Adelstein & Byron
[2024] FedCFamC2F 1253
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Adelstein & Byron [2024] FedCFamC2F 1253
File number(s): SYC 845 of 2024 Judgment of: JUDGE STEWART Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – PARENTING – Contravention – Mother concedes all charged contraventions without reasonable excuse – Mother argues no sanction should apply – Mother refuses to enter bond – Father seeks maximum penalty – Mother has previously been found to have contravened orders without reasonable excuse – Sanction necessary – Degree of appropriate penalty – Whether a fine can be order in lieu of bond – Where it is found that a bond must be ordered first, and a fine can only occurred after a party has failed to enter the ordered bond – Father seeks costs – Costs awarded – Whether claimed costs are reasonable Legislation: Crimes Act 1914 (Cth) ss 4AA, 16A(2)
Evidence Act 1995 (Cth) s 138
Family Law Act 1975 (Cth) ss 70NBF, 70NBF(1)(b) 70NBF(1)(d), fmr 70NEB, fmr 70NEB(1)(d), fmr 70NEB(1)(da), fmr 70NEC, 102NA, 102NA(2), 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) sched 1
Crimes (Amount of Penalty Unit) Instrument 2023 (Cth)
Surveillance Devices Act 2007 (NSW) ss 7, 7(3)(b)(i)
Cases cited: Amador & Amador (2009) 43 Fam LR 268
Arena & Arena (No 6) [2024] FedCFamC1F 364
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577 at 584; 161 CLR 98
Dinsdale v The Queen (2000) 202 CLR 321
Dobbs & Brayson [2007] FamCA 1261; (2007) FLC 93-346
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22
G and G (1981) FLC 91-042
Galvis & Galvis [2024] FedCFamC1A 123
Gravis v Major [2010] FamCAFC 239
In the Marriage of Schwarz (1985) 10 Fam LR 235; FLC 91-618
Langer & Griffin [2013] FamCAFC 170; (2013) FLC 93-559
McClintock v Levier (2009) FLC 93-401
Mead v Mead (2007) 235 ALR 197
Stanley v DPP (NSW) (2023) 407 ALR 222
R v Storey [1998] 1 VR 359
Tate & Tate (No 3) [2003] FamCA 112; (2003) FLC 93-138
Weininger v The Queen [2003] 212 CLR 629
Zamir & Zamir (2022) FLC 94-115
Division: Division 2 Family Law Number of paragraphs: 87 Date of hearing: 15 August 2024 Place: Melbourne Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Boyce and Boyce Counsel for the Respondent: Mr Lidden Solicitor for the Respondent: Sharah and Associates Solicitors and Conveyancers ORDERS
SYC 845 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ADELSTEIN
Applicant
AND: MS BYRON
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.THE COURT FINDS THAT the Respondent Mother has, without reasonable excuse, contravened order 4(c) of the orders made on 31 January 2022 under the Family Law Act 1975 (Cth), in that on 11 December 2023 the Respondent Mother did not facilitate the child X born in 2015 (“X”) spending time with the Applicant Father.
2.THE COURT FINDS THAT the Respondent Mother has, without reasonable excuse, contravened order 4(c) of the orders made on 31 January 2022 under the Family Law Act 1975 (Cth), in that on 12 December 2023 the Respondent Mother did not facilitate X spending time with the Applicant Father.
3.By no later than close of business on Thursday 19 September 2024, the Respondent Mother shall enter into the following bonds:-
(a)in respect of the contravention that occurred on 11 December 2023, for a period of SIX MONTHS upon the condition that the Respondent Mother shall comply with all current and future parenting orders; and
(b)in respect of the contravention that occurred on 12 December 2023, for a period of SIX MONTHS upon the condition that the Respondent Mother shall comply with all current and future parenting orders;
with such bonds to be served consecutively, first the bond in respect of the 11 December 2023 contravention and second the bond in respect of the 12 December 2023 contravention.
4.An appointment be made for the Respondent Mother to sign the bonds pursuant to order 3 hereof at 9.00am on Thursday 19 September 2024.
5.The proceedings be listed for Mention at 9.15am on Friday 20 September 2024 via Microsoft Teams before Her Honour Judge Stewart (AND THE COURT NOTES THAT the purpose of the Mention is to ascertain whether the Respondent Mother has entered into the bonds pursuant to order 3 and 4 hereof and, if the Respondent Mother has not done so, to consider appropriate penalty).
6.The Final Parenting Orders dated 31 January 2022 (“the Final Parenting Orders”) be amended as follows:-
(a)order 4(c) of the Final Parenting Orders be amended to read: “From the commencement of the second week of term 1 in the 2023 school year and in each alternate week thereafter, during all school terms, and during all school holiday periods at the conclusion of Terms 1, 2, and 3 of each year, from the conclusion of school on Wednesday (or 4:00pm if a non-school day) to the conclusion of school the following Wednesday (or 4:00pm if a non-school day)”;
(b)order 4(d) of the Final Parenting Order be amended to read: “During the long summer school holiday period at the conclusion of Term 4, for the first half of the school holiday period in all even-numbered years and the second half of the school holiday period in odd-numbered years, and the following shall also apply:-
(i)regardless of the actual final school day of Term 4 each year, the Term 4 school holiday period shall commence at the conclusion of the last Wednesday during Term 4, and shall conclude at the commencement of the first Wednesday during Term 1 the following year;
(ii)changeover during the long summer school holiday period shall occur at 4:00pm on the middle day of the Term 4 school holiday period (if the holiday period has an odd number of days), or on the last day of the first half (if the holiday period has an even number of days); and
(iii)if the parent with whom the child is to spend the first half of the Term 4 school holiday period also had care of the child in the week immediately proceeding the Term 4 school holiday period, then the first changeover for Term 1 in the subsequent year shall occur on the second Wednesday of Term 1 and each Wednesday therefore, otherwise the first changeover for Term 1 shall occur on the first Wednesday of Term 1, and in either case changeovers shall continue each Wednesday thereafter.”; and
(c)Order 4(e) of the Final Parenting Orders be inserted to read: “All changeovers that do not occur at the child’s school shall occur at [Suburb G] Shopping Centre at the conclusion of the child’s time with the Father, and at [Suburb P] Shopping Centre at the conclusion of the child’s time with the Mother.”
7.The Mother pay the Father’s costs of this application, fixed in the sum of $9,345.16.
AND THE COURT NOTES THAT:
A.The parties have had historical difficulties implementing the terms of the Final Parenting Orders, particularly as regards changeover around school holiday periods.
B.The Applicant Father does not seek, at this stage, to amend the quantum of time that X spends with each party.
C.The proposed amendments to the Final Parenting Orders set out at Order 4 above give clarity to exactly when changeover shall occur throughout the year.
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).
REASONS FOR JUDGMENT
JUDGE STEWART
The matter comes before the Court by way of Contravention Application filed by Mr Adelstein (“the Father”) on 9 February 2024. The matter relates to an earlier parenting proceeding in Division 1 of this Court between the Father and Ms Byron (“the Mother”) regarding the child X born in 2015 (“X”), who is now aged 8. In that earlier proceeding, Her Honour Henderson J delivered judgment and made final parenting orders on 31 January 2022 (“the 2022 orders”). The Contravention Application initially alleged three breaches of order 4(c) of the 2022 orders (on each of 11, 12, and 13 December 2023), but the Father was granted leave to with draw the count regarding 13 December 2023.
Order 4 of the 2022 orders provides as follows:-
4.In the event the mother remains living in Sydney, the child is to live with the father as follows:
(a)For five nights each fortnight from after school Wednesday, to the commencement of school Monday morning, commencing forthwith the first Wednesday after delivery of this judgment;
(b)From the commencement of the first week of term 2 in the 2022 school year, from after school Wednesday to the commencement of school Tuesday morning;
(c)From the commencement of the second week of term 1 in the 2023 school year, from after school Wednesday to the commencement of school the following Wednesday; and
(d)Half of all school holidays:
(i)In the midterm commencing 12 noon on Saturday after school finishes and concluding 12 noon on the second Sunday of the holidays; and
(ii)At Christmas the holidays are calculated from 12 noon the day after school ceases to 5 pm the Saturday before school resumes.
The Mother has remained in Sydney. While it is not stated explicitly in the 2022 orders, I understand that X lives with the Mother when she is not living with the Father pursuant to order 4. All parties agreed that the drafting of order 4 lacks clarity, and that in addition to any other orders I make, I should amend those orders to ensure that each parent’s obligations are clear and there is no further scope for confusion and conflict. For present purposes, I note all parties agree on order 4’s meaning, and that order 4(c) creates a week about regime.
Up to the start of the hearing before me, the Mother had consistently indicated she intended to contest all alleged contraventions, and initially denied the alleged contravention. She broadly conceded the facts of the allegations, but asserted she had a reasonable excuse, being a conversation with X in which X apparently said the Father intended to overhold her for the holidays, and X expressed fear regarding this. The Mother had included a purported (but not certified) transcript of a recording she had made of that conversation as part of her affidavit material. Upon my direction that the recording would need to be played, and that I was unwilling to accept an uncertified transcript, the Mother instructed her Counsel to enter a new plea, conceding the contravention.
Accordingly, my decision is now limited to the appropriate orders following that admission.
NARRATIVE
The parents’ relationship, and the first Court proceedings
The Father was born in 1975, and is aged 49. The Mother was born in 1981, and is aged 43. They commenced cohabitation in 2014, and married in 2015. X was born in 2015. The parents separated on 4 February 2018, and the Father commenced initial proceedings in the Family Court of Australia on 14 March 2018. The parents were divorced in 2019.
A brief review of the Court file indicates those proceedings were protracted and complex. A full judgment on interim matters was required by His Honour Harper J on 18 January 2021. The matter then eventually proceeded to a five day final hearing commencing 8 November 2021, with judgment delivered by Her Honour Henderson J on 31 January 2022.
I do not propose to traverse the events of the relationship and the original proceedings in detail, but several points are worth noting. First, the parents’ relationship appears to have been volatile. At the final hearing before Henderson J, the Mother alleged multiple sexual assaults by the Father during the relationship, and alleged she had married him under duress. Likewise, the incident precipitating the parents’ final separation was the Mother throwing a mobile phone and a glass at the Father, injuring him (for which the Mother was charged, and entered a plea of guilty to assault causing actual bodily harm, receiving a good behaviour bond).
Second, during the original proceedings, the Mother sought to relocate with X to Queensland on both an interim and a final basis. Henderson J refused to hear the interim relocation application, yet the Mother relocated regardless and the Father filed a recovery application. On 23 October 2019, orders were made requiring the Mother return X to Sydney, which she did.
The 2023 Contravention Application
The parents’ mutual antipathy has not abated since final orders were made. Both filed lengthy and quarrelsome affidavits, highlighting the on-going issues between them. These issues speak directly to the context and severity of the Mother’s admitted contravention, and I therefore set them out in some detail.
Orders 6 and 7 of the 2022 orders provide that:-
6.Both parents may, by giving the other 28 days’ notice in writing of their intention to travel, take the child to an overseas country, provided such country is a member of the Hague Convention.
7.In order for the travel to proceed, the parent intending to travel must provide to the other parent, no less than 21 days prior to departure, a copy of the itinerary, air flight return tickets, contact details for the child while the child is overseas and the passport which is currently held by the father is to be forwarded to the mother no later than 14 days prior to the intended travel so that the necessary arrangements can be made.
The parties have agreed that these orders also include an implied prohibition on taking X to a non-Hague Convention country.
On 16 November 2022, the Mother wrote to the Father advising she intended to take X on a holiday to Country SS and Country Z.
On 28 November 2022, the Father’s solicitors replied noting that neither country is a Hague Convention signatory. That same day, the Mother replied that she had been unaware of that fact, and accordingly she would change the travel destination.
On 29 November 2022, the Mother wrote to the Father’s solicitors advising that the proposed holiday destination was now New Zealand.
On 30 November 2022, the Mother says she called the Commonwealth Attorney-General’s Department and was advised that Country SS is deemed to be a Hague Convention signatory, as it is “[another country] Subsidiary”.
On an unknown date that appears to have been around early-to-mid December 2022, the Mother says she was advised by X’s psychologist that X was experiencing high levels of distress and it would be in her best interests for the trip to proceed. The Mother says she therefore decided to continue the original trip (the Mother says her travel agent had advised her it was not possible to change the trip from Country Z and Country SS to New Zealand).
On 17 December 2022, the Mother says she “advised Boyce and Boyce [the Father’s solicitors] we would be travelling as planned”, which in context I consider carries a clear implication that she advised the Father’s solicitors that she and X would travel to the original destinations of Country SS and Country Z. The implication is misleading. The Mother’s affidavit annexes the letter she says that she sent, and nothing in that letter would cause the reader to anticipate the proposed destination would be Country SS and Country Z.
In January 2023, after the Mother and X returned from the holiday, the Father says he had a conversation with X in which she said she had been to “[Country Z]. But mummy told me that I am not allowed to tell you.” The Father states this was the first indication he had that the travel destination was not New Zealand.
Between 11 January 2023 and 16 February 2023, the Father’s solicitors made several attempts to seek confirmation of the travel itinerary from the Mother, but did not receive the requested information.
On 16 February 2023, the Father filed a Contravention Application with this Court (the 2023 Application).
On 27 April 2023, the 2023 Application was heard by Her Honour Kari J, and orders were made adjourning the 2023 Application to enable the Mother to file materials and engage legal representation. Notations made that day state the Mother admitted the contraventions but intended to plead reasonable excuse.
On 13 September 2023, the 2023 Application was heard by His Honour Jarrett J. There does not appear to be a delivered judgment from that hearing, and I am unaware as to whether His Honour gave oral reasons. However, the orders made that day state the Court found “that the respondent [the Mother] has, without reasonable excuse, contravened order 6 of the orders made under the Family Law Act 1975 (Cth) in early 2022 in that on or about late 2022 she took the child [X] to [Country Z], a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.” I take Jarrett J’s orders as indicating that His Honour agreed that Country SS is a signatory (at least via another country) to the Hague Convention.
Jarrett J’s orders did not impose any penalty on the Mother for the proven contravention, but did order that the Mother pay the Father’s costs fixed in the sum of $1,900 by 12 December 2023. The Father says that, at least by the date of filing his affidavit on 1 February 2024, the Mother had not yet paid the costs amount.
I note that the Father’s affidavit for the 2023 Application confirms the Mother had not previously been found to have contravened the 2022 Orders.
The Current Contravention Application
Much of the Father’s affidavit in support of the current Contravention Application is irrelevant. For example, between paragraphs [26] and [56] of his approximately 80 page affidavit, the Father details an apparent complaint about how the Mother handled a bout of severe constipation X had, which culminated in X being treated in hospital. The Father does not allege that the Mother’s actions during that episode contravened the orders. That material will be relevant to my assessment of costs, and of appropriate sanction (if any) for the Mother’s two admitted contraventions.
The Father says that order 4(c) of the 2022 Orders meant that X was to be in his care from Wednesday 6 December 2023 to Wednesday 13 December 2023, with 13 December 2023 being the first day of the long summer holidays for X. The Mother has implicitly agreed by conceding the contravention.
On Monday 11 December 2023, the Mother attended X’s school to speak with her. The Mother says X expressed a belief that the Father intended to overhold X for the entirety of the long summer holidays, and therefore the Mother took X from the school and retained X in the Mother’s care. The Father says his solicitors received an email from the Mother to that effect at 2:07pm that day.
The Father denies having told X at any time that she would spend the entire holidays with him. The Mother recorded the conversation in which she alleges X told her of the Father’s plan. Counsel for the Father sought to argue that this recording was inadmissible under section 138 of the Evidence Act 1995 (Cth), as it allegedly constituted an unlawful recording under section 7 of the Surveillance Devices Act 2007 (NSW).
Section 138 of the Evidence Act 1995 (Cth) relevantly provides:-
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
Section 7 of the Surveillance Devices Act 2007 (NSW) relevantly provides:-
(1)A person must not knowingly install, use or cause to be used or maintain a listening device—
(a)to overhear, record, monitor or listen to a private conversation to which the person is not a party; or
(b)to record a private conversation to which the person is a party.
Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).
…
(3)Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if—
(a)all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b)a principal party to the conversation consents to the listening device being so used and the recording of the conversation—
(i)is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii)is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
Before me, Counsel for the Father argued that the recordings were not consented to, and that the exception under s7(3)(b)(i) could not apply because there were no court proceedings on foot when the Mother made the recordings. That submission necessarily assumes that “protection of the lawful interests of that principal party” is limited to lawful interests within litigation.
The relevant sections of legislation have recently been considered by Her Honour Curran J in Arena & Arena (No 6) [2024] FedCFamC1F 364. In that case, the mother made covert recordings on her mobile phone. Her Honour admitted the recordings into evidence, saying:-
385The mother’s evidence was that she was recording the exchanges because she was “scared and I wanted to make sure that people knew what was happening in my house if anything happened to me and the [children].”
386It is well known that it is notoriously difficult to prove allegations of family violence as noted by the Full Court in Amador & Amador (2009) 43 Fam LR 268 at [79]. In fact, in this instance, the father’s evidence was that he would only behave with the children in the way he did as record, if the mother was present, and that it was in fact her presence and the parental conflict that was a cause of/precipitator to the behaviour.
387In these circumstances I am satisfied that the evidence in question was obtained by the mother in contravention of an Australian law but that she was protecting her lawful interest and that of her children. This contributes to the exceptional circumstances in which I am empowered to apply the excluded provisions o the Evidence Act to admit the recordings. The nature of the subject matter, being family violence is such that it is often difficult to prove, and as the importance of the evidence is significant as it goes to the family violence experienced by the children in proceedings that I am obliged to make determinations about risk.
The recordings in Arena were made not only before the proceedings commenced, but before the parties had even separated. Curran J’s decision binds me. Necessary to Her Honour’s reasoning is that the protection of lawful interests is not limited to interests that are the subject of current or immanent litigation. Even if I am wrong about the above-quoted passages being part of the ratio of the decision and they are instead obiter dicta, I note that the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [134] has stated that seriously considered dicta of superior court is generally binding on lower courts. I therefore consider I am bound by Arena to find that the exception at section 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) is not subject to the limitation implied in Counsel for the Father’s argument. Finally, if I am wrong, and I am not bound by the reasoning in Arena, I would have arrived at the same conclusion regardless. Nothing in the text of that act indicates I should limit lawful interests to interests in litigation.
In this case, a concern (misguided or otherwise) that X may disclose harm by the Father in my view provides a lawful interest (the protection of the child) that the Mother would consider needed to be protected, and the difficulty in demonstrating family violence noted by Curran J would suggest that covert recording can be considered reasonably necessary. Granted, in this case the covert recording was of a child speaking, rather than an alleged or potential perpetrator engaging family violence, however the views and declarations of children are equally regularly contested in this Court and therefore I consider recording a possible disclosure likewise falls under the section 7(3)(b)(i) exception. I therefore do not consider the covert recording unlawful. The recording is admissible.
Accordingly, I admitted the recording into evidence. However, I did not accept the Mother’s uncertified transcript of the recording, and instead the recording itself was played. Nothing in this decision should be taken to mean that I consider the act of recording X in this manner was necessarily appropriate. I also note that the Mother’s transcription was not completely accurate, and the recording lacked context to such a degree that it was difficult to determine exactly what X was speaking about or what prompted her to make the statements she did. I am prepared to accept that the Mother appears to have believed X’s statement meant that the Father intended to overhold X for the whole of the long summer holidays. I am not persuaded that the Mother’s belief was reasonable.
Regardless, the Mother acted on her belief. Between 11 and 13 December 2023, the Mother exchanged correspondence with the Father’s solicitors, culminating in the Father signing an undertaking to return X to the Mother’s care at the mid-point of the long summer holidays. The Mother then returned X to the Father’s care at 1:00pm on 13 December 2023.
On 9 February 2024, the Father filed a Contravention Application regarding the above events.
On 1 March 2024, the matter had a first return hearing before a Senior Judicial Registrar. Before the Senior Judicial Registrar, the Mother was self-represented. A question was raised as to whether section 102NA of the Family Law Act 1975 (Cth) applied, and the Senior Judicial Registrar told the Mother that section 102NA did not apply.
On 8 May 2024, the matter came before me for final hearing. At this point, the Mother still indicated she intended to deny the alleged contravention, and stated she intended to cross‑examine the Father. On that date, I considered the allegations of family violence between the parties, and I formed the view that the mandatory requirements of section 102NA(2) would apply to the proceedings, and therefore the Mother would be prohibited from cross-examining the Father in person. Accordingly, I adjourned the hearing to enable the Mother to make an application to the Commonwealth Family Violence Cross-Examination of Parties Scheme.
On 15 August 2024, the matter returned before me, and this time the Mother was represented by Counsel. On that day, Counsel for the Father sought, and was granted, leave to withdraw the contravention allegation for 13 December 2023. The Mother continued to deny the contravention, admitting to the facts but asserting a reasonable excuse. However, the Mother subsequently agreed she had contravened the orders with regards to both remaining counts.
SENTENCING CONSIDERATION
The parties’ proposals
The contravention sections of the Family Law Act 1975 (Cth) that applied at the time of the December 2023 contraventions have subsequently been repealed and replaced. At the time of the contraventions, the relevant section was section 70NEB. The Father submitted that the Mother should be required to enter into two bonds of six months, one for each count pursuant to section 70NEB(1)(d), to be served consecutively. The Mother advised she would refuse to enter into the bonds, and submitted that no sanction should apply. In response, the Father submitted that if the Mother would not enter into the bonds, then she should be subject to a monetary penalty pursuant to section 70NEB(1)(da) for refusing to enter the required bonds. When asked what quantum of penalty would be appropriate under section 70NEB(1)(da), Counsel for the Father indicated that the maximum available penalty (10 penalty units) should apply for each count. I note that penalty units are established under section 4AA of the Crimes Act 1914 (Cth), and the current quantum is set by Crimes (Amount of Penalty Unit) Instrument 2023 (Cth) at $313 per unit. Counsel for the Father confirmed that a total penalty of $6260 was sought.
Statutory Construction
Having considered the section in detail, I do not consider that I can take the approach suggested by Counsel for the Father, and move directly to the imposition of a fine for refusal to enter into a bond. The text of the former section 70NEB relevantly provides:-
(1) If this Subdivision applies, the court may do any or all of the following:
…
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)—impose a fine not exceeding 10 penalty units on the person;
In my view, the text of section 70NEB(1)(da) plainly requires both that: first an order must actually be made requiring entry into a bond; and second the person must actually fail to enter into the bond without reasonable excuse.
I have also considered whether I may make orders for sequential sanctions to apply, such that the primary sanction would be a requirement to enter into a bond, and then a secondary order would automatically apply a penalty if the bond be not entered into. Whether I can do that depends on how section 70NEB(1)(da) is construed, and whether the fine is a sanction for the primary contravention, or a sanction for the refusal to enter into the bond.
On the approach advocated by Counsel for the Father, implicitly, the fine under section 70NEB(1)(da) is treated as a substitute penalty for the bond. The power to impose the fine is conditional on a failure to enter into the bond, but it is still ultimately a sanction for the primary contravention. If that is the proper construction of the section, then I consider there would be no barrier to me making cascading orders for a fine automatically to apply if the Mother failed to enter into any bond I might order. I am already in a position to assess the severity of the primary contravention, and determine an appropriate sanction.
However, it is also possible to interpret section 70NEB(1)(da) as a penalty specifically sanctioning the failure to enter into the bond, instead of sanctioning the primary contravention itself. If the fine under section 70NEB(1)(da) sanctions the failure to enter the bond rather than the primary contravention, then I cannot make sequential orders at this time for a fine automatically to follow that failure. The failure to enter into a bond has not yet occurred, which means the circumstances of that failure cannot be known, and I cannot assess the appropriate sanction in all the circumstances for that failure. Likewise, the parties would not have had the opportunity to address me on factors influencing my assessment of the appropriate fine (and as discussed below, His Honour Austin J has recently stated that would deny procedural fairness and invalidate my decision).
Having considered the matter in detail, I have concluded that section 70NEB(1)(da) provides a penalty specifically for the failure to enter into a bond. It is not a mere substitute for that bond, and I therefore cannot make cascading orders for an automatic fine to follow if the Mother fails to enter into a bond. My reasons for reaching that conclusion are as follows.
First, section 70NEB(1)(da) does not allow a fine simply for failure to enter into a bond. Before the Court can levy a fine, it must specifically find that the failure to enter into a bond was “without reasonable excuse”. That is separate and additional to the requirement that the original contravention must be proven to have been without reasonable excuse, and emphasises that section 70NEB(1)(da) is not a substitute penalty for a bond. It is an independent breach for an independently wrongful failure to act, and therefore the wrongfulness of the failure to act must be shown independently. It cannot simply be presumed as a consequence of the earlier primary contravention.
Second, that section 70NEB(1)(da) is a separate penalty for a new wrongful act can be demonstrated by considering how the cascading orders I discussed above would operate. The “without reasonable excuse” requirement means that the failure to enter a bond cannot be treated as a strict liability contravention. Cascading orders operating automatically, however, would treat it as a strict liability provision. The Mother would have no opportunity to show reasonable excuse. The wrongfulness of her failure to enter into the bond would treated as sufficient without more for the Court to levy a penalty, bypassing any mens rea assessment.
Third, there is a clear implied timeline in the wording of section 70NEB(1)(da). First, the subdivision must apply (that is, a contravention without reasonable excuse must be proved). Second, the Court must order a bond. Third, the person who committed the contravention must fail to enter into the bond. Only at that point is the Court’s power to impose a fine enlivened. Until the first three steps are satisfied, the Court cannot make an order imposing a fine. If I were to make cascading orders, I would be making the order for the fine before the Mother had failed to enter into the bond. The liability for the fine would only crystalise on the Mother’s failure to enter into the bond, but the order would still have been made before the power to do so had been enlivened.
Accordingly, I have reached the conclusion that I have no power to make any orders regarding a fine at this time, notwithstanding the Mother’s declaration that she will refuse to enter into a bond. If I decide to order a bond, and if the Mother follows through on her declaration and fails to enter into it, then the Father will have to make an application for the Court to impose a fine for that failure. To do otherwise would deny the Mother procedural fairness by denying her the opportunity to show reasonable excuse for the failure.
An addendum following the commencement of amendments to the contravention provisions
The conclusion I have reached that I have no power at this time to make any orders pursuant to section 70NEB(1)(da) creates a somewhat perverse situation in which a person who has contravened orders of the Court may frustrate (at least for a time) orders resolving that contravention.
I note that the recently commenced amendments to the contravention provisions appear to address that perversity. The section now governing the orders the Court may making following a contravention being proven without reasonable excuse is section 70NBF. That section now provides:-
(1)If the court finds that the respondent has contravened a child-related order without having a reasonable excuse, the court may make any of the following orders:
(a)an order requiring the respondent to enter into a bond in accordance with section 70NCA;
(b)if an order is made under paragraph (a), and the respondent fails, without having a reasonable excuse, to enter into the bond—an order imposing a fine not exceeding 10 penalty units on the respondent;
(c)where the contravention resulted in a child not spending time with, or living with, a person (the affected person) for a period—an order requiring the respondent to compensate the affected person for some or all of any expenses the affected person reasonably incurred as a result of the contravention;
(d)where the court is satisfied beyond reasonable doubt that the respondent contravened the order:
(i) an order imposing a fine not exceeding 60 penalty units;
(ii) an order imposing a term of imprisonment.
The court now has an option to levy a fine for future contraventions without needing to go through the process of ordering a bond. That direct fine is also enlivens a significantly higher penalty than does the penalty for failure to enter into a bond without reasonable excuse. Those factors suggest that the new section 70NBF(1)(b) – which replaces the former section 70NEB(1)(da) – are specifically a punishment for failure to enter into a bond, not a substitute punishment for the primary contravention. That direct fine under section 70NBF(1)(d) is subject to a higher burden of proof, which may also go towards explaining the higher sanction, but it does not require proof of aggravating factors, reinforcing the analysis that sections 70NBF(1)(b) and 70NBF(1)(d) target different wrongful acts.
A court should be very cautious in using later amendments as part of its construction of earlier statutory provisions, and I have not relied on the later amendments in reaching my conclusions as to the proper construction of the former section 70NEB(1)(da). They do, however, suggest that I ought not discard my textual analysis of the former section 70NEB(1)(da) merely because it is procedurally cumbersome.
What (if any) sanction should be imposed
The proper approach to the imposition of sanctions for proven contraventions has been recently considered by His Honour Austin J in Galvis & Galvis [2024] FedCFamC1A 123. His Honour said:-
38In contempt proceedings, it is usual for the question of penalty to be separately addressed after the findings of contempt are made (Mead v Mead (2007) 235 ALR 197 at 198). The same procedure should apply in respect of contravention proceedings. That is because the evidence which is pertinent to the imposition of penalty is usually different from that which is relevant to the anterior question of fault.
39After the findings were made to sustain the four contraventions, the appellant ought have been afforded the chance to adduce any further evidence and to make any further submissions which could influence the determination of the penalty imposed upon her. That denial of procedural fairness was an error of law which demands the re-exercise of the sentencing discretion….
40However, there were two other errors of law not raised by the appellant which must also be corrected. First, the appellant was sentenced globally for the multiple contraventions. Secondly, the reasons do not satisfactorily explain the global sanction.
41For the four separate contraventions, the primary judge imposed the single sanction of a good behaviour bond of 12 months’ duration, even though three of the four contraventions were adjudged not to be serious enough to require bonds of that length and were instead found to have attracted bonds of only six months duration (at [138]-[139]). In respect of the three contraventions warranting bonds of only six months, the appellant ought not have been penalised more harshly by the imposition of a bond of 12 months duration.
42The error of that approach may be exemplified in two ways.
43First, if the appellant refuses to enter into the single bond as directed, she will then be liable to only a single alternate financial penalty instead of four separate financial penalties for the four separate contraventions pursuant to s 70 NEB(1)(da) of the Act (but not s 70 NBF(1)(b)).
…
45In Zamir & Zamir (2022) FLC 94-115 at [60]-[63], the Full Court recently explained why the practice of imposing global sanctions should be deprecated. While Zamir & Zamir concerned sanctions imposed for contempt rather than for contraventions, the circumstances are analogous. In the past, the Full Court has taken the same procedural approach to the imposition of penalties for contraventions as for acts of contempt (Gravis v Major [2010] FamCAFC 239 at [161] and [169]; McClintock v Levier (2009) FLC 93-401 at [65]-[67] and [166]-[172]; Dobbs & Brayson (2007) FLC 93-346 at [48]-[50]). The primary judge therefore erred by not imposing individual sanctions for the individual contraventions.
46Despite some past circumspection by the Full Court about the use of common law sentencing principles to guide the determination of sanctions for contraventions of parenting orders (McClintock v Levier at [125], [156-[158] and [233]-[237]), more recently the Full Court has embraced the use of such principles (Langer & Griffin (2013) FLC 93-559) at [55]). As was the case in Langer & Griffin, where error resulted in that appeal being upheld, in this instance the primary judge’s reasons did not advert to material considerations in the sentencing exercise, in which event the discretion miscarried.
…
49The imposition of a penalty is an exercise of discretion (Dinsdale v The Queen (2000) 202 CLR 321 at 324-326, 329 and 339-340) involving “a process of instinctive synthesis of multiple factors” (Stanley v DPP (NSW) (2023) 407 ALR 222 at [59]). Accordingly, the exercise must entail the consideration of material factors, the disregard of irrelevant factors, and be properly explained. The reasons for judgment do not demonstrate that happened here.
I am not aware of any provisions of the Family Law Act 1975 (Cth) (as it was in December 2023) governing the considerations to be applied in determining a sanction under the former section 70NEB. I therefore turn to the common law principles referenced by Austin J above. Langer & Griffin [2013] FamCAFC 170; (2013) FLC 93-559 at [55] points towards two cases: Tate & Tate (No 3) [2003] FamCA 112; (2003) FLC 93-138, and Dobbs & Brayson [2007] FamCA 1261; (2007) FLC 93-346. In Tate, the Full Court said:-
57Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, It is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders be obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.
…
60In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577 at 584; 161 CLR 98 at 107 (per Gibbs CJ, Mason, Wilson and Deane JJ) the purpose of proceedings for civil contempt was stated as follows:
“Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.”
61The Australian Law Reform Commission (“ALRC”) in its 1987 report Contempt (Report No. 35) pointed out (at par 508) that it is important to recall that proceedings for disobedience contempt may serve one or both of two distinct functions: enforcement of the order and punishment of disobedience of the order. It similarly drew a distinction between situations where the primary aim is coercive as distinct from punitive. In the former case, the sanction imposed is expressed only to last until the occurrence of a specific event that is within the power of the person upon whom the sanction is imposed. In the latter the punishment (if custodial) is imposed for a finite period, usually after the relevant events have occurred.
62It should be mentioned that the ALRC, in Chapters 13 and 14 of its report, did draw a distinction between the considerations associated with non-compliance in family law and general civil law. We agree that there is a distinction and in particular that resistance to compliance with orders made in family law litigation may be particularly strong, as this case exemplifies. At par 623 the Commission took the view that the purpose of punishment in family law proceedings was not so much upholding the Court’s authority as an end in itself, but in fulfilling the expectations of the litigant’s themselves that Court orders will be obeyed and imposing sanctions if this does not occur. We agree with this view which accords with that expressed by Evatt CJ in G and G (1981) FLC 91-042 at 76,361.
63At par 515 of the ALRC report, it is pointed out that there are many cases where the primary goal is to punish the contemnor for past disobedience. It is stated that the sanction serves similar purposes to those imposed by the criminal law: in particular, deterrence (specific and general) and retribution.
…
67In this case, the wife has been subjected to a costly, time consuming, delay causing and no doubt emotionally draining campaign of defiance of these particular court orders.
In Dobbs, the Full Court noted:-
60However, the complexity of the sentencing process is demonstrated by the discussion more recently, in Weininger v The Queen [2003] 212 CLR 629, a decision focusing on the terms of section 16A(2) of the Crimes Act 1914 (Cth). The majority, Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, said at 636-638:
…
[24]As was pointed out in Storey [1998] 1 VR 359 at 372, it is important to avoid introducing “excessive subtlety and refinement” to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money.”
The submissions I received as to matters I should consider in assessing the appropriate penalty were thin. On the Mother’s side, the oral submissions amounted to a bare statement that no penalty should apply (further propositions were advanced in the Mother’s subsequent written submissions, but leave for those submissions was only granted to address costs, and therefore I have disregarded other matters raised in them). On the Father’s side, the submissions were barely more than a bare statement that either two six month bonds or a 10 penalty unit fine would be appropriate. My consideration is therefore as follows.
First, pursuant to the former section 70NEC, the maximum duration of bond I may impose is two years. I may impose surety for that bond, and/or various conditions. It has not been proposed by any party that I should impose surety or conditions, and I do not propose to do so.
Second, I am prepared to accept that the Mother appears to have genuinely, although in my view unreasonably, believed that she had reasonable excuse for the contraventions. She appears to have had a genuine belief that the Father intended to overhold X for the entirety of the long summer holidays, and once an undertaking was given that this would not occur, she returned X to the Father. I therefore do not consider that the Mother has acted with malicious intent, but rather with a total lack of impulse control and a deep, unreasoned, and unrestrained suspicion of the Father in all things. The Father has annexed to his affidavit material various communications from the Mother. They drip with contempt and display what appears to be a deep and unyielding belief that the Father is dangerous, malicious, and perpetually a threat.
That leads me to the third factor in my considerations – how to assess the Mother’s attitude towards Court orders. Solely on the December 2023 contraventions, it might be arguable that the Mother did not set out to contravene Court orders, but rather took matters into her own hands to address what she perceived as an impending contravention by the Father. Considering the wider history of this matter, however, I am not prepared to take such a charitable interpretation. The Mother acted with blatant disregard for the Court’s authority during the original proceedings when she unilaterally relocated with X to Queensland, despite Henderson J having refused to hear that application. Then, regarding the trip to Country SS and Country Z, the Mother acted despite being clearly on notice that what she did was contrary to Court orders. The Mother’s material from that time indicates she believed that she would not technically have brought X to Country Z if they stayed in their accommodation and did not leave. At best, that is conspiring to defeat the spirit and intent of the orders, even if it did not breach the letter of the orders. However, as Jarrett J found, staying in the accommodation was also contrary to the letter of the orders. If the Mother truly believed she was complying with the 2022 orders, then she had wilfully deluded herself on that count. That possibility of ‘mere’ wilful self-delusion then collapses when considering her failure to pay the Father’s costs within the timeframe ordered. I am compelled to conclude that the Mother treats Court orders as optional, and is likely to continue breaching Court orders in future. Her declaration that she will refuse to enter into a bond cements my conclusion on that count. I therefore place considerable weight on the need for deterrence and retribution in this case.
The fifth matter I take into consideration is that the Mother has a history of significant mental health challenges (many of which she seeks to lay at the Father’s door), and I consider it likely that those have affected the Mother’s capacity to act reasonably and proportionately where the Father is concerned. That both reduces the extent to which I would anticipate specific deterrence (that is, deterring the Mother herself from future contraventions) to be effective (although it does not affect the importance of general deterrence), and arguably reduces the Mother’s moral culpability (at least in part). However, there has been no suggestion that the Mother is incapable of telling right from wrong, or of comprehending Court orders.
Next, I consider it is critical that future contraventions do not occur. It has not been suggested to me that X’s relationship with either parent was imperilled by the December 2023 contraventions, nor that she has suffered psychological harm, but as she gets older the on-going extraordinarily bitter parental conflict has a real prospect of causing her significant harm, especially if that conflict continues to throw up contraventions. Children’s development requires stability, predictability, and emotional safety. If X’s care arrangements change without warning at the impulse or emotional reaction of one or both parents, she will be harmed by that in the long term.
On other matters that are relevant to a decision on sanction:-
(a)I do not accept that the Mother is penurious, and therefore a financial penalty would be disproportionately onerous for her;
(b)this is not a matter in which a term of imprisonment falls for consideration, and therefore I do not need to consider how such matters would affect care arrangements for X, or X’s relationships with her parents; and
(c)in and of itself, the two contraventions in December 2023 were at the lower end of severity, being of brief duration and not causing direct harm to X.
Weighing all those matters together, I consider that each contravention count merits a six month bond, and that it is appropriate that those bonds be served consecutively. I will make orders to that effect. I also warn the Mother that further breaches are likely to be treated harshly by the Court.
For completeness, I have also considered what financial penalty I would impose, were I able to make the cascading orders for a fine described above. If I am wrong in my analysis of the former section 70NEB(1)(da), and in fact I am able to levy a fine in substitution for the bonds, then the above considerations would have led me to impose a fine of $500 per contravention, for a total of $1,000. I caution the Mother that this does not mean I will necessarily impose an equivalent fine should she carry through with her refusal to enter into the required bonds. Since I have concluded that the fine for failure to enter into a bond is a separate breach requiring a wholly new consideration before levying a penalty. As such, it would be the third time the Respondent Mother had been said to have breached Court orders, and I would need to consider whether that latest non-compliance represented a wilful determination to reject and dismiss the authority of the Court. Those may well be factors that incline me to a more severe penalty.
COSTS
The Father seeks that the Mother pay his costs, fixed in the sum of $14,097.47. His written submissions assert that those costs are calculated at scale. He notes this is a significant reduction from his actual costs of $37,750.15.
The Mother seeks that the Court make no order as to costs. Many of her submissions appear to be directed to an argument that she should not have to pay indemnity costs. However, I do not consider that confusion disadvantages the Mother, as her submissions are designed to prosecute an argument that she ought not pay costs at all.
Costs in family law proceedings are governed by section 117 of the Act, which relevantly provides:-
(1)Subject to subsection (2), subsection 102QAB(6) and sections 117AA and 117AC, each party to proceedings under this Act must bear the party’s 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.
The Father submits that, in summary:-
(a)there is no compelling financial reason why the Mother ought not pay costs, as her expenses appear to comparable to her earnings, and any statements by the Mother to the contrary should be treated with scepticism;
(b)the Mother’s conduct as a litigant has been poor and increased the costs of the application because:-
(i)the Mother has failed to pay costs pursuant to an existing costs order, compelling the Father to commence a further enforcement application;
(ii)the Mother unreasonably failed to secure legal representation before the initial scheduled hearing date on 8 May 2024 yet maintaining that she wished to cross‑examine the Father, which was prohibited pursuant to section 102NA of the Act, forcing an adjournment for the Mother to secure representation; and
(iii)the Mother initially entered a plea of not guilty to the two contravention counts, but subsequently entered a plea of guilty, which meant significant preparatory costs were thrown away; and
(c)the Father has been wholly successful in his application.
There is significant force in a number of the Father’s submissions, but I cannot accept all of them. First, the Father’s submissions gloss over his having initially alleged three contraventions, but withdrawn the third on the day of the hearing. In so far as the Father criticises the Mother for withdrawing her defence on the day of the hearing, the same criticism must also apply at least in part to the Father.
Second, the Father has not been wholly successful in his application. The Father’s Counsel submitted that I should levy a fine in response to the Mother stating she intended to defy any order to enter into a bond, and I have found that I do not have the power to do so. Additionally, the Father sought that the quantum of that fine should be the maximum available fine, being $3,130 per proven count of contravention, for a total of $6,260. Even had I been able to make the orders for a fine that the Father sought, I would not have levied a fine in that amount. I would have levied a fine less than that quantum. It is not a neutral matter that the Father made a submission that markedly overreached the range of available outcomes that would be proper on the facts, and it weighs against the costs orders he seeks. Relatedly, the Father’s affidavit material is voluminous and much of it does not appear connected to his Contravention application, meaning that the Father’s material wasted resources, at least in part.
Third, as noted above, my review of this matter’s procedural history indicates that the Mother was in fact advised by a Senior Judicial Registrar on the first return date that section 102NA did not apply in this matter. Given that the Mother had previously pleaded guilty to an unlawful assault on the Father, it is difficult for me to understand how the Senior Judicial Registrar reached that conclusion, but I cannot criticise the Mother as a self-represented litigant for acting on that statement by the Senior Judicial Registrar. As such, I am cautious as to whether it is appropriate to hold the 8 May 2024 adjournment against the Mother (although I note that she subsequently conceded the contravention and did not in fact cross-examine the Father, raising questions as to whether the adjournment was in fact necessary).
The Mother’s submissions are as follows:-
(a)the Mother is experiencing financial precarity, earning $2,419.58 after tax per week, but having weekly expenses of $3,543.78, and already being in considerable debt, such that a costs order would place her housing in jeopardy;
(b)the Father has considerable financial resources;
(c)the Mother withdrew her defence and accepted that she contravened the orders, whereas the Father had included additional contravention counts for 5, 6, and 13 December 2023, which he subsequently withdrew;
(d)the Mother’s belief that the Father was pursuing contravention counts for 5, 6, and 13 December 2023 contributed to her only entering a plea of guilty during the 15 August 2024 hearing, and but for that there is a real chance the matter could have been resolved by agreement or otherwise in a more timely manner;
(e)the Father’s Costs Notice filed on 14 August 2024 disclosed only the following costs in respect of the August 2024 contravention hearing:-
(i)$3,000 for preparation and attendance by the Father’s solicitors; and
(ii)$7,150 for Counsel’s appearance and preparation fees;
(f)the general rule in family law matters is that each party bears their own costs, and there is no compelling reason to displace that rule here; and
(g)the parties were eventually able to reach agreement at the Contravention hearing, and provided a consent minute to the Court to resolving on-going conflicts regarding the 31 January 2022 orders.
As with the Father, there are a number of assertions made in the Mother’s submissions that I am not able to accept. Firstly, as to her impecuniosity, this submission is misleading. The Mother emphasises her after tax income of $2,419.58 in comparison to stated expenditures of $3,543.78. However, that expenditure figure includes $960 of income tax liability. As such, the more appropriate comparison is the Mother’s before tax income of $3,379.60. While that still suggests a minor shortfall, it makes the Father’s submission about the Mother receiving a payment from Mr O of $200 per week significant because that suggests there is not in fact any shortfall. I also note that the Mother’s stated expenses are not particularised in detail, but appear to include $956.13 per week to agglomerated loans, which suggests a degree of discretionary spending (although I cannot know that with certainty). Overall, I am left with the impression that the Father is correct that I should treat the Mother’s financial claims with caution, and I am not persuaded her impecuniosity is in fact as dire as she asserts. I also note that, as the Mother’s submissions correctly concede, impecuniosity is no bar to a costs order (In the Marriage of Schwarz (1985) 10 Fam LR 235; FLC 91-618). In light of that concession and my scepticism as to the Mother’s submissions, I am unable to place any significant weight on the Mother’s claimed impecuniosity.
Second, while I accept that the Mother appears to have been under a material misapprehension of the Father’s case, and his withdrawal of the 13 December 2023 contravention allegation came late in the day, I do not accept that the Mother withdrawing her initial denial of the contravention and instead conceding them is a matter in her favour. As it occurred in the hearing, the timing of that change raised a significant concern that the Mother was attempting to avoid having the Court hear the recording she had made of the conversation with X, because the Mother had earlier confirmed her intention to continue denying the contraventions after Counsel for the Father had formally withdrawn all bar the 11 and 12 December 2023 contravention allegations. In light of the Mother’s apparent confusion regarding the scope of the contravention allegations, I consider I should not hold the 8 May 2024 adjournment against her, as she might well have needed to cross-examine the Father had he been pursuing contraventions for 5 and 6 December 2023. However, by the August 2024 hearing, the Mother’s Counsel had confirmed no contraventions were pursued for those dates, and therefore the Mother’s change of plea on the day of the hearing has no satisfactory explanation.
Third, on the agreement being reached, while I agree with the parties that those changes will hopefully avoid further disputes in future, that agreement was reached only after the Mother conceded the contravention, and it was open to the parties at any time to reach such an agreement. The fact of that agreement having been reached supplementary to the Contravention outcome does not alter that significant Court resources and significant funds from the Father have been expended on this application.
Fourth, it is indeed the case that the ordinary rule in family law matters is for each party to bear their own costs. The ordinary rule is also that parties obey the orders of the Court. A Contravention Application is axiomatically an aberrant situation. That does not mean that costs orders are automatic, as it may be that both parties acted reasonably, simply from different perceptions of events. This is not such a case. The Mother breached the orders, for second time, and has conceded she had no reasonable excuse for that. Those are matters that suggest a costs order should follow.
Having considered the parties’ submissions, I consider it is appropriate that I should make an order that the Mother pay the Father’s costs of this application. However, I am not persuaded of the quantum of costs the Father proposes.
The Father has broken down his costs as follows, said to be pursuant to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth):-
(a)$2,854.75 for initiating or opposing an application up to the completion of the first court date on 1 March 2024 (item 1 of the Schedule);
(b)$706.76 for disbursements – agent’s fees and travelling costs to serve documents (item 18 of the Schedule);
(c)$130.72 for disbursement – photocopying (item 17 of the Schedule);
(d)$5,353.45 for preparation for final hearing on 8 May 2024 / 15 August 2024 – 1 day matter (item 7 of the Schedule);
(e)$342.19 for daily hearing fee – short mention 8 May 2024 (item 13(a) of the Schedule);
(f)$171.10 advocacy loading for short mention 8 May 2024 (item 14 of the Schedule);
(g)$2,512.56 for daily hearing fee – full day hearing 15 August 2024 (item 13(c) of the Schedule);
(h)$1,256.28 advocacy loading for hearing 15 August 2024 (item 14 of the Schedule); and
(i)$769.66 for drafting, conference and chambers work not otherwise covered by the Schedule (being two hours of submissions drafting by Junior Counsel) (item 15 of the Schedule).
I consider that the Father’s claims are not reasonable. Instead, I consider reasonable costs would be as follows:-
(a)$1,062.80 for application for location order, recovery order or enforcement of an order (other than an application for enforcement by a Registrar). I consider the costs the Father claims under item 1 of the Schedule should instead be claimed under item 11;
(b)$434.50 for disbursements related to service of documents. The Father has correctly identified the relevant Schedule item. However, his submissions acknowledge that the actual cost incurred was only $434.50, and it is not reasonable to claim scale costs above that amount and make a profit;
(c)$98.45 for disbursements related to photocopying. Again, the Father has identified the correct scale item, but his actual costs were materially lower than the scale allowed for, and it is not reasonable to claim the excess and make a profit on this item;
(d)$4,125.00 for preparation for final hearing. I note that the Father has correctly claimed only a single instance of preparation, notwithstanding the adjournment on 8 May 2024, as that preparation work did not require duplication. However, once again the Father has claimed scale costs in excess of his stated actual costs, and he cannot claim a profit on this item;
(e)$342.19 for the daily hearing fee for the 8 May 2024 short mention. This figure is unchanged from the Father’s claim;
(f)$0 advocacy loading for the 8 May 2024 short mention. Again, the Father has identified the correct scale item, but states that his actual costs were $0, and therefore he cannot claim costs for this item;
(g)$2,512.56 for the daily hearing fee for a full day hearing on 15 August 2024. This figure is unchanged from the Father’s claim;
(h)$0 advocacy loading for the 15 August 2024 hearing. Again, the Father has identified the correct scale item, but states that his actual costs were $0, and therefore he cannot claim costs for this item; and
(i)$769.66 for two hours of Junior Counsel drafting written submissions as to costs. This figure is unchanged from the Father’s claim.
Accordingly, I calculate the total of the Father’s reasonable costs as $9,345.16. I will make orders that the Mother pay the Father’s costs fixed in that amount.
ADDITIONAL MATTERS
As mentioned above, the parties submitted a consent minute at the Contravention hearing intended to resolve long-standing ambiguities in the 31 January 2022 orders. I agree that the proposed orders are appropriate to resolve those ambiguities, and I will make the orders accordingly, subject to minor alterations in form but not substance to eliminate residual ambiguity.
In her written submissions, the Mother also sought two additional orders: first, that neither parent prevent the other from visiting X during any inpatient care she undergoes for any reason; and second, that a parenting co-ordinator be appointed. The Mother did not raise these matters at the hearing, and they go well beyond the scope of costs submissions that were permitted following the hearing. I therefore do not propose to make those orders at this time. They are substantive parenting orders raised without notice to the other side, and if the Mother wishes to pursue them she will need to make a formal application to the Court, and go through the usual pathway.
CONCLUSION
For the foregoing reasons, I will make the orders set out at the start of these reasons. I am satisfied that the parenting orders are in X’s best interests. I am satisfied that the proposed bonds are reasonable, proportionate and appropriate to the purposes of punishment in all the circumstances. And with regards to the costs orders I am satisfied that there are reasons justifying departing from the usual rule, and that the quantum I have fixed is reasonable and appropriate in the circumstances of this case.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Stewart. Associate:
Dated: 12 September 2024
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