Bertram and Bertram (No 2)

[2011] FamCA 375

FAMILY COURT OF AUSTRALIA

BERTRAM & BERTRAM (NO 2) [2011] FamCA 375

FAMILY LAW – CONTEMPT – Contravention of Court Order – Whether this was a case involving a serious disregard – Where the mother had contravened orders – Where it was found that the mother did not have reasonable excuse for the contraventions – Court found no serious disregard – Whether requiring the mother to enter into a bond along with a costs order is an appropriate penalty – Court found that the mother not pay the father’s costs – Order that the parties undertake a post-separation parenting program.

Family Law Act Subdivision F of Part VII Division 13A, s 94A, s 70NEB(1)(a), s 11E(1)(f), s 70NEB(1)(f), s 70NEB, s 117(2A), s 117(2)

Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655

APPLICANT: Mr Bertram

RESPONDENT: Ms Bertram

FILE NUMBER: SYC 2201 of 2010

DATE DELIVERED: 27 May 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 5 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Paul & Paul Lawyers

Orders

1. That each party shall attend and complete a post-separation parenting program within six months of the date of this order and provide the other party with evidence of the completion of such course.

IT IS NOTED that publication of this judgment under the pseudonym Bertram and Bertram (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 2201  of 2010

Mr Bertram

Applicant

And

Ms Bertram

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On 14 February, 2011, I heard contravention proceedings brought by Mr Bertram against Ms Bertram in which he alleged that she had contravened, on multiple occasions, final parenting orders made by his Honour Federal Magistrate Kemp on 8 June 2010, with the consent of Mr and Ms Bertram, in respect of their two young children, H, aged 7 and O, aged 5.

1. On 17 March, 2011, I delivered my reasons for judgment in which I concluded that Ms Bertram did, between 28 July, 2010 and 15 December, 2010, contravene various provisions of those final parenting orders as alleged by Mr Bertram and that Ms Bertram did not have reasonable excuse for the contraventions. I made an order that day that the matter be listed at a date and time to be fixed for the hearing of submissions as to which Subdivision of Division 13A of Part VII of the Family Law Act should apply in the circumstances of the contraventions found (this being the first time that a court was to impose a sanction on Ms Bertram for contravention of the primary order) and also as to penalty.

1. The earliest the hearing of such submissions could be conveniently arranged, given that I am based in the Brisbane Registry and the parties and their legal representatives are in Sydney, was 5 May, 2011. On that day, I heard submissions from counsel for both parties by telephone and considered financial statements that had been sworn by both parties as well as detail as to the legal costs and outlays each party had incurred in respect of these contravention proceedings that had been forwarded to me prior to that hearing.

1. The entire final parenting orders made by consent on 8 June, 2010 are set out in paragraph 2 of my reasons for judgment delivered on 17 March, 2011. I shall not repeat them here. I also set out the specific allegations of contravention that I heard and determined at the hearing in paragraph 8 of those same reasons for judgment. 

1. In paragraph 104 of those reasons for judgment I set out that I determined that Ms Bertram:-

(i)did contravene paragraph 11 of the orders (providing for the children having telephone communication with the father) on two specific dates;

(ii)did contravene sub-paragraph 22(a) of  the orders (providing for communication between the parents to personal telephone numbers only for matters of an urgent nature) on two occasions;

(iii)did contravene sub-paragraph 22(c) of the orders (providing for communication in a communication book);

(iv)did contravene paragraph 25 of the orders (restraining the parents from contacting the other parent on work phone numbers or email other than in the case of emergency) on two specific occasions; and

(v)did contravene paragraph 23 of the orders (providing for the parents to ensure whenever possible that the children attend their commitments when in their respective care).

I also set out there that I found that Ms Bertram did not have reasonable excuse for the contraventions.

Was this a case involving “a serious disregard”?

1. For the father, it was submitted that the number of contraventions found by me to have occurred, the proximity of those contraventions to the making of the original orders made and the “deliberate” nature of the contraventions made this a matter where I ought to be satisfied that the mother had behaved in a way that showed a serious disregard of her obligations under the primary order thus bringing the matter within the provisions of Subdivision F of Part VII Division 13A rather than Subdivision E.

1. For the mother, it was submitted that I would not be satisfied that the mother behaved in a way that showed a serious disregard of her obligations under the primary order, that the father’s behaviour contributed to the mother’s contraventions, that the contraventions had negligible impact upon the relationships between the children and their father as, for example, when the father was not able to speak to the children on the phone on one of the occasions of contravention he went to the mother’s home and the children were allowed to go down and speak with the father in person, outside the home.

1. In its decision in Elspeth & Peter; Mark & Peter and John & Peter  [2007] FamCA 655 the Full Court discussed the issue of what might be seen as constituting a serious disregard of obligations under an order. The Full Court discussed a number of first instance decisions in which the question had been considered and, at paragraph 66, said:-

What seems to be the common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under subdivision F.

1. In this case, the parties determined to set out their parenting arrangements in respect of their two young children in a long and extremely comprehensive set of orders that they asked the Court to make by consent at a time when the pain of the breakdown of their relationship was, plainly, still strong for both of them. Property division between them still remained in dispute at that time. One of the orders they agreed to was to each complete a post-separation parenting course within six months of the date of the orders and neither of them even tried to comply with that, on the evidence that was before me. As I previously found, there appeared to be a readily apparent, mutual lack of respect for the other parent’s role in the co-parenting relationship of these parties.

1. The father alleged numerous contraventions against the mother. In fact, I commented upon what appeared to be a ‘scattergun’ approach to his conduct of the contravention proceedings against the mother. Indeed, I found a number of proven contraventions and they all occurred within a period of about six months of the date of the primary order having been made. However, it is the first time the mother has been found to have contravened the primary order. The contraventions that I found to have occurred and the circumstances of them do not, upon reflection, cause me to consider that the mother actually behaved in a way that showed a serious disregard of her obligations under the order. I am particularly mindful, in deciding this, that none of the contraventions I found to have occurred actually did prevent the children from spending time with the father and, by far, the majority of them related to the manner in which the father and the mother actually communicate with each other. The evidence before me at the hearing clearly demonstrated that the poor, disrespectful communication was indeed a mutual problem and that the father was being a touch ‘opportunistic’ in respect of his complaints of contraventions against the mother.

1. In the circumstances of this case, I do not consider that the mother’s contraventions show sufficiently serious disregard of her obligations such that the mother should be dealt with pursuant to Subdivision F of Part VII Division 13A but rather that it is appropriate that she should be dealt with pursuant to the provisions of Subdivision E of that Division.

What is an appropriate penalty?

1. For the father, it was submitted that making an order that required the mother to enter into a bond along with a costs order would be appropriate. To the extent that the Full Court’s decision in Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341, particularly at paragraphs 18 to 33, create an apparent difficulty in respect of requiring the mother to enter into a bond, Mr Batey for the father submitted that I should state a case for the consideration of the Full Court pursuant to s.94A of the Act for the effective reconsideration of that decision. I do not intend to do that. I do not consider a bond as appropriate, so do not need to trouble myself with that submission further.

1. What is otherwise instructive, in my view, from the Full Court’s decision in that case, at paragraph 11, was the fact that the Full Court highlighted that the “singularly most significant result of an imposition of a penalty” in a case like this one “is that any subsequent proven contravention of the orders may attract the more serious penalties under Subdivision F of Division 13A of Part VII of the Act including the imposition of a fine or a sentence of imprisonment.” I consider that wholly applicable in this case and remind the mother most strongly that the primary orders that were made when she and the father asked the Federal Magistrates Court to make them create serious obligations that are to be complied with. Any further proven contraventions may be dealt with under Subdivision F of Division 13A of Part VII and may attract a fine or a period of imprisonment and/or an order that she pays all of the father’s costs of those proceedings.

1. I was informed by both counsel that both of the parties have, since my decision and reasons were delivered in March, taken steps to participate in a post-separation parenting program as they had previously been required to in the primary order but had failed to do. I am heartened by that information, considering it timely and appropriate and a reflection of a positive development in the matter. Nevertheless, I intend to utilize the power available to me pursuant to s.70NEB(1)(a) of the Act to direct both the mother and the father to attend a post-separation parenting program. I have, as I am required to do pursuant to s.11E(1)(f) of the Act, considered whether I should seek the advice of a family consultant as to the services appropriate to the needs of the mother and the father and the most appropriate provider of those services, but I am satisfied that the parties, advised by their respective legal advisers, will have chosen an appropriate provider and program. I will not seek the advice of a family consultant before making the order.

1. For the father, it was also submitted that I should make an order that the mother should pay the father’s costs of these contravention proceedings. I was informed that his costs, including for the hearing before me on 5 May, 2011, totalled $15,731.

1. S.70NEB(1)(f) gives the discretion to make an order that the mother pay some or all of the father’s costs of these contravention proceedings. There is no guidance given in s.70NEB as to how that discretion might be influenced. However, I consider that the matters set out in s.117(2A) of the Act as matters that the Court shall have regard to in considering what order, if any, should be made under s.117(2) of the Act, the provision that grants the general discretion to make an order as to costs as the Court considers just if the Court is of the opinion that there are circumstances that justify it in doing so, are matters that I should consider in determining whether to make a costs order against the wife.

1. I was informed by counsel for the mother that the mother had incurred costs up to and including the hearing of 5 May of about $13,000 in defending the proceedings. It was submitted, for the mother, that I must consider that the father’s ‘scattergun’ approach of alleging many contraventions resulted in effectively forcing the matter to a hearing as the mother had little choice but to deny that she had contravened as alleged and that, ultimately, she had only been found to have actually contravened the orders in some of the circumstances alleged. It was further submitted that the father could not be regarded as wholly successful in the proceedings and neither could the mother be regarded as wholly unsuccessful in the proceedings.

1. Whilst I do not accept the submission that the mother had no choice but to deny all of the allegations, I am mindful of the fact that the parties have both spent relatively similar amounts of money in the proceedings which I have considered were really a symptom of their poor co-parenting relationship during a period when the separation was still recent and they were still negotiating property settlement. In all the circumstances, and particularly given the fact that the mother successfully defended many allegations of contravention that the father made against her, spending a lot of money in doing so when she has no income apart from the child support she receives from the father, whilst he earns almost $320,000 per annum, I determine not to make an order against the mother for her to pay any of the father’s costs. The time the mother has spent engaged in these proceedings, the money she has spent on her legal costs, the order that she and the father undertake a post-separation parenting program and the fact that any further proven contravention by her of the primary order will fall to be dealt with pursuant to Subdivision F of Division 13A of Part VII is, in my view, sufficient penalty. I shall order accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 May 2011.

Associate: 

Date:  27 May 2011