Fox v Percy

1. The Contravention Application filed 26 November 2024 be and is otherwise dismissed.
2. All extant applications are otherwise dismissed.
3. There be no order as to costs.

"The Respondent, without reasonable excuse, refused to take the children to agreed sports lessons."

1. Mr Reed asserted that his reasonable excuse was as stated within his affidavit filed 11 December 2024 at [15]:

"15. In response to count 11 within the Contravention Application, I say as follows:

1. [In mid] 2024 at 6.00pm - The children and I were celebrating my partner, [Ms B's] birthday at a family dinner."

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).

1. These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
2. During the proceedings before me, I delivered two ex tempore judgments in the matter of Tanner & Reed. For convenience, both of those ex tempore judgments have been settled within the same judgment.

1. In terms of the case to answer, I am satisfied that the particularity of the pleadings and the evidence in regard to counts 15 to 38 does raise a case to answer in the sense that Judge Parker has referred to in the matter of Cagney & Nankervis [2024] FedCFamC2F 192.
   1. The Respondent sought that each of the counts in the Contravention Application as filed be struck out on the basis that the evidence adduced in support of them amounted to no more than a conclusion and was not capable of supporting the findings necessary to find that there had been a contravention of the orders.
   2. When considering a submission that a Respondent has no case to answer, the Court is to consider whether the Applicant has presented a prima facie case. For this purpose, the Court must take the Applicant's evidence at its highest, including drawing any available inferences in favour of the Applicant. If, taken at its highest and with the drawing of any such inferences, the evidence is capable of establishing the contravention alleged, then there is a case to answer. The test to be applied is whether the Court could (not would) find for the Applicant on the basis of the evidence adduced...
   3. Section 69ZN of the Act sets out a number of principles for conducting child related proceedings. One of those principles includes that proceedings are to be conducted with as little formality and legal technicality as possible. Section 189 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that the proceedings in this Court are not invalidated by formal defect or irregularity unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity and the injustice cannot be remedied by an order of the Court.
   4. These considerations must be weighed against the fact that contravention proceedings are quasi-criminal in nature, that a contravention must be precisely stated and proved, and that procedural requirements should be strictly complied with and not lightly departed from. In particular, prejudice to the Respondent must be avoided.

...

(footnotes omitted)

(emphasis added)

1. I am also assisted by the decision of Dobbs & Dobbs (No 2) [2024] FedCFamC1F 349.[1]
   1. It is correct that in contravention proceedings, proper particularisation is important. These are quasi criminal proceedings, and the applicant bears the burden of establishing that the order has been contravened. The consequences that can flow from a breach being proven are serious.
   2. The Full Court in Gravis & Major [2010] FamCAFC 239 set out the common law requirements that a defendant must be told of the nature of the offence and the particulars of the act. Their Honours referred to the decision of the majority of the High Court in their decision of Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531. In that decision it was said that the Court needs to know the offence with which it is required to deal, and the accused needs to know "the substance of the charge which he or she is called upon to meet", at [26]. That will include identifying "the essential factual ingredients of the actual offence", at [26], although the facts pleaded need not be as extensive as those which might be provided if particulars are requested. Ordinarily, it is expected the asserted facts will specify the time, place and manner of the acts or omissions, and provide "reasonable particularity as to the nature of the offence charged", at [26].

1. My decision is that there is a case to answer in regards to counts 15-38 of the Contravention Application filed by the Applicant.

1. In regard to the matter, I refer to the short reasons I gave earlier in regard to why there was a case to answer, which were very short given the demands of time.
2. The application as filed on 26 November, counts 1 to 5 relating to the failure to provide or facilitate a phone call were withdrawn. And number 6, failing to take to a sports lesson on 27 March is also withdrawn, and I presume that is because that is before the Court orders when they were made.
3. The orders that are alleged to be contravened are as follows:

PARENTING ORDERS

1. That the parents have equal shared parental responsibility for the children [X] born [in] 2013 and [Y] born [in] 2016 ("the children").

2. That the parents must consult with each other in relation to major long term issues relating to the health and wellbeing of the children, education of the children, and extra-curricular activities.

3. Commencing 4 April 2024, the children live with the parents on a shared care basis during all school terms and all school term holiday periods as agreed between them in writing and in default of agreement the following shall apply:

   a) With the Mother in a two weekly cycle from 6.30pm on Thursday until 6.30pm on the following Friday (i.e. 8 consecutive days).

   b) With the Father in a two weekly cycle from 6.30pm on Friday until 6.30pm on Thursday (i.e. 6 consecutive days).

...

Telephone time

1. That either parent be at liberty to telephone the children's mobile phone at all reasonable times and each parent shall ensure as far as practicable that the children's mobile telephone remains charged and accessible.

Extra curricular activities

1. That the parents each ensure that the children attend agreed extra-curricular activities during the time the children spend with each of them and neither parent is obliged to take the children to extra-curricular activities in which the other parent enrols the children without consent.

...

1. That the father and mother shall administer to the children any medication prescribed for the children by a treating medical practitioner or pharmacist as and when prescribed while the children are in their care.

...

NOTATION:

...

1. The children are currently enrolled by agreement between the parties in [sports] for the remainder of 2024 as extra-curricular activities.

1. The scheme of the orders is that the parents have equal shared parental responsibility for long-term decisions and the child is to live between them in a substantially shared care arrangement, but not an equal shared care arrangement. In each fortnight, the child spends two more nights with her mother than she does with her father, that is, it is a six/eight night arrangement, which means that the father would see or interact with the child over and on seven days in the fortnight and the mother over and on nine days in the fortnight.
2. Count 7 relates to the law as it was prior to 6 May 2024 when the relevant Division 13A was amended. For the convenience in these ex tempore reasons, I refer to and repeat my observations in the matter of Rossini & Koopman [2024] FedCFamC2F 901. There I determined matters alleged to have occurred prior to 6 May 2024 are governed by the previous legislation and after 6 May 2024 by the current legislation, as follows:
   1. I am satisfied, because of the provisions of section 7(2)(b) - (e) of the Acts Interpretation Act and the conclusionary part to those provisions, as well as the authorities referred to, that there was no intention of Parliament to displace the time-honoured presumption or assumption against retrospective application. In this case, the consequences of the difference between the new legislation or the old applying are minimal. I am so satisfied because the imposition of consequences, or orders following the finding of a contravention, is in substance a penalty in respect of a contravention of the Act, albeit it has not used the words offence. If I am wrong about that, in this case that difference is of no consequence. I take into account the new part, or Division, 13A in any event.
3. It is agreed after discussion with counsel that for the purpose of this application there is no practical difference between the two schemes, and it is unnecessary that I discuss the differences between them.

1. It is alleged that between 17 April 2024 and 4 September 2024 that the father failed to comply with order 13, as recited above, in that he did not take the children to sports lessons. Those lessons are paid for by the mother, and paid for solely by the mother, and I infer, organised by her.
2. Sensibly, the matter was prosecuted on the basis that the orders contemplated that both parents would take the children to sports lessons, provided their working commitments permitted them to do so.
3. The Father's asserts from the bar table that he works from 7.00am to 3.00pm, but on occasions is required to work to 6.00pm.
4. He asserts that he has made reasonable efforts to comply with those orders, and where he has not taken the children to the lessons, it has been, to the best of his memory he says, in regard to work demands that did not permit him to get there. The other inference that he asks that I draw from his evidence is that he finds out at the last minute that he is required to work the later time, that is, on the day, rather than earlier.
5. It is his evidence, and it does not appear disputed, or at least the applicant mother is unable to dispute it today, that he attempts to, or by and large does, notify the sports school when the children are not attending. But concedes that he has not ever notified the mother on the days that he did not take the child for a sports lesson.
6. The dates that make up the contravention application regarding the children missing their sports lessons are as follows.

Count 7 17 April 2024;

Count 8 29 May 2024;

Count 9 26 June 2024;

Count 10 10 July 2024;

Count 11 Mid 2024;

Count 12 7 August 2024;

Count 13 21 August 2024; and

Count 14 4 September 2024;

1. The counts 15 through to 38 cover the 10 different days between 19 August 2024 and 27 October 2024 that he allegedly refused to administer X's prescribed medication. I am satisfied that X was prescribed medication and that she was prescribed that medication as set out in the mother's affidavit. I am further satisfied that the mother promptly notified the father of the diagnosis and the fact of medication.
2. However, it is common ground that, due to the nature of the medication, both parents cannot have a prescription and only one parent can actually obtain the medication from the chemist. Those circumstances compel the overwhelming circumstance and inference that, to make the administration of prescription medication order work, either both parents have to have a prescription and do all reasonable things to make sure they have the medication, or the parent that has the prescription, and hence has control of the medication, must provide it to the other parent.
3. The Father states within his affidavit filed in December 2024 that he was provided with the medication on 20 September 2024.
4. In any event, it is common ground that after the father's refusal to provide the medication, that the mother agitated with the school (or at least I infer it was the mother. Then in the circumstances where the school was provided with both the medication and the diagnosis (by the Mother), the school determined the school would administer the medication whilst the child was at school.
5. Hence, to the extent that the counts relate to events up until 20 September 2024, it is difficult to see how the father could have complied with the order when he did not have the medication, on the evidence I have. In any event, it is common ground that four days after the prescription and the refusal by the father to administer the medication, the school prescribed the medication.
6. The father further asserts that he attempted to engage the child's psychologist and paediatrician and that by his efforts (I suspect, by the demand upon the time available, the working life of those two professionals), he never obtained a consultation at the relevant time. It is common ground that in 2025, whilst this case was pending but after its issue, the father arranged (and I infer assisted by the mother), consultations with a psychologist and a paediatrician. Following that and his own observations of the effect of the medication upon the child, he no longer questioned or disavowed the medication.

1. As to the credibility of the father, it is pointed out that in regard to two accounts, he asserted that the child did not go to a sports lesson because the child had an illness, and if that is true that makes perfect sense. He nominated two dates of one bout of an illness in his affidavit, but when presented today with a school record of the child attending school on that day, moved away from that evidence and said that there was an illness on one occasion when he could not remember the date.

1. The allegations in regard to the sports lessons go back to March and the father received a formal complaint about the sports lessons via solicitors in September 2024, though I accept that the mother complained in the meantime. The criticism of the father's evidence points to a number of matters that could have been put in his affidavit and were not, and also the disavowal of illness affecting the child on a particular day which would make sports lessons inadvisable, and it is put, "Why would you accept his evidence?"
2. In Fox v Percy (2003) 214 CLR 118 ('Fox v Percy'), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the Kombi Van's wrong side of the road. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal upheld their findings.
3. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:

[31] ...in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events...

(Citations omitted)

1. I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the Father.
2. The mother's affidavit is unchallenged (the mother was not cross-examined), and it is not challenged either that the child has said to mother the things that the mother said she said.
3. The father was frank in evidence, and in regard to a number of matters that was a frank verisimilitude to his evidence. But two matters in particular influenced my assessment of his credibility, including, attached to the father's affidavit is the mother's post on social media which was provided to the father by some friend or family member, that is obviously after the diagnosis and before the swearing of the affidavit, that reads over the top of the description of the medication on the box.

Look at me go. Not only am I so manipulative that I convinced 4 Dr's that [X] was Autistic, now I've worded my charm again and convinced them she had ADHD too [emoji]

1. On a reading of that, in a parental relationship where there is not significant trust between the parents, that would cause many people to question the validity of the diagnosis. When asked about that, the father frankly conceded that that message, though at least arguably offensive and vulgar and it was put in sarcastic and ironical terms, did not influence at all his circumspection about the diagnosis. It would have been easy to cling on to and build a case about questioning the diagnosis based upon the statements in that text message. Particularly when combined with the "Happy divorce party" message that is also annexed to the Father's affidavit, and these reasons intentionally will not recite in them as they are a vulgar and offensive description of the marriage relationship of the father placed on social media by the mother. I do not infer that she intended him to consume it because he would not be what is known as a "friend" or "connection" on social media. But nonetheless he became aware of it, and he does not assert that those messages or the reference to child support influenced his decision-making.

1. At the end of the day, I do accept his evidence that he did attempt to contact the diagnosing specialists. I do accept his evidence that, after being provided with the medication on 20 September 2024, he did provide it to the child, or at least I am not satisfied, on the balance of probabilities, that he did not provide it to the child, and I am satisfied that the school administered the medication from 23 August 2024. Hence, until 20 September 2024, the father is being prosecuted in regard to a refusal to provide medication when he had neither the medication nor the prescription.
2. I also place some weight on the circumstance that it is not suggested that the medication was returned unopened, or with a message that it would not be delivered or whatever, and I draw the inference from that circumstance that this corroborates his assertion that he did administer the medication after 20 September 2024. His evidence that he administered the medication because he did not want the child on medication one week and off it the other, also had a verisimilitude to it.
3. I do not regard the entirely human inclination to attend the birthday party of his partner at her family event as a reasonable excuse for choosing to attend the family event of his partner's birthday instead of taking the child to sports lessons, as he could have. Hence, I am satisfied that that one count is made out. But, in regard to the other counts, because I accept his evidence in regard to his attempts to contact the relevant medical practitioners, I am satisfied he had a reasonable excuse.
4. I am also influenced by the common ground circumstances, that from this year on two occasions he has engaged with the relevant medical specialists and accepts their diagnosis. I also accept his evidence that he himself has observed a change in the child's behaviour with the administering of the medication.
5. I am satisfied that he has been discourteous to the mother by not informing her when he did not take the child to the sports lesson, or promptly inform her of why he did not, or what his reasonable excuse was. That can only have assisted an already developing sense of mistrust and circumspection in the mother's camp. However, it is clear from the evidence that in different ways, and not necessarily in the same ways, each of the parents have, after the orders, been discourteous, directly or indirectly to the other.

1. In all the circumstances, given the father's demeanour in the witness box and his choosing to address the matters that are alleged against him on affidavit (filed an served months ago) rather than 'hold his fire' until he gets in the witness box, I am not satisfied that I should impose any penalty on him, save that I will record, and these reasons will record, that he in fact did not have a reasonable excuse on the day of his partner's birthday. He could have chosen to celebrate that birthday the day before, the next day, the following week. But I am not satisfied that that of itself requires any further penalty, and the father has now had the ignominy of having me tell him that that is not a reasonable excuse, and in the presence of his partner.

1. The Mother seeks her costs of the application. In terms of the application for costs, section117 of the Family Law Act 1975 (Cth) is as follows.

(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

1. I take into account that the father has been substantially successful in resisting the allegations against him, but the mother has been substantially successful in her complaint of lack of communication and discourtesy to her, notwithstanding that is not a contravention. I take into account the conduct of the proceedings, which is a wide range of allegations of 38 counts, when, shortly prior to the hearing, seven of them were withdrawn, but nonetheless the father has been put to trouble and expense of an affidavit to defend those counts.
2. In regard to the other counts, out of the total of 38, I have found one proven for a human reason, but nonetheless one that is not a reasonable excuse to not comply with the orders. Hence, the father has been put to a lot of expense in defending allegations that are ultimately not made out.
3. I also take into account that both of these parties are working parents with the ordinary demands of supporting themselves and the children when they are with them and that this is not a case where there is high living, but rather, sensible hard work, modest accommodation (which I infer from the addresses of the parties), and basically sensibly getting on with life. I am not satisfied that there is any significant financial capacity that should be taken into account one way or the other. It is unfortunate that both parents have spent a lot of money on these proceedings. It is unfortunate that both parents have been discourteous to the other in different ways. It is unfortunate that neither parent trusts the other and that their children are caught up in the middle of that.

1. In regard to the claim for reimbursement, on an enforcement matter I do not have jurisdiction to award damages; I have jurisdiction to award costs. I acknowledge the discourtesy of the mother not being told about the missed sports lessons. Were I to have found that the husband's failure to get the children to the sports lessons was repeated and high-handed and without reasonable excuse, I am satisfied that I would have jurisdiction to able to award that recompense for what the mother sees as the wasted funds, if I imposed a good behaviour bond on him and imposed that as a condition of the good behaviour bond. But enforcement of those orders does not carry a compensation jurisdiction to fix up the various expenses.
2. I will not make either a good behaviour bond inserting that condition, which is, as I understand, likely to be the manner in which counsel for the Mother pressed compensation.
3. It is of no comfort to the mother, but the father should bear in mind that the parent that pays for something not unreasonably feels aggrieved when that doesn't happen and that aggrievement will impact on the welfare of the children because that is the household that the other child lives in.
4. I have considered, in light of the poor communication and mistrust between the parents, whether I should send the parents, notwithstanding no-one has asked for it, to a parenting course to improve their communication. I have decided not to, on the basis that I am satisfied they will have been exposed to those concepts beforehand over many years, and that I hope both parents, being intelligent and caring people, will both attempt to improve their style of communication and their attempt to understand where the other parent is coming from. But I will not make such an order.
5. Those are my reasons.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.