C and D - [2004] FMCAfam 253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & D

[2004] FMCAfam 253

FAMILY LAW – Contravention – sentencing – imprisonment.

Applicant:

M D C

Respondent:

P A D

File No:

ADM 1148 of 2004

Delivered on:

19 May 2004

Delivered at:

Adelaide

Hearing Date:

19 May 2004

Judgment of:

Lindsay FM

REPRESENTATION

Counsel for the Applicant:

Mr C on his own behalf

Counsel for the Respondent:

Mr Mitchell

Solicitors for the Respondent:

Matthew Mitchell Solicitors

Child Representative:

Mr Hicks

ORDERS

That in respect of the contravention order referred to in paragraph 1 of the orders of this court of 14 May 2004 and pursuant to section 70NJ subsection (3) of the Family Law Act 1975, the respondent mother be sentenced to a period of imprisonment of 30 days.
That all applications are otherwise dismissed.
Liberty to the respondent to apply in respect of any application for a stay of his Honour's order by way of written communication with his Honour's associate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADM 1148 of 2004

M D C

Applicant

and

P A D

Respondent

REASONS FOR JUDGMENT

I deal first with Mr Mitchell's application for an adjournment this morning. The mother indicated to me on 14 May 2004 that Mr Mitchell would be attending to make submissions on her behalf. Mr Mitchell duly attended this morning and made an application for the mother to be able to change her plea. Clearly the mother had not informed Mr Mitchell or not had the opportunity to inform him of the fact that she was found guilty of her relevant contravention after pleading not guilty.
Mr Mitchell's application was then for me to adjourn consideration of the question of penalty to enable his client to be psychiatrically assessed. The purpose was twofold. Firstly, it was to see whether or not the mother's behaviour with respect to the question of contact was explicable in terms of any psychiatric illness or disorder. Secondly, I was told it was to investigate whether some regime might be established whereby the mother received counselling or encouragement such as would enable her to comply with orders of the court.
Mr Hicks appeared on behalf of the child representative. Since we were last in court on 14 May 2004, he has provided me with copies of the Reasons for Judgment of Judicial Registrar Forbes of 22 August 2002, when his Honour imposed a penalty in respect of earlier contraventions of orders. He also provided me with his Honour's Reasons for Judgment in relation to the convictions themselves. Those reasons are dated 12 April 2002. He also provided me with a copy of Murray J's extempore judgment of 19 December 2002.
He told me today that no evidence was presented at the trial before Dawe J relating to this issue of the mother's inability to accept the notion of contact; that is, psychiatric or psychological evidence relating to the mother's state of mind. The issue as to whether the mother's capacity to parent T would be undermined by the reintroduction of contact was dealt with by her Honour inter alia in paragraph 194 of her judgment. The issue was not dealt with by the Judicial Registrar either, save that he made his own assessment of the mother's capacities to understand and conduct court proceedings, in a passage which I read out to the court this morning. I asked the mother during the course of sentencing submissions whether she had ever attended upon a psychiatrist for any reason and she said that she had not.
Mr Hicks drew my attention to the recommendation of Ms Richardson of the Child Protection Service in her report, as set out on page 25 of her Honour's judgment, that Ms D requires therapy to address the anxiety and depression she reported experiencing. The report, I am told, is made in May of 2003, so that the mother has had some 12 months to avail herself of such therapy if she had considered it appropriate.
I have not been able to explore why she has not taken up that opportunity, but I do know from her evidence before me and from what she said during sentencing submissions that she had little faith in Ms Richardson's expertise, at least as it related to her findings regarding T and the issue of abuse. In any event, Mr Mitchell does not say his client does suffer from a psychiatric illness or disturbance. The purpose of adjourning the matter would be for the mother to attend upon a psychiatrist for the first time to see whether or not such a condition exists.
According to the judgment of Dawe J, the father has not had contact since January of 2003. I indicated to Mr Mitchell that I had difficulty with the concept of persons being provided with counselling to be able to comply with orders of the court. I do not think I am being unfair to Mr Mitchell in characterising his client's application as it related to that aspect in that way. We do not know whether a psychiatrist would recommend such counselling or, if he or she did, what the prospects of success would be or how long it would take. I am not provided with any explanation as to why the mother has not sought such counselling if it were appropriate before, especially given the warning as to her predicament contained in the judgments of the Judicial Registrar and Murray J referred to above.
I am told that the mother has an appointment with Dr Lashchuk on 7 July 2004, but it seems that this appointment was for the purposes of furthering her application that Dawe J's orders be stayed whilst T was assessed as to her alleged fears of her father and of contact. That application, which is returnable later this month, has not been served.
I indicated to Mr Mitchell that my willingness to consider such an adjournment would be influenced by the question of whether the mother would be giving contact to the father whilst such an assessment was prepared. I adjourned briefly to enable Mr Mitchell to take those instructions and it turned out that she was not prepared to do so. Mr Mitchell emphasised throughout his submissions what he said was the mother's genuine and sincere belief that her child was at risk of being sexually abused by her father upon contact.
Taking all of these matters into account, it would not in my opinion serve the interests of justice to further adjourn the question of penalty for these purposes. The existence of a psychiatric or other pathological explanation for the mother's defiance of court orders is speculative. No explanation has been provided for her not exploring this course of action in the past.
One of the matters that I have given significant weight in sentencing is the need to address the issue of the continuing lack of opportunity the child and the father have to establish and enjoy their relationship, and this would be clearly impacted upon by a further adjournment for this purpose. The application for the adjournment was refused for these reasons which I have now given.
Turning now to the question of penalty, I have had regard to all of the submissions that have been made by the mother and Mr Mitchell.

I have had regard to everything that has been put to me by the child representative. I have also had regard to the brief submission the father made on 14 May. I have read the judgments of the Judicial Registrar and Murray J referred to above.
The mother has been found guilty by me of contravening the order as it related to the first period of contact following upon the judgment of Dawe J. She has not given contact, I am told, on any occasion provided for in those orders. I am only sentencing her in respect of the one breach the subject of the application but I am entitled to and I do take into account on penalty her continuing refusal to give contact.
I know that she does not intend to comply with the order, because she told me so on 11 May. I adjourned the question of penalty on that day to today because contact was due to occur on the weekend between those dates. I told the mother that whether or not she gave contact on that occasion would be a matter to which I would have some regard in sentencing her. She told me, "I am not going to comply with the order." I am told, and it is an agreed matter, that contact was not given on the intervening weekend.
The mother lives in Adelaide, in the metropolitan area. T is one of two daughters. She has casual employment and studies part‑time. She said that she was quite healthy, although she said that she was scarred from the abuse she had suffered at the hands of the father. In her submissions on penalty she repeated her concerns for her daughter if contact took place. She said that the issue of contact was distressing her daughter and she told me that the school had picked up problems relating to her daughter during the course of some form of assessment of her in recent weeks.
My impression of the mother during the trial and the sentencing submissions is of someone who, though given to tearful outbursts at times, is well aware of the nature of the proceedings and able to identify issues relevant to the presentation of her case and to present them in a reasonably articulate way.
Dawe J's order has not been appealed. Mr Mitchell tells me he was consulted by the mother last Thursday, 13 May and that he has asked Legal Aid to consider funding an appeal against that aspect of her Honour's judgment at least which dealt with the impact of contact orders upon the mother and her capacities to parent.
The only stay application that has been lodged is that which I referred to earlier, being that which is grounded on the mother's suggestion that T should be assessed by Dr Lashchuk as to her reasons for not wanting to see her father as the mother alleges.
On 12 April 2002 the Judicial Registrar convicted the mother of breaching orders for contact, which orders were made on 20 November 2001. She was convicted of breaching the order on 25 November, 9 December, 23 December, 25 December, 30 December, all of 2001, and 6 January 2002 without a reasonable excuse. I do not propose to repeat the circumstances of the contraventions as set out in his Honour's judgment, but his Honour found that the breaches showed a serious disregard by the mother for her obligations under the order. The Judicial Registrar rejected the suggestion that the mother's conduct could be supported on the footing that she acted to protect the health or safety of the child.
The Judicial Registrar ordered that the mother enter into a bond of $1000 for a period of 12 months. The term of the bond was that the mother comply with orders of the court as to contact. She entered into the bond on 20 August 2002.
I am told by Mr Hicks that, following the imposition of that bond, the mother gave contact on four occasions on a supervised basis and on three occasions on a non-supervised basis. The mother had already by this time raised allegations of sexual abuse in some form. They are referred to in the Judicial Registrar's judgment (see paragraphs 12 to 15 thereof).
The giving of contact by the mother in these circumstances is a matter Mr Hicks emphasised in the context of his querying whether, if given another opportunity in the context of being placed on a bond, the mother would give contact. Of course, much has happened since the mother entered into that bond. In particular, there has been the investigation of the allegations of abuse by the Child Protection Service. Mr Hicks provided me with details of that investigation, which commenced in May 2002. I was told by Mr Hicks that the child had been interviewed by Ms Richardson and other persons at the Child Protection Service on a total of five occasions. I have read her Honour Dawe J's assessment of and acceptance of Ms Richardson's evidence.
The allegations the mother raised in relation to T were the subject of very careful consideration by the Child Protection Service. T was represented by a solicitor and by counsel at the trial before Dawe J and the allegations were the subject, I take into account, of very careful consideration by them. Dawe J found that there was no unacceptable risk to T of sexual or physical abuse in the care of her father during contact. She found that the mother presented as someone who believed that T has been sexually abused by the father but she was not satisfied that this belief was either reasonable or rational.
On 1 August 2002 further orders for contact had been made by Registrar Radzevicius. The mother filed an application for review of those orders. The review was heard by Murray J. Murray J had regard to the report of Ms Jane Moore, who observed the father and child in December 2002. She was aware that at that time, as remained the case throughout the proceedings, the allegations of sexual abuse against Mr C had not been confirmed by FAYS. The mother had already been convicted and sentenced by the Judicial Registrar at the time of that review. Murray J dismissed the review. I read to the court this morning the contents of paragraph 7 of her Honour's reasons for judgment and it is, in my view, appropriate to read them again. Her Honour said, having dismissed the review:
I have explained to the mother that already she has been found guilty of breaching a court order and has been placed on a bond of $1000 and that if she continues to breach the orders doubtless the father will file further applications for contempt. The consequences could then be very serious for her, so serious that indeed if the worst comes to the worst she could be imprisoned and deprived of T for some time. Let us hope that it does not come to that and that the mother takes on board very carefully what I have said and that she abides meticulously by the court order.
Her Honour at that time then gave the mother a plain and, indeed, startling warning that imprisonment and consequent deprivation of T could come to pass if she did not comply with orders for contact. She was encouraged by her Honour, as I have indicated, to take on board very carefully what the judge has said. It was following Murray J's orders that the three periods of unsupervised contact referred to above took place.
By the time the matter came before Dawe J for trial, the father had made a decision not to proceed with outstanding contravention applications relating to the period since January of 2003 but to focus instead upon matters relating to contact, and that was the basis upon which the trial proceeded.
The mother's position essentially is that of a complete rejection of the findings and the judgment of Dawe J. She believes, she says, that the child has been sexually abused and the findings of the trial judge, the report of the Child Protection Service and the views of the child representative as expressed during the trial and before me have not dissuaded her from her view.
Mr Mitchell puts to me that she is genuine and sincere in these views. She may be; she may not be. Dawe J found her belief, in any event, to be neither reasonable nor rational. I cannot go behind Dawe J's findings in that regard, as I explained to the mother on a number of occasions and as I am certain she understands.
Once the order has been made, the mother needs to give compliance with it, and she is aware of this. It is not a matter of whether she elects to comply with the order, depending upon whether her allegedly genuine belief in abuse has been dissipated or not. The allegations she raised have been given careful consideration by the child welfare authorities, by the child representative and by the court and have been found to be unsubstantiated.
For the purposes of sentencing, however, I accept that the mother holds her view in a genuine way but that her views are unreasonable views in the circumstances. Of particular concern to me is the fact that the mother refuses to indicate that she will comply with the order whilst in the midst of the penalty phase of these proceedings. That was something she refused to do when before me on 14 May and something she refused to do this day in the context of her application for an adjournment through Mr Mitchell. The mother's experience in the Family Court has, I am convinced, left her under no illusion about her obligations to comply with the orders that are made by the court or the consequences of her not doing so.
Her refusal to comply is, in my view, a deliberate and considered refusal. Of course, were the court to fall in with the mother's attitude, it would render as futile the investigative processes undertaken by the child welfare authorities and render nugatory proceedings in this court or the Family Court. Persons the subject of obligations under parenting orders cannot be the arbiters of whether or not compliance with those orders will be given.
This being other than a first offence, the sentencing options open to me are those set forth in section 70NJ subsection (3) of the Family Law Act. Questions relating to the variation of the parenting order do not arise in any relevant way at the present time, so the options I have are: community service order, bond, fine, or imprisonment. If I am to order imprisonment then section 70NO subsection (2) requires me to be satisfied first that the other sentencing options are not appropriate. In other words, prison is to be seen very much as a last resort, and that is how I regard it. It is a serious matter to imprison a person for an act that is quasi‑criminal in nature, particularly where the imprisonment must have a consequential effect on the circumstances of a child. T will be six years of age in July.
I consider, however, that the penalty I impose must reflect the court's view of the gravity of the conduct of the contravener. Here the breach relates to the first period of contact due under the order. I have found the breach to be deliberate. I have found that the mother had no intention of complying. I have found that the mother rejects in an outright way all of the findings of the trial judge on the abuse issue and all of the recommendations of the investigative authority. The mother announced to me in open court her intention not to comply with the order when given the opportunity to do so before I sentenced her. She refused to assure the court that she would comply with the order during any adjournment that might be granted at her request.
This is behaviour, in my view, of a very high-handed order and demonstrates a thoroughgoing defiance of the authority of the court. If it is not dealt with in a significant way, then the authority of any court exercising jurisdiction under the Family Law Act and making parenting orders is undermined. It is a matter of some significance to all persons who are bound by parenting orders and to the welfare of all children in whose interests such orders are made that the court respond appropriately to the challenge to its authority represented by the conduct of the mother in this case. I also have regard to the mother's previous convictions and to the fact that the mother had the benefit of Murray J's stark admonition to comply with court orders in December of 2002.
The mother for a time gave compliance with orders following her entry into the bond. She ceased to give compliance when she formed her own view as to whether the child was at risk. The orders of the court have made no difference to her decision not to resile from that view and she has made it plain to me that the orders of the court will not at this time cause her to resile from that view. The mother, in effect, tells me that the court order will continue to be unrecognised by her. In these circumstances it seems to me that a bond such as the judicial registrar ordered is an inadequate response to the contraventions.
The other matter, it seems to me, to be of significance in this case is that, whilst the processes of the court and the related processes with the Child Protection Service and child welfare authorities have been taking their course over the last 18 months, the opportunity for the child to enjoy and develop a relationship with her father, such as the court has found to be in her best interests, has not been allowed to occur.

A significant period of T's childhood has been allowed to pass with no opportunity given to build a relationship with her father. This is of grave concern. Leaving aside court authority issues and concentrating upon what parenting orders really seek to achieve after all, we know that the court's determination of what is in T's best interests has been thwarted by the mother and will continue to be thwarted by her on account of her refusal to comply. In sentencing the mother I should make such an order, it seems to me, as is most likely to enable the purposes of the court order to be implemented; that is, for an opportunity to be given for the child to be able to relate not just to one but to both of her parents.
Looking at all of my sentencing options, it seems to me that a community service order or a fine would fall well short of carrying out that purpose. So entrenched is the mother's determination not to give contact that imposition of such penalties would, it seems to me, be regarded by her as inconveniences, even significant inconveniences, but would not provide a necessary desire or fillip for change in attitude to compliance with court orders, which is what is required. Perhaps imprisonment will not effect such a change either but, being the most grave of the options that are open to me, it seems to me to have the best potential for having the mother deeply reflect upon the consequences of her noncompliance.
So, from the perspective of preserving the court's authority and promoting the implementation of the orders of the court which the court has found are in T's best interests, I consider that imprisonment is the appropriate penalty. I have given very careful consideration to the other options available to me but, for the reasons set out above, consider them to be inadequate.
As to the length of imprisonment, this too is a difficult matter, but I must bear in mind firmly in determining the length of the sentence those same matters which persuaded me that imprisonment was the appropriate option. The sentence must not be so short as to undermine the opportunity provided by it for deep reflection by the mother on the consequences of the course of action she has chosen to adopt. On the other hand, it must not be overly punitive in the context of preserving the authority of the court. I also have serious regard to the need to keep T and her mother from their proper relationship for as brief a period as is consistent with the purposes of the sentence.
The sentence, according to the legislation, must not exceed 12 months, but I bear in mind that the upper limit of the penalty must be designed for other breaches of parenting orders that can be contemplated; for example, deprivation of residence. As Coleman J said in the case of Whittall v Bonilla, an unreported judgment of 6 May 2002, appeal number EA 23 of 2003 at paragraph 41:
One must assume the legislative intention to have been that a sentence of 12 months' imprisonment could be imposed upon the most culpable of respondents.
I also bear in mind that nothing has been put to me by any party with respect to the comparability or proportionality of the sentence I will impose against that which has been imposed in respect of other persons found guilty of contravening contact orders. I found these to be serious breaches, but it is certainly possible to contemplate more serious breaches of parenting orders. Sentences of imprisonment are rare in this context and such an exercise of comparison does not, it seemed to me, have the same utility as it would have in the criminal jurisdiction, where sentences of imprisonment are the frequent consequence of breaches of the criminal law and principles can be deduced from considering the length of the sentence against a background of the factual evidence relating to the offending.
The sentence of imprisonment I propose to impose is well towards the lowest end available to me once I had decided, as I have, that imprisonment is appropriate. It seems to me that, in the circumstances, a period of 30 days' imprisonment is appropriate and I will so order.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate:

Date: