Carrington and Gunby (No. 2)
[2013] FamCA 433
FAMILY COURT OF AUSTRALIA
| CARRINGTON & GUNBY (NO. 2) | [2013] FamCA 433 |
| FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of three counts – where one of these three counts was dismissed at an earlier hearing – where the mother admitted the other two counts of contravention – where the mother was found not to have a reasonable excuse for the two admitted counts of contravention – consideration of what orders to make arising out of these findings – consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – consideration of whether to order compensatory time pursuant to s 70NEB(1)(b) of the Family Law Act 1975 (Cth) – consideration of best interests – orders for the child to spend compensatory time with the father totalling two weekends – consideration of whether to vary the existing parenting orders pursuant to s 70NBA of the Family Law Act 1975 (Cth) – consideration of best interests – no orders made varying the existing parenting orders – consideration of s 70NEB(1)(d) of the Act – orders made requiring the mother to enter into a bond in accordance with s 70NEC of the Family Law Act 1975 (Cth) for a period of two years on condition that she is to be of good behaviour during the period of the bond and comply with all current and future parenting orders. |
| Family Law Act 1975 (Cth) s 70NAA, 70NBA, 70NCB, 70NEA, 70NEB, 70NFA, 70NFB |
| Rice & Asplund (1979) FLC 90-275 Sandler & Kerrington [2007] FamCA 479 (24 May 2007) Irvin & Carr [2007] FamCA 492 (29 May 2007) Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 (5 July 2007) Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 1072 (13 September 2007) Dobbs & Brayson [2007] FamCA 1261 (25 October 2007) McClintock & Levier (2009) 41 Fam LR 245 McLory & McLory [2010] FamCA 305 (23 March 2010) Gravis & Major [2010] FamCAFC 239 (1 December 2010) |
| APPLICANT: | Mr Carrington |
| RESPONDENT: | Ms Gunby |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission |
| FILE NUMBER: | ADC | 4119 | of | 2008 |
| DATE DELIVERED: | 13 June 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 22 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | n/a |
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Swan |
| SOLICITOR FOR THE RESPONDENT: | Swan Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Stephen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
The child B born on … June 2008 is to spend compensatory time with the father before the end of August 2013 being two extra weekends from Friday 6.00 pm to Sunday 6.00 pm on dates to be agreed by parties and if not agreed as nominated by the Independent Children’s Lawyer.
Within seven [7] days from today the mother Ms Gunby enter into a bond for a period of TWO YEARS on condition:
(a)to be of good behaviour;
(b)to comply with all current and future parenting orders made by this Court.
The question of the costs of these applications for contravention orders is adjourned to Monday 9 September 2013 at 9.15 am before the Honourable Justice Dawe.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carrington & Gunby (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4119 of 2008
| Mr Carrington |
Applicant
And
| Ms Gunby |
Respondent
REASONS FOR JUDGMENT
Introduction
I handed down a judgment which considered two applications for contravention orders filed by Mr Carrington (“the father”) on 3 May 2013 (See [2013] FamCA 296) (hereafter referred to as “the 3 May 2013 judgment”). These applications alleged that Ms Gunby (“the mother”) had contravened various orders of this Court relating to their child B (“the child”). The child was born in June 2008 and is accordingly five years of age.
The parties appeared before me on 22 May 2013 to make submissions as to the orders I should make consequent upon my findings in the 3 May 2013 judgment. The father appeared in person. The mother was represented by Mr Swan on instructions of Swan Family Lawyers. Mr Stephen appeared on behalf of the Independent Children’s Lawyer on instructions of the Legal Services Commission of South Australia.
I reserved judgment in relation to the matter after hearing submissions from the parties and the Independent Children’s Lawyer.
The 3 May 2013 judgment
The first application for contravention orders considered in the 3 May 2013 judgment was filed by the father on 27 August 2012. This application alleged two counts of contravention.
The first count is said to have occurred on 24 August 2012 at 6.00 pm at the Suburb C Police Station. The statement of the alleged contravention is:
The mother has ignored recent Court orders to resume contact with the child. The mother has again, made no contact in this regard.
In the section of the application form for contravention orders which asks for the applicant to state the paragraph number of the order that is alleged to have been contravened, the applicant has stated, “UPON NOTING: time with child will resume 24 August 2012.” This is a modified extract from the orders of FM Cole (as he then was) made on 17 August 2012. The orders of FM Cole reinstate the consent orders made by the parties and certified by myself on 12 October 2009.
The following consent orders of 12 October 2009 are relevant to this alleged contravention:
1. That all previous parenting orders made herein are discharged.
2.That the child [B] born … June 2008 shall live with the mother.
3. The child shall spend time with the father as follows:
(a)each Wednesday and each Saturday from 10.00am until 4.00 pm for a period of 8 weeks;
(b)thereafter each Wednesday and each Saturday from 10.00am until 6.00 pm for a period of 12 weeks;
(c)thereafter until the child turns 3 years old
(i) each alternate Wednesday and Saturday from 10.00am until 6.00 pm; and
(ii) on the intervening weekend from 10.00 am Saturday until 4.00 pm Sunday;
(d)thereafter until the child turns 4 years old
(i) each alternate week from Tuesday 10.00am until Wednesday 6.00 pm;
(ii) on the intervening week from Saturday 10.00am until Sunday 6.00 pm;
(e)thereafter
(i) each alternate week from Tuesday 10.00am until Wednesday 6.00 pm; and
(ii) on the intervening week from Friday 6.00 pm until Sunday 6.00 pm;
(f)and at such other times as may be agreed between the parties.
4.Notwithstanding the previous orders contained herein:-
(i)if the child is in the care of the mother on Father’s Day – the child shall spend time with the father from 10.00am until 6.00 pm;
(ii)if the child is in the care of the father on Mother’s Day – the child shall spend time with the mother from 10.00am until 6.00 pm;
(iii)the child shall be with the mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2010 and each alternate year thereafter and with the father from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2011 and each alternate year thereafter;
(iv)the child shall spend time with the father on the child’s birthday from 10.00am until 2.00 pm PROVIDED THAT if the child is in the care of the father – then the child shall spend time with the mother from 10.00am until 2.00 pm on the child’s birthday.
5.All handovers shall occur at [Suburb C] Police Station unless otherwise agreed.
The mother admitted the contravention alleged in this application. I found the mother had failed to establish a reasonable excuse on the balance of probabilities for this contravention (See generally [2013] FamCA 296, [55]–[67]).
Order 3(e)(ii) was the order by which the father was to spend time with the child on 24 August 2012. The time the father and the child did not spend together was equivalent to 48 hours from 6.00 pm on Friday 24 August 2012 until 6.00 pm on Sunday 26 August 2012.
The second count is said to have occurred on 29 June 2012 at 6.00 pm at the Suburb C Police Station. The statement of the alleged contravention is:
The mother has refused to deliver the child since 29/06/2012 to present, despite recent Court orders to resume 2009 ordered time.
The respondent is alleged to have contravened “2009 Orders Para 3 (e)”. I take this to mean the Consent Orders made on 12 October 2009. These orders are annexed to the application for contravention orders. Paragraph 3(e) of the Consent Orders made on 12 October 2009 is set out above.
The second count was dismissed on the basis that the affidavit material filed by the father in support of this count was not sufficient to establish a contravention occurring on the alleged date of contravention (See generally [2013] FamCA 296, [30]–[31]).
The second application for contravention orders considered in the 3 May 2013 was filed by the father on 6 November 2012. It lists one count of alleged contravention, said to have occurred on 2 November 2012 at 6.00 pm at the Suburb C Police Station. The statement of the alleged contravention is:
Mother did not attend for Handover, continuing the breaches of Court Orders 12 October 2009, 17 August 2012 and 31 October 2012 Court Orders. The mother has breached all orders continually since June 2012.
The respondent is alleged to have contravened “Paragraph 2”. It is unclear what set of orders this refers to. I conclude that it is referring to the orders made by myself on 31 October 2012 as a copy of these orders is annexed to the application for contravention orders. Paragraph 2 of my orders dated 31 October 2012 states:
2.Pending the final determination of the matter the Consent Orders dated 12 October 2009 as varied by Federal Magistrate Cole on 17 August 2012 are continued UPON NOTING the resumption on the next period the father is to spend time with the child [B] is to recommence on Friday 2 November 2012 at 6.00 pm.
The Consent Orders made on 12 October 2009 that are relevant to this alleged contravention are analogous to those listed above. The orders of FM Cole on 17 August 2012 do not vary the above listed paragraphs of the Consent Orders.
The mother admitted the contravention alleged in this count. I found the mother had failed to establish a reasonable excuse on the balance of probabilities for this contravention (See generally [2013] FamCA 296, [55]–[60], [68]–[78]).
Order 3(e)(ii) was the order by which the father was to spend time with the child on 2 November 2012. The time the father and the child did not spend together was equivalent to 48 hours from Friday 2 November 2012 6.00 pm until Sunday 4 November 2012 6.00 pm.
The law
The sections of the Family Law Act 1975 (Cth) (“the Act”) concerning applications for contravention orders are contained at Division 13A of Part VII of the Act.
Subdivisions C to F of Division 13A of Part VII of the Act provide the orders available to the Court that can be made in instances where:
a)the contravention has been alleged but not established (Subdivision C);
b)the contravention is established but reasonable excuse for the contravention is found (Subdivision D);
c)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (Subdivisions E); and
d)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (Subdivision F).
I heard submissions from the parties as to whether Subdivision E or Subdivision F of Division 13A of Part VII of the Act should apply in this matter. The provisions relevant to the application of Subdivision E and the orders available under that subdivision are as follows:
SECTION 70NEA
Application of Subdivision
(1)Subject to subsection (4), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a Court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies;
and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
(2)For the purposes of paragraph (1)(d), this subsection applies if no Court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(3)For the purposes of paragraph (1)(d), this subsection applies if:
(a)a Court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the Court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
(4)This Subdivision does not apply if, in circumstances mentioned in subsection (2), the Court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.
SECTION 70NEB
Powers of Court
(1)If this Subdivision applies, the Court may do any or all of the following:
(a)make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(e)if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)if the Court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Note 1:The Court may also vary the primary order under Subdivision B.
Note 2:Paragraph (1)(a)--before making an order under this paragraph, the Court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).
(2)The Court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:
(a)the person brought the proceedings before the Court in relation to the current contravention or is otherwise a party to those proceedings; and
(b)the Court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.
(3)If the Court makes an order under paragraph (1)(a), the principal executive officer of the Court must ensure that the provider of the program concerned is notified of the making of the order.
(4)If:
(a)the current contravention is a contravention of a parenting order in relation to a child; and
(b)the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the Court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.
(5)The Court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the Court to do so.
(6)In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the Court must have regard to the following:
(a)whether the primary order was made by consent;
(b)whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;
(c)the length of the period between the making of the primary order and the occurrence of the current contravention;
(d)any other matters that the Court thinks relevant.
(7)The Court must consider making an order under paragraph (1)(g) if:
(a)the person (the applicant ) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent ) who committed the current contravention committed a contravention of the primary order or that other primary order; and
(b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the Court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.
Sections 70NEC–70NEG are also contained within Subdivision E of Division 13A of Part VII of the Act. These sections generally expand upon the orders that are available in s 70NEB of the Act.
The provisions relevant to the application of Subdivision F and the orders available under that subdivision are as follows:
SECTION 70NFA
Application of Subdivision
(1)Subject to subsection (2), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a Court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies.
Note: For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2)For the purposes of paragraph (1) (d), this subsection applies if:
(a)no Court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the Court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
(3)For the purposes of paragraph (1) (d), this subsection applies if a Court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4)This Subdivision does not apply if the Court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5)This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
SECTION 70NFB
Powers of court
(1)If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
(a)make an order under paragraph (2) (g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and
(b)if the court makes an order under paragraph (2)(g)--consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and
(c)if the court does not make an order under paragraph (2)(g)--make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
(2)The orders that are available to be made by the court are:
(a)if the court is empowered under section 70NFC to make a community service order--to make such an order; or
(b)to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c)if the current contravention is a contravention of a parenting order in relation to a child--to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d)to fine the person not more than 60 penalty units; or
(e)subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f)if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g)to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h)to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
Note: The court may also vary the primary order under Subdivision B.
(3)If a court varies or discharges under section 70NFD a community service order made under paragraph (2)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate.
(4)The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent.
(5)The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of:
(a)a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989 ; or
(b)a breach of a child support agreement made under that Act; or
(c)a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).
(6)An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.
(7)When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.
Sections 70NFC–70NFJ are also contained within Subdivision F of Division 13A of Part VII of the Act. These sections generally expand upon the orders that are available in s 70NFB of the Act.
Section 70NBA of the Act was also referred to during oral submissions. This section is contained within Subdivision B of Division 13A of Part VII of the Act, which is titled “Court’s power to vary parenting order”. Section 70NBA states:
SECTION 70NBA
Variation of parenting order
(1)A Court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a Court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i)the Court does not find that the person committed a contravention of the primary order; or
(ii) the Court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the Court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b)there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the Court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a Court having jurisdiction under this Act may vary a primary order.
Submissions of the parties and the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer delivered his submissions first. Mr Stephen noted that the mother has been complying with all of the Court orders since November 2012. He contended that, as the purpose of applications for contravention orders is to ensure compliance, the process thus far had achieved that purpose. Mr Stephen submitted that I should deal with the mother’s contraventions under Subdivision E of Division13A of Part VII of the Act.
With regards to the orders I should make, Mr Stephen suggested the equivalent of two weekends of “make up time” should be ordered pursuant to s 70NEB(1)(b) of the Act to compensate for the time the father did not spend with the child as a result of the admitted contraventions that were found to have occurred without reasonable excuse.
Mr Stephen submitted that a bond, fine or parenting course were not appropriate or necessary as the mother had “learnt her lesson”, had been complying with the orders since November 2012 and would continue to do so in the future without these additional measures. Mr Stephen submitted that an undertaking from the mother to the Court that she would continue to comply with all orders would suffice.
Mr Stephen suggested that a notation be made in any orders that stated that the mother had not complied with the orders in relation to the child spending time with the father between the proven contraventions on 24 August 2012 and 2 November 2012. The notation would not have any punitive effect, but would be taken into account in any future contravention filed by the father.
The father submitted that I should deal with the mother’s contraventions under Subdivision F of Division13A of Part VII of the Act due to the “effect on the child” of the mother’s contraventions.
The father wanted “make up time” not just for the weekends of 24 August 2012 and 2 November 2012, but also for the time the father did not spend with the child during this period. The father noted that the affidavit material filed by the mother contained admissions that she had not complied with the orders regarding the child’s time with the father since 21 June 2012 (See affidavit filed 18 October 2012). The father claims that it would be inappropriate to burden the Court’s time by filing the other (by his estimate) 21 counts of contravention that he alleged occurred during this period. This “make up time” could be accommodated in a block, or with an additional day per month. The father also suggested that he would accept the “make up time” occurring at times suggested by the mother. The father suggested this course of action would deter future contraventions by the mother and that “otherwise [he would] feel compelled just to simply put in more contravention counts just for the sake of the child.”
The father also stated he was “not opposed to a bond or a fine” but was unable to “suggest the details.” He contended that a “deterrent is in order for the mother at least to deter further Court proceedings.”
Counsel for the mother largely joined with the submissions of the Independent Children’s Lawyer. Mr Swan noted that the mother was fully aware of the seriousness of the matter, and that she accepted that there should be “make up time” for the time the father did not spend with the child as a result of the contraventions.
Mr Swan contended that any more definitive changes to the existing parenting orders could be more properly dealt with when the Initiating Application filed by the father on 19 September 2012 and the mother’s Response to said application filed 9 October 2012 are before the Court.
Mr Swan also noted that the mother had not previously been sanctioned in any applications for contravention orders.
Consideration
Consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Act
The first issue that arises for consideration is whether these contraventions should be dealt with under Subdivision E of Division 13A of Part VII of the Act as “less serious contraventions” or under Subdivision F of the same as “more serious contraventions.”
Subdivision F will only apply if either of the conditions in s 70NFA(2) or s 70NFA(3) of the Act are satisfied. Subsection 70NFA(3) is inapplicable as this is the first occasion on which the mother has been found to have contravened an order of this Court without reasonable excuse.
Subsection 70NFA(2) of the Act does not require the mother to have previously been convicted of contravening an order of this Court without reasonable excuse. Rather, it requires me to be satisfied that the mother has “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
However, I retain a discretion to apply the provisions of Subdivision E if I am satisfied that “it is more appropriate for [the] contravention to be dealt with under Subdivision E” (s 70NFA(4)).
The Independent Children’s Lawyer argued that I should apply Subdivision E as the mother has been complying with the orders since November 2012 and as this is the first occasion on which the mother has faced sanctions for contravening Court orders. Counsel for the mother concurred with these submissions.
The father argued that I should apply Subdivision F based on the “effect on the child” the mother’s contraventions have had. The father did not elaborate on what specific effect the mother’s contraventions have had on the child, nor did he make detailed submissions relating to the requirement that I be satisfied that the mother “has behaved in a way that showed a serious disregard of his or her obligations under the primary order” per s 70NFA(2)(b) of the Act.
Commenting on s 70NFA(2)(b) of the Act, the Full Court of the Family Court (comprised of Faulks DCJ, Kay, and Penny JJ) in Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 (5 July 2007) noted at [46] that “the legislation does not spell out what considerations might move the Court to find such circumstances.” Later in that judgment, Faulks DCJ, Kay and Penny JJ continued:
[53]Even though the various degrees of culpability for contravening children’s orders involving the concept of “serious disregard” were first introduced into the Act in 2000, there is as yet surprisingly little jurisprudence on what might be seen as constituting such circumstances.
[54]The Further Revised Explanatory Memorandum that accompanied the Family Law Amendment Bill 2000 (Cth) stated:
43…What amounts to a serious disregard will depend on the circumstances of the case and the terms of the parenting order but, by way of example, could include the kidnapping of a child or harassment despite repeated warnings.
[55]The Revised Explanatory Memorandum that accompanied the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) stated:
307.What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the removal of a child to another place despite orders of the Court or harassment despite repeated warnings and the terms of the parenting order.
[61]The theme that emerges from an examination of several of decisions by Federal Magistrates is that “serious disregard” tends to be found in cases of deliberate, pre-meditated non-compliance with the orders; and continued and protracted breach.
…
[66]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.
The father appeared to submit that I should take into account the time during which the father and the child did not spend time together between the first proven contravention (which occurred on the 24 August 2012) and the latter proven contravention (which occurred on the 2 November 2012) in determining whether I was satisfied that the mother “has behaved in a way that showed a serious disregard of his or her obligations under the primary order” per s 70NFA(2)(b) of the Act.
The Full Court of the Family Court of Australia has discouraged engaging with the issue of whether a respondent to an application for contravention orders has shown the requisite “serious disregard” spoken of in s 70NFA(2)(b) of the Act by examining the contraventions in a “global manner” (see generally Boland, Thackray and O’Ryan JJ in Gravis & Major [2010] FamCAFC 239 (1 December 2010) at [161] citing Finn J in McClintock & Levier (2009) 41 Fam LR 245 at 258).
The appropriate manner is to individually examine each of the contraventions that have been found to have occurred without reasonable excuse. Adopting this approach to the matter, I am not satisfied that the mother has shown the “serious disregard” spoken of in s 70NFA(2)(b) in either of the two proven counts in which I found the mother had contravened the orders without reasonable excuse.
The evidence before me does not establish that the mother had a serious disregard for her obligations under the Order.
I therefore apply the provisions of Subdivision E. However, I draw the mother’s attention to the comments of Faulks DCJ, Kay and Penny JJ in Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 1072 (13 September 2007) at [11] concerning Subdivision E of Division 13A of Part VII of the Act:
The singularly most significant result of an imposition of a penalty in this case is that any subsequent proven contraventions 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 (see s 70NFA(3)(a)).
I refer to and rely upon the comments of Cronin J in McClintock & Levier (2009) 41 Fam LR 245 at 283 that “[t]he focus of a Court therefore in dealing with a contravention application under Div 13A must be in making orders which will enforce future compliance with its orders” (to similar effect see Coleman J at 270, cf Finn J at 256). This conclusion is reinforced upon consideration of s 70NAA of the Act, which states:
70NAASimplified outline of Division
(1) This division deals with the powers that a Court with jurisdiction under this Act has to make orders to enforce compliance with orders under this act affecting children.
Consideration of sections 70NEB(1)(b) and 70NBA of the Act
The majority of the submissions at the hearing were directed towards the issue of “make up time”, that is, time for the father and the child to spend together to compensate for the time they did not spend together as a result of the mother’s contraventions.
Both parties and the Independent Children’s Lawyer agreed that “make up time” would be an appropriate order to make. Disagreement arose as to the how much “make up time” was appropriate.
Mr Stephen for the Independent Children’s Lawyer suggested that I order the equivalent of an extra two weekends pursuant to s 70NEB(1)(b) of the Act to compensate for the time the father did not spend with the child as a result of the admitted contraventions that were found to have occurred without reasonable excuse.
Counsel for the mother agreed with Mr Stephen’s quantification of the appropriate period of “make up time”.
The father sought a much broader period of time. In addition to the two weekends as contained in the admitted contraventions that I found to have occurred without reasonable excuse, it appeared that the father also wanted extra time to compensate for all the time he has missed.
There are two mechanisms available to me by which I may order “make up time” in response to the present matter:
a)Pursuant to s 70NEB(1)(b) of the Act (with reference to the additional considerations provided in s 70NEB(4)–(5) of the Act); and
b)Pursuant to s 70NBA(1)(b)(ii) of the Act
I turn first to consider s 70NEB(1)(b) of the Act. The relevant provisions are provided below:
70NEBPowers of Court
(1)If this Subdivision applies, the Court may do any or all of the following:
…
(b)if the current contravention is a contravention of a parenting order in relation to a child—make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
…
Note 1:The Court may also vary the order under Subdivision B.
…
(4)If:
(a)the current contravention is a contravention of a parenting order in relation to a child; and
(b)the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the Court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.
(5)The Court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the Court to do so.
It was not disputed that I could use s 70NEB(1)(b) of the Act to make an order providing for extra time” of the two weekends that were lost as a result of the two admitted contraventions that I found to have occurred without reasonable excuse in the 3 May 2013 judgment.
The father submitted that 70NEB(1)(b) of the Act was broad enough to allow me to provide extra time for the wider period he contended, that being between 24 August 2012 and 2 November 2012 or between 21 June 2012 and 20 November 2012.
Section 70NEB(1)(b) of the Act does not allow me to order extra time for the child and the father for periods that were not the subject of the applications for contravention orders that were determined in the 3 May 2013 judgment.
The time the father and the child did not spend together as a result of the sole count of the application for contravention orders filed by the father on 27 August 2012 was equivalent to 48 hours from Friday 24 August 2012 6.00 pm until Sunday 26 August 2012 6.00 pm. This is because order 3(e)(ii) of the consent orders certified by me on 12 October 2009 was the applicable order at the time and date of this contravention.
The time the father and the child did not spend together as a result of the first count of the application for contravention orders filed by the father on 6 November 2012 was equivalent to 48 hours from Friday 2 November 2012 6.00 pm until Sunday 4 November 2012 6.00 pm. This is because order 3(e)(ii) of the consent orders certified by me on 12 October 2009 was the applicable order at the time and date of this contravention.
I refer to and rely upon the comments of Murphy J concerning s 70NEB(1)(b) of the Act in the decision of McLory & McLory [2010] FamCA 305 (23 March 2010):
[54]It is interesting, as it seems to me, that a power given to a Court in order to remedy a party who is found to be the "victim" of a breach of an order might sound in time to a child. That seems to me, at least superficially, to be potentially antithetical to precisely the sorts of considerations which the legislation requires to be taken into account in making all parenting orders that affect children.
[55]Whether or not that is so, it seems to me that any order for compensatory time should necessarily take account of the child’s best interests, even if such a decision must be made within the truncated confines of an application of this type.
[56]It also seems to me crucially important that a decision with respect to "compensatory time" consequent upon a finding of contravention should not take the place of, nor be seen to be in substitution for comprehensive findings about best interests that will occur at a trial at which the "time and live with" arrangements for a very young child will be determined.
Section 60CC of the Act provides a framework by which to determine the “best interests” of the child. Subsections 60CC(2) and (3) of the Act respectively provide a list of “primary considerations” and “additional considerations”.
The parties and the Independent Children’s Lawyer all suggested that the two weekends of “make up time” was an appropriate order. Differences between the parties only arose in relation to the additional “make up time” the father was seeking.
I find that it would be in the best interests of the child for extra time to occur.
The father has been spending time with the child without incident since 20 November 2012. Indeed, the parties have even reached a sensible agreement to vary the orders slightly, such that the child is now spending time with the father from 10.00 am Friday until 6.00 pm Monday each alternate weekend in lieu of the two shorter blocks of contact provided for in the orders 3(e)(i) and (ii) of the consent orders certified by me on 12 October 2009.
The additional time with the father would further the desirable goal of ensuring the child forges a “meaningful relationship with both of the child’s parents” (s 60CC(2)(a) of the Act) in that it would work to undo the damage done by the period in 2012 during which the child and the father did not spend time together.
No submissions were put to me that this “make up time” would be against the wishes of the child (s 60CC(3)(a) of the Act), or that it would expose the child to “abuse, neglect or family violence” (s 60CC(2)(b) of the Act).
It would also serve as a reminder to the mother of the consequences of contravening orders of this Court without reasonable excuse. That reinforcement is also in the best interests of the child.
I therefore make an order pursuant to s 70NEB(1)(b) of the Act that the child is to spend compensatory time with the father totalling two weekends. In accordance with order 3(e)(ii) of the consent orders certified by me on 12 October 2009, one weekend will be equivalent to a period commencing on a Friday at 6.00 pm and end on the immediately following Sunday at 6.00 pm. Handovers are to be conducted in accordance with order 5 of the consent orders certified by me on 12 October 2009.
I note that the time the child is to spend with the father pursuant to this order is subject to the existing orders concerning special days as provided for in order 4 of the consent orders certified by me on 12 October 2009.
Furthermore, it goes without saying that the orders I make providing for this “make up time” may be further varied as a result of orders made in consequence of the Initiating Application and Response recently filed by the parties.
These orders may also be varied as a result of consent orders reached via mediation between the parties. (As I noted in my orders of 3 May 2013, I am supportive of the steps taken by the Independent Children’s Lawyer to arrange mediation with the parties with a view to resolving all of the issues concerning the child).
The remaining issue concerning “make up time” is whether I should make any additional orders under s 70NBA of the Act. This section is phrased more broadly than s 70NEB(1)(b) of the Act, and is broad enough to accommodate the wishes of the father concerning the additional “make up time” he seeks.
Variations of parenting orders made pursuant to s 70NBA of the Act are approached differently to orders for compensatory time made pursuant to s 70NEB(1)(b) of the Act (see generally the distinctions drawn by Murphy J in the decision of McLory & McLory (Supra)). The former are to be approached “no differently to any other application for parenting orders” (Warnick J in Sandler & Kerrington [2007] FamCA 479 (24 May 2007) at [48]). Such variations may not be “properly effected in a more summary way than, or upon an enquiry abbreviated more than, is appropriate to an application for variation outside of Division 13A” (Ibid at [41]). This approach was later acknowledged and adopted by the Full Court of the Family Court of Australia (composed of Finn, Warnick and Boland JJ) in Irvin & Carr [2007] FamCA 492 (29 May 2007) at [68].
The considerations outlined in the Full Court of the Family Court of Australia decision of Rice & Asplund (1979) FLC 90-275 will be relevant to this exercise where existing orders are in place (see, eg, the approach of Warnick J in Sandler & Kerrington (supra) at [49]–[54]). In Rice & Asplund (supra), Evatt CJ (Pawley SJ and Fogarty J concurring) stated at 78,905–78,906:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as Mr. Broun submitted, change is an ever present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant, that, to quote Mr. Justice Barber, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman, at page 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
Once the Court is satisfied that there is a new factor or change in circumstances, then the issue of custody is to be determined in the ordinary way. The Court must apply the principles of s.64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the Court, the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the Court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier Court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard. (emphasis added)
Consideration must be given to the “sufficiency of any change in circumstance” that justifies the alteration of existing parenting orders (Warnick J in Sandler & Kerrington (Supra) at [49]). In that case, Warnick J acknowledged that the act of contravening the orders themselves may provide the sufficient change in circumstance necessary to justify altering existing parenting orders.
Varying the parenting orders pursuant to s 70NBA of the Act to incorporate definitive changes to the existing parenting orders, as opposed to one-off compensatory changes pursuant to s 70NEB(1)(b) of the Act, requires a “fulsome consideration of all of the relevant factors” including “all the relevant s 60CC factors and in particular the question of why, an order having been made, it was then appropriate that there be a “final” change” (Finn, Boland and Warnick JJ sitting as the Full Court of the Family Court of Australia in Dobbs & Brayson [2007] FamCA 1261 (25 October 2007) at [130]).
I do not consider this to be the appropriate occasion to engage in the detailed consideration of the child’s best interests that would be necessary for me to vary any of the existing parenting orders pursuant to s 70NBA.
The father filed an Initiating Application on 13 September 2012 that seeks to change the existing parenting orders substantially. To similar effect, the Response filed by the mother to the father’s Initiating Application on 9 October 2012 also seeks profound changes to the current parenting orders. This matter has progressed through the queue of matters awaiting trial listing significantly since I referred the final application proceedings to the trial list on 31 October 2012.
The Initiating Application of the father and the Response of the mother raise issues concerning the best interests of the children that, in the words of Murphy J in McLory and McLory (supra) at [50], “are best and more appropriately dealt with at a trial.”
The affidavits filed in support of the father’s Initiating Application and the mother’s Response raise disputed issues of fact that would be better resolved in a trial setting, during which witnesses can be called and the material contained in these affidavits can be properly tested.
Furthermore, none of the parties at the hearing engaged with the legislative framework provided for in the Act concerning how to determine the best interests of the children at the requisite level of detail, given the fact that variations to parenting orders pursuant to s 70NBA are to be approached “no differently to any other application for parenting orders” (Warnick J in Sandler & Kerrington (Supra) at [48]).
I decline to make any variations to the existing parenting orders pursuant to s 70NBA of the Act.
As a concluding remark in relation to the issue of extra time, I refer to the father’s statement at the hearing that he would “feel compelled just to simply put in more contravention counts just for the sake of the child” if any extra time I ordered did not include the period between 24 August 2012 and 2 November 2012 or indeed between 21 June 2012 and 20 November 2012 during which the father did not spend time with the child.
In response to this comment, I refer the father to s 70NCB(1) of the Act, which provides me with discretion to order applicants for contravention orders to pay “some or all of the costs of another party, or other parties, to the proceedings.”
Consideration of other orders to be made pursuant to s 70NEB of the Act
Section 70NEB(1)(d) of the Act empowers me to require the mother to enter into a bond in accordance with s 70NEC of the Act.
The parties and the Independent Children’s Lawyer engaged in some brief submissions concerning whether I should make an order requiring the mother to enter into a bond.
The father suggested he was “not opposed to a bond” but was unable to “suggest the details.” He contended that a “deterrent is in order for the mother at least to deter further Court proceedings.”
Mr Stephen, counsel for the Independent Children’s Lawyer, did not think a bond was appropriate or necessary as the mother had “learnt her lesson” and had been complying with the orders since November 2012 and would continue to do so in the future without these additional measures. Mr Stephen thought an undertaking from the mother to the Court that she would continue to comply with all orders would suffice.
Counsel for the mother made no specific submissions concerning whether a bond was appropriate, but did at the outset of his submissions state that he largely concurred with the submissions of the Independent Children’s Lawyer.
I find that it is appropriate for me to make an order requiring the mother to enter into a bond. As I have stated earlier in this judgment, I am not satisfied that the mother’s two contraventions that I found to have occurred without reasonable excuse exhibited the “serious disregard” referred to in s 70NFA(2)(b) such that I should apply the provisions of Subdivision F of Division 13A of Part VII of the Act. However, that does not mean that the mother’s contraventions were not serious. This is particularly so for the contravention that occurred on 2 November 2012, as the parties had appeared before me on 31 October 2012. A notation to order 2 I made on that date was that the time the child was to spend with the father was to resume on 2 November 2012.
I am satisfied that the potential of facing a fine or various other serious consequences should she breach such a bond by refusing to comply with the existing parenting orders will ensure that the mother complies with all orders of this Court in the future. I reiterate that ensuring compliance with the orders of this Court is the purpose of applications for contravention orders (s 70NAA(1) of the Act).
I will make an order under s 70NEB(1)(d) of the Act requiring the mother to enter into a bond in accordance with s 70NEC of the Act. The bond is to be for a period of 2 years. The bond is to be without surety and without security. The condition that will be imposed on the mother by the bond is that she is to be of good behaviour during the period of the bond and comply with all current and future parenting orders made by this Court.
Section 70NEC(5) of the Act requires me to explain to the mother, “in language likely to be readily understood” by her, the “purpose and effect of the proposed requirement” of the bond and the “consequences that may follow” if the mother either “fails to enter into the bond” or “having entered into the bond - fails to act in accordance with the bond.” This explanation must occur before I make the requirement that the mother enter into the bond.
I decline to make any other order under s 70NEB(1) of the Act. Neither a fine nor requiring her to attend any further post-separation parenting course, would further the purpose of applications for contravention orders, that being, to “enforce compliance with orders under this Act”.
Conclusion
The child is to spend compensatory time with the father before end of August 2013 (being two extra weekends) from Friday 6.00 pm to Sunday 6.00 pm at dates to be agreed by the parties and if not agreed as nominated by the Independent Children’s Lawyer.
After I have explained to the mother the matters referred to in s 70NEC(5) of the Act, the mother is required to enter into a bond for a period of two years. The bond is to be made without surety or security. The condition of the bond is that the mother be of good behaviour for the period of the bond, and as such will require compliance with all existing and future parenting orders made by this Court.
The question of the costs of these applications for contravention orders will be adjourned before me on a date to be advised.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 June 2013.
Associate:
Date: 13 June 2013
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