COLLINS & RICARDO - [2016] FamCA 211

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO

[2016] FamCA 211

FAMILY LAW – CHILDREN – CONTRAVENTION – Orders following findings in contravention proceedings – Where the Court had previously found that the mother had contravened Court orders without reasonable excuse in respect of three allegations – Where the mother did not appear despite having notice of the listing – Where the Court was satisfied that it would therefore be appropriate to deal with the matter in the mother’s absence – Where the mother’s conduct in relation to the contraventions showed a serious disregard for her obligations under the orders – Where the father was of the view that the mother should be imprisoned and fined – Where the Court was of the view that the contraventions should be dealt with under Subdivision E of the Family Law Act 1975 (Cth) – Where the circumstances did not warrant sanctions in the nature of those available under Subdivision F of the Family Law Act 1975 (Cth) – Where a bond would be an appropriate sanction – Where in order to satisfy the obligation to explain the purpose and effect of requiring the mother to enter into a bond and the consequences of such an order, proceedings adjourned for the purpose of ordering the mother to enter into a bond – Where the mother was ordered to pay for the father’s expenses incurred because of the mother’s contraventions.

FAMILY LAW – COSTS – Application for costs – Where in respect of the father’s contravention application he was successful as to three allegations and unsuccessful as to 16 allegations – Where the Court is of the view that there should be no orders for costs.

FAMILY LAW – PRACTICE AND PROCEDURE – Application that the papers be referred to the Australian Federal Police in relation to perjury – Where on the facts there should be no referral.

Family Law Act 1975 (Cth) ss 70 NAC, 70 NAE, 70NEB, 70NEC, 117, 117(2A)

Crimes Act 1975(Cth) s 4AA

Malpass & Mayson (2000) FLC 93-061
Simpson v Hodges [2007] NSWSC 1230

APPLICANT:

Mr Collins

RESPONDENT:

Ms Ricardo

FILE NUMBER:

SYC

4959

2009

DATE DELIVERED:

7 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATES:

26 and 27 August 2013, 18-20 February 2014, 8 July 2014, 17-19 November 2014, 22 July 2015, 19 August 2015 and 15 January 2016

REPRESENTATION (15 January 2016)

APPLICANT FATHER:

In Person

RESPONDENT MOTHER:

No appearance

Orders

In relation to the breaches of orders without reasonable excuse found on 19 December 2014:
(a)The proceedings are adjourned to 10.00 am on 4 May 2016 for the purpose of an order being made that the mother enter into a bond, the terms of which will be: that she be of good behaviour and comply with all orders of this Court and that she forfeit $2,000 to the Commonwealth in the event that she breaches her bond.
(b)The parties are required to appear on that date but each has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading COLLINS & RICARDO

Details

AGLC: COLLINS & RICARDO [2016] FamCA 211
Case: [2016] FamCA 211
Decision Date: 7 April 2016

CaseChat Overview and Summary

In *Collins & Ricardo*, the Federal Circuit Court of Australia considered contravention proceedings brought by the father against the mother. The Court had previously found that the mother had contravened court orders without reasonable excuse in relation to three specific allegations. The mother did not appear at the hearing, but the Court was satisfied it was appropriate to proceed in her absence. The Court found the mother's conduct demonstrated a serious disregard for her obligations under the orders.

The primary legal issues before the Court were the appropriate sanctions to impose for the mother's contraventions, and whether to make orders for costs or refer the matter for investigation of perjury. The father sought imprisonment and a fine for the mother, as well as compensation for his expenses and costs. The Court was required to determine which sanctions were available under the *Family Law Act 1975* (Cth) and whether they were warranted in the circumstances.

Loughnan J reasoned that imprisonment was not an available sanction under Subdivision E of the *Family Law Act 1975* (Cth), which governs remedies for contravention of parenting orders. Similarly, a fine was only available if the mother failed to enter into a bond without reasonable excuse. The Court determined that a bond was an appropriate sanction. The proceedings were adjourned to allow for the mother to be ordered to enter into a bond, requiring her to be of good behaviour and comply with all court orders, with a forfeiture of $2,000 to the Commonwealth upon breach. The mother was also ordered to pay the father $4,005 for expenses incurred due to her contraventions. The Court found no basis for referring the matter for perjury and dismissed the father's applications for costs, noting his limited success in the contravention allegations.

Orders

Orders of the court

In relation to the breaches of orders without reasonable excuse found on 19 December 2014:

(a) The proceedings are adjourned to 10.00 am on 4 May 2016 for the purpose of an order being made that the mother enter into a bond, the terms of which will be: that she be of good behaviour and comply with all orders of this Court and that she forfeit $2,000 to the Commonwealth in the event that she breaches her bond.

(b) The parties are required to appear on that date but each has leave to appear by telephone, provided that arrangements are made with the Court for that appearance.

(c) The Court noted the explanation to the mother contained in paragraphs 35, 36, 37 and 38 of the reasons for judgment published this day.

(d) Within two months of the date of these orders the mother shall pay to the father or as he may in writing direct, the sum of $4,005 for expenses pursuant to s 70NEB(e) of the Family Law Act 1975 (Cth).

(e) The father’s Application in a Case filed 22 July 2015 is otherwise dismissed.

The father’s Application in a Case filed 16 February 2015 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The remedies available under Subdivision E are set out in s 70NEB as follows:…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); (emphasis added) The father correctly submitted that the question of the appropriate sanctions is a matter for the Court. Nevertheless his submissions were invited. In the father’s view it would be appropriate for the mother to be imprisoned for one month and fined an amount of the order of $2,000. The father seeks that the mother pay an amount of $4,005 to him by way of compensation for his expenses associated with the missed City 1 visit. The father seeks make-up time for the missed visit and he seeks his costs. Imprisonment is not an available sanction under Subdivision E and therefore the question of the mother being gaoled does not arise. Of course there would be practical problems in relation to the living arrangements for the child if the mother was incarcerated but again, that will not arise here. Similarly, unless the mother is ordered to enter into a bond and fails to do so without reasonable excuse, a fine is not an available sanction under that Subdivision. For completeness it should be noted that contravention proceedings, including the establishment of a reasonable excuse are generally decided on the civil standard of proof (on the balance of probabilities). However, if as the father sought, the Court was to make an order such as an order for a fine or imprisonment, the standard of proof in relation to the findings giving rise to those sanctions must be made on the criminal standard (beyond reasonable doubt).[5] This matter was not addressed in the contravention hearing but it is possible that some or all of the necessary findings on the three successful allegations would not have been made on the higher standard.[5] s 70NAF