FATHER FILES CONTRAVENTION APPLICATION AGAINST MOTHER FOR DEPRIVING THE FATHER OF AGREED TIME WITH THE CHILDREN
Labeck & Calandros (No 4) [2021] FCCA 1045 (17 May 2021)
This is a contravention application by the father alleging that the mother contravened orders made on 3 September 2020 about two children, X, who is four years old and Y, who is three years and eight months old.
Facts:
Relevantly, the mother and father consented to orders on 3 September 2020 that the father spend time with X from after pre-school or 2:30 PM to the latest time for changeover at A Family Services until 4:30 PM.
Thie first alleged contravention was on 9 September 2020. The mother collected X from pre-school and thereby failed to permit the father to collect X from pre-school and failed to deliver Y to A Family Services at the commencement of her time with the father.
The mother asserted that X was upset when she was told that her father would collect her from pre-school - this being the first collection from school - the mother went to the school with the intention of reassuring the child and facilitating the changeover.
Nevertheless, as the mother points out, the order did not expressly prevent the mother from being present at the school and as X refused, according to the mother, to transition to the father at pre-school she was not in breach of the order.
On 7 October 2020, the same thing happened. The father alleges that he attended to collect X from pre-school but the mother was already present and had collected her. The mother claimed, as she did in respect of 9 September 2020, that she simply wished to support X at changeover.
The father alleges that similar events occurred as what occurred on 9 September 2020 and 7 October 2020 with the mother attending at X’s pre-school and collecting her in breach of the order. He said the mother later attended at A Family Services with both children but that X was upset and did not transition to him.
The mother’s affidavit claimed that X was not scheduled to attend preschool on 9 December 2020 and did not attend. She said she did not collect the child from pre-school and, therefore, had not breached the order. She said she acted reasonably when X refused to transition to the father at A Family Services.
Issue: Is the mother guilty of contravening with the parenting orders?
Law:
Analysis:
The pre-school attendance record for 9 December 2020 showed that X was present at pre-school that day. The A Family Services notes record X as confirming to her father that she had attended pre-school that day. X attended preschool on that day. The mother attended and collected the child in breach of the orders. Her evidence that the child did not attend pre-school on that day is untrue. The mother contravened the orders without reasonable excuse.
This is the second time the mother has been found to have contravened an order. The contraventions proved against her in this application also constitute a breach of the good behavior bond the mother signed on 13 October 2020. In that bond she undertook to be of good behavior for 12 months until 29 September 2021. The mother lacks a degree of insight into the emotional and psychological needs of the children.
Conclusion: The respondent mother is found guilty of the contraventions alleged to have occurred on 9 September 2020, 7 October 2020 and 9 December 2020. By way of penalty, the respondent mother do enter into a Bond without surety or security to operate for a period of two (2) years and that it be a condition of that Bond that she observe and comply with the requirements of all parenting orders of this Court and of the Family Court of Australia in relation to the children subject to the proceeding.