Contravention – Alexander & Turner [2015] FCCA 3197 (2 December 2015)

Contravention – Alexander & Turner [2015] FCCA 3197 (2 December 2015)

Last Updated: 18 December 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) Count 1 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent on unspecified dates of Order 6(a)(i) made on 8 January 2014 is dismissed.
(2) Count 2 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 26 September 2014 is dismissed.
(3) Count 3 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 9 January 2015 is withdrawn and dismissed.
(4) Count 4 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 23 January 2015 is withdrawn and dismissed.
(5) Count 5 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 10 April 2015 is dismissed.
(6) Count 6 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(b)(i) is dismissed.
(7) Count 7 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 21(a) on unspecified dates is dismissed.
(8) Count 8 of the Application-Contravention on 20 April 2015 alleging a contravention by the Respondent of order 21(b) is proven. The respondent did on 28 December 2014 contravene order 21(b).
(9) The father is ordered to:

<li “=””>(a) attend and complete, within 6 months, a Parenting Apart Post Separation Parenting Program (“the program”) at an organisation or organisations as nominated by the Regional

Co-Ordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia; and<li “=””>(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program; and<li “=””>(c) pay and otherwise be responsible for all costs associated with the program; and<li “=””>(d) provide an appropriate certificate of completion of the program to the other party.

(10) All previous parenting orders in relation to the children X born (omitted) 1997 (‘X’) and Y born (omitted) 2000 (‘Y’) be discharged.
(11) That the father have sole parental responsibility for Y.
(12) That the father shall advise the mother as soon as practicable after making any decision in respect of any major long term issues for the care, welfare and development of Y.
(13) That Y live with the father.
(14) That Y shall spend time and communicate with the mother as follows:

(a)

(i) the second and fourth weekend of each month from 6.00 pm on Friday until 6.00 pm on Sunday during school terms;
(ii) from 6.00pm Friday until 6.00pm Sunday for the following weekends:

<li “=””>(i) 25 March 2016 – 27 March 2016;<li “=””>(ii) 16 September 2016 – 18 September 2016;<li “=””>(iii) 31 March 2017 – 2 April 2017;<li “=””>(iv) 22 September 2017 – 24 September 2017

(iii) from 6.00 pm the day preceding Mother’s Day until 6.00 pm on Mother’s Day;
(iv) in the event that Y’s time with the mother falls on Father’s Day, Y’s time with the mother shall end at 6.00 pm on the Saturday;
(v) from 3.00 pm on Christmas Day until 8.00 pm on Boxing Day in 2016 and each alternate year thereafter;
(vi) from 8.00 am on Christmas Eve until 3.00 pm on Christmas Day in 2015 and each alternate year thereafter; and
(b) On the 2015/2016 long summer school holidays as follows:

1. 2 weeks commencing 6.00pm Sunday 27 December 2015 and ceasing 6.00pm Sunday 10 January 2016 and;
2. 2 weeks commencing 6.00pm Sunday 26 June 2016 and ceasing 6.00pm Friday 8 July 2016.

(c) On the 2016/2017 long summer school holidays as follows:

1. 2 weeks commencing 6.00pm Sunday 15 January 2017 and ceasing 6.00pm Sunday 29 January 2017 and;
2. 2 weeks commencing 6.00pm Friday 30 June 2017 and ceasing 6.00pm Friday 14 July 2017.

(d) On the 2017/2018 long school holidays as follows:

1. 2.5 weeks commencing 6.00pm Wednesday
   27 December 2017 and ceasing 6.00pm Sunday 14 January 2018.

(15) Should Y be camping at (omitted) for her own recreational purposes and be unable to attend for the mother’s weekend time at 6.00pm on Friday as per order 14, the mother is to collect Y at an agreed notified time and is to return Y at 8.00am Monday if it is a school day or 2.00pm if it is not a school day. The mother is to be notified by the father via email or text within 7 days of Y being booked into any such camp.
(16) All changeovers for the mother’s time with Y shall occur as follows:

<li “=””>(a) the father to deliver Y to the mother at the car park of the (omitted) in (omitted) at 6.00 pm on the Friday; and<li “=””>(b) the mother to deliver Y to the father at the car park of the (omitted) in (omitted) at 6.00 pm on the Sunday.<li “=””>(c) At such other locations and times as may be agreed between the mother and father in writing.

(17) For the purposes of changeovers pursuant to paragraph 16 hereof, the mother be restrained from allowing MR S born (omitted) 1991 and/or MR J born (omitted) 1995 to accompany her for the purposes of changeovers.
(18) That the father ensure that Y attends counselling on an ongoing basis at such frequency and at such intervals as may be recommended by Y’s counsellor and further abide by any directions as may be made by the counsellor as he/she considers necessary to facilitate the wellbeing of Y.
(19) That the cost of Y’s counselling be borne by the father.
(20) The father be at liberty to provide to any counsellor Y attends a copy of all professional reports prepared in this matter, a copy of these orders and a copy of the reasons for judgment.
(21) The father be at liberty to provide a copy of these orders and the reasons for judgment to the principal of any school Y attends.
(22) The father forthwith sign all documents and do all things necessary to ensure that any school which Y may attend forwards to the mother at the mother’s expense all notices, newsletters, reports and photographs normally disseminated to a parent.
(23) The father as soon as practicable advise the mother of any significant illness or injury that effects Y whilst she is in his care and in the event of significant illness or injury the father authorise the treating medical professionals to speak to the mother about Y’s treatment save that the father alone shall be responsible for decisions relating to all treatment or other interventions undertaken by the medical professionals.
(24) In the event that the mother takes Y to a medical practitioner when Y is spending time with her she advise the father within 24 hours of the name, address and telephone number of the medical practitioner and authorise the medical practitioner to speak to the father and in the event that no such authority is provided paragraph 2 of these orders shall stand as such authority and the father is at liberty to provide a copy of this order to the medical practitioner.
(25) The mother, her servants and agents be and are hereby restrained from allowing Y from coming into contact with MR M born (omitted) 1965.
(26) Each of the father and mother be and is hereby restrained by themselves, their servants and agents from:

<li “=””>(a) discussing the evidence adduced in these proceedings or the judgment with Y or in the presence of or hearing of Y or allowing any other person to do so; and<li “=””>(b) denigrating the other or the other’s family in the presence of or within the hearing of Y.

(27) Pursuant to s.65DA(2) and s.62B of the  Family Law Act 1975  (Cth), the particulars of the obligations that these orders create and the particulars of 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 these particulars are included in these orders.

NOTATION:

1. The previous orders made by the Family Court of Australia on 8 January 2014 have been replicated here except where amended as referred to in the accompanying reasons or are no longer applicable.
2. These orders only refer to Y as X is now 18 years of age.

IT IS NOTED that publication of this judgment under the pseudonym Alexander & Turner is approved pursuant to s.121(9)(g) of the  Family Law Act 1975  (Cth).

MLC 7872 of 2007

Applicant

And

Respondent

REASONS FOR JUDGMENT

1. The mother filed a contravention application on 20 April 2015. She alleges eight breaches of orders made by the Family Court of Australia after a 10 day contested final hearing on 8 January 2014.
2. It is very clear that the relationship between the parents remains very bitter and that there is little ability to cooperate or communicate.
3. The applicant relied on her affidavit filed on 20 April 2015, subject to objections which were upheld with respect to a few of the statements in the affidavit which were conclusions, not evidence.
4. The first count complains that the father breached order 6(a)(i). That order reads “by telephone at times agreed between the mother and the children”. The mother does not particularise when she complains the alleged breaches occurred. She merely states in her application that the breaches are ongoing.
5. The mother clearly feels aggrieved and feels that the father prevents the children from telephoning her. She complains that the father takes away their mobile phones. It should be noted that X turned 18 on (omitted) 2015. Y was born on (omitted) 2000. She will be 16 next (omitted).
6. As I explained to the applicant there was no prospect of this court being successful. This is not just because of the lack of particulars but because there is nothing enforceable in the order. The order is expressed as being contingent upon there being an agreement. As there is no agreement no breach can be established. There is a further issue with that order and it is the fact that it is expressed as being “as agreed between the mother and the children”. There is no obligation on the father.
7. The second count alleges a breach of order 6(a)(ii) on 26 September 2014 complaining “the respondent without reasonable excuse did make arrangements for the children to attend a youth camp knowing that times would deliberately impact on the time spent with the applicant.”
8. The third count is in the same terms as the second count with respect to 9 January 2015.
9. The fourth count is in the same terms as the second count with respect to 23 January 2015.
10. The fifth count is in the same terms as the second count with respect to 10 April 2015.
11. The sixth count relates to order 6(b)(i) and complains that the respondent “without reasonable excuse refused to allow the applicant to spend time with the children having been given correct notice as per court orders”.
12. The seventh count complains that the respondent breaches order 21(a) and reads “the respondent and wife have without reasonable excuse discussed specific evidence adduced in the proceedings or the judgment with the children.”
13. The eighth count complains that the respondent breaches orders 21(b) and states “the respondent and wife have without reasonable excuse regularly denigrated the applicant and her family both in the presence of and within hearing of the children.”
14. Counts 3 and 4 overlap with count 6 as they relate to the same time period. This is because the way the orders are drafted and the applicant’s weekend time continues during the school holidays but the applicant is also able to nominate holiday time. The applicant opted to withdraw counts 3 and 4 and to proceed with count 6.

The Legislation

15. Division 13A of Part 7 of the  Family Law Act 1975  (Cth) addresses contravention of parenting orders.
16. Section 70NAC of the Act sets out what it means to contravene an order:
    <li “=””>

    Meaning of contravened an order

<li “=””>

A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

<li “=””>

(a) where the person is bound by the order–he or she has:

<li “=””>

(i) intentionally failed to comply with the order; or

<li “=””>

(ii) made no reasonable attempt to comply with the order; or

<li “=””>

(b) otherwise–he or she has:

<li “=””>

(i) intentionally prevented compliance with the order by a person who is bound by it; or

<li “=””>

(ii) aided or abetted a contravention of the order by a person who is bound by it.

17. Section 70NAE of the Act discusses the meaning of reasonable excuse:
    <li “=””>

    Meaning of reasonable excuse for contravening an order

    <li “=””>

    (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).

<li “=””>

(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

<li “=””>

(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

<li “=””>

(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.

<li “=””>

(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.

<li “=””>

(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:

<li “=””>

(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

<li “=””>

(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).

<li “=””>

(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:

<li “=””>

(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

<li “=””>

(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).

<li “=””>

(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:

<li “=””>

(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

<li “=””>

(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).

<li “=””>

(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:

<li “=””>

(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

<li “=””>

(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).

18. The standard of proof in contravention proceedings is on the balance of probabilities: (section 70NAF(1) of the Act).
19. In contravention proceedings, the general obligations created by parenting orders need to be considered. Thus, in the present case, section 65N of the Act may be relevant. It states:
    <li “=””>

    General obligations created by parenting order that deals with whom a child spends time with

    <li “=””>

    (1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

<li “=””>

(2) A person must not:

<li “=””>

(a) hinder or prevent a person and the child from spending time together in accordance with the order; or

<li “=””>

(b) interfere with a person and the child benefiting from spending time with each other under the order.

Counts 1, 3 and 4

20. I have addressed count 1 above. The applicant elected to withdraw counts 3 and 4 and to proceed with count 6.

Counts 2 and 5

21. Counts 2 and 5 allege that the father breached order 6(a)(ii) on 26 September 2014 and 10 April 2015. These were both weekends the mother was to spend with the children.
22. The mother’s complaint essentially is that the children engage in holiday activities which encroach on her time. The children are actively involved with the (omitted). This is a holiday camp for children which focuses on outdoor activities including horse riding. The father says they have been going there for years. X now works there. Y participates in camps there. On these weekends the mother’s time has not commenced until Saturday afternoon instead of 6pm on the Friday evening.
23. The mother conceded that there have been several changeovers at (omitted) rather than the changeovers set out in the orders. She conceded that she has not had a problem with that. She also conceded that the children have been going to (omitted) for years. She also conceded that there are week long camps the children participate in during the holidays. She also agreed that it is a positive experience for the girls.
24. The weekend commencing 26 September 2014 was during the school holidays. The girls were on a week long camp.
25. The fundamental problem became clear during the mother’s cross-examination. She said that the orders prevent her from collecting the children from where the father placed them. She was relying on order 5. Order 5 states:

The mother be and is hereby restrained by herself, her servants and agents from communicating directly or indirectly, approaching or removing or attempting to remove the children from the father’s care or the care of any other person with whom he has placed them save to exercise time with the children pursuant to an order of this Court or with the prior written consent of the father.

26. It is clear that the mother has misunderstood order 5. The order does not say what she thinks it does. The order clearly states that the exception is that when the mother is to exercise time with the children. This order does not prevent the mother from collecting the children at the beginning of her time. The father does not have to be present. The father also does not have to be present when she returns the children. It is clear that the father is entitled to leave the children in the care of other persons and if he does so, the mother is to collect the children from that person.
27. It is clear from the evidence that the mother did not turn up at 6pm for the handover and did not send an email saying she would turn up at 6pm in accordance with the orders.
28. Furthermore, the mother’s complaint is framed to say that the father made arrangements for the children to attend (omitted) to interfere with the mother’s time. The mother did not lead evidence to support that. The father gave evidence that the girls make their own arrangements to book into the camps they want to attend online and have been doing that for some time. The mother’s complaint cannot be made out.
29. Counts 2 and 5 of the contravention application are dismissed.

Count 6

30. The main point of contention between the parties is order 6 which states:
    1. from the 2014/2015 long summer school holidays;
       1. for four (4) weeks of the school holidays each year as nominated by the mother to the father by three (3) months written notice to the father.
31. The difficulty with this order as drafted is that it does not make it clear whether the 4 weeks can be taken at once or can only be taken a week at a time.
32. The mother interprets the order as enabling her to nominate a 4 week block. The father says this could not have been the intention of the order when one considers the judgment which provides the context for the orders.
33. The Court is very concerned about the way the parties communicate with each other as shown by the chain of emails between them. The emails are annexed to the mother’s affidavit. In the email dated 16 September 2014 the father assumes that the mother will fit in around the girls’ arrangements at (omitted). I suspect that he would see the girls attending (omitted) as more valuable for the girls than spending time with their mother.
34. The next email from the father dated 17 September 2014 raises the dispute about the interpretation of order 6 but also says that they had already made plans during the time she wanted. The order is clear that the mother is to nominate the time. It does not matter if the father has plans or not. The orders do not permit to consult with the children’s psychologists before agreeing to the holiday time. It is one thing to dispute whether or not she is entitled to a 4 week block or not based on the interpretation of the order. His sense of entitlement in the email goes well beyond that.
35. The disdain the parents feel for each other is obvious from their correspondence. I have no doubt that the children are aware of this. The father refers to having authority to withhold the children. He does not have any such authority. To the contrary the father has a responsibility to positively encourage the children to spend time with their mother.
36. It is fortunate for Y that these orders will only be in place for a relatively short period because I doubt that the parents’ attitudes and communication styles will improve. The variations I will make to the orders should lessen the need for any communication between the parents.
37. It is also telling that the mother did not take up the week of time the father did offer. She said that she received legal advice and felt that if she accepted, it would be condoning the father’s breach of the orders. This is not so. She could have taken this up whilst still maintaining her objection to the father’s interpretation of order 6. The impression I have of both parents is that at times they put continuing the conflict above their children’s best interests.
38. Order 20 states:

The mother, her servants and agents be and are hereby restrained from allowing the children from coming into contact with MR M born (omitted) 1965

39. Mr M is the mother’s husband. The mother says there is no difference between her having the children with her for 2 nights as opposed to 28 nights. I do not accept this. The effect of the order is that Mr M needs to leave his home for the whole period the children are with their mother. It is reasonable for the father to seek an assurance that Mr M is prepared to stay away for 4 weeks. This is a much greater imposition on him than staying away for a weekend. It would have been easy for her to give that assurance but instead she told him it was none of his business.
40. At the end of the mother’s evidence, the father’s counsel submitted that the father had no case to answer with respect to count 6.
41. After considering the issue, I determined that the father has no case to answer with respect to count 6 for the following reasons.
42. The father’s counsel relied on s.69ZX(3)(b) of the  Family Law Act 1975  in support of his submission that the Court may consider previous findings and judgments. This section is found in Division 12A which applies to child-related proceedings under Part VII. Contravention proceedings are addressed in Division 13A which is found in Part VII of the  Family Law Act 1975 . Section 69ZX(3) is set out as follows:

(3) The court may, in child related proceedings:

(a) receive into evidence the transcript of evidence in any other proceedings before:

(i) the court; or

(ii) another court; or

(iii) a tribunal;

and draw any conclusions of fact from that transcript that it thinks proper; and

(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).

43. The father’s counsel relied on the Full Court decision of Hughes & Hughes [2013] FamCAFC 146. At paragraphs 29 and 30 they state:
    <li “=””>

    …We say this because the construction of any provision in a document requires consideration of the document as a whole. If that consideration shows inconsistency between two provisions then the inconsistency needs to be resolved by means other than saying that one of the provisions is clear. Instead, the inconsistency must be resolved by application of the well known rules of construction.

<li “=””>

Thus, in Yunghanns v Yunghanns [1999] FamCA 64; (1999) FLC 92-836 at [142] the Full Court of this court held that a specific order contained in a suite of consent orders:

<li “=””>

… must be construed in the context of the other orders also contained in the consent orders of that date, and in the light of the proceedings of which they were the culmination…

44. As I have indicated earlier in this judgment order 6 can be read a couple of ways. Given this, it is necessary to consider the orders as a whole to assist in its interpretation. Order 6(a)(ii) provides for the mother to spend time with the children on the second and fourth weekend of the month. There is no provision for the mother’s weekend time to be suspended during school holidays. Order 6(i) is unclear. It refers to the mother being entitled to 4 weeks of the school holidays a year. The word ‘holidays’ is plural. The father argues that it could not have been the intention of McMillan J that the mother be entitled to take a block of 4 weeks of holiday time. The mother argues that is what the orders entitle her to. Due to this uncertainty of interpretation it is not possible to find a breach of the order. I find that the father has no case to answer.
45. Looking at the orders as a whole I think the likely intention of MacMillan J was that the wife would be entitled to 4 weeks of school holidays a year. It is a big leap to go from alternate weekend to a 4 week block.
46. It is also permissible to look at the judgment to assist in interpreting the orders. Paragraph 172 of the judgment supports the view that it was not the intention to provide the mother with a single block period of 4 weeks. Paragraph 172 talks about a concern about X being away from her father for an extended period. The same logic should apply.
47. In considering MacMillan J’s judgment, I make it clear that I have not placed any weight of MacMillan J’s credit findings. I need to make my own assessment about the parties’ credit if it is relevant to the decision I have to make in the contravention proceedings. There is no issue of credit arising out of the cross-examination of either party before me.

Count 7

48. The seventh complaint is that the father and his wife have discussed the evidence from the proceedings with the children.
49. The father gave evidence that Y overhead a conversation he had with his wife about the mother having to pay his costs. He says that they thought Y was at the other end of the house. He says apart from this, when the children have had questions, they have directed them to ask their mother. They have talked about the mechanics of the order such as the pick up and drop off times and locations. They would need to do this. None of this establishes a breach. It is unfortunate that Y overhead the conversation between the father and his wife but that is not a breach of the order because it is not discussing the proceedings with Y.
50. The evidence does not support this complaint being made out.

Count 8

51. The eighth complaint is that the father denigrated the mother to Y. In order for the mother to succeed on this count I must allow the mother to rely on a transcript of recording which was made without the father’s knowledge and consent. If I admit the transcript into evidence then the father conceded he breached that order.

Secret recording

52. Y recorded her father and step-mother without their knowledge on 28 December 2014. The father’s counsel sought to rely on section 6 of the Surveillance Devices Act 1999 (Vic) to exclude the video recording. He also referred to DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355. For reasons only known to Y she gave her mother a copy of this recording months later. The mother filed her contravention application shortly afterwards. There was some debate at the hearing about how the recording came into the mother’s possession as this would impact on the operation of section 6 of the Surveillance Devices Act 1999. By the end of the hearing the father was no longer alleging that the mother was involved in the recording.
53. The mother relies on s.11(2)(b)(ii) and s.11(2)(c) of the Surveillance Devices Act 1999. There relevant portions of section 11are set out as follows:
    <li “=””>

    (1) Subject to subsection (2), a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device.

<li “=””>

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;

<li “=””>

In the case of a body corporate, 1200 penalty units.

<li “=””>

(2) Subsection (1) does not apply—

<li “=””>

(a) to a communication or publication made with the express or implied consent of each party to the private conversation or private activity; or

<li “=””>

(b) to a communication or publication that is no more than is reasonably necessary—

<li “=””>

(i) in the public interest; or

<li “=””>

(ii) for the protection of the lawful interests of the person making it; or

<li “=””>

(c) to a communication or publication in the course of legal proceedings or disciplinary proceedings; or

54. Subsection (c) does not apply as it does not refer to a recording. It is also clear that it is referring to something which takes place during the course of legal proceedings which is not the case here. Is the admission of the recording necessary to protect Y’s legal interests?
55. The real issue comes down to competing public policy considerations. The father argues that the recording should not be admitted into evidence because to do so would be to condone a child gathering evidence against a parent which must be contrary to that child’s best interest. It is also condoning illegal conduct.
56. If the recording is admitted the father concedes that he has breached order 21(b) by denigrating the mother in Y’s presence. The argument raised by the father could be argued in support of the mother’s case in reverse. That is that to exclude the recording is to condone what is a clear breach of the parenting order.
57. The purpose of non-denigration orders is to protect the children from negative comments being made about their parent. This has a negative emotional and psychological impact on children.
58. The transcript of the recording is annexed to the mother’s affidavit on pages 39 and 40. It is clear from that transcript that both the father and his wife denigrated the mother to Y. The orders do not bind the father’s wife. As I indicated during the course of the hearing I am going to vary the non-denigration order so that the father has an obligation not to allow anyone else to denigrate the mother in Y’s hearing or presence. The father and his wife say it is necessary to look at the events of that day to explain their conduct. Regardless of what happened that day it is very important that parents do not expose their children to denigration of this kind. It can only have a negative impact on the child. The children in this case are already painfully aware of the dislike their parents feel for each other. It is of great concern that Y involved herself in the parental conflict in this way and it is indicative of a failure by both parents to protect her from the dispute.
59. The mother was due to return Y to the father’s care on 28 December 2014. The father sent an email at very short notice to say that he and his wife were away. The email instructed her to drop Y to his wife’s children’s care at the church at 6pm. The mother says that the orders require her to drop her off to the father. The orders do not say that. In fact order 5 which is set out above, clearly contemplates the father leaving the children in the care of other people.
60. The mother was unreasonable in her actions. She was not child focused. It is understandable that the father was frustrated by this but that does not amount to a reasonable excuse to breach the non-denigration order. The mother also dropped Y off 4 hours early.
61. The mother left Y with X at the (omitted) at 2pm. The mother did not comply with the orders. I do not accept that she was concerned about Y’s safety.
62. Section 138 of the Evidence Act 1995 (Cth) states:

Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

63. There is no doubt that the recording was obtained improperly. It does not matter that the mother was not involved in making the recording. The reference to an Australian law is defined in the dictionary of the Evidence Act 1995 which states that an Australian law is a Commonwealth, State or Territory law.
64. The dilemma the Court faces is this. The father has breached an order. He can only be found to be in breach of the order if the evidence improperly obtained is excluded. Excluding that evidence may be seen to condoning a breach of the order. The father has explained the context of the breach and whilst the reaction is understandable it does not amount to a reasonable excuse.
65. If the evidence is admitted that could be seen as condoning a child secretly recording a parent and the other parent using it to file a contravention application.
66. I should make it clear that I do not accept the father’s counsel’s submissions that I should take into account the credit findings MacMillan J made against the mother at the trial. I need to make my own assessment. In any event it is not necessary in this case.
67. The father’s counsel submits that the evidence is not probative because in the context of the proceedings before MacMillan J and the current proceedings a finding of a contravention will not make any difference to the outcome.
68. In my view, given the circumstances surrounding the breach, it is sufficient sanction that I find the contravention proved and order the father to attend a post separation course which will reinforce the damage that denigrating the other parent and continuing the conflict can do. The father’s wife should consider undertaking the course with the father as she would also benefit from it. I cannot order her to attend because she is not a party to the proceedings.

Variation of orders

69. The court has the power to vary the orders regardless of whether or not a contravention of the orders is established. See section 70NBA  Family Law Act 1975 . The parties agreed that some of the orders made by the Family Court were unclear and should be varied.
70. It is clear that when considering varying orders it is permissible for the Court to consider the reasons for decision with respect to the previous orders. See Full Court decision Enmore & Smoothe [2014] FamCAFC 131 at paragraph 77:
    <li “=””>

    “We also have difficulty in comprehending the submission insofar as it suggests that the earlier reasons would be irrelevant in variation proceedings of the type mentioned in s 70NAA(2) of the Act. Even had Bell J been asked to vary the orders, he would have needed to refer to the reasons, since applications for variation in contravention proceedings are dealt with in the same way as any other variation application: Irvin and Carr [2007] FamCA 492; (2007) FLC 93-322 at [68]. It is well established, in all proceedings seeking to vary a parenting order, that the court should have regard to the reasons delivered when the original order was made: Rice and Asplund (1979) FLC 90-725 at 78,905”.

71. Both parties submitted a proposed minute of orders to vary the orders. The respondent’s proposal is marked as Exhibit C. The mother’s proposal is marked as Exhibits D and E.
72. I am going to discharge the order about telephone contact. I am not going to replace it. In my view specific orders about telephone contact often cause more problems than they solve. In this case Y is 15 years old. She is old enough to initiate telephone contact with her mother whenever she wishes to. The father says Y has her own phone.
73. Ordinarily, given Y’s age, the Court would consider ordering a child inclusive s.11F conference to obtain Y’s views as to how the arrangements are working for her. However, to do this would be to ignore the history of this matter where after a 10 day hearing MacMillan J expressed “grave reservations” about the mother’s capacity to provide for the children’s emotional needs.
74. The mother seeks an amendment to order 6(a)(ii) such that she has time with Y every second weekend instead of the second and fourth weekend of the month. The mother says the orders were drafted that way because Y was attending (omitted) club at the time. She does not anymore. The father proposes that the orders remain the same. He says there is no evidence to support such a change. The weekend time orders are not the problem. The issue is the (omitted) camp. The father’s proposal addresses this by giving the mother additional time at the end of the weekend. The evidence is that typically, if Y has a camp, her mother picks her up on Saturday afternoon at the camp. If that happens, the mother should return Y to the father at 8am if Monday is a school day or 2pm if it is not a school day. The handover should be at a neutral location being the (omitted).
75. The parties have agreed on two 2 week block periods the mother will have during school holidays in 2016 and 2017. In addition, the mother seeks an additional 4 weeks on dates she has nominated. In essence, she wants half the school holidays. She sees this as make up time. The evidence does not support there being that additional time. MacMillan J made orders giving the mother limited time after careful consideration. That decision was not appealed.
76. The mother seeks some flexibility in the orders but that requires the parties to be able to communicate with each other civilly and constructively. They have only shown a limited ability or willingness to do that. I am mindful that the previous orders continued the mother’s weekend time during school holidays whilst these do not. I will not order the additional weeks that mother seeks. However, I will order that she have additional weekends during the holidays she is not spending block time with Y. This may result in Y occasionally spending two weekends in a row with the mother. I am satisfied that these orders are in Y’s best interests.

Conclusion

77. I should indicate for the mother’s benefit that even though she has not been successful in her application, she had good reason to bring the matter back to court because there are some difficulties with the orders MacMillan J made. Hopefully the amendments to the orders will avoid future difficulties. However, it will be incumbent upon both parents to modify their own behaviour.