distressing, as did the children. Accordingly, I am satisfied that without reasonable excuse the Mother contravened order 12.3 of the primary orders that day.
Counts 4 and 5
I propose to deal with these counts together as they are interrelated.
It is common ground that until 2020, the children were attending B School. The children have now been enrolled in and attend at C School.
The Father says the Mother told him in November 2019 that she wanted to change the children’s schools as she could not afford their fees at B School. He says he told the Mother he did not agree to the children changing schools and he confirmed that in a subsequent text message to her dated 29 November 2019.
The text exchange from 8.20pm on 29 November 2020 reads as follows:-
Mother:
School will be changed
And from today you taking them every second weekend
Next week they with me
School will be changed
Next week they with me
And from today you taking them every second weekend
Father:
They will not be changing school, they will go to the school we both agreed to, you are not moving from Suburb H, and if you remember you agreed if you were working on a weekend girls are with you they could come and stay with me
Mother:
Not mate
You can argue as much as you want but it will be like I’ll do [sic]
It is clear that the Father did not give his consent in writing to a change of schools prior to the children being enrolled at C School. It is also clear that there was no real attempt by either party to discuss the matter at that time.
The Father said the parties met with staff at B School some time in 2019, including meeting with the school counsellor. He says the parties were specifically advised that the children’s best interests would not be met by a change of school by the school counsellor. That counsellor is not on affidavit. However, the Mother concedes that the parties met with the counsellor and that she did make that recommendation. He says, accordingly, he did not agree to the proposed school change.
The Father says that in late January 2020, the day before school was due to start, the Mother then said again that she wanted to change the children schools. At that time she said the change was necessary because it was impracticable for her to get the children to B School from her new residence. The Father was emphatic that this was the first time the Mother raised issues of practicality. He says that it is only a six minute drive from the Mother’s new home to B School. He did not provide his agreement to that change.
The Father says he subsequently became aware that the Mother had changed schools when he telephoned B School in early February 2020. The Father says accordingly the Mother unilaterally changed schools, with no real consultation with him and no real attempt to discuss the matter in any meaningful way. He subsequently spoke with the principal of C School and gave his conditional approval for the children to attend there. He says that conditional approval was given so that the children would commence school, as they were otherwise not attending at any school. He says that did not indicate a long-term agreement by him that they should attend at C School.
The Mother deposes the children were not happy at B School. She deposes that the children had:-
…serious problems with socialising and making friends with other children. They did not have any friends… the other children at the school ignored them and the children were regularly the target of bullying. The children did not want to attend school every day. Every morning there would be a lot of screaming and complaining from the children as they refused to attend school.
In her oral evidence, the Mother was very emphatic, and at times significantly distressed when discussing the difficulties she said the children faced at B School. She was critical of the Father that he insisted they remain at B School notwithstanding them being so unhappy to attend there.
In her oral evidence, the Mother also said the children’s best interests were met by a change of schools. She sought to rely on a report from Ms N, psychologist (“Ms N”) upon whom X and Y attended for six sessions in 2019. The children had apparently been attending upon Ms N in relation to a query of whether they had selective mutism. Ms N concluded that there was no evidence to support that suspected diagnosis.
In the body of her report, Ms N sets out that the Mother had indicated that her circumstances had changed and she had moved homes and wanted to enrol the children in a public school that was closer to their new home. Ms N observed that, in her opinion, it would not be detrimental to the children’s mental health if they changed to a new school, and that sometimes a change of environment could be beneficial. That report was dated 6 February 2020. I do not see how this letter assists the Mother in defending the contravention allegation which does not involve a reconsideration of the children’s best interests.
Additionally, the Mother asserts that it was impractical for the children to remain at B School once she had moved to her new residence that she purchased at an undisclosed date. She said B School was about a 13 minute walk from her previous home. She says that on occasion she is assisted in getting the children to school by the maternal grandmother when she has a shift that starts at 6.00am. She says the maternal grandmother does not have a license and is therefore required to walk the children to school. She says that her current home is not within walking distance of B School. She says it is a 5 kilometre walk. Alternatively, the maternal grandmother and the children would be required to catch two buses to get there, and bus timetables do not match up and there would be a significant wait for the connecting bus. Accordingly, the Mother says it was impracticable for the children to remain at our B School and they had to be enrolled at C School. That school, the Mother says, is close to her home and well able to meet the children’s needs.
The Mother deposes that she attempted to discuss with the Father the idea of changing the children’s schools in about February 2020. I note that is after the children were due to commence school. She deposes that the Father “did not engage with me and refused to discuss or try to come to an agreement about schooling”. In her affidavit, she gave no further particulars as to attempts she made to engage with the Father in a meaningful discussion about the school issue. The Father’s evidence at the hearing was that the Mother did not answer his text messages, or communicate with him at all about the issue save as already referred to.
In her oral evidence, the Mother said she did try to speak to the Father about changing schools before the holidays, which I presume were the long summer holidays 2019/2020. She acknowledged that she had issues with the school fees at B School, but said the main reason she wanted the children’s school changed was because she had moved. In her oral evidence she said those discussions with the Father were by telephone and not by text message or by email. She did not refer to any telephone calls in her affidavit.
She also said in her oral evidence that she had to enrol the children without his agreement, as she “didn’t have a chance” to discuss the change, as she and the children had moved and she had no way to get the children to school on days that she had to go into work early. She also said he did not communicate with her, but that they did discuss the children’s schooling and he “knew very well” about the change.
An order for equal shared parental responsibility requires the parties to jointly make decisions. They are expected to negotiate and liaise with each other, and come to an agreement regarding important long term decisions, such as what school the children will attend. The Mother was well aware the Father did not agree, and that she did not have his consent in writing to change schools when she attempted to do so. I am satisfied that the Mother did not raise the issues of practicability with the Father until shortly before the commencement of the new school year in January 2020.
The Mother must have known from the time she purchased her new home that once the family moved, it would be impracticable for the children to remain at B School given her reliance on the maternal grandmother and on the poor public transport options. She should have raised those matters with the Father well before the new school year, and prior to her actually taking possession and moving, so that the parties could have had the opportunity of visiting and considering other schools in the area that may have been acceptable to both parents. If no agreement had been reached the parties could have sought assistance through mediation, and if there was still no agreement, she should have issued Court proceedings. Instead, the Mother delayed raising the issues as to practicality at a very late stage, making it almost impossible for the parties to have any meaningful negotiations or discussions, and preventing the parties from being able to realistically consider other options. I do not accept the Mother’s evidence that she tried to discuss the matter with the Father in any meaningful way prior to determining to change the children’s enrolment and then doing so.
Accordingly, I am satisfied that the Mother did not take reasonable steps to comply with either the order for equal shared parental responsibility, nor with the restraint on changing schools without the other parent’s written consent. In the circumstances, I am satisfied that she contravened both order 1 and order 12.1 of the primary orders. The flavour of her evidence was that she felt entitled to make the decision as to where the children would attend school, and that the Father’s views were not particularly relevant to her or the children.
The Mother bears the onus of proving on the balance of probabilities that she has a reasonable excuse. In terms of whether the Mother acted to protect the children’s health and safety, I note the Mother’s evidence the children were upset and distressed by attending B School. However, she did not adduce any independent evidence that the unilateral change was necessary to protect the children’s health or safety.
Even if I were satisfied that the Mother believed it was necessary to protect the children’s health and safety that the school enrolment be change, a matter about which I have significant reservations, I am not satisfied that belief was reasonable. I refer to the report of Ms N. Ms N was not on affidavit, was not available for cross-examination, and had not had the benefit of meeting with or speaking to the Father. Her report must accordingly be given limited weight. However, I note that she does not in any way suggest that the children’s health and wellbeing was compromised by attending B School or that a change in schools was necessary for the children’s health or safety. Given the children had attended upon her for a number of appointments, it is not unreasonable to expect she would have expressed concerns for the children’s wellbeing, had she had those concerns.
I further note the parties agreed that the counsellor at B School had recommended against a change of schools. That counsellor had the benefit of having met the children and both parents. The Mother was adamant in her oral evidence that counsellor was biased, and obliged to make the recommendations she did to support her employer. I do not accept that is a necessary conclusion to draw. Having said that, I also acknowledge that limited weight can be placed upon this aspect of the evidence as the counsellor had not provided a written report nor was available to give oral evidence.
I note the Mother also adduced no evidence to support her assertions that it is more difficult for the children to travel to B School by public transport from her new home. However, I accept her evidence that her Mother does not have a car, and that she relied on the maternal grandmother to assist her to get the children to school when she started early at work. That suggests it had become impracticable for the children to remain at B School, and a change of schools was necessary as a matter of practicality. Importantly, however, the Mother must have known months before she acted unilaterally and changed the children’s school that it would be so impracticable. Yet she did not meaningfully raise these issues with the Father until very shortly before the new school term. In my view, the Mother cannot create a situation which requires immediate action and then rely upon that to justify her behaviour of unilaterally enrolling the children without having made reasonable attempts to comply with orders 1 and 12.1 of the primary orders. There is further no evidence adduced by the Mother that would support a finding that she had a reasonable excuse not to seek to meaningfully engage in discussions and negotiations with the Father about the children’s schooling.
I note the Mother’s solicitor made submissions that the date of the alleged contravention could not be established with clarity. It is my finding that the Mother did enrol the children without appropriate consultation with the Father and without his agreement in writing. Whether the Father has included the precise date on which that occurred should not, in my view, be a basis for the counts to be dismissed.
Count 6
On Friday 6 March 2020, the Father says the Mother refused to allow him to collect the children. He travelled from his home in Town E to the changeover location nominated by the Mother, being the park near her home in Suburb H. He says when he arrived, neither the Mother nor the children were there. He sent a text message to the Mother asking where they were. He says the Mother sent him a text message back saying she was still at work and not yet home. The maternal grandmother subsequently attended the park with the children. Another child was with them. The Father says the children did not have their bags with them. He deposes that the children said “we don’t want to come with you right now” and that he felt he had no choice but to leave them. In his oral evidence he said he was not prepared to physically drag the children into the car, and he did not want to put pressure on them. He also said Y later told him that they were on a playdate with the other child and that is why they did not want to go to spend time with the Father.
The Mother said the additional child was the neighbour’s son, who the Mother and maternal grandmother look after from time to time. She denied this was a playdate or in any way played a part in the children not attending with their Father that day. She said the children do not attend with bags when they go to their Father’s home, as they have clothes and other items at his house.
I am not satisfied the Mother contravened the orders on that day. She was not present, and the Father’s own evidence was that he did not want to pressure the children or force them into the car. However, that does not mean that the Mother can avoid her obligations in the future by sending the maternal grandmother to effect the changeover. Although I am not prepared to make a finding that there was a breach of the order on 6 March 2020 when that changeover occurred in the Mother’s absence, that does not mean a similar determination would be made if there were further allegations of non-compliance. The Mother should ensure that her mother also understands the requirement that orders are to be complied with.
Count 7
On 20 March 2020, the Father says the Mother again refused to allow and spend time with the children. On that day the Father travelled from his home in Town E to Suburb H to collect the children. He waited at the park for changeover and sent a text to the Mother saying he was there and ready. The Mother and maternal grandmother then accompanied the children to the park. The Father said again they did not have any bags with them. He says the Mother stood with the children and filmed the exchange on her phone, saying that she was recording it to prove that she had brought the children to changeover. The Father says that the Mother told the Father to ask the children if they wanted to go and they said they did not want to. He says X said she did not want to go because it was her and Y’s birthday on Sunday. In his oral evidence, he said the children told him later that they had a birthday party organised for that Sunday. He also said the Mother said “they can go with you if they want to”, but that they looked afraid. He said there was no other encouragement the Mother provided to the children to spend time with the Father. He conceded that the Mother and the maternal grandmother converse in Language L at times, so he does not know everything that is being said.
In her oral evidence, the Mother said the birthday party did not happen that Sunday, but on another unspecified day. She said her friend was filming the changeover, but standing at a distance, and the children were unaware of this occurring. She denied she told the Father to ask the children if they were going. She said that it was not her fault that the children did not want to go. She said she told them they were going to meet the Father and they should go with him. She said she did everything she could to get them to go, including giving them a puppy to take with them on some undisclosed date.
The Mother denied that she gave the children a choice and says she told them they should go with their Father. However, the Mother gave no actual example of what she said on that day to convey to the children that she required and expected them to attend. She said she could not force them to go. She repeated that the children complain that the Father leaves them alone and goes to work on the farm. She said she reported this to DHHS but they did not investigate. She said that was probably because of a “lazy worker”. She said she did not know why the children did not want to attend on that day, and apparently had not discussed that with them. She said the Father remained in his car and did not appear interested in the children. She said he should have come out of the car and taken steps to actively encourage the children to go with him. She said neither parent wanted to physically grab the children and force them into the Father’s car.
It is notable that the children attended the previous weekends in February 2020, seemingly without complaint. It makes little sense that the children attended in February, and have attended since the filing of the Contravention Application, but did not want to attend on 20 March 2020. I am also perplexed as to why the Mother’s evidence was that she has not attempted to ascertain why the children did not attend on that day. This was contrary to her other evidence where she stated that on days that the children did not want to attend school, she would discuss their reasons with them.
As already set out, the case law emphasises clear that parties have a positive and serious obligation to ensure that orders are complied with. That includes positively encouraging children to attend for time with the other parent, and taking positive steps and action to ensure they do so. I accept that the Mother attended at the park with the children and had her friend film the encounter. Besides physically bringing the children and telling them they should attend, she gave no evidence of any other steps she took to ensure the children went with the Father. There was no evidence, for instance, that she told them that she expected them to comply with her request that they attend, or that she required them to do so. There was no suggestion that the Mother had spoken to the children about the benefits to them of attending time with the Father and having him involved and engaged in their lives. There was no evidence that she brought to bear all authority she had over the children to ensure they attended with the Father.
Notably, there were no consequences for the children in not complying with her direction to attend for time. It is not sufficient to just attend a changeover and then neither encourage nor discourage time. Similarly, a token effort at compliance, of uttering a bare statement that they ‘should go’ with the Father, is not sufficient to amount to a reasonable attempt to comply. Accordingly, on the facts and circumstances of this case, I am satisfied that the Mother understood the orders and her obligations arising from those orders, and that she did contravene the primary orders on 20 March 2020 by not making a reasonable attempt to ensure compliance.
I am also satisfied that the Mother had no reasonable excuse for the contravention. There was no evidence that any of the children were significantly upset or distressed such that a refusal of time was understandable. The Mother does not suggest the children were unwell and unable to attend. She does not depose that the children provided her with any substantive reason they might not have wanted to attend. At best, she surmised they did not want to be left alone, a matter DHHS had determined not to investigate. There was no evidence that the non-compliance was necessary to protect the health or safety of the children or any of them, or that the Mother genuinely held a belief to that effect.
Count 8
The Father says the Mother did not allow the children to spend time with him on 3 April 2020. The Father says he received a text message from the Mother on 2 April 2020, where she said that the children were sick and had to stay home to quarantine. She sent through a medical certificate for each child dated 1 April 2020. The Father says those certificates did not mention quarantine, and he denied there would be any reason why he could not have cared for the children if they were unwell. The certificates certify that each child “has been unwell and attended this practice for a medical condition. Due to this condition sick leave has been advised from 1/04/2020 to 5/04/2020 inclusive”.
The Mother said in her evidence that the children had been coughing and sneezing and had runny noses, and that the doctor told her they should remain at home as they could be suffering from COVID-19. She also said she did not think the children were well enough to travel for an hour and a half to the Father’s home. She said the Father should have called the doctor if he had queries. I note that the Mother bears the burden of proving she had a reasonable excuse for contravening the orders. She did not adduce any further medical evidence.
I note this was at the commencement of the COVID-19 pandemic, and there was much uncertainty around the situation. There is still much uncertainty and some misinformation. I note, for instance, the Father’s evidence that it is his understanding that children “aren’t supposed to get Covid [sic]”, which is plainly wrong. If the Mother was told by the doctor to keep the children home, given what was occurring globally and in Victoria at that time, it was reasonable for her to do so. I am prepared to accept the Mother’s evidence as to what she was told by the doctor. I do note, however, she did not suggest that she or the children were tested for COVID-19.
In the particular circumstances that were at play in early April 2020, although with some disquiet, I am satisfied the Mother had a reasonable excuse for not making the children available that day. It would be incumbent upon the Mother to adduce more persuasive evidence in the future if there were further similar allegations of contravention.
THE RELEVANT SUBDIVISION
This is effectively the first Contravention Application in this matter. Whilst I am satisfied that the Mother contravened the primary orders in relation to the non-denigration and time on 20 March 2020, these contraventions are at the less serious end of the spectrum. I understand, most importantly, that time is continuing in accordance with the primary orders.
Counsel for the Father asserted that the contravention of the orders for equal shared parental responsibility was a more serious contravention, but confirmed that a more significant penalty was not sought.
Overall, I am content that this matter is appropriately dealt with pursuant to Division 13A, Subdivision E of the Act.
ORDERS TO BE MADE
The Father sought make up time, for the Mother enter into a bond, and that she pay his costs.
The Mother did not oppose an order for make-up time. In those circumstances, I am satisfied that although it has been a year since the time was lost, the children’s best interests will be met by that time being made up.
I am also ordering the Mother to attend a Post-Separation Parenting Program. In my view, that may assist the Mother in further understanding her obligations under the orders, and to gain some insight into how these children may be impacted by the ongoing conflict between their parents.
The Mother opposed entering into a bond. Her solicitor said a finding of contravention would be a significant ‘wake up’ for her, and a bond was not necessary where there has been substantial compliance for many, many months.
The emphasis of contravention applications is on compliance, rather than punishment. I do accept that, based on the evidence before me, there has been substantial compliance since the application was made. There is also a Final Hearing before her Honour Judge Harland commencing on 11 February 2021. I do not know what the outcome of those proceedings might be. It seems to me in the circumstances that a bond is not necessary.
Costs
The Father sought costs in the sum of $9,048, calculated on scale.
The Mother opposes any costs order being made. She says she does not have the resources to meet a costs order and that any such order would impact on her capacity to provide for the children.
The usual rule is that each party will bear their own costs, unless there are circumstances that justify departure from that usual rule. The matters to take into account in determining whether to exercise the Court’s discretion and make a costs order are set out in subsection 117(2A) of the Act. In relation to those matters, I note:-
(j)in terms of the financial circumstances of each the parties to the proceedings, the Father is in paid employment. The Mother is currently unemployed and wholly dependent on Centrelink. Impecuniosity alone is not a bar to a costs order being made. However, I accept that a costs order against the Mother as sought could impact negatively on the children as it may be financially difficult for the Mother to meet that order;
(k)I was not advised that either party was in receipt of legal aid;
(l)in terms of the conduct of the parties “in relation to the proceedings” it appears that both parties have acted appropriately as litigants. There are, for instance, no complaints about inappropriate applications, late filing of documents, or conduct as a litigant which is the conduct with which this subdivision is concerned;
(m)the Father says these proceedings were necessitated by the failure of the Mother to comply with Court orders. It is clear that these proceedings were issued as a result of the Father’s complaints in relation to the Mother’s conduct, some of which I have found to have occurred;
(n)the Father withdrew a number of counts shortly prior to the Final Hearing. I further note that he did not successfully establish contraventions in relation to each of the counts he did pursue. According, the Mother has not been wholly unsuccessful in the proceedings;
(o)I was not advised as to any offers made in writing; and
(p)the Mother has been found to have contravened the orders in relation to denigrating the Father in the presence of the children, unilaterally changing the children’s schools notwithstanding an order for equal shared parental responsibility and an order restraining same, and not taking reasonable steps to ensure the children spent the weekend with their Father on 20 March 2020.
Balancing those considerations, in my view, there are circumstances that justify the Court departing from the normal rule. I am satisfied that it is appropriate that there be a limited costs order made against the Mother of $2,200. That takes into account the Mother’s limited financial resources, as well as recognising that four of the eight counts of contravention were successful, and that the Father abandoned a slew of additional counts. It is worth noting that had the Father’s application been contained only to the counts that were pursued at the hearing before me, his affidavit and the Mother’s responding affidavits would have been considerably shorter.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carter. Associate:
Dated: 2 February 2021
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