B and W (No.2)
[2003] FMCAfam 114
•19 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & W (No. 2) | [2003] FMCAfam 114 |
| CONTRAVENTION – Stay of sentence pending appeal – applicant sentenced to imprisonment for seven months – Burgundy Royale principles applicable to determination of stay pending appeal – stay ordered conditional upon applicant entering into a recognisance. |
Crimes (Administration and Sentence) Act 1999, s.77
De Lewinski v Director General, NSW Department of Community Services (1996) FLC 92-678
Re Evelyn (No. 2) (1998) FLC 92-817
Jennings Constructions Ltd. v Burgundy Royale Investments (1986) 161 CLR 681
| Applicant: | T A W |
| Respondent: | H B |
| File No: | PAM 4244 of 2001 |
| Delivered on: | 19 March 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 19 March 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Brown |
| Solicitors for the Applicant: | Browns The Family Lawyers |
| Counsel for the Respondent: | Ms J. Weiss |
| Solicitors for the Respondent: | Ian Bullock and Associates |
ORDERS
That order 4 made on 18 March 2003 is stayed upon the following terms:
(a)That the appellant enter into a recognisance self in the sum of $400.00 with security upon the following conditions:
(i)To attend at the hearing of her appeal filed today and such other appearances as required by the Court considering the appeal
(ii)To reside with T at A in New South Wales.
(iii)To report to the Officer in charge of Police at Campbelltown Police Station between the hours of 9.00am and 6.00pm each Monday, Wednesday, Friday.
(iv)Not to approach or contact the Respondent HB or the children AW and CW or the respondent’s parents, their homes and/or schools or attempt to do so either directly or indirectly through a third party.
Upon the appellant entering the recognisance the appellant’s solicitor be granted leave to approach in chambers so that the warrant for commitment issued 18 March 2003 can be suspended.
NOTATION
That the appellant’s solicitor have leave to approach in chambers so that an order pursuant to section 77 of the Crimes (Administration and Sentence) Act 1999 may be made for the attendance of the appellant for the execution of the recognisance ordered today.
I note that the appellant advises that she will make an application to expedite the hearing of her appeal subject to her entitlement to a grant of Legal Aid to do so.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4244 of 2001
| T A W |
Applicant
And
| H B |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
The application
This is an application by T W (“the applicant”) filed today. The applicant asks the court to stay orders that were made yesterday. Yesterday the court sentenced her to a period of imprisonment effective immediately. The duration of the sentence is seven months.
The applicant was sentenced after she admitted to a contravention of child order application filed on 24 January 2003. It is apparent from the sanction imposed that I was satisfied that the respondent had shown a serious disregard for the court’s orders. The matter was dealt with pursuant to stage 3 of the parenting compliance regime. Her sentence started immediately and yesterday the applicant was taken from the court to Mulawa Correction Centre. Because of the urgency of the application the applicant appears by her solicitor but is not here in person.
Mr Brown who appears on her behalf advises that a Notice of Appeal has been filed by facsimile transmission with the appeals registry of the Family Court in Sydney during the luncheon break today. The Notice of Appeal is attached to the affidavit sworn by Mr Brown today.
The applicant in the substantive proceedings (HB) is represented by his solicitor, Ms Weiss. He makes no submissions in relation to the matter now before the court.
The applicant’s submissions
The gravamen of the application is that unless a stay is ordered the applicant's appeal is largely rendered nugatory. I proceed on the basis that the appeal will be listed in the ordinary course. That this means it will be heard within about eight weeks by a Judge of Appeal sitting alone but as a Full Court of the Family Court. Mr Brown advises that an application for expedition of the hearing of the appeal will be made. That is an important concession on his client's behalf.
Applicable principles for the determination of the stay application
The principles that apply to a circumstance such as this are not easily to hand. The case law is replete with the applicable principles for a court determining an application for a stay that relates to parenting orders or to financial orders: De Lewinski v Director General, NSW Department of Community Services (1996) FLC 92-678, Re Evelyn (No. 2) (1998) FLC 92-817. The principles enunciated by Brennan J (as he then was) in Jennings Constructions Ltd v Burgundy Royale Investments (1986) 161 CLR 681 seem to be appropriate to a case such as this, even though they do not relate to a child related matter.
Thus it seems to me that I should consider the following. Firstly, any delay to the hearing of the appeal. As I indicated, that is likely to be within eight weeks. Next, where the refusal of a stay renders a successful appeal nugatory. The next factor is the hardship to the successful respondent in comparison to the hardship of the appellant. Also, I must consider the grounds for the appeal.
Conclusion
Dealing with the matters in reverse order, firstly I consider the grounds of appeal. The grounds of appeal appear to me to raise substantive issues of both fact and law. Thus I am satisfied that the appeal is prosecuted on substantive grounds and is not a delaying tactic.
Next, the hardship to the successful respondent, that is, Mr B, as compared to the hardship to the appellant. During the contravention hearing HB invited the court to deal with the respondent pursuant to stage 3 of the parenting compliance regime. He particularly submitted that the appellant be placed on a bond. He expressed no interest in the outcome of these proceedings today. Provided he is ensured that his position is maintained, vis-a-vis residence of the children and the safety of the family – including his parents – it seems to me that there is no hardship that is relevant as far as he is concerned, if the appellant is granted her stay.
The hardship to the appellant is apparent. She explained in her affidavit filed in the contravention proceedings her experience whilst on remand, and her fear of returning to custody. Depriving a person of their liberty is a most serious step, and I am satisfied that the hardship to the appellant if a stay is not ordered – albeit on conditions – is substantial. It outweighs any hardship to the respondent.
Next, the delays pending the hearing of the appeal and whether refusal of the stay renders a successful appeal nugatory are intrinsically linked. That is, because of the order made by the court. The appellant may succeed in whole or in part, or not at all. On appeal the order for imprisonment made may be discharged, reduced, or upheld. If it is discharged or reduced to a period below about 8 weeks, then it is immediately apparent that the refusal of a stay has rendered the appeal nugatory. The applicant will have been deprived of her liberty in circumstances where the Full Court indicated that she was deprived of it in error. That is an outcome that this court should not lightly tolerate.
The composite effect of these findings is that I am satisfied I should, not only in the interests of the applicant but also in the interests of justice generally, stay the order for imprisonment that I made yesterday.
I can order a stay unconditionally, or I can attach conditions to it. Because the appellant has now been sentenced to a term of imprisonment, the risk that she may abscond and not therefore be available to resume the sentence if the Full Court dismisses her appeal has increased. It is my intent that she will have her liberty pending the appeal. However, I must balance the right I should offer her to her liberty with the need to ensure her attendance for the remainder of the proceedings, and also the protection of the respondent to the appeal, and the children. Protection in the sense that there is no attempt to disrupt the children's right to live with him.
The appellant is impecunious. That became apparent when I previously ordered that she enter a recognisance when she returned in custody from Brisbane. The terms of the recognisance required, relevantly, that she deposits the sum of $1,000, and that an acceptable person deposit $4,000. She was unable to meet those conditions. Mr Brown tells me, and I accept, that it is probable she was unable to meet the requirement that she personally deposit the sum of money at that level of $1,000, and also that she was unable to locate an acceptable person who could lodge $4,000. Thus, the terms of the recognisance were varied, and the requirement for an acceptable person and the deposit of a sum of money was discharged.
I take into account that the applicant attended the contravention hearing on 17 March 2003 and for judgment on the 18th of March 2003. She deposes that she was aware that the court would treat her contravention seriously. This signals her intention to abide the outcome of this entire process. However, because of the increased risk that she may abscond now that she has been sentenced she will be required to lodge a sum of money. It will be less than previously ordered and I will not require an acceptable person to deposit money.
The applicant says she intends to obtain employment. That addresses her future capacity to raise money. It does not enable her to deposit a sum before she is released and takes up possible employment. She may not be successful in this venture. Four hundred dollars in the applicant's circumstances is a significant sum. It would be a manifestly inadequate response if she were a person of greater means. She indicated to me about 10 days ago she could raise the $1000, and it seems that she was unable to do so. This is less than half the amount she indicated she could raise. It is a proper sum, in all the circumstances of this case. If, as events transpire, she cannot even raise that amount of money, then the matter can return to court and on having evidence from her about the attempts she has made to raise the ordered sum, I would consider further the appropriate amount to attach to the recognisance.
Otherwise, the terms of the recognisance will require that she continue to reside with her aunt, that she report to the officer in charge of Campbelltown Police Station. She must not approach HB, the children or his parents. I will note on the record her intention to instruct that an application for an expedited hearing of the appeal take place.
I understand that that may be subject to a decision by the Legal Aid Commission about whether or not they will fund such an application.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 3 April 2003
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