CROWE & HOWELL
[2015] FCCA 283
•13 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CROWE & HOWELL | [2015] FCCA 283 |
| Catchwords: FAMILY LAW – Sentencing following admission of breaches of orders – considerations of volume, nature and period of time over which admitted breaches occurred. |
| Legislation: Family Law Act 1975, s.70NEA(1) – (4), NFA(1) – (4) |
| Cummings & Cummings (1976) FLC ¶90-100 Elspeth & Peter [2007] FamCA 655 Elspeth, Mark & John v Peter (Penalty & Costs) (2007) 214 FLR 116; 37 Fam LR 696; FLC ¶93-341 McClintock v Levier (2009) 41 Fam LR 245; (2009) FLC ¶93-401 Markarian v The Queen (2005) 228 CLR 357 NP & AP (No.2) [2006] FamCA 869 Pearce v The Queen (1998) 194 CLR 610 R v Geddes (1936) 36 SR (NSW) 554 |
| Applicant: | MR CROWE |
| Respondent: | MS HOWELL |
| File Number: | PAC 427 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 27 November 2014 |
| Date of Last Submission: | On the papers |
| Delivered at: | Canberra |
| Delivered on: | 13 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Howard |
| Solicitors for the Applicant: | Farrell Lusher, Wagga Wagga |
| Solicitors for the Respondent: | Maggie Orman Pty Ltd, Wagga Wagga |
ORDERS
The Mother is to undertake a post-separation parenting course if she has not already done so and is to provide evidence of that course to the Independent Children’s Lawyer.
In accordance with s 68B of the Family Law Act 1975 an injunction is ordered, restraining the Mother from assaulting, molesting, harassing, threatening or otherwise interfering with the Father and/or the Father’s Wife.
The Mother is to pay the sum of $1,400.00 by way of fine pursuant to s 70NFB(2)(b) of the Family Law Act 1975.
The Mother pay the Father’s costs in the sum of $5,000.00.
IT IS NOTED that publication of this judgment under the pseudonym Crowe & Howell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
PAC 427 of 2013
| MR CROWE |
Applicant
And
| MS HOWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
Parenting orders were made by consent, initially on an interim basis in May 2013 and on a final basis on 27th November 2014.
Order 28 of the May 2013 orders was in the following terms:
That the parties limit their communications with each other to matters regarding the arrangements, health or well-being of the children.
On 18th November 2013, the Father filed a contravention application which asserted that the Mother had contravened Order 28 on 92 occasions. The Mother has since admitted to each and every one of the contraventions. Accordingly, with the final parenting orders now having been agreed and made, the remaining issue to be determined is the penalty to be imposed in relation to the admitted breaches.
Both parties filed written submissions in relation to penalty.
These reasons proceed as follows: (a) summary of relevant facts; (b) outline of submissions; (c) consideration and disposition.
Summary of Relevant Facts
Notwithstanding that the Mother has candidly admitted the breaches of order 28, the frequency and nature of the breaches is, in my view, relevant to the Court’s consideration of appropriate penalty. Without trawling through each and every admitted breach, the following summary of some of the more blatant and serious breaches is important. Some other general factual background is also important to set out, most of which is uncontentious.
The parties separated in January 2012. Parenting and property proceedings were commenced by the Mother in February 2013.
On 10th April 2013, the Court ordered that the parties communicate in relation to parenting matters via a communication book.
The Father suffers from post-traumatic stress disorder (PTSD) following work related incidents. He contended, on more than one occasion, that the Mother’s repeated text messages and other communications exacerbated his condition.
Almost immediately after the consent orders were made in May 2013, the Mother continued to send text messages to the Father, and (according to the Father) continued to harass and confront him without cause, and in contravention of Order 28. This caused the Father’s solicitor to write to the Mother’s solicitor on 19th June 2013 requesting that she desist from such contact with the Father.
A further letter was sent by the Father’s solicitors to the Mother’s lawyer on 27th June 2013 because the Mother continued to send text and other messages to the Father. That letter again recalled the orders made and the risk to the Mother of failing to abide by them. The Mother continued to send messages until 16th October 2013.
Copies of the text and other messages are attached to the Father’s affidavit filed 18th November 2013. The first tranche of them run to 69 pages (annexure C to the affidavit); the second tranche run to a further 28 pages of the same affidavit (annexure D). The letters to which I have referred from the Father’s solicitor to the Mother’s solicitor are also annexed to this affidavit.
Although the volume and frequency of themselves, may well be sufficient for current purposes, there should be some reference to and consideration of the nature or kind of “correspondence” from the Mother to inform the Court’s deliberations.
In short, the pervading “themes” (if they may be so called) relate to the Mother’s regular accusations against the Father in relation to (a) him wrecking their relationship by virtue of an affair, (b) the Father regularly failing in nominated respects in parenting the children and (c) the Father invariably and regularly placing the interests of his new partner and Wife over and above the interests of the children. I should also note that, according to the copies of the messages provided to the Court, it was common for the Mother to send significant numbers of messages in the course of a single day. These matters, individually and collectively, could and should be seen as harassment and criticism of the Father, contrary to the terms of Order 28 and which (as contended by the Father) risked exacerbating his PTSD of which the Mother was aware.
The following is but a very small selection of the Mother’s “correspondence” (to use a generic term) with the Father taken from the annexures to the Father’s affidavit to which I have referred. Almost invariably, the messages quoted are part of much longer text-message chains on each occasion:
Being a Disneyland dad doesn’t help our children [this and the following are two of six messages sent on 2nd June, 2013]
Mr Crowe as u have told me I wouldn’t know how many affairs u had whilst we were together, could u tell me if u have had blood tests done? U could have put my health at risk, could u tell me please?
You’ll be please 2 know when someone asked the boys today, “where’s your dad?” The reply was “he left us because he got a new girlfriend!” “She destroyed our family!” They are seven.
Your every childs hero! Dad is just a slave 2 her … [6th July 2013]
You have fucked your children’s lives, think about that. Make that your priority and tell me when u can attend family therapy for them …
… You would think u would want 2 with him having such strong dislike for your “perfect life partner!” The intake officer was very concern [sic] when I said how often X says he thinks he would be happier in heaven… [20th August 2013]
What do you think about X telling me he wants really hard bullets for his nerf gun so he can shoot her and hurt her. “Dad thinks its fun, I just want to hurt her!” I have informed them of what they refer 2 her as. How do you both sit there, when you know this stuff? Wake up Mr Crowe. [24th August 2013]
… Our children r struggling at school because of your actions and you say I shouldn’t blame u. Who is responsible???? … You talk about laying blame. Who r they blaming? Certainly not the son who had an affair! “What affair?” Pity u don’t provide for our children. Not one pair of school shoes. No sports rego. Why do you have 2 ring (omitted) every time??? Oh that’s right she pulls your strings! Is she pregnant this Father’s Day as well???? Have a great day sweetie! Nothing changes with you, it’s just a different person. As you said if it wasn’t her it would be the next one. [1st September 2013]
… First words Y said when he got in the car “well that weekend sucked!” They were both in tears before we got home because they don’t want 2 go 2 (omitted) for Xmas and birthday. … The boys tell me you will be away with the “destroyer” for 2 weeks. [10th September 2013]
Your [sic] doing a great job Mr Crowe! You keep living in denial. No care or responsibility required.
You can’t even go to counselling with your children. U 2 created the problem but leave it to someone else 2 fix. Nothing changes! [19th September 2013]
… No need 2 be spiteful Mr Crowe. U went outside of the relationship and were unfaithful with someone who was willing 2 do the same, when they knew you had a family. You both must live with that fact and the impact it has had on our boys. [27th September 2013]
… Keep laying blame, so no responsibility is necessary. … None of them like that u were unfaithful 2 your family.. You have 2 get over it Mr Crowe. …Her and u chose 2 be unfaithful together. It takes 2 2 tango. [29th September 2013]
Y said “he says u did “stuff” 2 him, but he never will tell us what “stuff”! This is repeated nearly every day Mr Crowe. Give them the answers so the boys can have your explanation!!!! I’m sick of hearing this pathetic response u give them. “Mean stuff”. How many times did you have the opportunity 2 b honest and never were. 2 endanger my health by rooting someone else then coming home 2 your family. How is that respectful 2 her or I, or even yourself???? [2nd October 2013]
The Applicant (Father’s) Submissions
The basic submissions of the Applicant Father were as follows.
The Applicant contended that the admitted breaches brought the Application within the terms of Subdivision F of Division 13A of the Family Law Act1975 (“the Act”). It followed, so it was said, that the admitted contraventions satisfied s.70NFA. In particular, it was submitted that s.70NFA(2)(b) was satisfied. That section provides:
… 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.
The father’s submissions focussed on the Mother’s knowledge of the Father’s situation generally, the clear knowledge of the orders made on 10th April 2013, and the sheer volume of messages after the making of the orders. These matters, it was submitted, constituted a “serious disregard of the Orders.”
The submissions then referred to s.70NFB in relation to the powers of the Court to deal with the person who has contravened the orders, including an order for indemnity costs (and the requisite terms for the making of such an order – s.70NFB(2)(g)).
The submissions further set out the range of penalties available to the Court under s.70NFB(2), including the imposition of a bond and a fine.
In the course of outlining factors relevant to sentencing (in addition to those already observed), the Father emphasised that the Mother had been requested to desist the “correspondence” with the Father on two occasions, and the Mother’s said to be evident lack of remorse for her actions, instead blaming the Father for her conduct.
The Father also submitted that it was in the public interest for a suitable penalty to be imposed as a deterrent against breaches of Court orders.
The Father sought that a fine be imposed (of $1000), indemnity costs (of $6479.00), and that a bond be entered without surety or security to be of good behaviour (cf. s.70NFE).
The Respondent (Mother’s) Submissions
The Mother’s primary submission is that the admitted contraventions should be dealt with under s.70NEA rather than s.70NFA. The former refers to contraventions where there is no reasonable excuse and which involve “less serious contraventions.” In order for the Court to proceed under the Mother’s preferred section of the Act she must satisfy either s.70NEA(2) or (3); the Mother relies upon s.70NEA(2). Section 70NEA provides as follows:
(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.
The Mother submitted that, although she acknowledged that her behaviour was unsatisfactory, it did not constitute “serious disregard” for her obligations under the primary orders of April 2013. In support of this submission, the Mother’s lawyers extracted from the Explanatory Memorandum some examples of what might constitute “serious disregard.” It included “harassment despite repeated warnings and the terms of the parenting order.”
The Mother also contended that, according to authority, such as Elspeth & Peter,[1] there has not been (using descriptors from Elspeth & Peter at [61]) “deliberate, pre-mediated non-compliance with the orders; and continued and protracted breach.”
[1] Elspeth & Peter [2007] FamCA 655. See also the discussion in Elspeth, Mark & John v Peter (Penalty & Costs) (2007) 214 FLR 116, and NP & AP [2006] FamCA 869.
The Mother submits that, in relation to sentencing, it is sufficient for the Mother to attend a post-separation parenting course, as well as (if the Court deems it appropriate) that an injunctive order be made under s.68B to restrain her from assaulting, molesting, harassing, threatening or otherwise from interfering with the Father. The Mother confirmed that she would consent to such an order. The parties may take it that such an order will be made. For more abundant caution, it will extend and include reference to the Father’s Wife.
The Mother further submitted that, if the Court dealt with the matter under s.70NFB, there was no need for (and the matter did not otherwise warrant) either a community service order, a bond, a fine or imprisonment.
In relation to the Father’s application for costs, the Mother submitted that she was solely financially responsible for the children, and that she is otherwise struggling to meet her financial commitments for the children. It is unnecessary to detail the Father’s submissions about the Mother’s financial capacity both in terms of her income and the property settlement effected between the parties, which included a not insignificant cash component.[2]
[2] Among other things, see the Mother’s Financial Statement, filed 5th February 2014, and the Father’s submissions, par.20.
Consideration & Disposition
Having regard to the basic factual agreement outlined earlier in these reasons, and particularly the Mother’s plea admitting to all the breaches alleged, and finally, having already observed that, in my view (for the reasons given) the breaches are serious and should be considered under s.70NFA, it remains only to note the following in relation to the appropriate penalty.
Respectfully, having regard to the clear terms of the parenting order, and the clear warnings on two occasions by the Father’s solicitors to the Mother, as well as the volume and nature of the “correspondence” directed by the Mother to the Father, I cannot see how the matter can be dealt with otherwise than under s.70NFA. Indeed, the example provided by the Mother from the Explanatory Memorandum summarises the breaches in the current matter, in my view, most succinctly.
Further, having regard to the volume, nature and period of time over which they were sent, I have great difficulty in seeing the text messages as anything other than deliberate and pre-mediated. Even when considered in the light of the further submission that the Mother was simply responding to “triggers” from the Father, again the volume and nature of the messages to the Father, together with the frequency and period of time over which they were sent showed very clearly the Mother’s poor impulse control, and rather more besides. Further, given the Mother’s knowledge of the Father’s PTSD, the volume and nature of the messages clearly evidences that (a) they were excessive and (b) directed or “targeted” at the Father with the specific design to harass or intimidate. As such, they clearly were “pre-mediated” as discussed in the authorities to which I have earlier referred.
In saying this, I also take relevant account of the Mother’s further submission that she was having difficulty in coming to terms with the breakdown of the parties’ relationship and the Father’s new relationship with Ms G.
As already observed, in my view, the contraventions must properly be considered and dealt with under Subdivision F of Division 13A of Part VII of the Act. They were serious breaches by the Mother, over a significant period of time.
In considering penalty, I remind myself of the detailed discussion by each of the Justices from the Full Court in McClintock v Levier (Finn, Coleman and Cronin JJ) of matters in relation to sentencing, e.g, general deterrence, punishment, and sentencing generally. I need not repeat what is set out in detail in each of the judgments of their Honours. I am also conscious of the comments of the much earlier decision of the Full Court in Cummings & Cummings, where the Court emphasised as relevant considerations (a) the parties’ ongoing parenting relationship regarding the children, and (b) the need to uphold the authority of the Court to make effective orders.[3]
[3] Cummings & Cummings (1976) FLC ¶90-100.
I also remind myself of the broad nature of the discretion regarding the imposition of an appropriate sentence in this particular case. In this regard I note the references in McClintock v Levier to the High Court decision in Pearce v The Queen.[4] The decision in Pearce focussed primarily, for current purposes, on individual sentences in the context of double jeopardy.
[4] Pearce v The Queen (1998) 194 CLR 610, referred to in McClintock at [66] (Finn J) and at [265] (Cronin J).
A detailed consideration of sentencing principles generally is found in Markarian v The Queen, which was an appeal that dealt specifically with principles in relation to the imposition of sentence.[5] In my view, it is more apposite for current purposes than is Pearce. The judgment of McHugh J is perhaps most regularly cited in this regard. It is sufficient to note the following basic but essential tenets, at [65], [66] and [71]:[6]
Unfortunately, discretionary sentencing is not capable of mathematical precision or, for that matter, approximation.
[sentencing is] an " instinctive synthesis of all the various aspects involved in the punitive process." This was a candid recognition of the fact that in the end sentencing depends on the judge's assessment of what is the correct sentence. There is no objectively correct sentence, only a range of sentences that the majority of experienced judges would agree applied to the case…
There is only human judgment based on all the facts of the case, the judge's experience, the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes and authoritative judgments.
[5] Markarian v The Queen (2005) 228 CLR 357.
[6] At [65] in Markarian McHugh J also paid particularly high regard to, and quoted extensively from, the earlier decision of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at pp.555-556.
Working backwards, there is clearly no need for the Court to consider any imposition of a term of imprisonment, nor was/is such an order sought by the Father.
Secondly, although the imposition of a bond is sought, the terms of s.70NFE(4), in my view, require the Court to explain clearly to the Mother the [further] risks she runs if the bond is breached. In my view, these reasons should be taken as the formal pre-requisite for the Mother entering a bond should she breach any of the existing parenting orders. The Mother is therefore on notice that should she be found to breach any parenting order in the future and without fettering the Court’s discretion on any such future occasion, subject to the facts of any future application, the Mother would be required to enter into a bond and any breach of that bond could lead to her incarceration.
Thirdly, in my view, in addition to the requirement that the Mother undertake a post-separation parenting course (if she has not already done so) and is to provide verification of her completion of such course to the Independent Children’s Lawyer, and the formal restraint (consented to by the Mother), pursuant to s.68B of the Act not to harass the Father (or the Father’s Wife), a fine and an order for costs are the most appropriate orders in the current circumstances. The Father’s costs of the contravention Application total $6,479.00. In my view, there should be an order for costs in the sum of $5,000.00 in the Father’s favour.
In relation to the appropriate fine to be imposed in my view having regard to all the facts and the principles outlined in the authorities to which I have referred, not least being the wide discretion of the Court, the fine should be in the sum of $1,400.00.
The Court so orders.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 13 February 2015
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