B and D

[2007] FMCAfam 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & D [2007] FMCAfam 193

FAMILY LAW – Parenting orders – enforcement.

Family Law Act1975, ss.60CC, 70NEA

Peter & Elspeth(contravention) [2007] FamCA 96

Applicant: TMB

Respondent: KGD

File Number: NCM3952 of 2002

Judgment of: Jarrett FM

Hearing date: 23 March, 2007

Date of Last Submission: 23 March, 2007

Delivered at: Lismore

Delivered on: 23 March, 2007

REPRESENTATION

Solicitors for the Applicant: Stephen Tester & Associates

The Respondent appeared on own her own behalf

Upon the Court finding that the respondent mother has, without reasonable excuse, contravened the orders made under the Family Law Act1975 by Justice Jordan in the Family Court of Australia at Brisbane on 12 December 2006, in that:

a)

in contravention of paragraph 1 thereof she failed to deliver the children to the Lismore Children’s Contact Centre for contact with the father on

7 January 2007.

ORDERS

1. That the respondent mother KGD be sentenced to a period of imprisonment for a period of four (4) months, to be served immediately.

2. That the orders made by Justice Jordan in the Family Court of Australia at Brisbane on 12 December 2006 be varied such that the children J and E (the children) forthwith live with the father.

3. That the father be at liberty to take the children from the Court today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LISMORE

NCM3952 of 2002

TMB

Applicant

And

KGD

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application for contravention of certain orders made in the Family Court of Australia by Jordan J on 12 December, 2006.  The orders concern two children, J who was born in April, 1999 and E who was born on 9 March, 2001.

2. His Honour heard a trial which took place over two days at the conclusion of which his Honour gave an ex tempore judgment.  His Honour ordered that the children live with the mother and have time with their father on one day for one weekend per month commencing on 7 January, 2007.  From August, 2007, those orders were to expand so as to provide for more time between the children and their father.

3. The father alleges, and the mother admits, that she did not make the children available for contact according to the terms of Jordan J's orders on 7 January, 2007.  That is to say, she failed to comply with the orders on the first occasion that she was required to make the children available for contact with the father.  The mother says, however, that she had a reasonable excuse for contravening the orders – she could not afford to travel to L for the contact to occur.

4. At the time of Jordan J's judgment the mother was living with the children and her current partner in N.  She now lives with her partner in M, having recently moved there.  The father lives near B and, as the evidence unfolded, it became apparent that the father had no means of transport and the mother did. 

5. I will not recount in terms his Honour's judgment in respect of his discussion of the s.60CC factors, but it is plain enough from a consideration of his Honour's reasons that, with respect, they are fulsome and easily understood.

6. His Honour, towards the end of his reasons, commenced to pronounce his orders at which point he was interrupted by the mother and following an exchange between the parties and his Honour and a short adjournment, his Honour continued:

   50 The reasons I have given earlier, of course, remain the basis upon which I make the orders.  In the course of delivering those reasons and making those orders, the mother addressed the Court and raised some logistical difficulties, which resulted in the matter being stood down.  The father, to his credit, has sought to compromise his position to address some of the mother's concerns and, after taking all of those matters into account and acknowledging, again, that there is simply no outcome in this case which is not without its difficulties and changes, and trying to find the balance that I have referred to which enables the children to have some meaningful time with the father, I propose to modify the orders I started to make so that, firstly, I take account of the mother's religious practices on Saturday and contact will be on Sundays from 11 to 5. 

   51 I will extend the period of such contact beyond June to August, so that the order will be that the children spend time with their father on the first Sunday of each month commencing 7 January and the first Sunday of each month thereafter up to and including August 2007 …

   52 Now, that order acknowledges that the mother will be required to transfer the children on one Saturday per month or make some arrangements.  I respect the mother's religious practices, I respect the mother's wish to have her children participate in those religious activities.  I respect the father's right to spend time with his children.  I respect the children's right to spend time with their father.  And I am satisfied that, whilst the children's religious practices are important to them, equally, the children's opportunity to have a relationship with their father is very important to their development.

   …

   54 On the basis that, by the concessions made by the father to meet some of the mother’s practical concerns, this has now reduced to a monthly commitment.  I acknowledge that imposes some financial hardship upon the mother.  It is a hardship that should have been in the mother's contemplations when she chose to move five hours away and that she may be required, and, indeed, that she was so required at the time she unilaterally moved to facilitate the children's relationship with their father.  Accordingly, without denying the reality of the hardship, it is something the mother now needs to deal with in terms of meeting her obligations to care for the children and to facilitate the children's relationship with their father, which is one of her primary responsibilities.  It is on that basis that I propose to make those orders. 

7. His Honour's reasons record that there was another exchange between the parties, following which his Honour said this:

   56 If you defy the orders of the Court, then you will have the bear the consequences.  Otherwise, there is no purpose in having Courts.  Otherwise, there is nothing to stop the father from taking these two children from you and going into hiding.  The only thing that stands between you and that prospect is the authority of the Court.  If people cannot reach agreement, they come to Court.  People must abide by the orders of this Court or there is anarchy.  You do not want that, the father does not want that, the children do not need it, and I will not tolerate it.  Adjourn the Court, thank you.

8. Plainly, his Honour was addressing the mother in the course of those remarks. 

9. In cross-examination before me, the mother made it abundantly clear that she had no intention of complying with Jordan J's orders.  She says that she has a reasonable excuse for her admitted failure to comply with the orders on 7 January this year in that she was unable to afford to drive the children from N to L for the contact.  But as cross-examination revealed, whether she had the finances available to her or not, the fact of the matter is that she would not and does not intend to make the children available to the father according to the orders made by his Honour.  Indeed, she has indicated, both through her evidence and by submission, that the only basis upon which she would make the children available for time with her father is if their time with him is supervised.

10. I am satisfied in all of the circumstances, having regard to s.70NAE of the Family Law Act1975, that the mother has not established any circumstances which might be described as a reasonable excuse for contravening the orders.  I am satisfied that at the time she contravened the orders, that is, 7 January, 2007, she knew full well that the orders had been made, that she was bound by them and that she understood the obligations placed on her by the orders.

11. The reasons for judgment and the address by Jordan J to the mother on the occasion of delivery of those reasons makes it abundantly clear that his Honour was at pains to point out to the mother the nature and extent of her obligation to comply with the orders. 

12. I find the contravention application proved.  I find that the mother does not establish that she had a reasonable excuse for contravening the orders.  Yes, Mr Tester.

    RECORDED:  NOT TRANSCRIBED

    ADJOURNED

    RESUMED

    RECORDED:  NOT TRANSCRIBED

13. Earlier today I found that the respondent in this case had contravened orders of the Family Court of Australia without reasonable excuse.  Since doing that I have heard submissions from each of the parties as to the appropriate penalty that might be imposed in this case. 

14. The evidence satisfies me that I ought to deal with this case as a more serious contravention. That is, I should deal with it under Subdivision F of Division 13A of Part VII of the Family Law Act1975.  It is a case where the mother has in the past been placed on a bond for breaching orders, although not the orders with which I am immediately concerned.  It is a case where she made a conscious decision not to comply with orders of a court in face of a very clear statement by the presiding Judge as to the consequences that might be visited upon her if she did not comply.

15. There is nothing to suggest, indeed the evidence is to the contrary, that the mother does not or did not understand the significance of the obligations imposed upon her by the orders that she has chosen not to comply with.  It is against that background that I am satisfied that the mother's behaviour constitutes a contumelious disregard of the orders that were made by the Family Court and the contumelious disregard of the authority of that Court. 

16. The options available to a court dealing with somebody who has been found to have contravened orders relating to children and set out in

    
    

    Subdivision F of Division 13A of Part VII of the Act are varied (see s.70NFB(2)), but in this case it seems to me that many of the options are inappropriate.

17. The Court has power to make an order that a person undergo a community service order but that option is only available if there is in place between the Commonwealth and the States arrangements for the facilitation of such orders by State authorities (s.70NFC).  There is nothing to suggest that those arrangements are in place and, indeed, in a decision Peter & Elspeth(contravention) [2007] FamCA 96, an unreported decision of Benjamin J of the Family Court of Australia, his Honour was given to remark that indeed there are no arrangements between the Commonwealth and the States at this point in time that would permit the making of such orders.

18. That then leaves a number of other options.  The Court is empowered to make an order that a person enter into a bond in accordance with s.70NFE.  I will return to the bond shortly.  The Court can make an order to fine a person not more than 60 penalty units.  A penalty unit at the moment is about $110 and so the maximum fine available would be $6,600.

19. I can impose a sentence of imprisonment in accordance with s.70NFG of the Act and, pursuant to that section, I can order that that period of imprisonment be suspended upon terms and conditions to be determined by the Court. 

20. I can also make orders that there be compensatory contact between children and the parent who had the benefit of the order and I can also, indeed, in some circumstances I am required to make an order that the person who committed the contravention pay the costs of the other party to the proceedings. 

21. In this case the options seem to me to be, given the contumelious disregard of the mother of the orders of the Family Court, either a bond or a suspended sentence of imprisonment.  I am not satisfied that the imposition of a fine would be appropriate.  If the mother could pay the fine, it would merely amount to the price she should pay to avoid complying with the orders of the Family Court. 

22. The issue that arises for consideration in respect of either a bond or a suspended sentence of imprisonment is whether any condition that might be imposed on the mother as a term of the bond or the suspended sentence that she comply with the orders in the future would be honoured.  I raised that issue with the mother a short time ago and gave her some time to contemplate her answer to that particular question.  She was unable to tell me that she would comply with the orders in the future if that was a condition of any bond or suspended term of imprisonment that I imposed. 

23. In those circumstances I cannot be satisfied that she would indeed comply with any of the orders made by Jordan J in December last year.  I am satisfied by her answers, both from the witness box and in answer to some questions that I put to her when she was at the Bar table that she would not comply with those orders unless they provided for the father's time with the children to be supervised.

24. In those circumstances, and bearing in mind that she has already been placed on a bond before, it seems to me that a bond is entirely inappropriate.  It would be breached on the first occasion that the orders presented for compliance. 

25. That leaves the question of imprisonment.  Ought there be a sentence of imprisonment and, if so, for how long and should it be suspended?

26. I referred earlier to the decision of Peter & Elspeth.  That is a decision of Benjamin J of the Family Court of Australia which has some analogies with this case.  In that case there was a trial before the Family Court which was determined by a judgment in December last year.  On the first occasion that the mother was required to make the children available for contact, the contact did not happen.  His Honour found that the mother's failure to make the contact happen was a breach of the orders and that she had no reasonable excuse.  He was satisfied that the mother's beliefs, in that case, religious beliefs, were such that she had made a conscious decision not to comply with the orders of the Court.

27. Absent in that case is a finding that it was unlikely that the mother would fail to comply with the orders in the future.  His Honour appears to have been satisfied in that case that following an order for make-up contact that the contact orders that were made in December, 2006 would probably be carried out.  His Honour imposed a sentence of imprisonment for four months but suspended its operation conditional upon the mother complying with the orders for twelve months.

28. In this case there is evidence that the mother will not comply with Jordan J's orders.  Given her answers to me, I am satisfied beyond reasonable doubt that she will not and in those circumstances my view is that it is appropriate to impose a sentence of imprisonment and that the sentence of imprisonment not be suspended. 

    ORDER DELIVERED

    RECORDED:  NOT TRANSCRIBED

29. I am asked to make a parenting order that the children, the subject of orders made by Jordan J in the Family Court on 12 December, 2006 now live with the father. 

30. The making of a parenting order by way of an order which varies an existing order following a contravention application is a parenting order for the purposes of Part VII of the Act, notwithstanding the circumstances in which it is made. That is to say the court is to be guided by s.60CA of the Act - that is, any orders the court makes must be in the best interests of the children and in determining that, the Court must consider the matters set out in s.60CC of the Act.

31. The exercise of considering the s.60CC factors received attention, of course, in Jordan J's reasons and it is significant, in my view, that his Honour made findings that these children have a relationship with their father, albeit one in which they have not been permitted to spend as much time with him as he would have liked.

32. There was evidence before his Honour that the time that the father had spent with the children had gone well and that the children enjoyed positive experiences with him.  The material before his Honour suggested that for the vast majority of the time the children embraced their father enthusiastically, both physically and emotionally and that they appeared to derive a benefit from the contact.  Apparently, according to the evidence, J even appeared to be upset when his time with his father was coming to an end.

33. The children's primary attachment is to their mother.  That seems to be the purport of Jordan J's findings.  That is a matter that I take into account.  There is, however, according to his Honour an underlying, fundamentally sound foundation to the relationship between the children and their father. 

34. It must be the case that his Honour determined that there was no unacceptable risk of physical, psychological or emotional harm to the children because, had his Honour been of any other mind, he would have ordered contact which was different to that which was ultimately ordered.  That is to say, he would have ensured either that there was no contact between the children and their father or that the contact was supervised. 

35. The fact that his Honour did not do either of those things must mean, in my view, that he was satisfied that there was no unacceptable risk of physical, psychological or emotional harm to these children spending time with their father. 

36. In those circumstances it is appropriate, in my view, that the children live with their father.

    ORDER DELIVERED

37. You will take careful note, Ms D, that that order is not limited in time. 

38. I understand that the duty lawyer is present in Court.  I would ask the duty lawyer to explain the purport of these orders to the children who, I understand, are at Court.

39. The father is at liberty to remove the children from the Court as he sees fit.  Thank you, adjourn the Court. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate:  S. Haysom

Date:  4 April 2007