Bradbury and Lander (No 2)

[2019] FamCA 145

FAMILY COURT OF AUSTRALIA

BRADBURY & LANDER (NO. 2) [2019] FamCA 145

FAMILY LAW – ORDERS – Contravention of Parenting Orders – Non-Denigration Orders.

Family Law Act 1975 (Cth)

APPLICANT: Mr Bradbury

RESPONDENT: Ms Lander

INDEPENDENT CHILDREN’S LAWYER: Yeend & Associates

FILE NUMBER: CAC 239 of 2017

DATE DELIVERED: 14 March 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Self-Represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Burgess

Orders

1. In relation to the contravention of 25 April 2017, being the first contravention it is ordered that Ms Lander to enter into a bond in accordance with s 70NEC in the manner set out in order five below in the following terms:

   (a)I, Ms Lander acknowledge that I owe the Commonwealth of Australia the sum of $1,000 to be made and levied upon my property (real or personal) to the use of the Commonwealth if I fail to meet the condition that:

   (i)For a period of 12 months from the entry into this Bond I will comply with the orders of the Family Court of Australia;

2. In relation to the contravention of 27 April 2017, being the second contravention it is ordered that Ms Lander enter into the bond in respect of the first contravention.

3. In relation to the contravention of 25 November 2017, being the third contravention it is ordered that Ms Lander enter into the bond in respect of the first contravention.

4. In relation to the contravention of 10 January 2018, being the fourth contravention it is ordered that Ms Lander enter into the bond in respect of the first contravention.

5. The bond referred to above must be entered into by Ms Lander at the Canberra Registry of the Family Court of Australia forthwith.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradbury & Lander has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 239 of 2017

Mr Bradbury

Applicant

And

Ms Lander

Respondent

REASONS FOR JUDGMENT

1. In this matter Ms Lander faces four contraventions of the orders made by Judge Tonkin on 24 April 2017, those contraventions being identified in my judgment of 24 January 2019.  The contraventions related to a non-denigration clause in Judge Tonkin’s orders.

2. The first of those contraventions was committed on 25 April 2017, the day after the orders were made.  The second on 27 April 2017, the third 25 November 2017 and the fourth on 10 January 2018.  Amidst these contraventions the Respondent received, but ignored, correspondence from the Applicant's solicitors who warned that she was in contravention of the non-denigration order. 

3. The purpose of orders following contravention is to ensure compliance with orders.  Although the Respondent says that as the particular non-denigration order made by Judge Tonkin is no longer in effect there still remains a non-denigration clause amongst a suite of orders that govern these parties and their child.  Compliance with those orders remains a legitimate objective under the legislation.

4. The question turns as to what response is to be made to the contraventions.  That question is governed by a statutory framework.  The first question is as to the characterisation of the contraventions, that is whether they are to be characterised as less serious or as more serious contraventions under the Act.  That determination will then determine what responses are available to the Court.  Although in this case there are multiple contraventions and hence, as each of them are dealt with the latter contraventions could be seen as being more serious, I have been assisted by the sensible concession made on behalf of the Father that these constitute less serious contraventions.  It was noted on his behalf that this is the first occurrence of the Mother being dealt with for contraventions.  I would also note that within the scheme of the orders that governed these parties these contraventions are of an order of less seriousness.  I agree with the concession that has been made by the Father. 

5. The Father sought that the Mother be dealt with in a particular manner in relation to these contraventions seeking firstly a Bond and surety, and secondly that the Mother complete a parenting course.  The Mother has resisted both of these courses.  She maintains that she has not contravened the orders.

6. It may be quickly observed that a parenting course is unsuitable to the objective of promoting compliance with the orders in this particular case.  For the Father it was expressed as no more than a faint hope that a parenting course would have an impact on the Mother.  Having heard from the Mother in these proceedings that appears to be an overly optimistic description on the part of the Father.  The Mother says that she is insulted by the prospect of undertaking a parenting course, noting that she is qualified to give parenting courses, and has said “obviously it won't change my opinion in any way".  It may thereby be seen that the imposition of a parenting course requirement has little if any prospect of assisting the promotion of compliance with orders. 

7. The Respondent also resists the Bond as she says that it is now clear what the content of the orders in relation to denigration are and that she will comply with those orders because they are clear.  However, the circumstances of the breaches, including that the first was committed immediately after the orders were made by Judge Tonkin then repeated and done so in the face of a warning from the solicitors, and seen in the context where the Mother asserts still that there is no wrongdoing on those actions, means that it is appropriate in this instance to reinforce the operation of the orders by means of a Bond.  The effect of causing Ms Lander to enter into a Bond will mean that she will be subject to additional obligations to comply with the orders of this Court. 

8. I note that the consequences that may follow if she fails to enter into the Bond include that a fine may be imposed not exceeding 10 penalty units, a penalty unit at this time being in the sum of approximately $210.  I also note that a consequence of failure to comply with the terms of the Bond may result in the imposition of a fine not exceeding 10 penalty units or the revocation of the Bond and the forfeiture of the sum of the Bond which in this case I will fix at $1,000 and also the dealing with the Respondent again for the contraventions. 

9. On the question of surety the difficult financial circumstances faced by the Mother as illustrated by her affidavit material means that the call for a $5,000 dollars self-surety is excessive.  A surety will add sufficient force to the Bond to render a Bond effective in the circumstances, but would do so under the difficult circumstances of the Mother, if set at a level of $1,000.  Accordingly, noting that the purpose of the proposed requirement to cause the Respondent to enter into a Bond is to cause the Respondent to comply with the terms of the orders that are in force from time to time, noting that the effect of the proposed requirement to enter into a Bond would be that the Respondent will be subject to additional obligations to comply with the orders, noting that the consequences that may follow if the Respondent fails to enter into the Bond, namely that a fine may be imposed not exceeding 10 penalty units, noting that a consequence of failure to comply with the terms of the Bond may result in the imposition of a fine not exceeding 10 penalty units or the revocation of the Bond the forfeiture of the sum of the bond being $1,000 and the dealing with the Respondent again for the contraventions, and noting that these matters have been identified to the Respondent prior to the making of this order I make orders accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 March 2019.

Associate: 

Date:  15 March 2019