Abud & Abud

[2010] FamCA 1132

FAMILY COURT OF AUSTRALIA

ABUD & ABUD [2010] FamCA 1132

FAMILY LAW – CONTRAVENTION – Children – Penalty

Family Law Act 1975 (Cth)

Childers & Leslie [2008] FamCAFC 5
Gaunt (1978) FLC 90-468
L & P (unreported June 1998, Burr J)
In theMarriage of Lutzke (1979) 5 FamLR 553
McClintock & Levier [2009] FamCAFC 62

APPLICANT: Ms Abud

RESPONDENT: Mr Abud

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLC 9424 of 2007

DATE DELIVERED: 15 November 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr James

SOLICITOR FOR THE APPLICANT: Oakfair Lawyers

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Finn, Marshalls & Dent

Orders

1. That the contravention application of the wife filed 23 September 2010 is adjourned to 9.00am on Monday 15 November 2011 for judgment.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9424 of 2007

MS ABUD

Applicant

And

MR ABUD

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 9 November 2010, I adjourned proceedings brought by Ms Abud against her former husband, Mr Abud, until today.  Those proceedings relate to contraventions of court orders.  For the purposes of these reasons, I propose to refer to Ms Abud as “the wife” and Mr Abud as “the husband,” notwithstanding they are no longer husband and wife.  I do so for convenience.

2. I adjourned the application of the wife on the basis that I wanted to consider the evidence of both parties, which had been given on 9 November 2010, but also to determine what action I should take in terms of orders if I found the contravention against the husband proved.  Each party had the opportunity on 9 November to address the issue of what should happen if I found the application proved.  I do find the contravention proved.  I say that in respect of both of the two allegations alleged.

3. Before determining what to do with this case, it is important to note that I gave the husband a number of days to consider his position, particularly having regard to the urging of counsel for the wife.  This morning, the husband has told me that he could not afford to have a lawyer here today, but I did indicate to him that I wanted to know whether he had had legal advice, and he said that he had.

4. This contravention application is the culmination of a history of litigation for two children, which is extremely sad.  I have little confidence that these proceedings will bring an end to that litigation.  The husband is a man aged 33 years who describes himself as unemployed.  He was born in Lebanon.  The wife is currently aged 25 years and was born in Australia.  The parties married in 2004 in Melbourne and separated on 25 December 2005.  It will be observed that not only was the marriage very short, but also the parties, and in particular the wife, were very young.  The parties are now divorced.  M was born in July 2004, and is therefore six years of age.  L was born in October 2005 and is therefore five years of age. 

5. Orders were made in September 2007, by consent of the parties, that the children live with the husband, and that the mother spend time with them as agreed.  There is some significance in that order, because only a year before – and therefore shortly after the parties separated – consent orders had been made in which the children were to live with their mother and spend time with their father.

6. The 2007 orders have attached to them, on the court file, an agreed set of facts.  Those facts include that the mother was seeking employment.  They also state that the father was able to care for the children.  They say that the parties had had shared care of the children subsequent to separation, but since April 2006 the children had settled with the husband.  Most important of all, however, was the statement in which the husband said that he was committed to ensuring that the children had a significant relationship with the wife and her extended family.  There is some significance in that statement because the children were subsequently taken by the husband to Lebanon, where they have been ever since.

7. In July 2008, the wife sought urgent orders for recovery of the children, and that the children be placed on the passport watch system to prevent them being removed from Australia.  The dilemma, however, was that by that time the husband had already moved the children to Lebanon. 

8. In September 2008, the wife’s application was struck out on the basis that there was no appearance.  The court file suggests that the matter remained dormant for over a year thereafter. 

9. On 9 April 2010, the wife filed an application in this Court in which she sought to have the children placed again on the passport watch system, and that the husband return the children from Lebanon to Australia.

10. On 13 April 2010, in the absence of the husband and presumably without him being served, the Court made an order restraining the husband from leaving Australia on an interim basis. 

11. On 12 May 2010, which was two days before the return date of the wife’s application, the husband filed a response in which he simply sought to have her application dismissed.  Importantly, he sought an order that he be permitted to travel overseas to Lebanon, where the children were then living with the husband’s parents.

12. On 14 May 2010, the matter came on for hearing before the senior registrar, who adjourned the matter to a one-day fixture before a judge on 12 July 2010.  The Senior Registrar also made an appointment for the children to be represented in the proceedings by an Independent Children’s Lawyer.  Later, the Senior Registrar made further orders by consent of the parties.  Interestingly, this order provided that the husband request his brother to bring the children back to Australia as soon as practicable.  It is important to note that that order was made with the consent of the husband, who at that time was represented by a lawyer.

13. On 19 August 2010, it was clear that the children had not been brought back to Australia by the husband’s brother.  The Senior Registrar noted on that day that on the instructions that the husband had given his lawyer, the brother had no longer been able to come to Australia because of employment problems.  In the reasons for judgment of the Senior Registrar, he said that the children had not seen their maternal grandparents for a long time, and therefore there may have been some difficulties with those people bringing the children back to Australia.  Despite those anticipated difficulties, the Senior Registrar noted that if there was not a practical solution to the problem, then those who were responsible for the care of the children could place them on an Emirates flight at the expense of the husband.  The Senior Registrar noted that it was envisaged by everyone that the children would be back in Australia by that particular time. 

14. The evidence would suggest that the husband was to remarry in Lebanon and come back to Australia with the children.  His fiancé had filed an affidavit in the proceedings supporting that course of action.  Whilst that may have been the impression created by the husband’s lawyer, I have grave doubts about whether that was ever the husband’s intention.

15. The matter returned to the Senior Registrar on 16 September 2010, at which stage it was noted that the children had still not returned to Australia.  The Senior Registrar was told that the position of the husband was that regardless of what was said in any affidavit, the maternal great-grandparents, who had gone to Lebanon from Australia, did not wish to collect the children.  The Senior Registrar compared that statement against a statement by the wife, in which he said that the paternal grandparents had refused to comply with the order to hand the children to the maternal grandparents.  It must be remembered also that the Senior Registrar was dealing with the application on the basis of the documents that had been filed without that evidence being tested.

16. The Senior Registrar ordered the filing of further material by the wife, and any responding material was to be filed by the husband by 6 October.  It was immediately after that that the wife filed a contravention application on 23 September.  The contravention application alleged two things.  First:

    That the respondent without reasonable excuse has not done all acts and things necessary to facilitate the return of the two children to Australia. 

    Secondly:

    Further, the respondent has also to date not provided the applicant wife with a recent photograph of the two children.

17. On 9 November 2010, the husband appeared without legal representation.  He indicated that he wanted an adjournment to get advice, but having regard to the ample opportunity that the husband had already had, the path that the case had taken, the urgency of the matter and its seriousness, that was inappropriate.  I gave the husband an opportunity to obtain advice from the duty solicitor. 

18. The husband had prepared an affidavit which he wanted me to read, and I permitted him to file it.  I have taken that affidavit into account, as will be apparent from what I set out in a moment.  I gave the husband an opportunity to speak to the duty solicitor and subsequently explained to him the course of the proceedings that I would take. 

19. The husband was again at pains to point out that he wanted his affidavit material read. 

20. In respect of the allegation by the wife that he had breached the court orders, he said that he denied the allegations. 

21. The only evidence before the Court was the affidavits filed by the wife, and the one affidavit filed by the husband.  Each party desired to cross-examine the other, and each gave evidence.  Having had the opportunity of reading the affidavit material and watching each of the witnesses, I have no hesitation in saying that I accept the evidence of the wife over that of the husband in any circumstance where there is a clash.

22. The wife gave her evidence in a measured fashion and responded appropriately to questions.  I take into account the fact that the husband was not represented by a lawyer, and therefore not skilled in the art of cross-examination.  However, his affidavit would suggest that he clearly understood the nature of the proceedings and, having regard to the fact that he responded to each of the wife’s allegations seriatim, it looked remarkably like he had had advice in respect of its preparation. 

23. In her evidence, the wife was quiet and responsive.  The husband, on the other hand, could only be described as cocky, unresponsive, and almost ambivalent about the seriousness of the proceedings.  However, it is important to point out that it was not the demeanour of the parties that convinced me of their respective credibility, but rather the evidence that they gave.  It is to that evidence that I now turn.

24. All of the decisions I make are on the balance of probability, save for the fact that as I am to consider imprisoning the husband, then any finding in relation to those matters must be beyond reasonable doubt.  I shall return to that subject below.

25. The findings that I set out are carefully considered after hearing the evidence.  I have little doubt about the fact that the evidence did happen the way the wife described.  The wife’s evidence was that after the hearing before the Senior Registrar in August, the husband passed her by as he was leaving the Court and said to her quietly, “In your dreams you are getting the kids back.”  The husband denied that he made that statement.  When asked whether he said anything, he replied that he said nothing.  Having regard to the way in which he behaved in the courtroom before me, I have little doubt that he did make some remark to the wife along the lines that she suggested. 

26. The wife’s evidence was that on 22 August 2010, she was informed by her grandmother that along with her grandfather, they had attended at the home of the husband’s parents in Lebanon to collect the children, pursuant to the orders of the Senior Registrar.  Her evidence was that when her grandmother spoke to the husband’s mother, that woman refused to allow them into the house.  The wife said that the paternal grandmother said that the children would not be given over.  The statement of the grandmother was a florid one. 

27. In complete contrast to that statement, the husband said that the grandfather on the wife’s side was refusing to comply with the court order to even be involved in the proceedings.  That was his evidence in response to a question by counsel for the wife.  In his affidavit filed on 9 November, the husband said that his parents had informed him that the great-grandparents did not even attend at the premises to attempt to collect the children.  I do not believe the husband’s version.

28. The wife went on to say that her grandparents had tried to get other relatives in Lebanon to assist, but without success, and the husband’s mother refused to allow the children to be handed over.  The husband’s response was that that was not the case.  He said that these relatives had stated to his mother that the wife’s grandfather had used the following language:  “Fuck him, fuck her, and fuck his kids.  I don’t want to get involved in this.”  What is very confusing about that is the earlier statement by the husband that he was told by his parents that there was no attendance by the wife’s grandparents.

29. The husband cross-examined the wife and put to her that her grandfather had sworn, using the words to which I have just referred.  The wife quietly responded that her grandfather did not use language like that.  For the reasons to which I have already referred, I accept the wife’s version.  The wife went on to say that her grandparents were still in Lebanon.  There was some dispute about this.  The husband was saying that the order could not be carried out because the grandparents had already returned to Australia, leaving aside his contention that they did not wish to be involved.  He pointed to something that counsel for the wife had said to support that.  However, counsel obtained instructions from his client, who said that the grandparents were still in Lebanon, and they were still able to comply with the court orders.  One would wonder why the wife’s grandparents would go to Lebanon in those circumstances and then say they did not wish to be involved. 

30. The wife went on to say that at the end of August, for reasons that are not entirely clear, the respondent husband attended at her mother’s home, telephoned the mother and told her that he had left a bucket of water with a court order in it, ripped up, and that she could drink it.  The wife said that there was then some form of threat.

31. The husband’s response was not just to deny any such event, but further, that it was the wife who had arranged for the bucket to be left there to implicate him.  The evidence of the wife was that there was a telephone call from the husband to the mother.  In his affidavit, the husband denied attending at the wife’s mother’s residence, but he certainly did not deny any telephone call asserted by the wife.  If such a telephone call had not taken place, presumably he could have produced a telephone account of his mobile transactions indicating that no such calls were made.  He did not do so.  That adds to my heightened anxiety about his truthfulness.

32. As a result of the bucket incident, the wife had her solicitor write to the husband’s then-solicitor, but there was no response.  I do not take that into account in these proceedings, on the basis that it is not at all clear when the husband ceased obtaining legal advice.  The wife deposed to the fact that she had not received the photograph referred to in the orders of the Senior Registrar.  The husband made no reference to that in his affidavit.  When he was cross-examined about it by counsel for the wife, the husband said that he did not have such a photograph.  He was asked whether he had arranged for one to be obtained, bearing in mind that the order had been made and he was present.  He said he had done so, but the photograph had got “lost”.  When asked when this photograph had got lost, his immediate response was that it was a long time ago.

33. That was confusing, because the orders were only made some weeks ago.  Counsel took up the issue again and asked what he meant, and he said that it was a few days after the Court.  He confirmed that he did not tell his solicitor about the fact that he did not have the photograph.  I do not believe the husband to be a truthful person.  I do not believe that he made any attempt to obtain, let alone provide, the photograph.  The husband conceded in an answer to counsel for the wife, that the purpose of the photograph was to enable identification of the children.  In his affidavit, the husband said that he had in the past offered to accompany the wife to Lebanon to retrieve the children, but she had refused his offer.

34. The wife explained in her affidavit about her concerns in travelling to Lebanon, which is not a country in which she would have any legal standing in relation to the children.  The husband said that he denied that he would cause any harm to the wife.  The difficulty with all of this evidence, however, is that whatever offer the husband was making, there was a court order to the contrary.  No application to review the Senior Registrar’s decision was made, either at a time when the husband was represented by a lawyer or after that time.  No application has been made at any stage by the husband to vary those orders.  The husband’s evidence, therefore, has a hollow ring about it.

35. In a self-serving statement, the husband said that he was willing to do all things necessary to comply with the current orders.  He maintained that the problem with the order was that the wife’s grandparents did not wish to be involved in the children being brought back to Australia.  How he can say that is hard to follow, having regard to the position adopted by the wife.  His position was certainly not consistent throughout his evidence.  It is abundantly clear, when I consider the answer to the question about why he had not complied with the order, that that is so. 

36. He told counsel that he would not send his children back to Australia with strangers, by which he was referring to the wife’s grandparents, and that from a cultural aspect that was not the way things were done with children.  As I earlier mentioned, this has been the subject of some discussion with the Senior Registrar, as would be apparent when reading his reasons.  It is also irrelevant in this case because of not only the order, but the fact that the husband participated in the proceedings before the Senior Registrar. 

37. The husband took no action in relation to the orders.  Even at the bar table in final submissions, his position was that he would arrange to go over to Lebanon to collect the children.  That is an untenable position to put, having regard to the fact that the Court had previously rejected his application to be allowed to leave Australia.

38. For the purposes of Division 13A of the Family Law Act 1975 (Cth) (“the Act”), the husband confirmed that he understood his obligations under the order. Section 70NAA(1) provides that Division 13A deals with the powers that a court has to make orders to enforce compliance with orders under the Act affecting children. The various orders made by the Senior Registrar are orders relating to or affecting children. Sections 70NAC(a)(i) and (ii) provide that a person is taken to have contravened an order affecting children if and only if, relevantly, where a person (in this case the husband) is bound by the order, he has intentionally failed to comply with the order, or made no reasonable attempt to comply with it.

1. Paragraph 8 of the orders made by the Senior Registrar incorporates into the orders provisions that make it clear that a person who is bound by the orders must make every attempt to comply with them.  Passive resistance is not acceptable.

2. I have already referred to s 70NAF in relation to the standard of proof.  Normally, it is the balance of probabilities.  In this case however, I find that this is a very serious breach of the court orders, and in those circumstances, if I am to contemplate imprisoning the husband, then I am required to determine the issues on the basis that the standard of proof is beyond reasonable doubt.  In this case, I have no doubt in my mind about all of the issues that are required to be proved, and I make those findings on the basis that they are proved beyond reasonable doubt. 

3. It is not in dispute that the children have not been returned to Australia.  The question is whether the husband has done all necessary things to comply with paragraph 1 of the orders.  On the evidence, I do not accept that he has done anything, let alone all of the things that were required.

4. The husband did not articulate any position concerning the legal ramifications for any findings I might make.  His initial attitude was clearly expressed that the orders could not be carried out.  I reject that.  He also said that he would not, from a cultural perspective, have the children travel with strangers.  That position too must be rejected, for the reasons I have already set out.  However, I do not accept the husband’s position about the cultural argument, or that it is open to him. 

5. In the marriage of Gaunt (1978) FLC 90-468, the Full Court made the following authoritative statement:

   The essential question is this: can a party who does not agree with a Court's decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child's welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court's order or from the consequences of non-compliance would undermine the purposed and intentions of the Act.

   …

   A party’s subjective view of the rights and wrongs of a decision cannot be relied on as a “just cause or excuse” or “reasonable cause”. 

6. These are serious matters, and without any legal argument being put by the husband, I gave him the opportunity to seek legal advice during the last few days.  He has told me that he has had that advice, but he has no one representing him today to put further matters.  Without the husband putting any position, therefore, I have considered carefully what he has said together with what he wrote in his affidavit, to see whether there might be a reasonable excuse for his failure to comply with the orders. 

7. Notwithstanding what I have just said about the Full Court decision in Gaunt, I think there is still an opportunity for the question of reasonable excuse to be contemplated.  That situation arises by virtue of s 70NAE(1). 

8. Section 70NAE(1) provides that circumstances in which a person may be taken to have a reasonable excuse for contravening an order affecting children, include a number of statutory considerations, but they do not limit the circumstances that a person responding to a contravention application can rely upon.  If a person is able to show that they contravened the order because, or substantially because, they did not at the time of the contravention understand the obligations of the order, that might be seen as an excuse.  In this case, the husband was asked whether or not he understood the obligations, and he said that he did.

9. Thus, I have looked for circumstances that might still excuse the husband, but those circumstances have to be reasonable. As for what is reasonable, the Act does not have a definition. The Court is left to work out whether things are reasonable in the circumstances.

10. In Childers & Leslie [2008] FamCAFC 5, Warnick J, sitting as a single judge of the Full Court on an appeal from a federal magistrate, considered the question of reasonableness. His Honour said:

    Moreover, the learned magistrate may well have fallen into error by applying too loose a test of “reasonableness”. The question is not simply whether, viewed from [an] ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in section 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act.

11. His Honour then went on to refer to the judgment of Lindenmayer J, In theMarriage of Lutzke (1979) 5 FamLR 553, where Lindenmayer J said:

    ... the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will [only] be a “just cause” … if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.

12. Warnick J in his judgment went on to say:

    Here, the context in which “reasonable excuse” applied tellingly included the subsections of section 70NAE.  It also included that the father was entitled to spend time with the child pursuant to a court order.  Such an order places serious obligations on persons in the position of the mother in this case.

13. His Honour then referred to the fact that s 65N of the Act set out that a person must not hinder or prevent a person and the child from spending time together in accordance with the Act, or interfere with a person and the child benefiting from spending time with each other under the order. His Honour said that in terms of reasonableness, one has to look at other provisions of the Act.

14. For example, the objects and principles in Part VII of the Act are set out in s 60B. That provision says that a court should ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child, and ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

15. One of the principles in s 60B is that children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together. In other words, when I consider the question of reasonableness, I have to look at the objects and principles of the Act.

16. In this case, I could not find that the husband’s position was reasonable because of his ambivalence or obstructiveness.  He has shown an ambivalence about the order in the sense that he considers that it is something that he can do nothing about.  It is obstructive in the sense that he points the finger at the wife and says that her relatives cannot fulfil the order.  He has done nothing to fulfil his obligations under the orders.  He has no intentions of the children enjoying the benefits that s 60B sets out, nor does he have any intention of fulfilling his obligations as s 60B requires. 

17. The question then is how to approach the issue of what is clearly non-compliance with the court’s orders. 

18. In McClintock & Levier (2009) FamCAFC 62, the federal magistrate had sentenced a mother to imprisonment for six months for contravening a parenting order. Much of the argument revolved around the question of whether the federal magistrate was entitled to contemplate deterrence and use sentencing provisions to determine the appropriate outcome. Finn J said:

    The words “punish” or “punishment” are not found in Division 13A other than in s 70NFH, which is concerned with the operation of other laws which may apply to the act or omission which constitutes a contravention for the purposes of Division 13A, and in particular with ensuring that a person is not “punished” twice in respect of the same act or omission.

19. Her Honour then said:

    I accept that the use of the concept of “punishment” in s 112AP and the virtual absence of that concept from Division 13A is a sufficiently important distinction between the two sets of provisions such that it must have some significance.

    However, in the present case and while acknowledging that his Honour clearly identified “punishment” (in paragraph 13 of his reasons) as a principle or purpose for sentencing in a case such as the present, and also that he again used the word “punishment” (in paragraph 22) when discussing the issue of general deterrence and the importance which he placed on that consideration, I do not consider that these references to the concept of “punishment” would, at least on their own, justify appellate interference with his Honour’s decision.  I take this view because although, as I have said, his Honour identified “punishment” as a principle or purpose of sentencing in this case, he did not, as I read his reasons, rely on “punishment”, at least expressly, as a reason for imposing a sentence of imprisonment on the mother.

20. In the same case, Coleman J said:

    In my view it is not without significance that the legislation does not exclude from the operation of s 112AP breaches of parenting orders. Nor does Division 13A of the Act purport to exclude any breaches of parenting orders from the operation of s 112AP. That state of affairs cannot have eventuated through inadvertence. I thus perceive there to be two kinds of proceedings with respect to breaches of parenting orders.

21. His Honour then said:

    In my view there is force in the submission of Counsel for the mother, that, whereas proceedings pursuant to s 112AP of the Act have a dual purpose, the purpose of proceedings under Division 13A is to “enforce compliance with orders”. In my view the distinction is significant.

22. A little later his Honour said:

    In my view, given the coercive nature of proceedings under Division 13A, it cannot be assumed, in the absence of a clear basis for doing so, that broader considerations such as ensuring that an offender was “adequately punished for the offence in a way that is just and appropriate”, preventing crime by deterring the offender and other people from committing the same or similar offences, and protecting the community from the offender, are relevant to the exercise of such discretion.

23. All of that leads to the question of what is the purpose of any course of action the court might take here? In my view, what Coleman J said makes sense. Division 13A is about enforcement of orders, or more importantly, ensuring that they are complied with. In simple language, what does the Court have to do to make this particular litigant comply with the orders of the Court?

24. What classifies the husband’s breaches, once found proved, to be serious rather than less serious is the course of action that he has undertaken. 

25. In some circumstances, there may be a flagrant refusal to comply with the order.  In that case, it is easy to see how a court could classify the conduct as serious.  It is more difficult, however, in circumstances where the conduct is ambivalent or obstructive.  It is evident in this case that that is the husband’s position. 

26. Unless the orders are enforced, these children will never enjoy the benefits of a meaningful relationship with their mother.  That is particularly so whilst the husband maintains this ambivalent or obstructive approach.  I have little doubt, therefore, in this case that the contraventions fall into the “serious” category.

27. Section 70NFA provides that subdivision F, which is headed, “Contravention without reasonable excuse, more serious contraventions” applies if:

    (a)a primary order has been made;

    and in this case I find it has;

    (b)the court finds the contravention has occurred;

    and in this case I find it has;

    (c)the person does not prove … a reasonable excuse;

    and I find the husband does not;  and

    (d)there is no previous order imposing a sanction or taking action with respect to the contravention, nor the previous proceedings have been adjourned;

    and I find in this case that those apply.  The Court now is satisfied that the person has behaved in a way that showed a serious disregard of his obligations under the order. 

28. In respect of that last point, there can be no doubt that having been given an opportunity to rectify the position, and that having been unsuccessful, the husband’s ongoing ambivalence or obstructiveness must further be seen as a serious disregard for his obligations.  It must be serious if the order is made and its clear intent cannot be carried out at all.

29. Section 70NFA(4) provides that subdivision F does not apply if the court is satisfied that the subdivision E provisions could more appropriately deal with the matter.  Subdivision E, however, has very limited enforcement powers in terms of someone who has an ambivalent or obstructive view about compliance with orders.  None of those provisions would seem likely to give any impetus to the husband complying with the existing orders.

30. Section 70NFB provides the powers of the courts in a serious breach.  A court must not make an order for costs against the person found to have contravened the order if that would not be in the best interests of the children.  No consideration of the financial implications of any order would be relevant here, as the husband is not caring for the children – they being with his parents in Lebanon – and the previous orders provided for him to pay the travel costs.

31. I conclude, having regard to those particular provisions, that there are no financial difficulties for the husband, nor would it have any impact upon the children. 

32. Section 70NFB(2) provides that a court has available to it a number of possible orders. 

33. The powers of the Court are as follows:

    a)If the court is empowered … to make a community service order, to make such an order.

    The difficulty with that order in this case would be that the husband would then be not under any serious incentive to ensure that the order could be complied with.  At the moment, as I understand it, he says he is unemployed, so making a community service order would not give him any incentive to comply.

    b)To make an order requiring the person to enter into a bond.

    A bond requires someone to comply with court orders.  There have been two court orders not complied with to-date, and there has been no indication from the husband that he intends to comply now.  Under those circumstances a bond seems pointless.

    c)If the current contravention is a contravention of a parenting order in relation to a child to make a further parenting order that compensates a person [who has missed out on the time] …

    That would seem pointless in these circumstances where the children are in Lebanon.

    d)To fine the person not more than 60 penalty units

    The husband says that he is unemployed, and the more important issue in this case is that any money that he may have should be used for travel expenses bringing the children back to Australia.  A fine would seem to be of little consequence to him.

    e)Subject to subsection (7), to impose a sentence of imprisonment … in accordance with s 70NFG

34. What s 70NFG says is that a sentence of imprisonment imposed on a person under paragraph 70NFB(2)(e) is to be expressed to be:

    a)for a specified period of 12 month or less; or

    b)for a period ending when the person complies with the order concerned; or has been imprisoned under the sentence for 12 months … lesser period as is specified by the court …

    whichever of the two first occurs.

35. The Court is empowered to impose a sentence of imprisonment of up to 12 months, or if the person complies with the order, the Court has power to discharge the sentence of imprisonment.

36. The other possible orders in (f) and (g) then relate to the question of both compensation and costs.  None of those are relevant in this particular case.

37. In the circumstances, what I propose to do is to give the husband an opportunity to contemplate his position before I determine which course of action to take. 

RECORDED:  NOT TRANSCRIBED

1. In this matter I have an application by the wife consequent upon my findings for costs. Section 117 of the Act says that each party shall pay their own costs unless the circumstances justify a departure from that principle. In this case, one of the considerations which justifies a departure for costs is the defiance by the husband by the orders of the Court on two occasions, and even today he has indicated that there is nothing further he wishes to say.

2. In respect of the costs, there have been claims for 7 October, 9 November and again 15 November today. In respect of each of those matters, the proceedings have been brought about by the behaviour of the husband. I have considered the fact that the husband says he is unemployed, but he also told me that he spent significant sums of money on legal costs in the past. The wife, I note, is legally aided. In those circumstances, in this case, they warrant a court not departing from the situation in s 117, and this is a case where an order for costs ought to be made, I find that the sum of $5225 is a reasonable sum in the circumstances.

3. Earlier I gave reasons in respect of the question of what should happen to the husband as a result of his failure to comply with the orders.  He has nothing further he wishes to say.  I have already found that the only option open to me is one of imprisonment, on the basis that that is the only way I suspect the Court has any prospect of having its orders complied with. 

4. In the decision that I referred to of McClintock & Levier, the Full Court said that a six month sentence in those circumstances was excessive.  However, in that case, it must be remembered that the child who was the subject of the court order had been recovered after an abduction.  The child had been removed from the abducting mother and placed in the care of the husband, and the mother’s time with the child was extremely limited and under supervision.  There was little prospect of the behaviour that got the wife into trouble being repeated. 

5. However, in this case, I have little doubt that the husband does not intend to comply with the orders, and therefore a suspended sentence would be inappropriate.

6. In other decisions of the Court, particularly one of L & P (unreported in June 1998, a decision of Burr J), his Honour sentenced the respondent to two months’ imprisonment, and suspended it.  In his judgment, Burr J he made a finding that he thought that there was some glimmer of hope that there would be ongoing compliance with court orders.  His Honour made the remark that there was a cooperative attitude evident.  That is not the case here.

7. I am dealing with an unusual situation here of a man who says that there is nothing further he has to say, and unless the Court takes a stand in relation to encouraging compliance with its orders in this case, these children will never have the rights to which they are entitled. 

8. I therefore sentence the husband to a period of imprisonment for six months. 

9. I will make an order that if there is earlier compliance with the orders for the return of the children, the husband may apply for release.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 November 2010.

Associate: 

Date:  13 December 2010