CORELLI & GUNTHER

[2014] FamCA 727

FAMILY COURT OF AUSTRALIA

CORELLI & GUNTHER [2014] FamCA 727

FAMILY LAW – CONTRAVENTION – Parenting Orders – where father filed three separate contravention applications alleging large number of contraventions – where father chose to proceed with only a representative sample of contraventions – father alleges mother failed to comply with request for drug testing – father alleges mother failed to provide the child at handover – where mother admits both counts and did not seek to establish a reasonable excuse – contraventions considered “less serious” – penalty – orders made for mother to enter a 12 month bond.

Family Law Act 1975 (Cth) ss 70NFA, 70NEB, 70NEC

APPLICANT: Mr Corelli

RESPONDENT: Ms Gunther

INDEPENDENT CHILDREN’S LAWYER: Georgina Parker Lawyers

FILE NUMBER: ADC 2632 of 2013

DATE DELIVERED: 5 September 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Adey Lawyers

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Christopher Ganzis & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Georgina Parker Lawyers

Orders

1. That by 4pm on 10 September 2014 the mother Ms Gunther enter a bond for a period of one year without surety or security upon the following conditions:-

   (a)       Be of good behaviour during the period of the bond;

   (b)       Comply with all current and future parenting orders.

2. That the Applications for Contravention filed 25 November 2013, 27 March 2014 and 26 August 2014 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Corelli & Gunther 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 2632 of 2013

Mr Corelli

Applicant

And

Ms Gunther

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Corelli (“the father”) has filed three Contravention Applications on 25 November 2013, 27 March 2014 and 26 August 2014.  The contravention proceedings were listed before me for hearing on 28 August 2014 being the date given for hearing to the last of the three applications.

2. On 28 August 2014, Ms Gunther (“the mother”) failed to attend.

3. Further consideration of the Amended Application for Contravention filed 26 August 2014 was adjourned for hearing at 2.15pm on Wednesday 3 September 2014.

4. Orders were made suspending the operative parenting orders namely, paragraph 1 (a) of the orders made 30 January 2014 and paragraph 1 of the order made 9 July 2014. It was further ordered that the mother deliver up the child S born in 2012 (“the child”) to the father. If delivery up was not effected, an order was made for recovery pursuant to Section 67U of the Family Law Act1975 (Cth) (“the Act”) to operate as and from 1 September 2014.

5. In compliance with the order, the child was delivered up to the father and pursuant to the order, remained in his care until 5pm on 3 September 2014 whereupon unless another order was made, the parenting arrangements in respect of the child would revert to the existing orders.

6. The mother attended on the adjourned date and I acceded to the request of counsel to stand the matter down so that consideration could be given by the father as to whether he intended to proceed with all of the counts or whether the matter might be more efficiently dealt with by the father electing to proceed only with a representative sample.

7. Ultimately, very sensibly the father indicated that he was only intending to proceed with the first count in the Application for Contravention orders filed 27 March 2014 (“the first count”) and the last count in the Amended Application for Contravention orders filed 28 August 2014 (“the second count”).

8. A statement of the alleged contravention in count 1 alleges a breach of paragraph 3 of the order of the Federal Circuit Court dated 30 January 2014 in that on 18 March 2014 within the 24 hour period specified by the said order, the mother has failed to comply with the request made by the Independent Children’s Lawyer by letter to the mother’s lawyer dated 18 March 2014 as to her participation in drug testing.

9. Count 2 alleges that on 25 August 2014 at 4pm the mother failed to provide the child to the father in order for the said child to spend time with him as specified in paragraph 1 of the order of the Federal Circuit Court dated 31 January 2014 as varied from Friday 11 July 2014 onwards by paragraph 1 of the order of the Federal Circuit Court dated 9 July 2014.

10. The father indicating his intention to proceed only with counts 1 and 2 as particularised and that the balance of the three contravention applications being otherwise dismissed, the mother’s counsel foreshadowed that upon the counts being read, the mother would admit the contravention and would not seek to establish a reasonable excuse on the balance of the probabilities for these contraventions.

11. As anticipated, when the counts were put to the mother she readily conceded that the relevant counts had been contravened and in circumstances where there was not a reasonable excuse.

12. I am obliged to consider Division 13A of Part 7 of the Act as representing the appropriate sections concerning contravention of orders.

13. The counts having been proven excludes from my consideration the provision of Subdivision C and Subdivision D.

14. Given that a contravention has occurred in circumstances where there is not a reasonable excuse, I need to consider whether Subdivision E should apply namely, that the contravention without reasonable excuse is “less serious” or Subdivision F which relates to proven contraventions that are “more serious”.

15. I invited submissions from counsel as to which Subdivision should apply.  Counsel for the father did not press for the Court to find that the contravention should be considered as “more serious” and did not speak against a finding that the contravention is “less serious”.  Not surprisingly, counsel for the mother did not speak against the submission.

RELEVANT CONSIDERATIONS

1. It is a decision for me as to whether the contraventions should be considered under Subdivision E or Subdivision F.  I am of course assisted by the submissions of counsel.

2. Moreover, Section 70NFA (2) provides:-

   For the purpose 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), adjourn 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 and Section 70NFA (3) provides:-

   For the purpose of paragraph 1 (d), this subsection applies if the 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 ), adjourn proceedings in respect of a contravention by the person of the primary order.

3. In addition, Section 70NFA (4) provides:-

   This Subdivision does not apply if the Court in dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.

4. The position of all counsel was that I should apply Subdivision E and not Subdivision F.

5. Whilst Section 70NFA (4) is silent as to the matters that are likely to persuade a Court that it is more appropriate for that contravention to be dealt with under Subdivision E, I consider it is a matter for the exercise of my discretion and that the joint position of counsel is a powerful factor to be brought to account.

6. I am also mindful that notwithstanding a significant quantity of counts were alleged, ultimately only two counts were pressed but importantly, the resolution of the outstanding contravention applications represents the first occasion that a Court has made such a finding against the mother.

7. The first count confirms a failure by the mother to comply with a request made by the Independent Children’s Lawyer that she participate in a drug test.  The issue of the extent to which if any each of the parties engage in the consumption of illicit drugs is a live issue.  Whilst each of the parties alleges that the other has a history of drug abuse and the potential for such behaviour to adversely affect the ability of each of the parties to properly parent the child, in this case it is directed specifically to the mother in circumstances where she agrees that she did not undergo the test.

8. It is significant and whilst it is not the only issue that affects the ability of the parties to care for the child, the purported drug abuse by the parties is one of the central issues in the proceedings.

9. The child is not yet 2 years of age.  The order made on 30 January 2014 and amended by further order of 9 July 2014, provides for short but frequent periods that the child will spend in the care of his parents.  Whilst there appears to be some concession at present that the order may now have become onerous, presumably its wisdom was to reflect that at the child’s age, frequency is more appropriate than duration.

10. As such, any substantive interference with the arrangements for the child to spend time with each of the parties can have significance.

11. It is however important that the mother complied with an order for delivery up of the child on 30 August 2014 and this would suggest a realisation on her part that orders of the Court are made with the interests of the child as the paramount consideration notwithstanding that the parties may not find them convenient.

12. Accordingly, and having regard to the powers of the Court as set out in Section 70NEB, I consider that Section 70NEB (1) (d) to be the most appropriate sentencing option.

13. I do not consider that there is any advantage in this case to the mother and/or the father attending a post-separation parenting program (Section 70NEB (1)).  There remains an ongoing dispute between the parties as to the appropriate parenting orders that should be put in place and in that regard there is a live Application in a Case filed by the father and the subject of Response from the mother that would seek orders to change the parenting arrangements extant and pursuant to the orders of 30 January 2014 and 9 July 2014.  Whilst ultimately a different parenting order may well be put in place, I do not consider that such a possibility should be a complete answer to the admitted contraventions by the mother (Section 70NEB (1) (b)).

14. Similarly, the mother’s contraventions need to be given more weight than would be considered appropriate by adjourning the proceedings to consider what, if any, change to the parenting orders may be implemented.

15. In all the circumstances, it is appropriate that the Court order that the mother enter into a bond in accordance with Section 70NEC.  Section 70NEC (1):-

    This Section provides for bonds that a Court may require a person to enter into under Section 70NEB (1) (d), Section 70NEC (2), a bond is for a specified period of up to two years, Section 70NEC (3), a bond may be:-

    (a)With or without surety; and

    (b)With or without security.

    Section 70NEC (4) - the conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:-

    (a)To attend an appointment (or a series of appointments) with a Family Consultant; or

    (b)      To attend family counselling; or

    (c)      To attend dispute resolution; or

    (d)      To be of good behaviour.

16. I propose to require that the mother enter into a bond for a period of one year without surety or security but upon the following conditions:-

    a)To be of good behaviour during the period of the bond;

    b)To comply with all current and future parenting orders.

17. Obviously, it is a matter for the mother to accept the proposed bond and notwithstanding the order I propose to make, the matter has been adjourned to 10 September 2014 to enable the Court to discharge its obligation pursuant to Section 70NEC (5) namely, to explain to the mother “in language likely to be readily understood by the person”, the purpose of the proposed requirement and the consequences should she fail to either enter into the bond or to act in accordance with the bond if so undertaken.

18. I have had regard as to whether there should be any compensatory time pursuant to Section 70NFB (2) (c) of the Act. To some extent that issue has been the subject of the order made 28 August 2014 and its continuation potentially pending the further adjourned hearing. I do not consider that any significant extension of the time that the child spends with the father at this stage to be appropriate pending further submissions. I am urged by counsel for the Independent Children’s Lawyer that subject to appropriate safeguards the age of the child would suggest that there needs to be some resumption of time between the mother and the child. That issue is the subject of orders made 3 September 2014.

19. I make orders as set out at the commencement of these reasons.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 September 2014.

Associate: 

Date:  5 September 2014