Boyce and Timms

[2014] FCCA 2337

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOYCE & TIMMS [2014] FCCA 2337

Catchwords:
FAMILY LAW – Contravention of parenting orders – consideration of whether a reasonable excuse proved.

Legislation:

Family Law Act 1975, ss.70NEB(1)(d), 70NEC

Applicant: MR BOYCE

Respondent: MS TIMMS

File Number: PAC 5761 of 2010

Judgment of: Judge Dunkley

Hearing date: 2 October 2014

Date of Last Submission: 2 October 2014

Delivered at: Parramatta

Delivered on: 13 October 2014

REPRESENTATION

For the Applicant: In person

Solicitor for the Respondent: Mr Harper

Solicitors for the Respondent: Ian Harper & Co

ORDERS

1. Ms Timms (formerly Boyce) is found to have had a reasonable excuse with respect to Counts 1 and 3 and those Counts are dismissed.

2. Ms Timms (formerly Boyce) is found to have contravened without reasonable excuse Counts 2, 4 and 5 as preferred on 2 October 2014.

THE COURT ORDERS BY WAY OF PENALTY AS FOLLOWS:

1. Count 2

   Ms Timms (formerly Boyce) is to sign and enter into a Bond for a period of six months pursuant to section 70NEB(1)(d) of the Family Law Act 1975 without surety, to be of good behaviour and to comply with all parenting orders.

2. Count 4

   Ms Timms (formerly Boyce) is to sign and enter into a Bond for a period of six months pursuant to section 70NEB(1)(d) of the Family Law Act 1975 without surety, to be of good behaviour and to comply with all parenting orders with the six month period to commence on the expiry of the six month period provided for in the Bond entered into by way of penalty with respect to Count 2 above.

3. Count 5

   Z born (omitted) 2000 shall spend make up time with Mr Boyce from 11am to 5pm on 25 December 2014 and to facilitate this order Ms Timms shall deliver Z to Mr Boyce in the foyer of the (omitted) Police Station at the beginning of the period and Mr Boyce shall return Z to Ms Timms in the same location at the end of the period.

THE COURT FURTHER ORDERS THAT:

1. Dismiss the outstanding Contravention Applications filed 24 September 2012 and the Allegations of Contravention filed 7 April 2014 and remove all issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Boyce & Timms is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5761 of 2010

MR BOYCE

Applicant

And

MS TIMMS

Respondent

REASONS FOR JUDGMENT

Introduction

1. During the course of contested proceedings Mr Boyce (the Applicant) filed a number of contravention applications involving multiple counts of alleged contraventions, in excess of fifty (50).

2. During the course of the contested parenting proceedings the Applicant chose to adjourn the hearing of the contravention applications so as not to delay the hearing of the substantive parenting proceedings.

3. The substantive parenting proceedings were finalised when judgment was delivered on 25 October 2013. That judgment resulted in significantly different parenting orders being made to those that previously existed and a discharge of those early parenting orders. The allegation of contraventions now being heard relate to orders that were discharged on 25 October 2013.

4. Notwithstanding this, the Applicant wanted to proceed with the hearing of the contravention applications. The hearing of those applications in totality would have taken many days.

5. Consequently the Applicant was directed to select five (5) representative allegations of contravention that he wished to proceed with so as to facilitate the hearing. Another basis for that direction was that even with a successful prosecution of all allegations the end penalty/sentence may not have varied.

6. The reason for this is that the make-up time that might or may have been ordered if the allegations were proven would have been so extensive as not to have been able to be found to be in the child Z’s best interest given the findings and orders made on 25 October 2013. Any order for make up time relevant to proven contraventions relating to X and Y could not have been made as both are now older than eighteen (18) years.

7. At the hearing on 2 October 2014 of the alleged contraventions Ms Timms (formerly Ms Timms), the Respondent, admitted each of the Counts as preferred. With respect to Counts 2 and 4 she pleaded an admission simpliciter. With respect to Counts 1, 3 and 5 she pleaded an admission and sought to provide a reasonable excuse.

8. This then is the Judgment arising from the hearing on 2 October 2014.

Agreed Facts

1. The Applicant and Respondent have three (3) children:

   ·X born (omitted) 1995;

   ·Y born (omitted) 1996; and

   ·Z born (omitted) 2000.

2. That at the time of the alleged contraventions there were in existence parenting orders made on 2 May 2011.

3. The Respondent conceded she knew of, and understood the effect of the orders made on 2 May 2011.

4. The Respondent conceded she understood the obligations those orders placed on her.

5. The Respondent conceded X and Y did not go to live with or spend time with the Applicant for a week commencing on 21 September 2012 as required by the relevant orders.

6. The Respondent also admitted Z did not spend time with the Applicant commencing on 21 September 2012. The Respondent admitted to not having taken Z to the McDonalds car park at (omitted) at 6pm on 21 September 2012.

7. The Respondent further admitted that X and Y did not live with nor spend time with the Applicant for the week commencing 5 October 2012.

8. The Respondent in addition, admitted that she did not deliver Z to the Applicant at the McDonalds car park at (omitted) on 5 October 2012 so as to facilitate Z to spend time with the Applicant for the week.

9. The final admission conceded by the Respondent was that none of X, Y or Z were taken by her to the McDonalds car park at (omitted) on Christmas Day 2012 so as to spend time with the Applicant.

Counts 1 and 3

1. It was admitted by the Respondent that the children, the focus of these Counts, X born (omitted) 1995 and Y born (omitted) 1996 did not go to live with their father for the week commencing 21 September 2012 as required by orders made on 2 May 2011.

2. The orders made on 2 May 2011 envisaged the possibility, and likelihood that given their age X and Y might make their own way to the Applicant’s home, see order 15 made on 2 May 2011.

3. By (omitted) 2012 X was aged 17, had a driver’s license and owned a car. In addition X had left school, secured an apprenticeship as a (omitted) and was working full time, including attending TAFE and earning income. X was also in a relationship with a young lady, spending a lot of time with her.  He was acting, for all intents and purposes as an adult.

4. He made his own arrangements and out of courtesy to the Respondent told her from time to time of what he was doing and where he was going but was clearly making his own life decisions.

5. The Respondent quite reasonably says she could remind X of the need to see and communicate with his father but it was beyond her power or capacity to force him to do so. In the circumstances of X’s life this is entirely reasonable and she has proved her reasonable excuse with respect to X.

6. Turning then to Y. As at (omitted) 2012, Y was at that time aged 15 being less than a month from his sixteenth Birthday. He was attending school fulltime. He too had a girlfriend.

7. The mother says, and I accept, that she would remind Y that he needed to spend time with his father. Again, quite reasonably, she says that given his age and size it was beyond her physical capacity to compel him. I do not accept the Applicant’s contention that she did not try hard enough to encourage his visits. I am satisfied she did all she could reasonably be expected to do. Nor do I accept she undermined the father to X.

8. For these reasons the Respondent’s reasonable excuse is proved on the applicable standard being the balance of probabilities. The same factual situation and circumstances existed with respect to Count 3. The same excuse for the same reasons was advanced with respect to Count 3. I find for the same reasons as in Count 1 a reasonable excuse is proved regarding Count 3. Both Counts 1 and 3 are dismissed.

Counts 2 and 4

1. Both Counts are admitted and a sentence penalty is to be imposed as discussed later in this Judgment.

2. I find these to be less serious contraventions given that they are the first in time, chronologically. By that I mean although the Respondent was proven in later proceedings to have contravened an order, it would be unjust to consider these earlier in time contraventions as more serious because of a later conviction having been recorded on 29 January 2014 with respect to an event on 2 November 2013.

Count 5

1. The mother admits not taking Z to the McDonalds car park on Christmas Day 2012. She says Z did not want to go. It was conceded the mother now recognised this fact did not amount to a reasonable excuse, a submission with which I agree. It did not and could not amount to a reasonable excuse.

2. Christmas Day for families is one of the most important family days each year. The importance of the day nearly but does not quite, because this type of contravention has not previously occurred, amount to a more serious contravention. It remains for these reasons a less serious contravention but only just.

3. With respect to each of X and Y the Respondent says she asked each if they were going to see their father and both indicated they would be spending time with their girlfriends and their families in preference to the Applicant.

4. She says X drove himself to his girlfriend’s family home and the mother of Y’s girlfriend collected him.

5. She says she could only encourage X and Y to see their father but was powerless to enforce it if they did not do so given their age, size and independence.

6. I accept and agree that she could not force X and Y. I accept she did try to encourage them. For these reasons her reasonable excuse as it relates to X and Y is proven on the balance of probabilities.

7. Whilst Count 5 is proved, it is proved only as it relates to Z.

Penalty

1. As the proven contravention, are for reasons already discussed less serious contraventions the powers of the Court are found in s.70NEB of the Family Law Act 1975.

2. These parties have been in litigation about their children since December 2010, for these reasons, neither is likely to receive a benefit from attendance at a Post Separation Parenting Program.

3. A compensatory time order for the period Z missed spending with her father on 25 December 2012 is an appropriate penalty with respect to Count 5. The make-up period will be in addition to the time Z spends with her father pursuant to the orders made on 25 October 2013. The make-up period shall occur between 11am and 5pm on 25 December 2014. Given the shortish duration of the period I am satisfied it is a period that is in Z’s interest. It is also in her interest on this occasion to spend time with her father on Christmas Day. The period will allow her to be with both her parents this Christmas. Due to the Contact Centre changeover facility being closed changeover will take place at (omitted) Police Station which is a location the orders of 25 October 2013 found for reasons set out in that judgment to be both in Z’s best interest and reasonably practicable. Make up time as a compensatory time order for Count 2 is not in Z’s best interest. The time period would be too long for the reasons set out in the Judgment delivered on 25 October 2013 in the substantive parenting proceedings.

4. The Applicant also seeks a bond for the Respondent as an appropriate penalty.

5. It was submitted on behalf of the Respondent that the Respondent has absorbed the criticisms of her made in the judgment of 25 October 2013 and that a bond would be a penalty that is too severe.

6. That submissions is not accepted because on 29 January 2014 the Respondent was proven to have contravened on 2 November 2013 a spend time with order made on 25 October 2013.

7. A bond is likely to ensure continued compliance and is an appropriate penalty to reinforce the seriousness of continued compliance with parenting orders. The objective seriousness of each proven contravention is that the bond should be for six (6) months for each contravention with the periods to be consecutive. The other conditions of the bond will require the Respondent to be of good behaviour and to comply with all parenting orders.

8. There is so little financial evidence available to me that I am unable to determine what if any surety could be provided, or should be provided. As such the bond will not be conditional on a surety.

9. A bond is a power available pursuant to s.70NEB(1)(d) of the Act.

10. Section 70NEC of the Act sets out the limitations with respect to bonds. Whilst the maximum period is two (2) years the objective seriousness of these contraventions is at the mid to lower end. A six month term is then a sufficient penalty.

11. I decline to order costs as the Applicant has always been self-represented.

12. I decline to order the payment of expenses to the Applicant as I am not satisfied that the transcript costs of the Applicant were incurred solely for these contraventions applications. Transcripts were not relied on for these proceedings. Transcripts are more likely to have been necessitated by the Applicant’s appeal.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  13 October 2014