Bale-Sutch and Bale-Sutch (No 2)

[2007] FamCA 590

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH (No 2) [2007] FamCA 590

FAMILY LAW – ORDERS - Mutual contravention applications – Consideration of a spend time order as a mandatory injunction – Finding that a spend time order does not compel the parent entitled to same to take the time and the alleged contravention in that regard was dismissed – Mother found to have contravened parenting order without reasonable excuse on one count – Father found to have contravened parenting order without reasonable excuse on two counts – Costs

Family Law Act 1975

APPLICANT: Mr Bale-Sutch

RESPONDENT: Mrs Bale-Sutch

INDEPENDENT CHILDREN’S LAWYER: McCormack & Co

FILE NUMBER: MLC 3800 of 2007

DATE DELIVERED: 25 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 25 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A. Scriva

SOLICITOR FOR THE APPLICANT: Mepstead Lawyers

COUNSEL FOR THE RESPONDENT: Ms Mercader

SOLICITOR FOR THE RESPONDENT: Mercader Barristers & Solicitors

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr McCormack

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mc Cormack & Co

Orders

1. That I grant leave to the father to withdraw that count of his contravention application filed on 26 February 2007 as relates to the events on 25 February 2007.

2. That I grant leave to the father to amend his contravention application filed

   
   

   26 February 2007 to delete references therein “3 February 2007” and in lieu thereof insert “2 February 2007” wherever that dates appears.

3. That I am satisfied that the mother contravened paragraph 1(a) of the Orders made on 30 January 2007 by failing to deliver the children, the elder son born … December 1997 and younger son born … February 2000 to the father at L Police station at 6pm on that day and did so without reasonable excuse.

4. THE COURT BEING SATISFIED that it is in the best interests of the children, the elder son born … December 1997 and younger son born … February 2000 that the mother attend a post separation parenting program comprised of counselling or the teaching of techniques to assist her to resolve problems with the father which would otherwise adversely affect her carrying out her parenting responsibilities, IT IS ORDERED that pursuant to section 70NEB(1)(a) of the Family Law Act 1975, the mother shall within 7 working days of this order make contact with Relationships Australia, […], ( […], the parenting program provider and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the mother, the mother shall attend that program or that part of the program.

5. I grant leave to the mother to amend her contravention application filed 19 April 2007 by deleting from the first count a reference to “25 February 2007” and inserting in its place “24 February 2007”.

6. That I dismiss the first count of the mother’s contravention application (as amended).

7. That I find count two of the mother’s contravention application filed 19 April 2007 is proved in that the father failed to comply with paragraphs 4(a) and 5 of the Orders made on 8 March 2007 by failing to return the children to the mother at L Police station at 6pm on 25 March 2007.

8. IT IS ORDERED that pursuant to section 70NEB(1)(a) of the Family Law Act 1975, the father shall within 7 working days of this order make contact with Relationships Australia, […], ( […], the parenting program provider and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the father, the father shall attend that program or that part of the program.

9. That I am satisfied that count two of the mother’s contravention application filed 19 April 2007 is proved in that the father failed to comply with paragraphs 4(a) and 5 of the Orders made on 8 March 2007 by failing to return the children to the mother at L Police station at 6pm on 8 April 2007.

10. That by way of penalty for the second contravention, I impose a fine in the sum of $500 and do so pursuant to section 70NFB(2)(d) and grant a stay of 3 months for payment, such payment to be made to the Registry Manager of the Melbourne Registry of the Family Court of Australia.

11. That the father make a contribution to the wife’s costs of the contravention proceedings fixed in the sum of $300 and similarly with a stay of 3 months so they need not be paid prior to Monday 27 August 2007 and such payment to be paid direct to the mother’s solicitor.

12. That the contravention application of the father filed 26 February 2007 and the contravention application of the mother filed 19 April 2007 be otherwise dismissed.

13. I DIRECT that my reasons for judgment this day be transcribed and a copy be sent to each of the parties and the independent children’s lawyer.

14. That otherwise the competing applications for interim parenting orders be transferred to the Senior Registrar sitting at 2:15pm this day.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Bale-Sutch & Bale-Sutch (No 2).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3800 of 2007

Mr Bale-Sutch

Applicant

And

Mrs Bale-Sutch

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. The parties have 2 children, an elder son, born … December 1997, and a younger son, born … February 2000.  Each parent brings an application seeking to have the other parent punished for contravention of parenting orders.

2. This matter was last before me on 14 May 2007.  On that day the father failed to attend court and his counsel sought an adjournment, which was granted.  

   
   

   I made the following orders:-

   1. That the outstanding contravention applications be adjourned before me for directions at 2:15pm on 25 May 2007, provided that if I am available to hear them on that day at that time I will do so.

   2. That both parties are directed to attend court personally for the directions hearing before me on 25 May 2007.

   3. That the father make a contribution to the mother’s costs thrown away on 7 May 2007 and this day be fixed respectively in the sum of $900 and $677, being a total of $1,577, such costs to be paid prior to 9am on 25 May 2007.

3. On 14 May 2007, neither party indicated that the outstanding contravention applications posed any impediment to the applications for variation of parenting orders being heard by Senior Registrar Fitzgibbon today.  The purpose of the mention before me was to direct how the contraventions could be disposed of following the interim determination of the variation applications and in order that the contraventions not be an impediment to the whole of the matter being set down for trial.  I am informed today, however, that the parties require that the contraventions proceed before the variations so I will take the contraventions now, they being matters outside the delegated powers of the Senior Registrar.

4. The children have an independent children’s lawyer, Mr McCormack.  The independent children’s lawyer appears today because, immediately after these proceedings are dealt with, the matter is to return to Senior Registrar Fitzgibbon for determination of competing applications to vary interim parenting orders.  Given the nature of this matter, it is entirely appropriate that the children’s interests are represented today. 

5. The father filed a contravention application on 26 February 2007.  I have given him leave to withdraw that count which relates to events on 25 February 2007.  I have given the husband leave to amend the remaining count to allege that the alleged contravention took place on of 2 February 2007. 

Count 2 alleged by father against mother– 2 February 2007

1. The father alleges that the mother failed to comply with paragraph (1)(a) of orders made by Riley FM on 30 January 2007.  The relevant order provides that the children spend time with the father from 6pm on Friday, 2 February 2007 until 6pm on Saturday, 3 February 2007. 

2. It is alleged that the mother was not at the required changeover point, which, pursuant to paragraph 6 of the same orders, is L Police Station at the required time of 6pm.  The mother admits that this was so.  

3. I have heard evidence and cross-examination from each party.  Additionally, the father relies upon his affidavit sworn on 26 February 2007.  The mother relies on parts of her affidavit sworn on 5 March 2007.  Each has been cross-examined. 

4. The mother admits that she was not at the appointed time at 6pm.  She says that she and the children were bicycle riding and she lost track of the time or forgot about the time.  She says that at some indeterminate time she attempted to contact the father by telephone to say that she would bring the children directly to his place of residence at M (rather than to the changeover point) but had been unable to speak to him personally. 

5. The mother says, and it is agreed, that she did deliver the children to the father to his place of residence at M at about 10pm.  There is an issue about what then ensued.  The mother says that there was a fight and an assault and that the father left with the children, taking her motor vehicle with him and leaving her stranded, so that she was forced to sleep with neighbours that night. 

6. The father says that he did not assault the mother, that he left the scene with the children.  He concedes that it was by motor vehicle, but doesn't say which vehicle.  It is agreed that the father spent time with the children until 6pm on the following day, which was otherwise in accordance with the orders. 

7. I am satisfied that the mother contravened the relevant order. 

8. It was contended on her behalf that her forgetfulness is a reasonable excuse.  I do not accept that is the case.  It is the mother's obligation to remember what she is required to do pursuant to orders of the Court and, in this case, she was required to have the children at L Police Station at 6pm.  That is her responsibility under the order.  I am satisfied that the order is contravened.  I will turn to the parties in relation to penalty. 

DISCUSSION

Penalty

1. In relation to issues of penalty, this is the first time that the mother has been found to have contravened an order without reasonable excuse.  It is therefore open to me to require that the mother that she attend a post separation parenting course by way of sanction.

2. I am satisfied that the mother did, after forgetting to take the children to the appointed changeover place at the correct time, drive the extra distance to the father's home.  I am also satisfied that, once there, there was an unfortunate incident between the father and the mother which resulted in the mother being stranded.  The reason I am so satisfied is that the father was called to give evidence, he had notice of the allegations against him because they are set out in the mother's affidavit material.  Nonetheless, no evidence was taken from him rebutting what the mother contended.  The father acted inappropriately.  I am satisfied that the mother was put to some upset and inconvenience and I have regard to that fact notwithstanding that the initial cause was her own forgetfulness. 

3. Ultimately, however, the children went without some time with their father.  This was the first occasion of time that the children were to spend time with the father.  It was clearly in the best interests of the children that the regime of regular time commence smoothly.  It is most unfortunate.   

4. Taking all matters into account, I have decided not to impose any greater sanction than requiring the mother to attend a post separation course. Hopefully, that course will be a means of impressing on the mother the necessity to prioritise the children’s entitlement to see the father above all else. 

5. My orders will recite my finding that the mother failed to comply with paragraph (1)(a) of the orders made on 30 January 2007 by failing to deliver the children to the father at Police Station at 6pm on 2 February 2007 day and did so without reasonable excuse.

DISCUSSION

1. The mother alleges a number of counts against the father. 

Count 1 alleged by mother against father– 24 February 2007

1. The first count is that, on 24 February 2007, the father failed to attend the changeover point, L Police Station at 12 midday.  It is alleged that his failure to attend was in contravention of paragraph (1)(a) (which should be (1)(b)) of orders made on 30 January 2007, pursuant to which the children are entitled to "spend time with their father ... from 12 midday on Saturday, 24 February 2007 until 6 pm on Sunday, 25 February 2007". 

2. It is contended by the mother that an order to spend time with the child(ren) confers on the parent entitled to spend such time an obligation to attend and to take the child(ren). I have drawn to the attention of the solicitor who appears on behalf of the mother to s 65N of the Family Law Act1975. Section 65N of the Act provides as follows:

   (1)       This section applies to a parenting order that is in force in relation to   a child to the extent to which the order deals with whom the child is          to spend time with.

   (2)       A person must not:

   (a)        hinder or prevent a person and the child from spending time      together in accordance with the order; or

   (b)       interfere with a person and the child benefiting from      spending time with each other under the order.

3. I have not received any submissions which have been particularly helpful.  

   
   

   I was reminded that where that orders have been made for the children to spend time with a parent, then I may assume that it is in the best interests of the children to spend time with that parent and that, in failing to attend for that time the children are entitled to be with their father, the father has caused the children to miss out on something that is of benefit to them.  I do not need reminding of the primary proposition that orders reflect arrangements which the court, at least at some point in time, has considered are consistent with the best interests of the children. 

4. Looking, however, at Subdivision C of Part VII of Division 6 of the Family Law Act, it appears to me that the scheme of the legislation is to secure for the parent who is entitled to:-

   a)have a child live with him/her;

   b)spend time with him/her;

   c)communicate with him/her –

   such time of communication with the children as is provided in an order.  The provisions are directed towards preventing persons from interfering or hindering the child and the other person from living, spending time or communicate as is provided in an order. 

5. The relevant order is not, in my view, expressed in the nature of a mandatory injunction toward the father spending time with the boys. It is expressed so as to define the rights of father as against the mother in relation to the time that they can have the children. It is, of necessity, supported by the obligations imposed by virtue of subdivision C of Part VII of Division 6 of the Family Law Act. In relation to orders for children to spend time with the father, s 65N provides as follows:-

   (1)  This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

   (2)  A person must not:

   (a)  hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b)  interfere with a person and the child benefiting from spending time with each other under the order.

6. Relevantly for this argument, s 65Q provides as follows:-

   Court may issue warrant for arrest of alleged offender

   (1)  This section applies if:

   (a)  a parenting order provides that:

   (i)  a child is to live with a person; or

   (ii)  a child is to spend time with a person; or

   (iii)  a child is to communicate with a person; and

   (b)  a court having jurisdiction under this Part is satisfied, on application by the person referred to in paragraph (1)(a), that there are reasonable grounds for believing that a person (the alleged offender ) has contravened section 65M, 65N or 65NA in relation to the order; and

   (c)  there is an application before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and

   (d)  the court is satisfied that the issue of a warrant is necessary to ensure that the alleged offender will attend before a court to be dealt with under Division 13A for the alleged contravention.

   (2)  The court may issue a warrant authorising a person to whom it is addressed to arrest the alleged offender.

   (3)  A warrant stops being in force:

   (a)  if a date not later than 6 months after the issue of the warrant is specified in the warrant as the date when it stops being in force--on that date; or

   (b)  otherwise--6 months after the issue of the warrant.

7. The alleged offender, in the context of hindering or preventing a child and parent from spending time together in accordance with an order, is clearly a person other than the parent entitled to spend such time with the child.  I do not see that it is sensible to read the provisions in any other way. 

8. My reading of the legislation is also consistent with the general reluctance of courts of equity to make mandatory injunctions which impose or require people to maintain personal relationships such as the performance of a partnership[1].

   [1] Spry I.C.F, (2001),“The principles of equitable remedies: specific performance, injunctions, rectification and equitable damages”, 6^th ed, Law Book Co, Sydney, Australia, 112-113.

9. Were it the case that an order that children spend time with a father was a mandatory injunction (which I am comfortably satisfied that it is not), the order itself would have to make it abundantly clear that it conferred a responsibility and obligation on the father to attend. 

10. Furthermore, the order that the father spend time with the children is recognition, in this case, that the children spending time with the father is consistent with the best interests of the children.  If somebody has the benefit of an order that they spend time with children and they do not want to avail themselves of it, I have difficulty with the proposition that it can be in the best interests of the children to force the person to do so, in this case, the father.  It could not be in the best interests of children that they have to spend time with a parent simply because the parent may be punished if they do not make themselves available to the child.  An order to spend time with a child is an entitlement.  It is not a burden or an obligation. 

11. For all of the above reasons, I am satisfied that spending time order alleged to have been contravened by father, by virtue of his non-attendance, did not impose upon the father any obligation or responsibility to attend and, it follows, that order is not capable of being contravened as alleged.  The mother’s application in this respect must fail.  

12. The next order in the matter of Bale-Sutch is I grant leave to the mother to amend her contravention application filed 19 April 2007 by deleting from the first count a reference to 25 February 2007 and by inserting in its place the correct reference to 24 February 2007. 

DISCUSSION

Count 2 alleged by mother against father– 25 March 2007

1. The next contravention application is that filed on behalf of the mother on 19 April 2007.  There are two counts remaining.  The second count is that it is alleged that on 25 March 2007 at 6pm at L Police Station the father failed to comply with paragraphs (4)(a) and (5) of the orders of 8 March 2007, in that he failed to attend L Police Station with the children to deliver them back to the mother, following a period of time with the children. 

1. The relevant orders provide that the children spend time with and communicate with the father as follows:

   (4) […]

   (a)each alternate weekend from 12 midday Saturday until 6pm Sunday commencing Saturday, 10 March    2007 ...

   (5)The mother shall deliver the children to the [G] Police Station at the commencement of their time with the father and the father will deliver the children to [L] Police Station at the conclusion of their time with him.

2. The father concedes that on 25 March 2007, which was a Sunday, he did not return the children to the mother.  However, he says that he had a reasonable excuse for not doing so. 

3. I have had the benefit of hearing evidence from the mother and the father and from having each cross-examined. 

4. Essentially, the father’s case is that it was reasonable that he take the children to the country to spend time with them and it happens to be the case that, having done so, he could not return them on time.  In particular:-

   ●        he does not have a licence to drive;

   ●that the premises at M is a premises rented by him "for the purpose of contact";

   ●        the premises at M is an appropriate venue for contact;

   ●upon collecting the children to spend time with him on that weekend, he took them (somehow) to K, which is 240 kilometres out of Melbourne;

   ●he knew that there was a bus service between K and Melbourne and also knew that the service did not run on the weekend and, inferentially, that it would not be available to him to transport the children back to Melbourne on the Sunday at 6 pm;

   ●notwithstanding his obligations to return the children to the wife at L Police Station at 6pm on the Sunday it was, in his view, better for the children to spend time with him at K and be not returned on time.

5. The father did not provide the mother with any notice, prior to the commencement of his time with the children, that he was not going to be able to return them to her in accordance with the order, not that such notice would have made a material difference in the proceedings before me.  

6. I have noted previously that the mother lives in or around Y.  That is about 95 kilometres from K. 

7. The children were returned on Monday evening, 9 April 2007. 

8. It was put to the father that, when he returned the children on 9 April 2007, he was driving a motor vehicle.  The father objected to answering that question on the basis that the answer may tend to incriminate him, he being someone who is currently disqualified or prohibited from driving a motor vehicle.  I draw no inference in relation to the father's response or lack of it.  The question is not evidence and there was no evidence to that effect adduced as part of the wife’s case. 

9. I am satisfied that the father knew of his obligation not to fail to deliver or return the children to the mother (see s 65M(2)(b)).  I have no doubt that the father has elevated his own judgment in matters over his obligations and responsibilities under an order.  It is a clear breach of the parenting order.  The father's contentions do not even remotely resemble a reasonable excuse. 

10. My orders will recite my finding that the father failed to comply with paragraphs 4(a) and 5 of the orders made on 8 March 2007 by failing to return the children to the mother at L Police Station at 6pm on 25 March 2007 and did so without reasonable excuse. 

Count 3 alleged by mother against father– 8 April 2007

1. The next count alleged by the mother against the father is that on 8 April 2007 at 6pm the father failed to comply with paragraphs (4)(a) and (5) of the orders made on 8 March 2007 by failing to return the children to the mother at L Police Station. 

2. The father, through his counsel, concedes that there was non-compliance of the order, which must be regarded as a contravention under the legislation, but says that there were mitigating circumstances in relation to transport. 

3. My orders will recite my finding that the father failed to comply with paragraphs 4(a) and 5 of the orders made on 8 March 2007 by failing to return the children to the mother at L Police Station at 6pm on 8 April 2007 and did so without reasonable excuse.

4. I turn in a moment to the parties on the issue of penalty.

DISCUSSION

Penalty

1. In relation to penalty, it is agreed that the father has not previously been found to have contravened orders of the court. 

2. In relation to the first contravention which I have found proved, he would be eligible to be sanctioned under s 70NEB and that I can consider directing him to attend a post separation parenting program as the penalty for at least one of the counts.  There is no submission that I ought to treat the father’s behaviour as showing a serious disregard for his obligations under the primary order (in the context of s 70NEA(4)).  My view is that there may have been considerable force is a submission that s 70NEA ought not apply given the flagrant breach by the father. 

3. I will sentence the father in relation to count 3, which is admitted by him.  

   
   

   I will impose the post separation parenting program. 

4. In relation to the next count - that is the one of 25 March 2007 - which was a contested matter, the father has now been found to have committed a contravention of the order, and, as such, the sanctions available to the court are set out in s 70NFB(2). 

5. In considering the sentencing, I take into account the available options: There is the option of community service (s 70NFB(2)(a)).  I understand that the State of Victoria and the Commonwealth has signed the necessary agreement so that is an option available to me here.  However, given the administrative tasks associated with implementation of such an order, I am not convinced that it is appropriate to invoke those arrangements of what would be a relatively modest sentence if there are other appropriate penalties available to me.  I could make an order requiring the father to enter into a bond and that could be to be of good behaviour and to comply with orders of the court for a specified period of time (s 70NFB(2)(b)) I can make orders which compensate the mother for the time lost with the children ((s 70NFB(2)(c))- but that is not urged upon me.  

   
   

   I can fine the father not more than 60 penalty units (s 70NFB(2)(d)).  I can impose a sentence of imprisonment (s 70NFB(2)(d)) but I have already made known to the parties and their practitioners that I consider that at the highest end of the scale.  I can order that the father pay costs of the other party, indeed, I must do so unless I am satisfied that to do so would be contrary to the best interests of the children (s 70NFB(1)(a)). 

6. I note that the mother in her affidavit in support of the application swears, as her final paragraph:

   I ask this honourable court for an order that […] (the father) attend a post‑parenting program and for costs against […]. 

7. In the circumstances of this case it seems to me that it is in the children's best interests that their parents abide orders of the court and that a bond would be an appropriate sanction.  A bond would be accompanied by an order for some part of the mother's costs to be paid.  However, I will not impose a bond unless the father is prepared to assume the responsibilities under a bond, and I turn now to Mr Scriva to find out if he is. 

DISCUSSION

1. Having turned to Mr Scriva, I have ascertained that the father is not prepared to enter into a bond.  I must say that if the father's reluctance to do so may evidence some insight into his predicament. 

2. Absent a bond, I am satisfied that the most appropriate penalty is to fine the father - that can be up to 60 penalty units.  I do not have much material before me in relation to financial circumstances of the father.  I know that I made a costs order against him a week or so ago.  I am informed by his counsel that the father has been an employee of the mining industry until today, when he was dismissed.  Apparently his dismissal is a consequence of these proceedings.  

   
   

   I do not know about the father’s capacity to earn an income away from a mining town.  

3. A fine of $500 is appropriate.  That money does not go to the mother.  The father seeks a stay of three months for payment.  I think the Commonwealth can wait for three months to get the $500, but it will have to be paid. 

Costs

1. The mother makes an application for costs, claiming $900 as midway for the appearance scale for the Family Law Rules 2004. In my view, nothing over and above the minimum amount of professional fees would be appropriate in this particular case. The mother’s case has not been presented skilfully. I take into account that the mother has been at court today to answer contravention application brought by the father which she was unsuccessful in defending.

2. Section 70NFB(1)(a) provides that I must, in relation to the father, make an order that he pay the mother’s costs unless I am satisfied that it would not be in the interests of the children. 

3. I will require the father to contribute to the mother's costs only to the extent of $300 and he can have a stay of three months for that also.  In ordering that the father contribute to the mother’s costs, I am satisfied that this order will not adversely impact on the bests interests of the children. 

4. I order that the father make a contribution to the wife's costs of the contravention proceedings fixed in the sum of $300, similarly with a stay of three months, so they need not be paid prior to Monday, 27 August 2007 and then should then be paid direct to the mother's solicitors. 

5. I transfer the matters back to Senior Registrar FitzGibbon for consideration of the variation applications.  The matter will be taken into Court and be before Senior Registrar FitzGibbon when he resumes his list at 2:15pm today.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  18 June 2007