Yuan & Song (No 5)
[2025] FedCFamC2F 49
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yuan & Song (No 5) [2025] FedCFamC2F 49
File number(s): MLC 13323 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 23 January 2025 Catchwords: FAMILY LAW – CONTRAVENTION – contravention of final parenting orders – not making a child available to spend time – involving the child in the proceedings – plea of guilty with reasonable excuse based on the child’s wishes – court found no reasonable excuse on each count – failure to encourage the child to spend time with the mother – failure to assert parental authority – matter adjourned for submissions on sentencing. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 70NAC, 70NAD, 70NAE, 70NAF
Cases cited: Galvis & Galvis [2024] FedCFamC1A 123
Hatfield & Rivas [2024] FedCFamC1A 202
Kuligowski v Metrobus [2004] HCA 34
O’Brien & O’Brien [1992] FamCA 52
Stamp & Stamp [2014] FCCA 1269
Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Whisprun Pty Ltd v Dixon [2003] HCA 48
WJP & TP [2002] FMCAfam 315
Division: Division 2 Family Law Number of paragraphs: 72 Date of hearing: 14 November 2024 Place: Dandenong – via Microsoft Teams Counsel for the Applicant: Ms Evans Solicitor for the Applicant: InTouch Legal Centre Counsel for the Respondent: Mr Jones Solicitor for the Respondent: CG Legal Group ORDERS
MLC 13323 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS YUAN
Applicant
AND: MR SONG
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.Counts 1 to 4 of the Contravention Application filed 24 April 2024 are proven without reasonable excuse.
2.The remaining counts of the Contravention Application are dismissed by consent.
3.The matter be adjourned for submissions on sentencing to 19 February 2025 at 9.30am AEDT via Microsoft Teams.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This matter concerns a contravention application filed by the applicant mother Ms Yuan (“the mother”) alleging four contraventions of parenting orders by the respondent father Mr Song (“the father”) relating to the parties’ child X born in 2010 (“X”), aged 14.
Three contraventions related to X not being made available to spend time with the mother. The last contravention concerns the father discussing the proceedings with X.
BRIEF BACKGROUND
The parties were both born in Country Z and met there in 2008.
The father has two children from previous relationships, an adult daughter, Ms F and an adult son, Mr G. Ms F has special needs and resides in Melbourne.
The mother has one son from a previous relationship, Mr H aged about 20, who lives with the mother and the maternal grandmother in Melbourne.
The mother is a self-employed beauty therapist.
The father is retired and lives in Brisbane with X and his new wife, Ms J. X is currently in year eight and will be entering year nine in 2025 at K School.
Otherwise, much of the parties’ history was in dispute, although it was not for the most part the subject of cross-examination.
As best I can establish, the mother came to Australia in 2010 to give birth to X. The father says that in 2011, when X was only about four months old, the mother “abandoned” X with him in Australia and went to live in Country Z where she married another man and remained until 2015/2016. This is notwithstanding that the parties themselves married in 2014 or 2015. The mother makes no mention of this other marriage in her evidence but maintains the parties were in a relationship until 2017, albeit she also says the father removed X from her care in Country Z in 2015. She says she was not aware the father obtained final parenting orders for X in what was then the Family Court of Australia in 2016. This convoluted and contradictory history was not satisfactorily explored in cross-examination and for the most part I am unable to establish what X’s living arrangements were prior to about 2017.
However, what does not appear to be in dispute is that from 2017 X was in the primary care of the father. It is also common ground that in about mid-2018 the father removed X from Australia and took her to live in Country E without consulting the mother and without the mother’s consent.
On 8 February 2019, a recovery order was issued in the Family Court of Australia (as it then was).
In 2020, the mother agreed to final orders for the father to have sole parental responsibility for X, for X to live with the father and for X to spend time in school holidays with her.
In mid-2022, the father returned with X and his new wife Ms J to live in Brisbane, Australia.
In September 2022, X advised her guidance counsellor that she had been hit by her father.
The mother consequently filed her initiating application for final orders in this court on 24 November 2022.
The Department for Child Safety, Seniors and Disability Services in Queensland became involved however, they did not interview X for some months by which time X had retracted her allegations.
Thereafter, various orders were made in this court including the three sets of orders which are the subject of this contravention application which were made on:
·30 March 2023;
·6 September 2023; and
·8 December 2023.
DOCUMENTS RELIED UPON
The mother relied upon:
·her contravention application filed 24 April 2024; and
·her affidavit filed 24 April 2024.
Although not required to file material in his defence, the father relied upon:
·his affidavit filed 21 May 2024.
FATHER’S PLEA
At the outset the mother’s counsel advised that only the following counts would be relied upon and that the remainder of the alleged contraventions could be dismissed:
COUNT 1
ORDER 30 March 2023:
6. That the child, [X] born [in] 2010, shall spend time with the Respondent Mother in accordance with the following arrangement:
…
(b) from 24 June 2023 until 5 July 2023, with the Respondent Father to pay all associated costs with the child’s travel to and from Melbourne.
Date of contravention: 24 June 2023 to 5 July 2023.
Allegation: The father without reasonable excuse failed to facilitate time between X and the mother between the above dates.
COUNT 2
ORDER 6 September 2023:
2. In addition to the orders for time set out in the Order dated 14 February 2020, [X] born [in] 2010 shall spend time and communicate with her mother at all times as agreed and failing agreement as follows:
(a) From 2:00pm 29 September 2023 to 5:00pm 1 October 2023 in Brisbane with changeover to take place at the front entrance of the [L Venue, Suburb M].
Date of contravention: 29 September 2023 to 1 October 2023.
Allegation: The father without reasonable excuse failed to facilitate time between X and the mother between the above dates.
COUNT 3
ORDER 6 September 2023:
2. In addition to the orders for time set out in the Order dated 14 February 2020, [X] born [in] 2010 shall spend time and communicate with her mother at all times as agreed and failing agreement as follows:
…
(c) For the first half of the 2024 school holidays and each even year thereafter and the second half of the school holidays in odd years commencing the second half of 2025.
ORDER 8 December 2023:
2. Order 2(c) of Orders dated 6 September 2023 be varied as follows:
2(c) For the first half of the 2024 school holidays and each even year thereafter and the second half of the school holidays in odd years commencing the second half in 2025 with such time to occur in Melbourne.
Date of contravention: 30 March 2024 to 6 April 2024.
Allegation: The father without reasonable excuse failed to facilitate time between X and the mother between the above dates.
COUNT 4
ORDER 30 March 2023:
7. That the parties be restrained and an injunction issue restraining the parties from:
…
(b) Discussing with the child the pending proceedings, any allegations made in the proceedings or any matter of an adult nature likely to place upon the child a loyalty demand, including any aspect of their preference with regards to where they live, what contact they have with the other parent and what school they attend;
(c) Seeking and/or allowing the child to communicate matters as between each parent on their behalf.
Date of contravention: 1 November 2023.
Allegation: The father without reasonable excuse involved X in the court proceedings by placing great pressure on X and telling X that the father could be arrested if X did not travel to Melbourne.
At the commencement of the proceedings the father’s counsel advised the court the father admitted each of the aforementioned contraventions but pleaded a reasonable excuse in each case.
Although count 2 in the mother’s application contravention refers to order 2(b) instead of 2(a), I am satisfied that the allegations against the father are sufficiently clear from the remainder of the pleading. In any event, this was not raised as an issue at the hearing.
THE EVIDENCE
In terms of the evidence, I have taken into account the contents of each of the affidavits filed by the parties however, I have not had regard to the contents of any subpoenaed material, information provided by external agencies or documents in tender bundles, court books or otherwise emailed to the court, which were not separately tendered into evidence as exhibits.
As the court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53]:
The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.
In determining these proceedings, I have had regard to the evidence to the extent that it was relevant to each parties’ case, although it is not possible to include every aspect of the parties’ evidence in these reasons for judgment. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Section 140 of the Evidence Act1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. As the father admitted each of the contraventions, he bore the onus of establishing a reasonable excuse.
Unfortunately, the father was an unimpressive witness who was often vague, unresponsive or evasive in his answers. However, that does not mean that I automatically accept the evidence of the mother, which was at times equally problematic. As was said by the High Court in Kuligowski v Metrobus [2004] HCA 34 at [60]:
In general, disbelief in a witness's evidence does not establish the contrary [Hobbs v Tinling (C T) and Co Ltd [1929] 2 KB 1 at 21 per Scrutton LJ]. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way [Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955 per Lord Brandon of Oakbrook]:
[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.
THE LAW
The Family Law Act 1975 (Cth) (“the Act”) was amended in May 2024, including the sections concerning contraventions. However, pursuant to the recent Full Court authority of Hatfield & Rivas [2024] FedCFamC1A 202, given all of the contraventions occurred prior to May 2024, the applicable law is that which existed prior to the amendments (“the former legislation”).
The relevant sections of the former legislation of the Act are as follows:
70NAC - Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
70NAD - Requirements taken to be included in certain orders
For the purposes of this Division:
(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b) a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
(c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and
(d) 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.
70NAE - Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
70NAF - Standard of proof
(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The court may only make an order under:
(aa) paragraph 70NEB(1)(da); or
(ab) paragraph 70NECA(3)(a); or
(a) paragraph 70NFB(2)(a), (d) or (e); or
(b) paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.
(Emphasis in original)
Various authorities have dealt with what constitutes a reasonable excuse. It is evident from those authorities that it is not sufficient for a parent to simply state that a child does not wish to spend time with another parent. Both parents are obliged to actively encourage children to spend time with the other parent, including by way of their tone and body language, not just the words they use.[1] There is also an expectation parents will be able to assert parental authority over a child, as they would if for example a child does not want to attend school.[2]
[1]See Stevenson & Hughes [1993] FamCA 14 and O’Brien & O’Brien [1992] FamCA 52
[2]See WJP & TP [2002] FMCAfam 315; Stamp & Stamp [2014] FCCA 1269.
FATHER’S REASONABLE EXCUSE
At the outset, counsel for the father stated that the father’s reasonable excuse was based on X’s wish not to spend time with the mother either overnight or in Melbourne.
In his affidavit, the father specifically addressed each of the contraventions in what he labelled as “exhibit 5” but which would be more accurately described as “annexure 5”. However, to add to the complexity of unpacking the father’s case, annexure 5 in turn refers back to various paragraphs of his affidavit.
In summary, the father’s case is that X was reluctant to spend time with the mother because the mother had “abandoned” X for a long period of time, because of the impact of the mother’s family violence on X, because of X’s mental health needs, and because of the pressure the mother places on X when she sees her. Distilling from this, the father appears to be stating that if X were forced to see her mother, other than in accordance with her wishes, she would be at risk of psychological or emotional harm.
CONTRAVENTION 1 – Time spending between 24 June 2023 to 5 July 2023 in Melbourne
In relation to this contravention, in annexure 5 the father refers back to paragraphs 31 to 31.96 and paragraphs 41 to 43 of his affidavit.
In paragraphs 31 to 31.96 the father sets out his evidence about many matters which he says resulted in X not wanting to spend time with her mother and which he says have led to issues concerning X’s mental health.
It appears that X spent time with the mother in April 2023, and according to the father, X had become upset because she overheard her mother discussing the father with her friends in Country Z language. The father says this led to X not wishing to spend any further time with the mother in Melbourne. The father is however silent about any attempts thereafter to encourage X to attend the June 2023 visit with her mother. There is also no evidence that the father purchased the airline tickets as he was required to do, or that he asked the mother if she had (as she offered to do), or that he took X to the airport as he was also ordered to do.
It is apparent from the authorities that it is not sufficient to just let a child make their own mind up, and that parents are expected to assert parental authority over a child. The father provides no evidence that he has endeavoured to get X to Melbourne as ordered. Indeed, he conceded in the witness box that he did not actually want X to go.
Furthermore, contrary to the authorities, the father attempted to put the obligation on the mother to give effect to the order. For example, it was put to the mother under cross-examination that she did not make any arrangements with the father to spend time with X during this period. However, the orders did not obligate the mother to confirm arrangements. Nor did the father contact the mother about the visit either directly or indirectly. In his evidence, he said that he contacted the mother “through the court proceedings.” He explains in paragraph 42 of his affidavit that the mother filed an application seeking to ensure the visit in June occurred and that he filed an application seeking to discharge that order as a result of the mother “abusing [X]” during Easter 2022. He says that both parties ultimately filed a notice of discontinuance in relation to those applications.
The father appears to be implying that the mother acquiesced to the visit not occurring because of this discontinuance. However, even if I accept that argument (noting the mother’s application was not so much an enforcement but rather proposing an order she pay for the flights presumably to ensure the time occurred) she did not file her notice of discontinuance until 4 July 2023, being after the time ought to have taken place.
In his oral evidence, the father also relied on the following paragraphs of his affidavit in which he states:
47. We know now, that to legally force [X] accept her mother again would be facing the risk the child retuning to the poor mental health.
48. [X]’s strong wish, the psychological harm from the mother, protecting the mental health of [X] are the significant excuse for me.
(as per original)
However, the father is not qualified to give such an opinion about X’s mental health, and he did not rely on any affidavit material from either X’s psychologist, Dr N, or guidance counsellor, Ms O, as to the impact on X if she were made to spend time with her mother against her wishes.
The father has not met the onus of establishing a reasonable excuse.
I find contravention 1 proven without a reasonable excuse.
CONTRAVENTION 2 – Time spending between 29 September to 1 October 2023 in Brisbane
The father’s reasonable excuse as set out in his annexure 5 of his affidavit refers to paragraphs 31.33 to 31.35 which state as follows:
31.33. In 2023, the applicant planned to visit [X] in September, [X] sent an invite for the applicant to attend [an event] in October instead. To swap the date (pp.20-24, Exh.3).
31.34. The mother says, “it [the event] was not discussed in the orders”, “I am not comfortable to attend in the father’s house”.
31.35. [X] was upset as she does not understand why it needs an order for a mother to attend [the event], nor did she ask the applicant to come to my house for the [event]
(Errors as per original)
The mother’s evidence is that she had a video call with X on 10 September 2023 in which X invited her to attend an event in October 2023. The mother says she advised X she would not be in Brisbane at that time but would be in Brisbane to see her in the week starting 19 September as planned.
The mother’s evidence is that X then sent the following email:
Yea I won’t be coming
Cuz like if u aren’t coming to [the event] then why should I waste my time to come to ur place like if u love me like u said then why aren’t u coming and also u are indeed pushing ur luck today
I’m done, alright I am done playing friendly towards u
Example making u going to my personal space even tho I don’t like it.
So in conclusion I’m not having any sleep over with u
Additionally, r u going still to buy me a […] present […].
If u don’t understand translate it
Bye bye
(Errors as per original)
It appears from this email that, at its highest, X was upset that her mother was not attending the event. It is evident that the father was aware of this exchange. However, there is no evidence that the father encouraged X to attend the court ordered visit or attempted to reassure X that her mother still wanted to see her but could not see her at the event. If X was upset about the mother not attending the event, it was incumbent on the father to take steps to comfort X and encourage X to see her mother during the ordered time.
The father’s evidence is that the mother refused to swap the dates so as to see X at the event instead. The mother was not however required to swap the dates. Again, the father blames the mother for being unreasonable in not agreeing to attend the event. In cross-examination the father also attempted to blame the mother for not communicating that she was in Brisbane for the September visit. However, the orders are clear about the time and location for changeover and do not obligate the mother to confirm this ahead of time. I note also that the orders were made on 6 September, only 23 days prior to the visit, so should have been in the forefront of the father’s mind.
The father’s oral evidence was that he did encourage X to spend time with the mother. He says he did this by using his phone to call the mother and tried “to make” X talk to the mother. Even if I accept the evidence of the father, this is not evidence of the father encouraging X to attend time pursuant to the orders. Rather, it is evidence of the father putting the onus on X to communicate her alleged wishes directly to the mother.
The father has not made out a reasonable excuse and accordingly contravention 2 is found proven without a reasonable excuse.
CONTRAVENTION 3 – Time spending between 30 March 2024 and 6 April 2024
Pursuant to order 3 of the orders of 8 December 2023 the mother purchased flights for X to fly to Melbourne and provided evidence of same to the father via her lawyer on 7 March 2024 being “no less than” three days before the intended travel. Whilst the order refers to copies of airline tickets, I accept that the booking reference provided to the father is the equivalent of such tickets.
The mother’s evidence is that her lawyer emailed the father again on 19 March 2024 seeking confirmation that X would be spending time with the mother from 30 March to 6 April 2024. Under cross-examination the father said that he was not aware that the flights had been paid for as he had “overlooked” the first email and that he was not aware of the second email from 19 March 2024. Notwithstanding this evidence, the father sent an email to the mother’s lawyer on 20 March 2024, as follows:
Many thanks for your email. I just read it now.
I was about to inform you that [X] and I are in Melbourne to see [Ms F].
…
If I could suggest the mom meets [X] on Tuesday the 26th at 5pm at [P Venue], the tram stop at the front. Then the mother can negotiate with [X] for further details.
(As per original)
The mother’s lawyer responded to that email advising the mother could not meet with X on 26 March 2024 but proposing either Monday or Friday of that week instead. However, it is evident in the correspondence this was not intended to be lieu of the court ordered time, as the mother’s lawyer also sought confirmation the father would still be complying with court orders for the following week.
In circumstances where the father denied receiving either email, but it was proven he had at least received the second, I do not accept the father’s evidence that he overlooked the email containing the flight information.
In any event, the father did not advise the mother ahead of his visit to Melbourne that he was bringing X to Melbourne to see her half-sister Ms F, and only did so after receiving the email from the mother’s lawyer on 19 March 2024.
If there was evidence the father had encouraged X to spend time in the school holidays but had been unable to despite his best efforts, I may have accepted this arrangement as the best he could achieve, however, he does not give such evidence.
The mother’s evidence at paragraphs [28] and [29] of her affidavit is as follows:
28. I met with [X] at 4pm on Monday 25 March 2024. [X] spent approximately 5 hours with me this day and had dinner with me and her brother [Mr H]. [X] and [Mr H] spoke at length together and had a good time. I was careful in how I spoke with [X], as I did not want to put pressure on her or make her feel uncomfortable in any way, given the time we have spent apart. [X] agreed to have a photo taken with me and also with me and [Mr H].
29. My lawyer informs me that on 28 March 2024 she emailed the Respondent to find out if [X] was going to spend time with me pursuant to the Orders. My lawyer received a response stating that “This address is not monitored anymore”. My lawyer then received another email from the Respondent the same day stating that [X] did not want to spend time with me.
(Emphasis added)
Despite the mother’s evidence the time went reasonably well the father did not make X available to spend time with the mother pursuant to the orders the following week. The father gave no evidence of any attempts to encourage X to go the following week. His only evidence on the issue is that under cross-examination the father said words to the effect of “do you want me to use force.”
I find the father was either incapable or unwilling to encourage X by means other than force to spend time with her mother. He has again demonstrated no parental authority and appears to have either allowed X to dictate the time or otherwise simply ignored the court orders.
The father has not made out a reasonable excuse with respect to contravention 3 which I find proven.
CONTRAVENTION 4 – Discussing the proceedings with X
The mother agreed in her evidence that the evidence in support of this contravention was contained in annexure “MSY5” of her affidavit. That annexure contains an email sent from the father to the mother’s solicitor and the Independent Children’s Lawyer, which states as follows:
I now report that the people I want to see and meet have responded positively to my request, although they are checking their dates as they might go on holiday.
So it seems it might be possible for the visit.
I placed a big pressure on [X] (against the CCE recommendation guided by [X] and the slow approach by the psychologist), and I said to [X] , I could be arrested due to the blame from the ICL, and I bribed her with more iPad time.
please consider and indicate your intentions. So I can follow up with the other people chasing their confirmation.
Thank you !
[Mr Song]
(Errors as per original, emphasis added)
In my view the statement “I said to [X], I could be arrested due to the blame from the ICL” is clearly discussing the proceedings with the child. However, although the father conceded under cross-examination that he had written this email he said he did not actually say those things to X.
In final submissions father’s counsel described this as a “slip of the pen”. However, this evidence was at odds with the father’s plea that he had contravened the orders. When I raised this with the father’s counsel, he took no steps to try and change the plea. The court was therefore left with no evidence as to a reasonable excuse.
Accordingly, contravention 4 is found proven without a reasonable excuse.
PENALTY
As per the case of Galvis & Galvis [2024] FedCFamC1A 123, this matter will be adjourned to a further hearing date so that the parties can make submissions as to penalty and costs and so the parties can file any further material they seek to rely on in relation to same.
In this regard I note the mother also seeks reimbursement of her costs of travel to Brisbane in September 2023 of $1,479.43 and $524.38 fuel costs, and that she may seek reimbursement for the costs of X’s flights relating to the third contravention of $430.05, if these were not refundable.
Otherwise, for all the abovementioned reasons, I make the orders as set out at the commencement of this judgment.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 23 January 2025
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