Bronson and Carson

[2007] FamCA 172

FAMILY COURT OF AUSTRALIA

BRONSON & CARSON [2007] FamCA 172

FAMILY LAW – CHILDREN – Parenting Orders – Contravention - Bond

APPLICANT: MR BRONSON

RESPONDENT: MS CARSON

FILE NUMBER: HBF 1119 of 2006

DATE DELIVERED: 27 February 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 27 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS M RYAN

COUNSEL FOR THE RESPONDENT: MR NICHOLSON

Orders

1. THAT the mother, within seven days from today’s date enter into a bond for a period of two years that she will comply with orders of this Court.

   IT IS NOTED

2. THAT the bond arises out of a finding that the mother has contravened without reasonable excuse an order of this court, being a more serious contravention.

3. THAT there is no application for costs. 

   IT IS FURTHER ORDERED

4. THAT the question of any change of parenting in respect of the contravention proceedings be adjourned to the Judicial Duty List at 10.00am on 3 April 2007.

5. THAT the interests, in these proceedings, of the children born in August 2002 and I born in November 2004 be independently represented by a lawyer and it is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

6. THAT forthwith upon appointment by the said Tasmanian Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. THAT within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

8. THAT pursuant to s11F of the Family Law Act, both parties/all parties must attend appointments with a family consultant on dates to be advised for the purposes of the Child Responsive Program.

9. THAT orders 1 and 2 made 3 October 2006 be suspended, such suspension to operate from today’s date until further order and in their place AND UNTIL FURTHER ORDER:-

   (a)THAT the children B born 15 August 2002 and I born in November 2004 (“the children”) live with the father except as provided in these orders;

   (b)THAT the said children live with the mother each Wednesday, Friday and Sunday from 9.00am until 6.00pm with the father to deliver the children at the commencement of such time and collect the children at the end of such time from the mother’s home or such other place as is agreed by the parties in writing.

10. THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

11. THAT the mother’s application for a recovery order filed 9 February 2007 is dismissed.

    IT IS CERTIFIED

12. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 1119 of 2006

MR BRONSON

Applicant

And

MS CARSON

Respondent

REASONS FOR JUDGMENT

1. This is a contravention application commenced by the father in relation to an alleged contravention by the mother. 

2. The alleged contravention is that the mother between 30 January 2007 and 31 January 2007 consumed alcohol and consumed marijuana whilst the children B and I were in her care, that being in contravention of a parenting order made by this court on 3 October 2006 which provided that the father and mother agree not to consume alcohol to excess or any illicit substances whilst the children were in their respective care.

3. The mother, to her credit, admitted the contravention and take her early admission into account. She admitted the contravention on the advice of counsel and asserted that there was no reasonable excuse within the meaning ascribed to that term under the Family Law Act.

4. She does however say that there was an explanation in mitigation of the offence.  This is set out in paragraphs 10 to 14, 36, 38 and 41 of her affidavit sworn 9 February 2007 and in evidence that she gave to the court today. 

5. She said that on Tuesday, 30 January she had taken the children to a park and then returned home to do some gardening.  She says she consumed alcohol during that latter activity and during the evening.  She gives in detail the events of the night, including what appears to be an accurate description of a friend of her son stealing her car and the events following that.

6. It seems not to be in issue however that she consumed marijuana with a neighbour, Ms T, and that on the following day after a violent incident of some description - although there is some issue as to the nature of that incident - she had a reading of .010, 12 hours after she asserts that she stopped drinking.  I can infer and I do infer from that that the mother was excessively affected by alcohol whilst the children were in her care.

7. On the evidence before me, it is clear that the mother has a serious alcohol and drug problem which she was made to deal with by formal court order, rather than by a desire to resolve that issue herself.  That is, sadly, one of the problems of addiction to those substances, that people often do not see it to the depths that it is. 

8. Notwithstanding the events of that night, the respondent did have the children in her care and notwithstanding that responsibility and notwithstanding the orders, she consumed alcohol to excess and she consumed drugs. 

9. I have said on a number of occasions in recent weeks that orders of this court are not invitations; they are not suggestions; they are orders.  They are meant to be obeyed.  They are not meant to be obeyed only when you are here; they are meant to be obeyed at all times.  Because if court orders are not obeyed, how can we have confidence that the children will be properly looked after?

10. The parliament has recently reviewed the legislation regarding contravention for the very simple reason that it wants in place strong laws to ensure that when determinations are made, they are put in place. Section 70NFA of the Family Law Act which is part of the amendments brought in on 1 July 2006 provides that generally first offences are to be treated as contraventions without reasonable excuse or a less serious contravention. The court can only treat a contravention as a more serious contravention if the court is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

11. I am satisfied beyond reasonable doubt that the respondent has shown a serious disregard of her obligations under the primary order.  Accordingly, I find that she has contravened without reasonable excuse an order and that it is a more serious contravention.

12. It is submitted by both parties that the order I should make in view of the contravention is an order that the respondent be placed on a bond.  That to me is a sensible submission by both parties, bearing in mind the following.  Firstly, as I have said earlier, that the mother has a serious alcohol and drug problem. 

13. Secondly, that we are dealing with people who have a responsibility to parent these children jointly, and the fact that they are both her probably means, and I find that it means, that both of them deeply care for these children, otherwise they would not be here. 

14. Thirdly, that the mother had entered a plea in relation to the contravention at an early stage.  She did not put the court or the father through the trauma of having to prove each point, which is sometimes easier said than done. 

15. I intend to place her on a bond to comply with the orders of this court for a period of two years from today's date. 

16. I do not intend to put in place the other matters suggested on behalf of the father for a number of reasons.  Firstly, it would leave the mother liable for a double jeopardy.  If somebody does something wrong, they ought to be dealt with but it offends the notions of justice that people can be dealt with twice for the same offence.  That does not prevent me, of course, making some orders for protection of the children in the broader sense under Part VII.

17. There is no application for costs, so there will be no order for costs.

18. In terms of the parenting, I must look again at the question of parenting.  I will adjourn the proceedings to 3 April 2007 and put in place orders for appointment of an independent children's lawyer and put in place orders in relation to the parties attending in the child responsive model so that I can have some sort of material before me to determine what is in the best interests of these children.

19. The only matter left for me to determine today is where these children should be over the next four or five weeks. 

20. I will also be directing a copy of the transcript of the evidence of the mother be placed on the court file and a transcript of my reasons be placed on the court file so that if anyone wants to know why I have come to this conclusion, it is there and the evidence, which is fairly significant evidence, is available for a judge at a final hearing.

21. The final part of the contravention application is that to deal with what should happen to the children between now and 3 April 2007. 

22. Orders were made on 3 October that the children live with both parents on different times:  live with the father from Friday until Sunday and then such further and alternate times as the parties may agree - and I am told that the parties at some level communicated and provided additional time - the children otherwise live with the mother.

23. The order I am going to make now is to suspend that order for the time being and when I say "for the time being", it is only to 3 April 2007 because it needs, as I said before, to be properly and carefully argued. 

24. I am concerned that the mother was at a state that night where, if something had happened to one or other of those children, she would not have been in a position to offer them any assistance or any care.  If the attack had been on the children rather than her, she may not have been aware of it.  If one of the children had become sick, she may not have been aware of it.  That could have had awful consequences to the children which would have impacted on the parties.  At the same time, she has been a significant and primary carer of these children throughout their lives.  I think that probably is reflected by the order that was made on 3 October.

25. I have to balance, as I said before, the primary factors under section 60CC, that is the need for the children to have a relationship with both of their parents and the need to protect the children from risk of abuse or violence or risk.

26. Until 3 April 2007 I am going to provide that the orders still remain live-with orders but that there be no overnight time until that time, but there will be significant day time contact live-with so that the children do not lose contact with their mother.  I think that is important. 

I certify that the preceding 26 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:  27 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Bronson & Carson