Xiu and Hodges

[2018] FamCA 1156

FAMILY COURT OF AUSTRALIA

XIU & HODGES [2018] FamCA 1156

FAMILY LAW – CONTRAVENTIONS – multiple counts alleged by each party against the other – multiple counts found proved – no consequences imposed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Xiu

RESPONDENT: Mr Hodges

FILE NUMBER: MLC 6222 of 2008

DATE DELIVERED: 15 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 and 6 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mallett

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Self-Represented

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr James
Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

1. The contravention applications of the father and mother be and are hereby dismissed.

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 Xiu & Hodges 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 6222 of 2008

MS XIU

Applicant

And

MR HODGES

Respondent

REASONS FOR JUDGMENT

1. By application filed on 13 July 2017, the father alleged that the mother has contravened orders of the Court on 17 counts.

2. By application filed on 14 August 2017, the mother alleged that the father has contravened orders of the Court on 16 counts.

3. The hearings of the applications were conducted contemporaneously and in contemplation of there being an application via each parent to vary the existing parenting orders pursuant to the Court’s power to entertain a variation application upon the disposition of the charges of contravention.

4. That latter part of the hearing did not proceed in the first sittings but did on 1 November 2017.

5. This judgment deals with the contravention applications.  I will deliver a separate judgment that deals with the variation of parenting orders applications.

6. The father appeared in person, the mother was represented by Ms Mallet of counsel, instructed by Victoria Legal Aid.  Ms Mallett was impressive.

7. The independent children’s lawyer, Ms Kourtis, retained Mr Marchetti, of counsel, to appear for the first part of proceedings.  Mr Marchetti was of invaluable assistance to the court.  Upon Mr Marchetti ceasing to be available, Mr James appeared for the Independent Children’s Lawyer and was of assistance to the Court.  Then Ms Kourtis appeared personally.  The Independent Children’s Lawyer has served K’s, (“the child’s”) interests very well.  The representation has been of a very high standard and is a credit to the profession.

Contravention Applications of the Father against the Mother

1. The father’s application against the mother comprises seventeen contraventions of which I find twelve to be proved. 

Application counts 1 and 2

1. It is alleged that in contravention of paragraph 4 of the order made on 14 February 2013, the respondent mother, without reasonable excuse, refused to arrange an annual case conference to discuss the child’s health and education.  Count 1 referred to the annual case conference to be held no later than the end of term 3 in 2015 and count 2 referred to the annual case conference to be held no later than the end of term 3 in 2016.

2. Paragraph 4 of the Order provides:

   The mother shall arrange an annual case conference to discuss the child’s health and education:

   a)To be held at MM Centre and, if unavailable, that the mother shall arrange premises other than the Y School;

   b)To be facilitated by a person as agreed between the parents and family agreement as arranged by the mother; and

   c)To be held no later than the end of third school term;

   d)To be attended by each parent and up to four people chosen by each of them to include any family doctors or allied health or teaching professionals in addition to any other person nominated by the child’s school;

   e)With an agenda to be provided by the mother to the father at least 28 days before the conference, to be returned to her by the father with any additional agenda items within 14 days of his receipt of it.

   Provided that, in the absence of any agreement, the mother shall determine the educational issues and shall, between the annual conferences, keep the father informed of any educational decisions and advise him of appointments.

3. The mother acknowledged that no annual case conference was held in 2015, 2016 or 2017.  In cross-examination the mother asserted that she had not been able to arrange the case conferences as none of these specialists would attend.

4. The mother’s oral evidence was that in 2014 only one specialist attended and all others declined giving as their reason for declining that they could not leave patients for one day to come to an appointed meeting for one hour.

5. The mother affirmed in her affidavit of 29 May 2017, which was filed on 17 July 2017, that, in 2015, the only professionals who were willing to participate in the conference were those from Y School and that health professionals continued to decline to attend the meetings so matters other than the child’s education were not able to be addressed.  She deposes that “after this I stopped trying to organise these conferences”.  The father did not challenge the mother’s evidence in this respect. 

6. I am satisfied that, in the circumstances of the case, compliance with the order was not possible.  I dismiss count 1.

Count 3

1. It is alleged that in contravention of paragraph 8 of the primary order the mother, without reasonable excuse, refused to allow changeover for time to be spent to occur at 12 noon on 4 January 2017. 

2. The operative order provides that:

   Subject to paragraph 9 of these orders:-

   a)   The child should live with the father during school term and holiday time each week from immediately after school Wednesday or from 12 noon Wednesday, when it is a non-school day, 2 till 6 pm Saturday; and

   b)     The child should live with the mother at all other times.

3. Paragraph 9 relevantly provides for special day times to be spent with each parent.  That is not relevant to this particular count.

4. The mother admitted that no time took place and that she did not attend the changeover.  She maintained that there was a reasonable excuse.  The mother asserted that the father had previously, in the week prior, over held the child and that her non-compliance with this order constituted make up time.

5. I do not accept that it was reasonable for the mother to contravene the order, even in light of her accusation against the father having contravened - or in retaliation for the father having contravened the order.

6. I find that the mother contravened the order as alleged.

Counts 4 and 5

1. It is alleged that in contravention of paragraph 8 of the operative order, on 18 January 2017 and 25 January 2017, the mother, without reasonable excuse, failed to make the child available to spend time with the father.  

2. The mother acknowledged that no time occurred on 18 and 25 January 2017 but maintained she had a reasonable excuse.

3. In relation to the first contravention, the mother said that she did not provide time with the child because the father had previously over held the child and she claimed that the additional time was “make up time”.

4. For the same reason as pertains to count 3, I do not accept that that is a reasonable excuse and I find that the mother contravened the order as alleged.

5. In relation to 25 January 2017, the mother said, in cross-examination, that the child had requested a variation of time.  However, email communication between the parents disclosed that the mother advised the father that there would be no time with the child on 25 January and that time would be made up in the following week.  I do not accept that the mother had a reasonable excuse.

6. I find that the mother contravened the order on two occasions as alleged.

Count 6

1. It is alleged that, in contravention of paragraph 8 of the operative order, on 12 April 2017, the mother, without reasonable excuse, failed to make the child available to spend time with the father.  Paragraph 8 of the operative order provides:

   Subject to paragraph 9 of these orders:-

   a) The child should live with the father during school term and holiday time each week from immediately after school Wednesday or from 12 noon Wednesday, when it is a non-school day, 2 till 6 pm Saturday; and

   b)        The child should live with the mother at all other times.

2. The mother asserted that the father had returned the child late to the mother on the previous weekend and it was therefore appropriate to over hold the child to enable her to have “make up time”.  In further cross-examination the mother said she wished to protect the child from being taken, by the father, to a night club.

3. The issue of the night club is a matter which was ventilated, at length, in the variation applications.  However, there was no prohibition against the father taking the child to performance venues which the mother well knew he was in the habit of doing.

4. I’m not satisfied that the mother’s actions were motivated by or had a reasonable excuse. 

5. I find that the mother has contravened the order as alleged.

Count 7

1. It is alleged that, in contravention of paragraph 8 of the operative order, on Wednesday 15 February 2017 the mother failed to make the child available to spend time with the father by not taking the child to school.

2. The mother acknowledged that no time took place on 15 February 2017 but said that she did not take the child to school because the child needed to attend an appointment, being speech therapy, and in connection with moving school to PP School.

3. When pressed, the mother had no reason as to why the appointment could not be made on another day.

4. I do not find that the mother had a reasonable excuse.  I find that the mother contravened the order as alleged. 

Count 8

1. It is alleged that, in contravention of paragraph 8 of the operative order, the mother, without reasonable excuse, failed to take the child to school thus precluding changeover at school at 3 pm. 

2. The mother acknowledged that there was no time spent on 22 February 2017 because the child was not at school to be collected by the father.  She asserted that she needed to take the child to an appointment at Organisation Q.  She was asked why she could not schedule an appointment on any other day but failed to respond.

3. The mother conceded that the appointment was at 2 pm or 2:30 pm.  She conceded that she did not make the child available to the father later that day. 

4. I am not satisfied that the mother had a reasonable excuse for failing to comply with the order.  I find that she contravened the order as alleged.

Count 9

1. It is alleged that, in contravention of paragraph 8 of the operative order, the mother did not take the child to school which precluded the child being available to spend time with the father and be collected, therefore, at 3 pm on 1 March 2017.

2. The mother conceded that no time took place on 1 March 2017 because the child was not at school.  She maintained that she had a reasonable excuse.

3. The mother asserted that she attended a KK Services appointment in the morning and, as she is reliant on public transport, she could not get the child to school in the afternoon to enable the changeover.

4. When asked in cross-examination why she did not deliver the child later that day there was no response.

5. The mother also said that she was fearful that the father would take the child to a club or to a night club.

6. I find that the mother had no reasonable excuse.  I am satisfied that the mother breached the order as alleged.

Count 10

1. It’s alleged that, in contravention of paragraph 8 of the operative order, on Wednesday 8 March 2017 the mother failed to take the child to school thereby precluding there being a changeover for time spent at 3 pm.

2. The mother acknowledged that no time took place on 8 March 2017 because the child was not at school but maintained that she had a reasonable excuse.

3. The mother detailed that the child had been ill and that she had obtained a medical certificate that she had provided to the father.  The child had seen a medical practitioner for itchy eyes.  There was no reason why the child’s condition could not be cared for by the father.  The mother complained that the father could have taken the child to a night club.

4. I am not satisfied that the father would have necessarily taken the child to the nightclub.  Contrary to the child’s physical condition, I am not satisfied that the mother had a reasonable excuse. 

5. I am satisfied that the mother contravened the order as alleged.

Count 11

1. It is alleged that on Wednesday, 15 March 2017, the mother, without reasonable excuse, refused to facilitate the changeover for time by not having the child delivered to his Y School, earlier to or at the appointed time. 

2. It is alleged that this was in contravention of paragraph 8 of the operative order (which is correct).  The mother admits that no time took place but says that she has a reasonable excuse.  She asserted that she was required to attend with the child for an educational meeting, however, she acknowledged that she did not attempt to make arrangements for the child to go into his father’s care later that day.  She also mentioned in her evidence that she was concerned that the father might take the child to a nightclub. 

3. The mother does not have a reasonable excuse for having contravened the order and, accordingly, I find that she has contravened it as alleged.

Count 12

1. It is alleged that in contravention of paragraph 8 of the primary order, on 29 March 2017, the mother failed to facilitate a changeover for time to be spent between the child and the father by not having the child at school, at Y School, on that day. 

2. The mother admits that no time took place, but she says she has a reasonable excuse.  The mother detailed in her evidence that she and the child attended a flower show that day.  The mother added that the school had arranged for all the students to attend a flower show the next day, being 30 March 2017, and that the child would have been included in that school activity, however, the child had asked to go with her to the flower show.  The mother said, “I made a good decision”. 

3. I find that there is no reasonable excuse for the mother’s contravention of the order and that she has indeed contravened the order as alleged.

Count 13

1. It is alleged that, contrary to paragraph 13 of the primary order, the mother cancelled the child’s appointment with Dr R at Hospital S. 

2. Paragraph 13 of the orders provides, and I quote:

   That subject to paragraphs 4, 14 and 22 of these orders the father shall have sole responsibility for health decisions for [the child], including but not limited to continence, dental and allied health services.

3. The mother acknowledges that she did cancel the appointment but says that she had a reasonable excuse, being that she was not aware of who Dr R was.  Notably, the father is the parent with sole responsibility for health decisions, including but not limited to continence, dental and allied health services.  The father had arranged for the child to see Dr R, a paediatrician at Hospital S, on 10 February 2017. 

4. The mother advised that she thought the hospital would advise the father of the cancellation and, accordingly, should not advise the father of the cancellation. She did not advise the father of the cancellation. I am satisfied that the mother intentionally prevented compliance with the order that the father have parental responsibility for health-related matters by cancelling an appointment without reference to him or his permission. Notably, section 65P of the Family Law Act 1975 (Cth) (“the Act”), subsection (2) provides:

   A person must not hinder the carer in or prevent the carer from discharging parental responsibility for a child.

5. And section 70NAD(d) of the Act provides that:

   A parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.

   I am not satisfied that the mother had any reasonable excuse for hindering the father’s exercise of parental responsibility.  I find that she has contravened the order as alleged.

Count 14

1. It is alleged that contrary to paragraph 13 of the primary order, the mother, on 26 July 2016, obtained a referral for the child to be immunised at Hospital S. 

2. The mother alleged that she had a reasonable excuse.  The mother admitted that she obtained a referral for the child and that she did not seek the father’s permission or consent or authority to do so in circumstances where he is the parent with sole parental responsibility.  The mother said that she had consulted a number of doctors and that she “knew the father rejected” flu vaccinations, adding, “Do you think the father and me agree?”

3. The mother said that the child had previously reacted poorly to vaccinations and she arranged sedation for him.  I am satisfied that the mother did not have a reasonable excuse for hindering or interfering with the father’s sole parental responsibility in relation to health matters.  

4. If the mother thought that the child should be immunised, she should have brought an application to the Court seeking an order in those terms in the event that agreement was not forthcoming from the father.  Instead, she took matters into her own hands in a way that I am satisfied that she has contravened the relevant order as alleged.

Counts 15 and 16

1. It is alleged that in contravention of paragraph 21 of the primary order, on 15 February 2017 and 23 February 2017, the mother failed to advise the applicant of consultations with the child’s general practitioner, medical practitioner, the reasons for consultations and the recommendations and treatment prescribed. 

2. Paragraph 21 of the primary order provides:

   That the mother be restrained from seeking any health and allied health service referrals from her nominated general practitioner for the child.

   The mother admits that she did take the child to the doctor, without notice to the father, but says that she had a reasonable excuse. 

3. The mother admits that on 15 February 2017 she made a request of her general practitioner for referrals for the child to attend speech therapy and occupational therapy and could not remember what the nature of the referral or consultation was on 23 February 2017.  Had the mother sought a referral as a matter of urgency, in what circumstances I cannot imagine, I may have been satisfied that there may have been grounds for a finding of reasonable excuse but there was no such emergency.  The mother sought the referral because she wanted to do so from her general treating practitioner and, clearly, in contravention of the primary order. 

4. Accordingly, I find that the mother has contravened the order as alleged.

Count 17

1. Count 17 is a duplication of count 16 and was accordingly withdrawn.

Contravention Application of the Mother Against the Father

1. The mother’s application against the father comprises sixteen counts of which I find nine to be proved.

Count 1

1. It is alleged that in contravention of paragraph 8 of the primary order the father failed to return the child to the mother at 6 pm on 13 January 2017.  The primary order provides that:

   Subject to paragraph 9 of these orders (which are special days): 

   (a) The child shall live with the father during school term and holiday time each week from immediately after school Wednesday, or from 12 noon Wednesday, when it is a non-school day, to 6 pm on Saturday;  and

   (b)      The child shall live with the mother at all other times.

1. The father admits that on Friday, 13 January 2017, he did not attend the changeover to return the child to the mother, but maintained he had a reasonable excuse for doing so.  Paragraph 10(b) of the primary order provides that:

   The father or his nominee shall punctually collect the child from and return him to:  

   (1)school where such a time commences or concludes on a  school day;

   (2)the mother’s residence when such time commences or concludes on a non-school day.

2. The basis of the non‑compliance was that the father objects to returning the child to the mother’s residence because he feels exposed and at risk of accusations being made by the mother against him.  Furthermore, he said that the child was not due to be returned until 14 January 2017.  However, there was no evidence to satisfy me that that was correct. 

3. I am satisfied that the father has no reasonable excuse within the terms of the legislation and that he contravened the order as alleged.

Count 2

1. It is alleged that in contravention of paragraph 8(a) of the primary order that the father failed to return the child to the mother at 6 pm at her residence. 

2. The father acknowledged that he failed to do so, but maintained he had a reasonable excuse.  The reasonable excuse asserted was that the father wished to effect a changeover at a location other than the mother’s house (as ordered).  The basis for the wish was an alternate changeover venue as he does not trust the mother.  He fears false complaints have been made about him and he could not arrange a third party to be present to facilitate a changeover.  He said, “It is not safe for me without a witness.” 

3. I am not satisfied that the father had a reasonable excuse and am satisfied that he has contravened the order as alleged.

Count 3

1. It is alleged that in contravention of paragraph 8(a) of the primary order the father failed to return the child to the mother at 6 pm at her home on 18 March 2017. 

2. The father acknowledged that he did not return the child, but maintained he had a reasonable excuse.  The basis of the father’s reasonable excuse was that he feared false complaints being made against him if he did not have a witness to accompany him, and he says he was unable to obtain a witness.

3. He conceded that he sometimes went to the mother’s house, but on this occasion was insisting that she come to a police station.  The mother emailed the father at approximately 1.38 pm on the day of the changeover seeking that the child’s return that evening be at Suburb NN Train Station instead of her home in the event that the father would not return the child home.  The father did not comply with the mother’s request, nor return the child to the mother’s home and instead he over held the child. 

4. I am not satisfied that the father had a reasonable excuse and, accordingly, I find that the father has breached the order as alleged.

Count 4

1. It is alleged that on Saturday, 27 August 2016 the father failed to return the child to the mother at her residence. 

2. The father acknowledged this was the case but maintained he had a reasonable excuse.  The mother deposes that the father sought the changeover be effected at a police station.  The mother did not agree and suggested that the changeover could occur at a cabin in her backyard.  The father refused.  The father conceded that he overheld the child. 

3. I am not satisfied that the father had a reasonable excuse.  I find that the father contravened the order as alleged.

Count 5

1. It is alleged that in contravention of paragraph 10(b) of the primary order on Monday, 29 August 2016 the father, without reasonable excuse, delivered the child to Y School, four hours late.  The child was in the father’s care as a result of the over holding referred to in count 4.  The father conceded that he regularly experienced difficulty ensuring that the child attended school on time for factors such as the weather and night-disturbances. 

2. On this occasion, the father asserted that the child had problems with his bowels and that he had had a “big poo after five days constipation”.  The father detailed that on the Sunday when the child should have been with the mother he had taken him to a poetry performance from 1.30 to 4.30 pm and otherwise did not recall what they had done.  I am not satisfied that the father had a reasonable excuse for delivering the child to school late.

Count 6

1. It is alleged that in contravention of paragraph 10(b) of the primary order the father did not take the child to school on 20 October 2016. 

2. The father acknowledged that the child did not attend school but maintained that he had a reasonable excuse.  The father and mother were attending the Magistrates’ Court.  The father took the child to the Magistrates’ Court.  The father’s evidence was that he had arranged with his mother for her to collect the child from his home and be delivered to school.  His evidence was that his mother’s car broke down on the morning and that he changed the plan so that his mother could arrive at the court by taxi.  The father took the child to the Magistrates’ Court but decided that by the time his mother arrived it was too late to deliver the child to school.  Interestingly, in the course of cross‑examination, the father disclosed that he was not certain that school even started at 9 am.  He thought that the program started at 9.30 am, and it would have been sufficient to have the child at school at 9.15 am. 

3. I am satisfied that the father had a reasonable excuse for delivering the child to school late.

Count 7

1. It is alleged that in contravention of paragraph 10(b) of the primary order the father without reasonable excuse delivered the child to school late on Thursday, 2 February 2017. 

2. The father agreed that he did not deliver the child to school until approximately 10.58 am.  He said that he lives in Suburb T and had to take public transport and that the father was tired and that the child was likely to have been tired.  The father said of the child, “I don’t like to herd him around like a sheep.”  He said, “I am not great, I admit it,” in relation to getting to places on time.  He conceded that he had been at an entertainment venue.

3. I am not satisfied there was a reasonable excuse.  I find that the father contravened the order as alleged.

Count 8

1. It is alleged that on Thursday, 9 February 2017, the father delivered the child to school to Y School late, in particular at 10.57 am, without reasonable excuse. 

2. The father admitted that the child was delivered late for school.  He acknowledged that he has “not been good” at ensuring the child is delivered to school on time.  In cross‑examination the father conceded that he was at Licenced venue W the night previously. 

3. I am not satisfied of a reasonable excuse and find that the father contravened the order as alleged.

Count 9

1. It is alleged that in contravention of paragraph 10(b) of the primary order, on Monday, 6 February 2017, the father delivered the child to school late, in particular at 10.47 am.  The father admitted that the child was delivered late to school.  The child was in the father’s care as a result of the over holding referred to in count 2 above.  The father could not provide details of why he was late to school.

2. I am satisfied that the father contravened the order as alleged.

Count 10

1. It is alleged that in contravention of paragraph 10(b) of the primary order, on Monday 20 March 2017, the father delivered the child to school late, in particular at 11.33 am. 

2. The father admitted that the child was delivered late, but said he had a reasonable excuse which was that he did not want to attend a changeover at the mother’s residence and he was “digging my heels in about not going to the mother’s home” for changeover. 

3. I am not satisfied that there was a reasonable excuse and I find that the father contravened the order as alleged.

Count 11

1. It is alleged that in contravention of paragraph 10(b) of the primary order, on Thursday, 23 March 2017, the father delivered the child to school late, in particular at 11.07 am. 

2. The father admitted that the child was late to school but said he had a reasonable excuse which may have been the weather or the fact that the child was asleep or that they travelled at a slow pace. 

3. I am not satisfied that the father’s evidence gave rise to a finding of reasonable excuse.  I am satisfied that the order was contravened by the father as alleged.

Count 12

1. It is alleged that in contravention of paragraph 18 of the primary order, since 4 December 2015, the father, without reasonable excuse, has failed or refused to vaccinate The child in accordance with the recommendations of the child’s paediatrician and allied health services.  Paragraph 18 of the operative order provides:

   The mother and father shall follow all recommendations and directions of the child’s paediatrician and other allied health service provider.

2. The father stated that the child “is up to date with all his vaccinations”, save for the third HPV immunisation which the father detailed was not recommended by any practitioner.  A letter produced by the paediatrician, dated 4 October 2016, confirmed that the third HPV shot may not be required but recommended and influenza immunisation that the father asserted he had received advice was not necessary.

3. It is for the mother, as applicant in the contravention application, to satisfy the court of all elements of the contravention.  The evidence does not satisfy me that the vaccination which the child has not yet had, being the influenza vaccination immunisation, was in fact recommended within the terms of paragraph 18 of the operative order.  Accordingly, I am not satisfied that the order was breached as alleged.  I dismiss count 12.

Counts 13, 14, 15 and 16

1. It is alleged that on four occasions, in contravention of paragraph 18 of the primary order, being on Thursday, 10 November 2016, Wednesday, 8 February 2017, Thursday, 13 April 2017, and Thursday, 18 May 2017, the father without reasonable excuse took the child to an over-age venue against the recommendations of the child’s paediatrician.  For counts 13, 15 and 16 the venue is Licenced venue U, Suburb NN, and for count 14 it is Licenced venue W at Suburb V.

2. In cross‑examination, the father acknowledged that he has attended licensed premises together with the child and I am satisfied that, at the times and dates alleged, the father and the child were variously at Licenced venue U or  Licenced venue W as alleged.  At paragraph 33 of the mother’s affidavit she asserts that the child’s paediatrician has advised against taking the child to such places.  That letter appears as exhibit X10 but does not, in my view, reflect the recommendation asserted by the mother.

3. It is further noted that the mother exhibits a letter from Dr C who is her medical practitioner, and that is annexure X14 to the mother’s affidavit, which suggests that, “Strict orders be made restraining the child being taken to such venues.”  This communication however, postdates the alleged contraventions and so was not a recommendation which was, even if it can be construed as a recommendation, by a competent person (not being the child’s paediatrician).  It is not a recommendation which was in place at the time that the child was taken by the father to the venues. 

4. Paragraph 18 of the operative order provides that:

   The father and mother shall follow all recommendations and directions of the child’s paediatrician and any other allied health service provider.

5. I am not satisfied that the father acted contrary to a recommendation.  I dismiss these four counts. 

Consequences

1. I have found the mother to have contravened the operative orders on twelve occasions and the father to have done so on nine occasions.  These proceedings have provided the Court with a surfeit of evidence and an abundance of examples of how the mother and father refuse to cooperate and are wilful and stubborn.  All of the evidence will be considered in the Court’s deliberation of how, if at all, the parenting orders should be changed.

2. It is pointless, however, to impose any sanctions or prescribe education for the mother or father by way of consequences for the contraventions which are proved.  I merely dismiss the applications and proceed to hear the substantive variation proceedings.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 15 March 2018.

Associate:

Date:  12 April 2019