ADAMS & ADAMS

[2018] FamCA 208

FAMILY COURT OF AUSTRALIA

ADAMS & ADAMS [2018] FamCA 208

FAMILY LAW – CONTRAVENTION – Penalty – Whether to deal with the matter under the Family Law Act 1975 (Cth) Part VII Division 13A Subdivision E as a less serious contravention or Part VII Division 13A Subdivision F as a more serious contravention – Where the court must consider matters relating to penalty – Whether there is a reasonable excuse for the contravention of the orders – Where the contravention is exacerbated by breach of an existing bond – Whether to amend existing parenting orders pursuant to s 70NBA of the Family Law Act 1975 (Cth)

FAMILY LAW – COSTS – Where the father seeks that the mother pay the costs of the contravention application – Consideration of the financial circumstances of the parties – Consideration of s 117(2A) of the Family Law Act 1975 (Cth) – Whether one party was wholly unsuccessful in the proceedings – Whether costs should be assessed or taxed – Costs on a party-party basis

Family Law Act 1975 (Cth) Pt VII div 13A, ss 62B, 65DA(2), 70NBA, 70NFA, 70NFA(2), 70NFA(3), 70NFB, 117, 117(2A)

Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
McClintock & Levier (2009) FLC 93-401

APPLICANT: Mr Adams

RESPONDENT: Ms Adams

FILE NUMBER: ADC 4741 of 2010

DATE DELIVERED: 9 March 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 9 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dillon

SOLICITOR FOR THE APPLICANT: Bersee Legal

COUNSEL FOR THE RESPONDENT: Mr Praolini

SOLICITOR FOR THE RESPONDENT: ASW Lawyers

Orders

1. That within 7 days from today’s date MS ADAMS (the mother) enter into a Bond for a period of two (2) years without surety but with ONE THOUSAND DOLLARS ($1000) as security:-

   a.to be of good behaviour during period of the Bond;

   b.to comply with all current and future parenting orders.

1. That the father’s costs of the Application for Contravention be agreed or taxed.

2. The Application for Contravention filed by the father on 8 March 2018 be adjourned for mention on 18 April 2018 at 9am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adams & Adams has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4741 of 2010

Mr Adams

Applicant

And

Ms Adams

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Adams is the mother of S born … 1997 (“S”) and L born … 2007(“L”) (collectively “the children”).  S is now over the age of 18 years and plays no further part in the proceedings.  Mr Adams is their father.  The parties have been in contest in relation to the ongoing parenting arrangements for S and L since 2010.

2. Following a final hearing, the parties entered into a consent order on 7 April 2015 which provided that the mother would have the sole parental responsibility for the children, that they live with her and they not spend time with the father subject to a process to be undertaken by the mother for the children to engage with a psychologist for the purposes of assisting in the children, but in particular L, resuming a relationship with the father.  It is an important aspect of the consent orders that whatever the process may have involved, the father was nonetheless able to provide cards, letters and receive photographs in relation to the children, and the mother was also obliged to provide the father with certain information as to the children's general development.

3. It was an important consideration of the orders that the mother agreed that there should not be a finding that the father presents an unacceptable risk of harm to the children or either of them.  The parties were not able to resolve their differences and the father filed a contravention application on 10 December 2015 which came before Dawe J on 15 March 2016.  On that occasion, the father was represented by Mr Dillon of counsel and the mother by Ms Annells.  A consideration of her Honour's orders are important in terms of the matters under present consideration.  The notation to her Honour's order is that the mother admitted to a contravention of paragraph 9 of the orders of 7 April 2015 in that she failed to ensure that each child remained in counselling and attend all appointments of the said psychologist.  The admission by the mother was important to the father and as a result he considered that there was no need to pursue other allegations of breach against paragraphs 6 and 7 of the orders.  The decision by the father is then further informed by the substantive orders her Honour made by consent. 

4. They provided for a variation, or at least a further clarification of order 9 of the consent orders in that a psychologist, being Ms B, was specifically named as a single expert who was to prepare a report following 10 appointments by the child.  The clear focus of the appointments were to better understand how the relationship between the father and L may move forward with more certainty.  It was recognised that L presented with underlying anxiety.  The father contends that the anxiety is as a result of the mother not promoting his relationship and time with L.  The mother contends that the anxiety emanates possibly from the process in which this child finds herself in, unsurprising after, at that point, six years of litigation.  But in any event, if the child presents with anxiety, it is the mother's case that it does not have as its cause her conduct.

5. There is some uncertainty as to whether all of the 10 visits have occurred and whilst at one point I considered that compliance with the order of 15 March 2016, or at least the completion of the unexpired appointments and the preparation of a report by Ms B may have been important, it appears that the parties concede or agree that events have overtaken the apparent purpose of her Honour's order, and that there should be little or no weight attached to the order of 15 March 2016.  That suggests that the parties are not intending to complete the process with Ms B, if indeed there is any appointments left outstanding, or more relevantly, that they are not intending to jointly instruct her to prepare the report as envisaged by the orders.

6. The father filed his application for contravention on 2 December 2016.  The application was adjourned to 23 May 2017 and on that occasion the mother admitted to a contravention of paragraphs 7 and 9 of the contravention application filed 2 December 2016.  It was also noted that the contraventions breached a bond that had been entered into by the mother.

7. On 15 March 2016 it was ordered that the mother enter into a bond for a period of two years on the condition that the mother be of good behaviour.  The contravention application was dismissed and the matter removed from the active pending list.  The period of two years is yet to expire but will do so on 15 March 2018.  The parties, however, did not seek that the Court at that point deal with the question of penalty arising from the admitted breach, but rather, adjourned the proceedings and put in place a process whereby L would spend time with the father for one hour each fortnight with such time to be supervised by a contact centre for 10 visits.  Paragraph 4 of the order provided that after six visits, a report would be prepared.  The obvious intention of the parties was to move beyond the orders of 15 March 2016 involving Ms B in the hope that they would be able to reach a better arrangement to ensure L maintained a meaningful relationship with her father.  Order 5 provided that consideration be given to extending the visits to two hours after six visits.  The parties hoped that L would establish a relationship with the father, that it would be one of benefit, and that there would be then a further advantage that would enure to the child by her spending more time with the father.

8. The matter came before me on 16 November 2017, and notwithstanding the intention of the Court on that occasion to consider the imposition of penalty in relation to the mother's admitted breaches, the parties tendered a consent order which acknowledged that L had spent nine supervised visits at the contact centre with the father, and that the parties agreed for L to spend a further six visits for two hours per fortnight still to be supervised.  It was adjourned to 9 March 2018 for consideration as to penalty and it was a reasonable position for the Court to assume that the parties were making some progress, that nine supervised visits had occurred and that a further six visits for a slightly longer period of time may well set some further or better foundation for a more expansive arrangement in terms of L spending time with the father.  I think it is also a reasonable assumption that if the six visits had gone well and without incident, the Court may well have taken into account the compliance by the mother as an ameliorating factor in terms of penalty.  It was not lost on the parties that the mother's admitted breach was exacerbated not only by breaching an order but also a bond, the condition of that bond being to comply with orders.

9. The matter now has a further complication, being another application for contravention having been filed by the father on 8 March 2018.  It was not reasonable to require the parties to deal with that application, given that it had been filed yesterday, although it is a document of relatively simple construct.  There are two breaches that are alleged.  There is a concession that in its current form only the first breach, namely a breach of paragraph 1 of the order of 16 November 2017 relating to the non-attendance by the mother at the Children's Contact Service on 27 January 2018 could go forward.  The second breach is not able to be pursued.  It seems to me, however, some thought should be given as to whether the application for contravention filed is a process that is going to assist in terms of where matters are at today.

10. The Court initially considered that the orders of 16 November 2017 may have been the subject of compliance, albeit without the level of success that the father would have sought.  If that had been the case, then other than the orders of 15 March 2016, to the extent that there were still some unattended visits on Ms B, there are no other matters outstanding.  I am told that it is not compliance with the order of 15 March 2016 that is sought, but rather compliance by the orders made by consent on 16 November 2017. 

11. It is acknowledged that the order is clear in its terms, namely that there are six visits intended.  There is agreement between the parties that of those six visits, three have taken place and three have not.  The visits that have not taken place are the visits of 27 January, 10 February and 24 February 2018. 

12. In making that concession, the mother does not do so with any sense of her admitting that she has breached the order. 

13. As is understood by counsel but also the parties, there are two aspects to a successful contravention.  The first is that an order has not been complied with, but the second is that in the non-compliance there is no reasonable excuse available.  It may be that the mother accepts that there was not compliance with the order in terms of the fortnightly obligation, but that she contends there is a reasonable excuse.  To some extent, whilst an interesting intellectual exercise, it is not the subject of any application for contravention.  It is simply an acknowledgement that there are three outstanding visits. 

14. The important aspect to the mother's presentation about that is that she submits through counsel that it is her intention to complete the order, or in any event, to ensure that L is presented in a genuine and supportive fashion for three further visits.  I accept the mother's submission about that.  In any event, the area of difference and dispute between the parties is very narrow, and it is now confined to three further visits.  There are no other orders that are outstanding, and as such, it is, I think, a relevant consideration in terms of matters of penalty, that whilst there is a public policy consideration in a Court making an order and the order not being complied with, nonetheless there is still a focus not on what is in the best interests of the child or children, because that is not the paramount consideration in terms of an application for contravention, but it does impact upon the focus of penalty. 

15. It is clear that when the Court is obliged to consider matters of penalty, they must consider how any penalty will impact upon a child or children, and it is often the case that orders are adjusted to suit the needs of a child.  Again, I accept that it is the mother's present intention to undertake the further three visits, presumably as soon as is practicable, taking into account that at all times it must be at the discretion of the Director of the Child Care Centre, Town 1, to be able to accommodate and facilitate the arrangements.  I assume that they have been, and that those inquiries have been made.  I proceed on that basis.

16. The section of the Family Law Act 1975 (Cth) (“the Act”) that deals with applications for contravention of orders are contained in div 13A of pt VII of the Act. Subdivisions (C) to (F)of div13A of pt VII of the Act provide the orders that are available to the Court, and they relate to: where a contravention has been alleged but not established, sub-div (C); the contravention is alleged but there is a reasonable excuse found, sub-div (D); the contravention is found to have occurred without reasonable excuse and the contravention is less serious, sub-div (E); and the contravention is found to have occurred without reasonable excuse and the contravention is more serious, sub-div (F).

17. I have heard submissions from the parties as to whether sub-div (E) or sub-div (F) of div 13A of pt VII of the Act should apply. The father, unsurprisingly, alleges that the matter is more serious. The mother suggests that the matter is less serious, and she does so by reference to what she would say is the relatively narrow compass of that which remains, namely, there is no ongoing order other than the completion of the six visits as promoted in the order of 16 November 2017.

18. I bring to account the provisions of s 70NFA and s 70NFB of the Act. I am of the view in this case that I should deal with the contravention under sub-div (F), namely, as a more serious contravention. Subdivision (F) will apply only if the conditions in either s 70NFA(2) or s 70NFA(3) of the Act are satisfied. This is not the first occasion on which the mother has been found to have contravened an order of the Court. The contravention is exacerbated, not simply because there is a second contravention but also because a bond was put in place and that the subsequent contravention under consideration represents a breach of the bond. The order is a primary order, and again is an order that the parties put in place by consent.

19. Despite the applicability of s 70NFA(3) of the Act, I have at all times a discretion to apply the provisions of sub-div (E) if I am satisfied that it is more appropriate for the contravention to be dealt with under that subdivision. I have regard to the judgment of Cronin J in the Full Court in McClintock & Levier(2009) FLC 93-401 which confirms that a judicial officer is:

    [259]…required by s 70NFA(4) to consider whether the matter should be more appropriately dealt with under sub-division (E)…

    The Full Court in Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655 at [50] said:

    … Given the consequences that potentially flow from treating the matter under subdivision F rather than subdivision E, we think it was incumbent upon the trial judge to spell out clearly what considerations enliven the extra powers available under that section.

    I am of the view that the breach is serious. When one considers the history of the matter and what underpins the orders that the parties have put in place, the focus of the parties has been to do all that could reasonably be done to achieve a desired result in re-establishing the relationship between L and the father.

20. Inherent in the final order and the Court's determination that the consent order was appropriate, was the clear understanding that the parties considered the best interests of the child were served by L maintaining or having reinstated a meaningful relationship with the father.  All of the subsequent orders, in particular her Honour's order of 15 March 2016 and the subsequent orders leading up to the order of 16 November 2017, are all designed to promote that goal. 

21. Indeed, the parties had a level of confidence that they were able to leap-frog the process that her Honour considered important by not completing the process with Ms B in preference for the more direct pathway of supervised time between L and the father.  There is no greater mischief that can come to this child than for her to not have a relationship with the father when it is safe to do so.  In the circumstances of this case, it clearly is.

22. The father urges upon me to give active consideration to a sentence of imprisonment but does not suggest with any force that it should be served, but that the preferable choice may well be for it to be suspended.  I can understand why the father may feel aggrieved at what has happened, that he craves the relationship that he thinks he should have with his daughter and that he views the mother's position as being the very antithesis of that desire. 

23. For her part, she denies the contentions of the father but says that she can do no more than she has done to encourage the relationship. 

24. Initially, it was the Court's consideration that a sentence of imprisonment may have been the appropriate response in terms of penalty, that it would be suspended and in doing so, the mother would be under no misapprehension as to how important the Court considers not just the compliance with an order but rather the reason behind the need for compliance, namely that a significant mischief may have been occasioned to L by her being denied the opportunity to have a meaningful relationship with her father. 

25. Further submissions of counsel, however, have persuaded me that it is not the appropriate pathway.  If this had been a case where there was an order that was ongoing, it may be that the mischief created by the mother's non-compliance could be seen in a broader context.  That is not the case here.  The orders have a limited scope and compass.  There remains the orders of 7 April 2015 in terms of the provision and cross-flow of information as between the parties about L.  There is no suggestion that there has been any breach or non-compliance in respect of those matters, notwithstanding that those orders are now coming up for their third anniversary.  There were no issues raised by counsel in relation to the orders of 15 March 2016.  The order of 16 November 2017 is relevant and there has now been a concession that three visits have been the subject of compliance, three visits are still to occur, in circumstances where there is no admission that they have not occurred because of a non-compliance by the mother.  Importantly they will now occur.  It seems to me what needs to be done is to direct penalty so that it targets that which is required and will serve L's best interests, namely that the final three - or the further three visits take place.  The remedy for that seems to me to require the Court to consider a bond.  It may be that the father will say that that there is already a bond in place, and that appears not to have assisted.  He may be right, but what is required is to ensure that there is something which requires the mother to give proper consideration to the completion of the final three visits.  The current bond expires on 15 March 2018 and there is advantage in a further bond being put in place for a period of two years with a surety which whilst substantial, is not going to be seen as financially onerous on the mother in circumstances where I accept her income is limited to a Centrelink benefit, pension or allowance.  Nonetheless, it is important that the mother be reminded of the need to comply with orders, but equally, to impose or to have imposed an order of imprisonment suspended would have created potentially a mischief that would far exceed the benefit that the orders are designed to achieve.

1. It is also, I think, important to note that the Court has given consideration to any application that is to be made under s 70NBA.  No application has been made and there is nothing in terms of the proceedings which would at this stage found a basis for the Court of its own motion to embark upon a parenting consideration.  The orders do not need to be further dealt with in the sense that there is a concession that of the six visits, three are still to go.

2. The father seeks that the mother pay costs of the application. It is regrettable that a schedule of costs has not been prepared and tendered. Whilst obviously the father is entitled to seek costs in relation to the application, the process will unfortunately involve potentially further litigation. In terms of any application in respect of costs, I must consider s 117 of the Act, and in considering what order should be made, I have regard to s 117(2A). In particular in these circumstances, I am to have regard to the financial circumstances of each of the parties. I accept that the mother is in receipt of a Centrelink benefit or pension. I accept that the father's circumstances are unlikely to be much better. I have some distant recollection of their financial circumstances arising from the proceedings in 2015. The parties are not in receipt of any Legal Aid or other grant, and there are no issues in terms of the conduct of the proceedings. The essence of the application is whether the mother has been wholly unsuccessful in the proceedings. It is a potential complication that the original application for contravention was more expansive than the concession that was reached between the parties based upon the mother's preparedness to enter a plea. Nonetheless, it would have been of assistance if the mother's position had been made known before the parties attended Court. It may have been that the process could have been significantly truncated.

3. I am also aware that following the orders of 16 November 2017 the parties reached a consent arrangement significantly different to that which previously had been in place, and it could not be said that all of the matters before the Court have emanated necessarily as a direct result of the mother's contravention.  Whilst clearly the matter was to be dealt with today by way of sentencing, it is obvious to the Court that there could have been more focus brought to the manner in which the proceedings were presented, which would have assisted the Court and certainly reduced the amount of time that the Court has had to invest in this matter.  Ultimately, perhaps with some level of cynicism, the parties may well sit back and opine what today was all about in circumstances where, whilst the mother has been the subject of penalty, the focus has been narrowed to three further visits with L in circumstances where there are no other orders that follow.

4. Counsel for the father proffers the sum of $11,000.  That is a significant sum and certainly not an amount that I would be prepared to accede to simply upon counsel's assertion.  That is not to suggest that the amount that has been incurred by the father but that is different to being able to understand how that amount has accumulated, whether it is solicitor-client, whether it is party-party, whether it is on the scale or whether it is on a different scale.  I am urged by counsel for the father to simply make an order that would see his client's costs to be agreed or taxed.  Again, I have expressed my concern that that is yet again a further process unlikely to assist the parties, but it may well be inevitable.

5. In the circumstances of this case, I consider that there should be an order for costs made in favour of the father, particularly where the Court has found that the contravention falls into sub-div (F), namely, a more serious breach as opposed to a less serious breach, being sub-div (E).  Whilst I am prepared to make the order that the father's counsel seeks that the costs be agreed or taxed, it is reasonable that the Registrar when she comes to consider the taxation of costs should have proper regard to the father's costs being on a party-party basis, that it should relate to the costs arising from the application for contravention, but not including the attendances of counsel on 23 May 2017 and 16 November 2017, and in relation to the party-party costs as claimed, any liability of the mother should be limited to two-thirds of the said sum as sought.

6. At the commencement of the proceedings today, the Court became aware of a further application for contravention filed on 8 March 2018.  It alleges two further breaches of the orders made 16 November 2017.  Paragraph 6 in count 1 of the application is relatively easy to understand.  It provides that there has been a breach of paragraph 1 of the orders made 16 November in that the mother failed to deliver L to the contact centre on 27 January 2018.  It appears that the mother may well agree that it occurred.  The question is going to be whether it occurred without reasonable excuse.  It may also be a more interesting contention as to whether 27 January 2018 is a date upon which there was no uncertainty between the parties, but in any event, whilst the statement of the alleged contravention appears deficient in that it does not indicate that the failure was without reasonable excuse, nonetheless the particulars are clear and I do not propose to interfere with that paragraph or that count.

7. Count 2 is to be found at paragraph 8 of the application, and this refers to paragraph 2 of the orders. It is conceded by counsel that in its current form that simply cannot stand, in the sense that count 2 relates to the obligation to provide particulars pursuant to s 65DA(2) and section 62B of the Act. It could not be a basis of a breach. The particulars provide a little more information, in that it says between 27 January and 24 February the mother failed to positively encourage L to spend supervised time with the father as per paragraph 1 of the order. The difficulty about that, of course, is that there is, again, no particularity as to what date or days this was all meant to occur. I am urged not to strike out paragraph 8, or count 2, because apparently there is going to be some efforts made to correct the clear error in terms of the manner in which the count is described in the drafting of it, but it seems to me that there is the very great potential for count 2, even if it were amended, to be at least not dissimilar in part to count 1, being the non-attendance of L on 27 January 2018.

8. In the circumstances of this case, I consider that the application, particularly given what has transpired today, may need to be reconsidered in terms of its efficacy and purpose.  It may be that the events of today have overtaken the necessity for this application.  It may be that there should be more focus on whether there is compliance, and if so, if it doesn't occur, whether that compliance does not occur with a reasonable excuse, on what is to happen between now and the next three scheduled visits.  In any event, I consider that the manner in which count 2 has been crafted and drafted is fatal to it going forward, and I strike it out.  The application, however, still needs to be dealt with, but at this stage I do not propose to give it any level of priority, given the orders that I have made today.  What I will do is adjourn it to the week commencing 16 April and I will list it for mention at 9 am on 18 April 2018.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 March 2018.

Associate: 

Date:  6 April 2018