Welsh & Welsh

Case [2021] FCCA 149

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…

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AGLC
Welsh & Welsh [2021] FCCA 149
Case
[2021] FCCA 149
Decision Date

CaseChat Overview and Summary

In *Welsh & Welsh*, heard by Judge Carter, the Father applied to the court alleging contraventions of parenting orders by the Mother. The dispute centred on the Mother's alleged failure to facilitate the children's face-to-face time with the Father, her unilateral enrolment of the children in a new school, and her denigration of the Father in the children's presence. The Father sought declarations of contravention and orders for make-up time and costs.

The court was required to determine whether the Mother had contravened specific orders relating to the children's time with the Father, the children's school enrolment, and the injunction against denigration. A key issue was whether the Mother had a reasonable excuse for any contraventions. The court also considered the application of subdivision E of Division 13A of Part VII of the *Family Law Act 1975* (Cth).

Judge Carter found that the Mother had contravened the parenting orders on three occasions: by failing to facilitate face-to-face time on 23 November 2019, by changing the children's school enrolment without consent, and by breaching the denigration order on 20 March 2020. The court was not satisfied that the Mother had a reasonable excuse for these contraventions, noting her agitated and at times belligerent demeanour during evidence, and her apparent resentment towards the Father. The court applied the principles of parental responsibility and the consequences of contravening court orders.

The court declared that the Mother had contravened the primary orders and ordered her to attend a Parenting Orders Program, pay the Father's costs fixed at $2,200, and facilitate make-up time for the children with the Father. The Contravention Application was otherwise dismissed. The court also noted that the matter was listed for a Final Hearing and provided information regarding family violence provisions and the consequences of unrepresented parties in such proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

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”).

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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