Wright and Dawson

[2019] FamCA 1006

FAMILY COURT OF AUSTRALIA

WRIGHT & DAWSON [2019] FamCA 1006

FAMILY LAW – CONTRAVENTION OF ORDERS

Family Law Act 1975 (Cth)
APPLICANT:	Ms Wright

RESPONDENT: Ms Dawson

FILE NUMBER: MLC 6838 of 2014

DATE DELIVERED: 12 November 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Paul

SOLICITOR FOR THE RESPONDENT: Patrick Smith Lawyers

Orders

1. I find that the mother contravened paragraph 4(b) of the Primary Order made on 29 October 2018 (“the Order”) in that on 28 September 2019 she failed to return the children C born … 2004 and D born … 2008 to the father pursuant to paragraph 4(b) and did so without reasonable excuse.

2. I find that the mother contravened paragraph 2 of the Primary Order made on 29 October 2018 in that on 23 August 2019 she attempted to enrol the child D into a school without the prior consent of the father, the father being the person with sole parental responsibility for D at that time, and that the mother did so without reasonable excuse.

3. By way of consequences on the contravention and pursuant to Subdivision E of Part 7 Division 13A of the Family Law Act 1975 and in particular s 70NEB I make the following orders:-

   (a)       The mother and the father separately attend a Parenting Orders Program run by W Services in Suburb Z (telephone …) or such other parenting program as the convener of W Services in Suburb Z may nominate in writing and do so within the next 12 months;

   (b)       Upon completion of the Parenting Orders Program attended by a party, that party provide to the other in writing confirmation from the program provider of their completion of the program;

   (c)       The mother spend time with the children this coming weekend from 1.15 pm on Saturday 16 November 2019 until the commencement of school on 18 November 2019. For the avoidance of doubt, the next period of time pursuant to paragraph 4(a) of the Order made on 29 October 2018, which is the ultimate weekend time, is Friday 22 November 2019;

   (d)       The mother make a contribution to the father’s costs of and incidental to this application fixed in the sum of $1,000, such payment to be made before the expiration of 4 months and accordingly prior to 11 March 2020.

4. The contravention application of the father filed on 30 September 2019 be and is hereby otherwise dismissed.

5. My reasons for decision this day in relation to the contravention application be transcribed and when settled placed on the Court file and a copy provided to the parties.

6. For the avoidance of doubt, notwithstanding illness of either or both children the live with and spend time arrangements set out in paragraphs 3 and 4 of the Primary Order made on 29 October 2018 are to be observed with the effect that if one or both of the children are ill at a time that they are to be returned by the mother to the father at the conclusion of a period of weekend time or holiday time the children are to be returned at the time provided in the Order notwithstanding that they are ill and vice-versa in relation to the children being ill prior to spending time with the mother.

7. The application initiating proceedings filed by the father on 17 October 2019 and the mother’s response thereto filed on 8 November 2019 be and are hereby dismissed. For the avoidance of doubt, all extant interim applications be and are hereby dismissed.

8. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Wright & Dawson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6838 of 2014

Ms Wright

Applicant

And

Ms Dawson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in the duty list.  It is the hearing of the contravention application filed by the father on 30 September 2019, alleging that the mother has contravened orders in two respects.  The contraventions are admitted, and the issue is essentially what I ought to do by way of consequences for the contravention.  However, by way of context to the consequences of contravention, I will explain briefly what the contraventions were.

2. It’s alleged that on 28 September 2019, at 6.00pm at Suburb BB, the Respondent mother, without reasonable excuse, failed to return the children who are C, aged now 15, and D, now aged 11, to the father for the end of what was to be the school term holiday period with the mother. 

3. The mother admits that the children were not returned pursuant to the Order.  The Order is was made on 29 October 2018 by Cronin J.  The relevant paragraph is 4(b), which provides: “For school term holidays, from the conclusion of school on the last day of term until 6 pm on the Saturday in the middle of those term holidays”.  Unusually, there does not appear to be provision in the orders for the parents to otherwise agree, although, I accept as a matter of principle that the parties can agree to arrangements other than those set out in the Orders.

4. The mother’s contention is that in April 2019, the father agreed that the mother could have makeup time during the September school holidays, she having foregone some seven days of time during an earlier school holiday due to a medical condition, which was a broken limb.  The correspondence relied upon is an email, dated 13 April 2019, in which the father says:

   I acknowledge your generosity at Christmas and the unfortunate necessity to change your plans due to your injury and note that you have asked if your makeup time can be taken during the September holidays.  This is acceptable, and we can agree on details closer to the time. 

5. There was no agreement made closer to the time or at all.  In fact, the mother’s affidavit evidence includes a statement by the father in further correspondence sent to the mother on 1 August 2019, that: “You aren’t owed any days.”

6. The accepted the above that as a repudiation of the father’s agreement to subsequently agree to some specific dates.  I’m satisfied that the mother contravened paragraph 4(b) of the order made on 29 October 2018 and that she did no without reasonable excuse.

7. The next contravention alleged is that, on 23 August 2019, at 7.59 am at Suburb BB, the Respondent without reasonable excuse attempted to enrol D into a school near Suburb BB to be near the mother’s residential location.  That is sent to be in contravention of paragraphs 2 and 3 of the Order made on 12 October 2018.  That Order provides that until 31 December 2020, the father have sole parental responsibility for all major long-term decisions relating to the children, and thereafter, the parents have equal shared parental responsibility.

8. To the extent that the father relies upon paragraph 3, which provides that the children live with their father, the father has purported to refer to a statement by the mother to the children, that they will live with the mother after 2021.  I take that not to be a separate count.  I would also not take the alleged statement to be in contravention of paragraph 3. 

9. The mother’s rationale for enrolling D is that she is a child with certain special needs.  The mother does not consider that D’s needs are met within the education system, or the trajectory in which the father would have the child proceed.  The mother says that she thoughtfully considered what school would be best for D to attend from 2021 onwards.  The mother sought to proceed to enrol D, not as a definitive move to have the child attend that school, but to preserve that school as an option for D.  The cut-off date for enrolments for 2021 was approximately August 2019.

10. The mother was reasonably motivated.  However, her attempt to enrol D in a school of her choice does constitute a contravention of the sole parental responsibility order in favour of the father.  She took a step that would have consequences and be implemented after a time that she has shared parental responsibility, but during a time when she had none.  That is, whilst sole parental responsibility was vested in the father. 

11. Looking forward to 1 December 2021, the mother will have equal shared parental responsibility with the father.  However, as at 1 December 2021, the mother will not entitled to enrol the child in the school without reference to the father at that point. 

12. The father admits to have now enrolled D in a school which she will attend during a period when he and the mother will have equal shared parental responsibility.  That is, the mother will regain parental responsibility in December 2021 and D will start at a school of the father’s sole choice in January/February 2022.

13. The father should have known that it would be appropriate to consult with the mother about a period that falls within the purview of her shared responsibility, it being a matter on which the parties should consult and endeavour to agree.  That is a shortcoming on his part.

14. I find that the mother has contravened paragraph 2 of the order made on 29 October 2018, as alleged by the father, and done so without reasonable excuse. Section 70NEA of the Family Law Act 1975 (Cth) (“the Act”) provides that:

    Where a primary order has been made and the Court is satisfied that a person has committed a contravention of the primary order, whether before or after the commencement, without having had a reasonable excuse to do so and no Court has previously found a contravention against the contravening party or imposed a sanction in that respect.

15. Section 70NEB of the Act, sets out the following sanctions available to me:

    a)I can make an order directing that the mother – or indeed, the father – attend a post-separation parenting program (s 70NEB(1)(a));

    b)I can order compensatory time, it appears, that if the children were over held during the September school holidays for somewhere between five and seven days by the mother.  That is time which technically the father could seek to make up.  However, and I’m not clear why, when this matter was last before the Court and the mother failed to appear, an order was made that her time with the children be suspended between that date and today.  Now, the primary order takes effect again and the order is unsuspended, that the mother has missed – and more significantly still – the children have missed some six days with the mother in the interim (s 70NEB(1)(b));

    c)I can adjourn the proceedings to allow either of the parents to make a further application.  The father has indeed made a further application, and that is one filed on 17 October (s 70NEB(1)(c));

    d)I can make an order requiring the mother to enter into a bond in accordance with section 70NEC of the Act (s 70NEB(1)(d));

    e)I can impose a fine (s 70NEB(1)(da)); and/or

    f)I can order costs (s 70NEB(1)(f)).

16. The mother acted somewhat unilaterally in over-holding the children.  In relation to the second contravention about the enrolment of the child D in another school without the consent of the father, because the mother will under a self-executing order obtain shared parental responsibility in 2021 and she was seeking to preserve a place for the child in 2021 by way of an option of by way of a certainty.  This contravention is on the minor scale.

17. I am satisfied that individually and cumulatively, these two contraventions amount to less serious contraventions by the mother. 

18. The father has acted unilaterally himself in relation to the 2021 education year for D.  This year he applied for a place for D at X College in Town Y and that has subsequently been accepted.  The father concedes that there was no consultation with the mother about education for D during a period when the mother will have shred parental responsibility.  I make clear that the father as of today, and up until 31 December 2020, can make decisions in relation to the children.  However, common sense, cooperative parenting, and the best interests of the children, all point to the fact that if the decisions are going to take effect during a period when the mother has shared parental responsibility, then she should be consulted in advance. 

19. What the parents have done separately but at the same time and about D’s education does not reflect well on either of them and in my view is likely to have been confusing for D to the extent that she knows about it.  Having regard to the nature of the contraventions I am satisfied that each parent should attend a post parenting separation course.  That is that mother attend on and also the father attend one.  It can be a parenting orders program and it appears that the closest provider of such program is the W Services Centre in Suburb Z.  Their telephone number is ….  Not suggesting that the parents go together to the same program or even that they have to attend precisely the same program if there are a number on offer.  But each should attend a program within the next 12 months and provide the other written confirmation independent in possible from the program provider that they have completed the course. 

20. I am not constrained to impose merely one consequence as a result of the contravention. The father seeks costs and indeed costs of the application can be a penalty in and of themselves. That is pursuant to s 70MEB(1)(f) of the Act. The father says he is out of pocket for income for he has taken leave without pay for $342 per day for three days, which is $1026, and that he has a disbursement being the costs of a process server.

RECORDED:  NOT TRANSCRIBED

1. It is appropriate that I consider also the costs provisions under the Family Law Act. Costs may be ordered as part of a penalty under the contravention proceedings, by my discretion to consider what costs are proper in the circumstances is, in my view, constrained by s 117 of the Act. The primary rule is generally that parties to proceedings bear their own costs. I consider that to be displaced by the inclusion of costs as a penalty of a contravention application.

2. I’m satisfied that there should be some costs paid to the father in respect of these proceedings by the mother. The matters set out in s 117(2A) of the Act provide that I should look at the financial circumstances of each of the parties to the proceedings. The father is on a salary of some $122,600 per annum with the defence force. He has some $18,000 in savings and two cars, and he is in a relationship. He has the primary care of the children of himself and Ms Dawson, and he receives $247 per week from the mother by way of child support.

3. The mother has a house, which she estimates is worth about $800,000, a mortgage over that property of $340,000 which results in a liability for mortgage instalments, she says of about $700 per week.  She earns approximately $56,000 a year.

RECORDED : NOT TRANSCRIBED

She has an income of some $112,000 a year, and a net income of approximately $1100 per week, or $900 per week, or something in that vicinity.  It’s said that she has a number of other debts. 

1. The father’s costs are probably in the vicinity of some $1600 having regard to process server’s fees.  In my view, a reasonable provision by the mother for the father’s costs is $1000 only, which is less than his costs claimed.  That will be payable within four months. 

2. By way of further interim order, it has been agreed between the parties that some time can be enjoyed by the children with the mother this weekend, and that will be from 1 o’clock on 16 November 2019 until the commencement of school on Monday, 18 November 2019.  The time spent provisions pursuant to paragraph 4(a) of the primary order made on 29 October 2018 come back into operation as of today, and the next period of alternate weekend time, which goes from Friday until Monday, will commence on Friday, 22 November 2019.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 November 2019.

Associate:

Date:  23 December 2019