B & W (No 1) - [2003] FMCAfam 101

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & W (No.1)

[2003] FMCAfam 101

CONTRAVENTION – Children – nature of serious disregard of order discussed – s.60B applicable to Division 13A proceedings – s.60B(1) and s.60B(2)(c) have particular significance in contravention proceedings – inter-relationship of s.60B, s.65E and Division 13A discussed – breach of residence order after contact continues until children returned to father – mother’s husband violently assaults father and paternal grandmother in presence of the children – serious disregard of orders established – stage 3 contravention – imprisonment is a sanction of last resort – community interest in the rule of law must be considered – comparability in sentencing is important – mother sentenced to term of imprisonment for seven months.

Family Law Act 1975, ss.60A(a), 60B, 64B, 64B(1)(a), 63DA, 64B(1)(b), 65E, 65M, 65T, 68F, 70NB(h), 70NE, 70NG, 70NJ, 70NJ(3), 70NO(2), 70NO(3), 70NT, 112AD, 112AP, 121(9)(d)
Crimes Administration and Sentence Act 1999 (NSW), s.77
Family Law Amendment Act2000

Haris v Caladine (1991) FLC 92-217 – referred to
CDJ v VAJ (1998) FLC 92-828 – followed
B and B: Family Law Reform Act 1995 (1997) FLC 92-755 – discussed
H v B (2002) FMCA fam 326 – discussed
Sahari (1976) FLC 90-086 – referred to
Schwarzkopff (1992) FLC 92-303 – discussed
Ibbotsen v Wincen (1994) FLC 92-469 – discussed
Tate (2003) Fam CA 112 – (unreported) – referred to

Applicant:

H B

Respondent:

T A W

File No:

PAM4244 of 2001

Delivered on:

18 March 2003

Delivered at:

Parramatta

Hearing date:

17 March 2003

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr I. Bullock

Solicitors for the Applicant:

Bullock and Associates

Solicitor Advocate for the Respondent:

Mr M. Brown

Solicitors for the Respondent:

Browns The Family Lawyers

ORDERS

That T A W contravened Orders 3 and 7 made 26 November 2001 in that she failed to return the children to the Applicant at 12 noon,
11 January 2003 and retained them thereafter in her possession until
1 March 2003 without reasonable excuse and that the Applicant's application at the time, filed 24 January 2003 as amended is proved.
The court is satisfied that the Respondent has behaved in a way that showed a serious disregard for her obligations under the orders made 26 November 2001.
The court is satisfied that in all the circumstances of the case it would not be appropriate to deal with the contravention under any other paragraphs of s.70NJ(3) except s.70NJ(3)(e).
Pursuant to s.70NJ(3) in respect of the contravention ordered in Order 1, T A W is sentenced to seven months imprisonment to commence forthwith.
The reasons for judgment this day be transcribed and a copy be placed on the Court file and copies made available to the parties.
Pursuant to sub-s.121(9)(d) leave is granted to publish a notice or report of these proceedings in a newspaper or periodical production, radio broadcast, or television program in a form approved by the Registrar of the Federal Magistrates Court, excluding any reference to the parties by name.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM4244 of 2001

H B

Applicant

And

T A W

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

The proceedings

This is an application that alleges that the respondent contravened parenting orders. The provisions relevant to proceedings such as this are contained in Division 13A of Part VII of the Family Law Act 1975.
H B (“the applicant”) started the proceedings when he filed a Form 49 Contravention of Child Order application on 24 January 2003. He claimed that T A W (“the respondent”) contravened orders 4(a)(ii) and 7 made on 26 November 2001. Those orders were made in the Family Court at Parramatta. They were made after a contested three-day hearing during which both parties were legally represented. The orders have been registered in this court and thus I have jurisdiction to determine the application (s.70NB(h)).

The application

At the start of the hearing the parties' lawyers agreed to a different formulation of the alleged contravention. Rather than an allegation that the respondent contravened a contact order made in her favour when she did not return the child at the end of the period of contact, they agreed that the order breached was the residence order that had been made in the applicant's favour. Section 65M sets out the general obligations created by a residence order. Relevantly s.65(2)(b) provides that a person must not, contrary to a residence order: “refuse or fail to deliver or return the child to a person”. The reference to “person” should be read as referring to a person in whose favour a residence order operates or their nominee.
Order 12 of the orders made on 26 November 2001 sets out the obligations that the respondent was required to meet as a consequence of s.65M. Hence the suite of orders comply with s.65DA(2). The order is in the usual form. This order addresses stage one of the parenting compliance regime.
As the applicant has a residence order (Order 3) in his favour, at the end of the respondent's contact she was required to return the children to him. The operative orders relevantly provided that the children have contact with their mother pursuant to order 4A(ii) and order 7.
4.That the children are to have contact with the mother as follows:
A. In the period prior to both children commencing school:
(ii)
For a one week period on four occasions each year, being the week which coincides with the first week of the New South Wales school holidays at the end of term 1, term 2 and term 3 each year and from noon on 24 December 2001 until noon on 2 January 2002 and from noon on 2 January 2003 until noon on

11 January 2003.
7.That the mother is to arrange the transportation when contact begins or ends at preschool/school, and in all other circumstances the father is to deliver the children to the mother’s residence at the beginning of contact and the mother is to return the children to the father’s residence at the conclusion of contact.
The applicant deposes that he was at home between 12 noon and

2.30 pm on 11 January 2003 and that the children were not returned. The following day he attended the respondent's home hoping to retrieve them. As a precaution he took his parents with him. The respondent refused to return the children and they were not returned until 1 March 2003. The respondent’s solicitor indicated that his client wanted the court to address the true breach and thus against this factual background the particulars of the contravention alleged against the respondent were changed to reflect:
a)the failure to return the children on 11 January 2003, and
b)the continuing breach of the residence order until 1 March 2003.
The particulars of the contravention application were put to the respondent in the following terms:
“T W, it is alleged that you have contravened orders 3 and 7 made on 26 November 2001 in the Family Court in that you failed to return the children A and C to H B at noon on 11 January 2003 and you did retain the children in your care until 1 March 2003 contrary to the said orders without reasonable excuse.”
Before I asked the respondent to indicate whether she admitted or denied the contravention I inquired of her whether she understood it. Having confirmed her understanding she then admitted the contravention as put to her. She did not assert that she had a reasonable excuse for her non-compliance with the orders. Hence there is no suggestion that the respondent did not understand her obligation to return the children (s.70NE(1A), or that the breach was necessary to protect the health or safety of the children (s.70NE(2)). This list of possible excuses is not exhaustive and thus I am satisfied that the respondent accepts that the circumstances of her retention and failure to return do not entitle her to be excused pursuant to s.70NE.

Chronology

In late 1999 the respondent took the parties’ two children and retained them for over twelve months. I infer she did this without the consent of the applicant, although not initially in contravention of an order. The children were returned to the applicant pursuant to a recovery order on 19 January 2001. No contravention proceedings were brought in relation to this incident.
On 26 November 2001 the Family Court of Australia ordered that the children live with their father and have contact to their mother.
On 1 December 2001 the respondent married J M. They have two children, P born 17 June 2000, and Z born 11 August 2001.
In 2002 the respondent retained the two children at the end of a Christmas holiday contact period. Again the applicant sought a recovery order. The respondent attended the hearing of the application for a recovery order and thereafter complied with the court's order to return the children without the necessity of a recovery order being made.
The respondent claims that she did not have contact on 15 and

16 December 2002 because the applicant inexplicably failed to deliver the children to her. He agrees that this contact did not happen and says that this was because the respondent had told him she would be visiting family in New Zealand. The respondent agrees that she had discussed visiting New Zealand but says this related to an earlier period in about August or September 2002. There is no evidence that the respondent did visit New Zealand or that she missed contact in August or September 2002. Importantly the evidence does not reveal an erratic pattern of contact proffered by the applicant.
In the absence of evidence that the applicant regularly or randomly failed to provide contact, I am satisfied that he complies with his obligations to give it. Thus, I am satisfied that he did not deliver the children on 15 and 16 December 2002 because, as he alleges, the respondent had told him that she was not available to exercise it.
On 2 January 2003 the applicant delivered the children to the respondent for a period of Christmas holiday contact. Order 4(a)(ii) provided that contact would finish at noon on 11 January 2003 at which time the respondent was to return the children to the applicant at his home.
At some stage, and it seems likely to have been just before Christmas Day during contact hand-over, the respondent asked the applicant for additional contact to make up for the lost two days arising from 15 and 16 December 2002. She says the conversation proceeded thus:
“I will just have them for a couple of extra days when I have them for the next weekend.” to which the applicant replied ‘no, that means I will miss Christmas. Just keep (them) ( sic) for two extra days when you have them in January’.”
The applicant agrees that the respondent asked for additional contact which request he says he refused. Thus he waited at home on 11 January 2003 between noon and 2.30 pm expecting the children’s return. Because the children were not delivered and he did not have the respondent's telephone number the applicant attended Blacktown Police Station seeking their help in recovering the children. Specifically he wanted to speak to Constable D who is familiar with the parties and their disagreements. Because she was unavailable he did not receive any active police assistance.
Having made arrangements with his parents to accompany him, at about noon on 12 January 2003, the applicant went to the respondent's home hoping to retrieve the children. The respondent says she was surprised to see the applicant because she claims he had previously agreed that she could have two additional days contact. Her understanding was, she asserted, that contact would end at noon on 13 January 2003. I prefer the applicant's evidence about the respondent's request for extra contact. During oral testimony the respondent said that she and the applicant are generally unable to communicate and that they routinely use the police, I infer Constable D, to communicate with each other.
Against a background of prior retentions by her of the children, court intervention and orders that she return them and also agreed poor communication, I am satisfied that had the applicant conceded her request for additional contact there would have been some confirmation of the agreement documented by the respondent. For example, by giving the applicant a note on 2 January 2003 at contact hand-over confirming the later return, or, alternatively, advising police that she would be having the children for a few extra days.
I have considered very carefully whether this is a reasonable expectation to have of this respondent. I am satisfied it is. She impressed me as a woman of at least average if not superior intelligence. Because of her reasonably substantial involvement in family law litigation which includes twice keeping the children at the end of contact, I am satisfied that she was likely to be aware of the need to protect herself from any potential allegation that she had again wrongly retained the children. I am satisfied that she did not confirm the applicant’s consent because there was no agreement. Rather, the respondent unilaterally decided that she would keep the children. It is probable that she intended to return the children on 13 January 2003. Thus, I am satisfied that when she did not return the children on

11 January 2003 the respondent's actions were deliberate and premeditated. It was no spur of the moment impulse.
When the applicant arrived at the respondent's home on 12 January 2003 he found the front gate locked. It also had a security grill resting on top of it. His parents remained in their car while he knocked at the garage. The respondent heard him and came into the front yard. She says she told him to "fuck off." He lifted the grill from the gate while at the same time the respondent called their two children into the front yard. When the applicant saw them he tried to force the gate open by pushing against it and motioned to the children to come with him. The respondent was close to the gate and pushed against it. The respondent alleges that the applicant then punched her in the face. I do not believe her and prefer the applicant's denial. There is no evidence of any bruising or injury to the applicant's face. The respondent has had two months within which to take action for an assault or seek other appropriate assistance, for example an Apprehended Domestic Violence Order as she did previously, but has not done so. Her allegation is made for the first time when she is facing serious consequences as a result of the events that transpired that day. I am satisfied that her allegation that the applicant punched her in the face is a self-serving statement designed for the purposes of these proceedings.
Whilst the parties were still at the front gate the respondent called out to her husband. Mr M then grabbed the applicant by the throat and started punching him in the face. The applicant's evidence, I am satisfied, accurately records the incident. He said:
“J M said to me words to the effect of, ‘Now I am going to kill you’ and kept swinging at me and squeezing my neck to the extent that I could not breathe. At this stage I started to black out. I next recall that I was lying on the ground and I was either being punched or kicked by J M. I recall my father saying to me, ‘Don’t get off the ground, the ambulance is on the way.’ At this stage I looked around and saw that my mother was also lying on the ground injured.”[1]
His mother tried to pull Mr M off the applicant and Mr M then seriously assaulted her.
[1] Paragraph 7 applicant’s affidavit
The respondent gives additional detail of the events that then occurred; saying:
“I was yelling (I infer to Mr M) ‘Stop it. Put him down.’ I ran up the road and asked some people in a house, ‘Call the police! And call an ambulance.’ I was scared. I went back to the home. HB was running around. He was badly bruised and bloodied to the face. I said, ‘lie down.’ I said to his father, ‘Tell him to lie down.’ His mum was choking on something. I went to her and got blood vomit out of her mouth with my fingers. She was crying on the driveway. I sat with her until the ambulance arrived. The ambulance and the police came. I gave a statement and HB and his parents were taken away by ambulance”.
When the respondent called out to JM I am satisfied that her intention was to enlist his help to resist the applicant's attempt to retrieve the children. The respondent deposes that JM has a bad criminal record and that he has previously served prison terms for up to 12 months for assault. Before JM joined the scene it had already become physical in the sense that the parties were pushing against the gate in opposite directions. Thus, when the respondent called JM out she knew that it was likely that he would come to her aid physically. I am satisfied that the respondent intended to keep the children using whatever means was available to her. If necessary this included physical force from JM. In making this finding I do not conclude that she and JM pre-planned the subsequent assaults. Rather, that with reckless disregard to the probability that JM may assault the applicant, the respondent enlisted his physical assistance. The respondent's actions in later trying to obtain help from neighbours to get emergency police and ambulance assistance satisfies me that she did not anticipate the grievous assaults that JM would inflict on the applicant or his mother. As do her cries that he stop it.
From her point of view, however, it was only a question of the degree of force that he used that she complained about.
In his affidavit the applicant describes the serious head injuries that he suffered during the assault. These include that he has had eight steel plates inserted into his head during a 12 hour operation on 17 January 2003. He was in hospital for about two weeks. His mother was seriously injured and she was also taken to hospital by ambulance.
It is apparent that the ambulance and police duly arrived. The respondent remained and gave a statement to the police. The applicant and his parents both left by ambulance. It is also apparent that the children were present and witnessed the entire incident. It seems that immediately after the assaults JM left the respondent's home. She kept the children with her overnight and the next day took them to a place where JM was waiting for her.
Thus, from the time the assault ended until the next day the respondent had the opportunity, unhindered by JM to return the children. Not to the applicant because he was in hospital, but at least to his father. There is no suggestion that she attempted to contact the applicant's father or the hospital to inquire about the applicant and his mother's well being or to try and establish what should be done with the children.
The respondent must have recognised that she and JM were in serious trouble. She says that the next day JM told her that they had to go to Queensland with the children which proposal she initially rejected. They argued about their next move for about 24 hours. I reject the implication that when she agreed to leave for Queensland she did so because she was coerced. I am satisfied that she left because she was aware of the gravity of the possible consequences to her and to JM and she wanted to avoid adverse consequences for as long as possible.
By taking the children with her to Queensland she behaved in considered defiance of the court's orders. Sadly, she also demonstrates deliberate disregard for the children's welfare. A, I infer, attends school. The respondent does not suggest she ensured that the child continued her education. It is gravely concerning that the children's last sight of their father and grandmother was when they were both taken away by ambulance. Photographs taken of their injuries[2] reveal in graphic detail the spectre that the children had when their father and grandmother were taken away. Their faces are bloodied, swollen and bruised with eyes closed over. For children it must have been frightening. Their father is their primary caregiver and I infer that they love him and also their grandmother. The children are six and four years old respectively. More than anything else after that incident the children needed to see that their father and grandmother were alive and participate in their recovery to the extent advised. By taking the children, the respondent deprived them of an important opportunity to start to recover from the horror they had witnessed. At the first opportunity available to her she should have let them be with their father and grandmother.
[2] Exhibit A

On 24 January 2003 these proceedings started. The respondent says she was not aware of the contravention proceedings or that a warrant had issued for her arrest. I accept that this is so. However, this is only because she had fled New South Wales and was in hiding. This flows from the fact that once she arrived in Queensland she did nothing to let the applicant or his parents know where she and the children were. Nor did she make an application to a court exercising jurisdiction under the Family Law Act that the operative orders should be changed.
After she retained the children in 2002 the respondent knew that the applicant sought a recovery order. Although unaware of the precise steps he had taken this time, I am satisfied that the respondent knew that the applicant was highly likely to have initiated proceedings for a recovery order and such other ancillary orders as he was advised to seek.
On 1 March 2003 the respondent made arrangements that her mother-in-law return the children to the applicant. Thus, the recovery order that had issued was not effected. Fortunately the children were spared the upset associated with collection by police. However, significant community resources for example, of the Australian Federal Police and this court, had already been taken up prior to 1 March 2003 trying to locate and recover the children. Something I am satisfied that the respondent was highly likely to be aware of and about which she was apparently unconcerned.
The children have been in their father's care since 1 March 2003.
Two days later, on 3 March 2003, the police arrested the respondent and JM. Having been extradited to New South Wales, JM is now on remand in relation to charges arising from his assaults of the applicant and paternal grandmother. The respondent was taken before a federal magistrate in Brisbane who remanded her in custody. She remained in custody overnight in Brisbane and the next day was flown to Sydney. She spent one night in the station cells at Parramatta before she was brought before this court.
The purpose of her attendance before the court was so that the applicant's contravention application could be heard as soon as possible. That is the court's obligation pursuant to s.65T. The applicant was in a position to proceed to a hearing that day. Not surprisingly the respondent was not. The duty solicitor made an application for an adjournment of the hearing of the applicant's contravention application until yesterday. Ms Neilsen indicated that her client had applied for legal aid and that the Legal Aid Commission was in the process of arranging a referral to a private practitioner. The adjournment was granted and the respondent was released on a s.65W(b) recognisance. She was required to deposit $1,000 cash as well as $4,000 from an acceptable person. Additionally that she comply with the following terms:
1.To attend at this court on Monday 17 March 2003 at 10.00 am.
2.To reside with a specified person at a specified address in New South Wales.
3.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.
4.Not to approach or contact the Applicant, the children or the applicant’s parents, their homes and/or schools or attempt to do so either directly or indirectly through a third party.
Apparently, the respondent could not meet the terms of the recognisance and so remained at Mulawa Correctional Centre until 12 March 2003. Because she did not yet have a lawyer on the record on 10 March 2003 I asked my Associate to ascertain whether the recognisance had been entered. When I became aware that she had not entered it, of my own motion I issued an order under s.77 of the Crimes Administration and Sentence Act 1999 (NSW) and brought the respondent back before me on 12 March 2003. That day counsel who appeared pro bono represented her. On her application, the terms of the recognisance were varied so that the respondent no longer needed to deposit $1000. Although she had said she could raise this sum, apparently she could not. The condition that an acceptable person proffer surety and security was also discharged. I was satisfied that had I not done so the respondent would not have been able to meet the terms of the recognisance and hence my intent that she be released into the community would have been thwarted.
The hearing of the contravention application occurred yesterday. The respondent entered a plea to the amended application at the start of the hearing. I am satisfied that this is the first available opportunity that she had in which to do so.

The relevant law

Prior to the amendments effected by the Family Law Amendment Act2000, Part XIIIA of the Family Law Act 1975 dealt with both sanctions for failure to comply with orders (s.112AD) as well as contempt of court (s.112AP). Under that Part, the provisions in relation to failure to comply with orders treated parenting orders differently by changing the onus of establishing a reasonable excuse in those cases, to the respondent, by provision for counselling (s.112AD(5) and by the additional remedy of compensatory contact.
Under the Family Law Amendment Act2000 the legislative scheme changed in the following particular respects. Firstly, failure to comply with orders affecting children was moved out of Part XIIIA, sanctions, to Part VII, that is children. Failure to comply with other orders remained in Part XIIIA. The provisions in relation to contempt were moved to a new Part XIIIB, contempt of court. Applying the recommendations of the 1998 Family Law Council report “Child Contact Orders: Enforcement and Penalties” the amendments to Part VII introduced a three-stage parenting compliance regime structure to address prevention, remedial measures and ultimately punitive sanctions. Sections 63DA and 65DA address prevention and then, triggered by a finding that an order affecting children has been contravened, remediation (Subdivision B, Division 13A) and sanctions (Subdivision C, Division 13A).

The inter-relationship of section 60B and Division 13A

Section 60A(a) provides that the principles and objects identified in s.60B apply to the whole of Part VII. Hence, I accept Mr Brown's submission that the objects contained in s.60B are relevant to contravention of parenting order proceedings. Section 60B(2) identifies that the objects are subject to a child’s best interests. In an application for parenting orders all other provisions, including s.60B are subservient to s.65E, the child’s best interests. Section 65E applies only to parenting orders (CDJ v VAJ (1998) FLC 92-828). “Parenting order” is defined in s.64B. In essence a parenting order is a residence, contact, child maintenance or a specific issues order s.64B(1)(a). Section 64B(1)(b) provides that a parenting orders includes “an order under this Part discharging, varying, suspending or reviving an order or part of an order, described in paragraph (a)”. Hence although an order made under s.70NG(1)(a) and (c) will not attract s.65E, because s.70NG(1)(b) enables a court to make a compensatory parenting order, s.65E applies to that subsection. Section 65E also applies under stage 3 if a court is considering varying a contravened parenting order (s.70NJ(5)). This is the extent of the limited application of s.65E to Division 13A. As a consequence of the limitations to the application of s.65E in the absence of any similar constraints s.60B has a wider reach.
In parenting proceedings the importance of particular s.60B factors varies from case to case. Where there are no countervailing factors the s.60B principles may be decisive (B and B: Family Law Reform Act 1995 (1997) FLC 92-755). Although the Full Court was considering the inter-relationship of ss.60B, 65E and 68F the decision contains a useful discussion of the application of s.60B generally. The Full Court said:
“Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of matters in s68(F)(2) and to the overall requirement of s65E. The matters in s68(F)(2) are to be considered in the context of the matters in s60B which are relevant to the case. But s65E defines the essential issue.” at 84,220.
In proceedings under Division 13A, s.68(F)(2) has the same limited application that s.65E has. Applying the Full Court’s rationale to contravention of child order proceedings s.60B provides the context within which the proceedings are determined subservient to the particular provisions contained in the Division. They enhance but do not override specific statutory requirements for the determination of Division 13A contravention applications.
Because a court by order has previously established parental responsibilities, which incorporate the s.65M statutory obligations, s.60B(1) and s.60B(2)(c) have particular significance in contravention proceedings. These emphasise that parents should fulfil their parental responsibilities so that children can meet their potential. This applies whether the parents still live together or have separated. The manner in which particular children will meet their potential differs from child to child. Each parent of a child who has not yet reached 18 years has parental responsibility for the child subject to any order of a court. (Section 61C(3)). Before contravention of parenting order proceedings are started a court has previously determined the circumstances that will best enable a particular child to meet his or her potential. This occurs whether the orders are entered by consent or after a defended hearing. Haris v Caladine (1991) FLC 92-217. Hence when parenting orders are made they reflect the composite effect of s.60B, the objects of Part VII as well as s.65E, the paramountcy principle and also s.68F(2) factors insofar as each subparagraph is relevant in the particular case. Consequently continuing compliance with operative parenting orders prima facie defines the manner in which children’s best interests are promoted. Compliance ordinarily ensures the optimal application of each of the objects to the child’s and its parents’ particular circumstances.

The three stages in Division 13A

Stage 1 of the parenting compliance regime relates to prevention of breaches through knowledge and information to the parties. Stages 2 and 3 deal with contravention of orders affecting children. Stage 2 applies where:
(a)there is found to be a contravention without reasonable excuse of any type of order affecting children except a child maintenance order;
(b)there has been no similar finding in relation to that same order (a second or subsequent breach);
(c)or there has been a similar finding and the court is satisfied in any event that it is more appropriate for that contravention to be dealt with under stage 2;
(d)unless the court is satisfied that the person who contravened the primary order has behaved in such a way that they showed a serious disregard for his or her obligations under the order. If so stage 3 must be applied.
The orders available under stage 2 are identified in s.70NG(1). The court can order that the respondent or both parties attend a post separation parenting program. Initially for assessment for suitability and then to participate; a compensatory contact order or adjourn so that a further parenting application may be made.
Stage 3 of the parenting compliance regime applies:
(a)for second or subsequent breaches of the same order;
(b)or a court is satisfied that the person behaved in a way that showed a serious disregard of his or her obligations under the primary order;
(c)unless the court is satisfied that it is more appropriate for the contravention to be dealt with under stage 2. See ss.70NJ(1) and (2).

Was there a serious disregard of the primary order?

A considerable part of the submissions addressed whether there had been a serious disregard of the primary order. The applicant’s solicitor submitted there had been and that the matter should be dealt with as a stage 3 contravention. In support of his submission that the respondent should be dealt with pursuant to stage 2 of the parenting compliance scheme, Mr Brown emphasised:
·this was the respondent's first contravention of a parenting order;
·the duration of the breach was limited to the period starting 11 January 2003 until 1 March 2003;
·the children were returned by her without the recovery order that had issued being given effect to; and
·that the respondent adopted JM's suggestion to leave for Queensland and did not initiate it.
I agree with Mr Brown’s submission that the court must assess whether anything in the facts “takes this matter outside the ordinary range of seriousness.” In the absence of a prior finding that the primary order had been contravened without reasonable excuse these words are an appropriate formulation of the test a court should apply in determining whether a matter falls initially within stage 2 or stage 3. Mr Brown referred me to H v B [2002] FMCAfam 326 where Scarlett FM found that a respondent should be dealt with for a serious disregard of a parenting order. There the salient features which led to the breach being categorised as a stage 3 contravention were: (1) the child was withheld after contact for nine months; (2) the child was retrieved pursuant to a recovery order after a lengthy process by courts and the community securing her return; (3) the respondent acted on his own initiative and there was no suggestion of influence on him.
I have already made detailed findings about the events that provide the substratum to this part of the exercise and do not repeat them. The following factors contribute to my comfortable satisfaction that this matter should be dealt with as a stage 3 contravention. I am satisfied that the respondent deliberately intended prior to the end of contact that she would not return the children on 11 January 2003 and would keep them until 13 January 2003. Consequently her actions were considered and not impulsive. On 12 January 2003 when the applicant attended her home she had the opportunity to return the children to him without any difficulty to her. When she called the children into the front yard she involved them as direct observers of her refusal to return them to their father. Next, the respondent invited JM's assistance to maintain her refusal to comply with the orders on 12 January 2003 with reckless disregard to the likelihood that he would use considerable physical force to the applicant in the presence of the children. She knew some force was likely. At the end of the assault and before she went to Queensland she had the opportunity, absent JM's overt and direct influence, to return the children to the applicant or his nominee and did not do so. Finally, the respondent kept the children until 1 March 2003. The continuing nature of the breach is a serious issue.
For all of these reasons and in spite of the submissions to the contrary made by Mr Brown, I am satisfied that the respondent has behaved in a way which shows a serious disregard for her obligations under the primary order. Because of the objective seriousness of the breach, I am satisfied that this matter cannot be dealt with appropriately under subdivision B. As it is a residence order that was contravened compensatory contact does not apply and there are already proceedings under way that address future contact issues. Nothing in the respondent’s evidence suggests that a post separation parenting program would positively benefit her, the parties or children. There is no proper basis upon which the application could be dismissed. Consequently the range of sanctions available in subdivision B inadequately addresses the consequences of the respondents non-compliance with the orders (s.70NJ(2). Hence the respondent will be dealt with under subdivision C.

Determining the most appropriate stage 3 sanction

Section 70NJ(a) provides that the court must make the order or orders available under sub-section (3) that it considers to be the most appropriate in the circumstances. Section 70NJ(3) lists the available orders as:
·A community service order.
·A bond.
·An order varying the order contravened.
·A fine of no more than 60 penalty units.
·A sentence of imprisonment. Although not explicitly referred to in the sub-section, the power to order imprisonment must include the power to order a suspended sentence, either for part or all of a term of imprisonment. Section70NO provides that a sentence of imprisonment imposed pursuant to s.70NJ(3)(e) is for a specified period of 12 months or less. Or for a period ending when the person complies with the order concerned, or has been imprisoned for 12 months or such lesser period specified by the court, whichever happens first.
Pursuant to s.70NO(2) a court must not sentence a person to imprisonment unless satisfied that in all the circumstances of the case it would not be appropriate to deal with the contravention under any other subparagraph of s.70NJ(3). If a sentence of imprisonment is imposed, the court must state the reasons it is satisfied no other sanction is appropriate and cause them to be entered in the court’s record.
A sanction imposed for contravention of an order must be proportionate to the contravention. That is the sanction must be of a severity which is appropriate in all the circumstances. A court should not impose a sentence that is more severe than that which is necessary to achieve the purpose for which it is imposed (Sahari (1976) FLC 90-086). Other principles of sentencing need to be considered when determining the appropriate sanction, including the circumstances of the contravention and factors subjective to the person found to have contravened the orders. The court can consider factors such as character, age, means and physical or mental condition and conduct since the contravention has occurred, for example, contrition (Schwarzkopff (1992) FLC 92-303). Even-handedness in outcomes for comparable contraventions is important.
The alternatives set out in s.70NJ(3) are not listed in a hierarchy of escalating severity. Variations of the order contravened could involve anything from a minor change to significant variation. Notwithstanding that, the most severe sanction is clearly a sentence of imprisonment.
In submissions Mr Brown emphasised a number of factors that he said were critical to the sentencing process. Firstly, he submitted that the respondent until her relationship with JM had been in paid employment and that she was hopeful of returning to it. He acknowledged her current impecuniousness but said nonetheless that a fine would have a meaningful impact upon her. Unfortunately, there is nothing in the respondent that suggests to me that she would be deterred in a meaningful way from future contraventions, or appreciate the significance of the breach of the orders if she were only fined, even if fined to $6,000. Although only marginally relevant, a fine would be paid out of limited income, in spite of her ambitions for employment, probably her supporting parents benefit. A fine would not have the deterrent effect that I am satisfied must form an important part of the outcome of this contravention hearing.

A community service order (even if available in NSW), bond, or variation of the orders contravened is not proportionate to the contumacious contravention of the court orders that the respondent has engaged in. I accept that the respondent would willingly enter into a bond, as she did last week. The effect of the bond would be to moderate her behaviour in the sense that she would be required to be of good behaviour for a period and to comply with court orders on a continuing basis. Such was the intentional disregard for the orders made by Flohm J on 26 November 2001 revealed in her behaviour on the 11th, 12 and 13 January 2003 and until 1 March 2003 that I am not satisfied that a bond would have the deterrent effect on her. Her blatant disregard of orders as well as the children’s and father’s entitlement to live together makes it clear that a bond is unlikely to achieve a continuing moderating influence on her behaviour. Mr Brown correctly conceded that her conduct in twice previously keeping the children from their father, once contrary to court orders is an aggravating circumstance. It is less serious conduct than if this conduct resulted in prior proved contraventions. In my view it is conduct relevant to the likelihood that a particular sanction may successfully deter future contraventions. Also to the magnitude of any sanction. It reduces the impact of any submission made as to prior good character.
Variation of the orders would not address the deterrent and punitive effect necessary for this particular respondent, nor indeed would suspending a period of imprisonment. The nature and circumstances of the contravention I am satisfied must attract an order for imprisonment. I am conscious the respondent is genuine in her remorse about the full extent of the events that unfolded and that she admitted the contravention at the first available opportunity. Were I not satisfied of these two particular factors, she would be sentenced to a considerably longer period of imprisonment than I intend to order.
Any period of imprisonment for her must cause hardship to her, to her two children by JM, one who is two and a half and the other who is 18 months, as well as to A and to C. A and C will be distressed if they come to learn that their mother has been imprisoned. Presently her two younger children by JM remain with her aunt. A period of imprisonment ordered for this respondent has the effect of depriving these two children of the care of either their mother or their father until one of them is released from prison. This is a weighty consideration indeed.
The applicant, for his part enjoins the court not to order a period of imprisonment and invited the court to order a bond. With respect to the applicant, that is gracious on his part but it does not address the grievous nature of the respondent's behaviour. In Ibbotsen v Wincen (1994) FLC 92-469, the Full Court of the Family Court highlighted the community’s interest that court orders are obeyed and said that “blatant disregard of the authority of the court and of the rule of law in our society …gives rise to consternation and concern within the community generally”. (See also Schwarzkopff.) These sentiments are consistent with those of the Full Court in Tate (2003) Fam CA 112 (delivered 13 February 2003 – unreported). Although the Full Court was concerned with a s.112AP breach of a monetary order, it referred with apparent approval to the discussion in the Australian Law Reform Commission report No. 35 “Contempt” saying:
“At pars 516-517, the ALRC pointed out that in the past there had been a reluctance on the part of courts to impose punitive sanctions in the case of mere disobedience in the absence of contumacy, that is, stubborn resistance and defiance of authority. The Commission suggested that this situation has changed in recent times and that courts have increasingly imposed punitive sanctions in cases of disobedience of court orders where there was no flagrant or repeated disobedience or overt challenge to the courts authority. While this has no direct relevance to the present case, in that we are not dealing with mere disobedience of court orders, it highlights the seriousness of contumacious disregard and defiance of court orders.” At par 65.
I accept that an applicant’s submission as to appropriate penalty is a relevant consideration in the sentencing exercise. It does not bind the court nor limit the proper exercise of the court’s discretion. The court has a responsibility to uphold the rule of law and the wider community’s interest accordingly. With respect to the applicant his approach misapprehends the gravity of the of the respondent’s breach.
The respondent experienced prison after she was apprehended in Queensland and before she entered the recognisance. In graphic detail she describes its awfulness and her fear of returning to it. That period of imprisonment has had an impact on her which continues. However, I am not satisfied that the brief period of imprisonment she has endured is as significant as it needs to be if this respondent is to be truly deterred from future breaches. The period of imprisonment must be one that ensures that the respondent understands she is expected to abide orders. This is particularly important in parenting proceedings where the orders intimately impact upon the lives of children. It must also adequately address the nature of the contravention.
Mr Brown emphasised that the court must ensure that there is essential consistency in sentencing and he was at considerable pains to point out that in H and B, Federal Magistrate Scarlett sentenced the respondent to four months. By way of comparing and contrasting sentencing comparabilities he emphasised that the continuing breach in H and B was nine months, thus much longer than it was in this case. The respondent in H and B did not return the child voluntarily and there was substantial subterfuge over a long period of time. That analysis is useful as far as it goes. What it fails to adequately address is that this respondent had previously twice retained the children. Albeit on the first occasion not contrary to a court order initially, but certainly without the father's consent. The second time she did so it was done contrary to a court order. I take into account that there has never been a finding that she breached any orders and that on the second occasion the children were returned to the father with her cooperation.
It ignores her involvement of the children by including them as direct witnesses to the assault that took place on their father and grandmother, even though I accept she did not appreciate how serious and violent that assault would be. She knew that it was likely to be physical and that she ensured that the children watch her refuse their father. The fact that she involved JM with reckless indifference to the likelihood that he would use physical force to assist her to keep the children is a most serious factor. All of these factors combined make this a much more serious case than Federal Magistrate Scarlett was presented with in H and B.
I take into account that if imprisoned the respondent is not entitled to remissions and that she will serve the entire sentence.
I have been unable to find any cases that have directly comparable circumstances. Many involve breaches of money orders and I was unable to find any decisions that involve violence to a parent observed by children. In Schwarzkopff the husband subjected the wife to a campaign of terror and personally punched her in the face. She required four stitches to her face. His two years sentence, on 29 counts was upheld on appeal. The Full Court was particularly concerned about the violence saying:
“Family violence is not a private matter and must be treated seriously by the Courts, not only when prosecuted as a criminal offence in the ordinary way, but also where violence is an element of a breach of an order of the Family Court.” at par 79,291.
Although she did not assault the applicant and his mother, the respondent called JM to the scene knowing his propensity for violence. Had she planned the assault her sentence would be longer.

I take into account that she tried to call him off but her actions were too little and too late. The sentence must reflect my satisfaction that she brought JM into her concerted effort to refuse compliance and hence is culpable (to a lesser extent than JM) for the violence that ensued.
Keeping children overseas in contravention of orders for many months resulted in a 12 month sentence, suspended after six months in Ibbotson and Wincen. The Full Court described the sentence as “moderate”.
This case is serious and a substantial sentence is necessary to effectively address the contravention, punishment, and deterrence. Each in the context of the respondent’s personal circumstances. In my opinion, any sentence less than seven months would be an inadequate response to the circumstances of this particular case.
Deterrence applies to the individual. It is also of general interest to the community. The community needs to be aware that courts will not lightly tolerate breaches of orders. Additionally, it needs to be aware of the real and serious consequences if family law orders in particular are contravened. Thus a limited account of these proceedings that protects the anonymity of the parties and children will be able to be published.
Ms W, you will be sentenced to a period of seven months imprisonment. A warrant for your committal will issue in the usual way.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 1 April 2003