D & C (Imprisonment for Breach of Contact Orders)

[2004] FamCA 814

[2004] FamCA 814

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No. SA31 of 2004

D and C [IMPRISONMENT FOR BREACH OF CONTACT ORDERS]

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:         31 August 2004

DATE OF JUDGMENT:      31 August 2004

REASONS FOR JUDGMENT

APPEARANCES:

The appellant mother in person.

The respondent father in person.

Mr Hicks of Counsel, instructed by Mr Richard Croft, Level 4, 44 Gawler Place, Adelaide, SA 5000 appeared on behalf of the child representative.

D and C [IMPRISONMENT FOR BREACH OF CONTACT ORDERS]

SA31 OF 2004
CORAM:  KAY J
DATE OF HEARING:         31 August 2004
DATE OF JUDGMENT:     31 August 2004-09-07

Catchwords:  Enforcement - appeal - breach of contact orders - term of imprisonment imposed and partly served - no basis shown to disturb sentence other than compliance with orders since imprisonment occurred - coercive nature of penalty - suspended sentence now appropriate given change of attitude of contemnor.

APPEAL ALLOWED IN PART
REPORTABLE

1. Before the Court is an appeal against the imposition of a term of imprisonment by Lindsay FM on 19 May 2004 in proceedings for the enforcement of contact orders. 

1. On that date the Magistrate ordered that the appellant mother be imprisoned for a period of 30 days, the Court being satisfied that she had breached an order requiring the father to be given contact to the parties' daughter G, who was born in 1998. 

1. The proceedings before the Magistrate were, at that stage, the latest set of proceedings in what had been a significant and tortuous process through the Court.  The father had been endeavouring for several years to maintain contact with his daughter and notwithstanding a series of orders that required the mother to provide contact, the mother resisted compliance with the court orders.  Breaches of those orders had been found proven on a number of occasions.  On one occasion she had entered into a bond to comply with the orders but had almost immediately breached the bond.

1. The contact matters were the subject of a full trial before Dawe J over seven days in September and November 2003.  Judgment was delivered in March 2004 in which the mother's view that the father should not have contact with the child was not accepted, the mother's assertions that the child was at risk of sexual abuse were dismissed.  The learned Judge made orders for undergoing contact.  Those orders were immediately breached and that led to the proceedings that came on for hearing before Lindsay FM.

1. At the substantive hearing before the Federal Magistrate the mother appeared in person.  After the Magistrate indicated that the case was proven and that he intended to impose a penalty, he adjourned the hearing of the penalty phase until May 2004.  On that day Mr Mitchell, a solicitor, appeared on behalf of the mother and sought an adjournment of the proceedings so as to have the mother psychiatrically examined to see whether the mother's behaviour in respect of the question of contact was explicable in terms of any psychiatric illness or disorder.  Secondly, it was urged by Mr Mitchell that the Magistrate might then be able to investigate whether some regime could be established whereby the mother received some counselling or encouragement such as to enable her to comply with the orders of the Court.

1. The Magistrate took the view that proceedings had been running before the Court for over two years but there was nothing to indicate that the mother was ever likely to change her mind on these issues.  She had already had ample opportunity to present appropriate psychiatric evidence and that it was inappropriate to further adjourn the proceedings on the off‑chance that something might be turned up.  He said that it would not, in his opinion, serve the interests of justice to further adjourn the question of penalty for these purposes.  The existence of psychiatric or other pathological explanation of the mother's defiance of court orders was speculative.  No explanation had been provided for her not exploring this course of action in the past.  He refused the adjournment.

1. He then went on to give consideration as to the appropriate penalty to be imposed.  He set out the further history of the matter and the mother's behaviour.  He indicated that he was aware that imprisonment was a course of last resort but took the view that as the mother was being entirely non-compliant and expressing no remorse and no intent to cooperate with court orders, he was really left with little option but to impose a period of imprisonment.  He saw a second opportunity that would come from the period of imprisonment, namely that it would enable the child to have a relationship with the father, in his care.  He said that:

"Looking at all of my sentencing options, it seems to me that a community service order or a fine would fall well short of carrying out that purpose.  So entrenched is the mother's determination not to give contact that imposition of such penalties would, have seems to me, be regarded by her as inconveniences, even significant inconveniences, but would not provide a necessary desire or fillip for change in attitude to compliance with court orders, which is what is required.  Perhaps imprisonment will not effect such a change either but, being the most grave of the options that are open to me, it seems to me to have the best potential for having the mother deeply reflect upon the consequences of her noncompliance."

1. He went on to impose a penalty of 30 days' imprisonment. 

1. The mother has appealed against that order.  The grounds of appeal appear to have been framed by a legal practitioner. They were

·     that the Magistrate erred in failing to grant the adjournment for the purposes of obtaining a psychiatric assessment to assist in deliberations with respect to penalty, and

·     the Magistrate erred in failing to suspend the period of 30 days' imprisonment imposed by him. 

1. The mother has appeared in person on the appeal.  She prepared a lengthy document with several annexures.  Most of the document does not address the issues relating to the appeal but wishes to drag over old issues that the mother has yet to come to grips with.  She asserts that the courts, particularly the State child welfare courts, have yet to come to understand the depth of the problem.

1. Nothing has been demonstrated by the mother to indicate any error on behalf of the Magistrate.  The learned Magistrate appears to have very conscientiously and thoroughly investigated all of the options and to have expressed sound reasons for the course that he adopted, namely, the refusal of the adjournment and the imposition of a period of imprisonment.  It would have been quite inappropriate for the Magistrate to have imposed a suspended sentence of imprisonment on the basis that the mother was showing no capacity nor willingness to comply with the orders.  The Magistrate took the view that if the mother was given a chance to realise the seriousness of the event by serving a period of incarceration and that got the orders back on foot, then that was going to be the best thing for the child.

1. The primary purpose of enforcement proceedings for noncompliance with an order is to try to ensure compliance with the order. Indeed, even when a penalty of imprisonment is imposed, s 70NO(7) of the Family Law Act 1975 indicates that it may be appropriate to release the person from imprisonment during the period of imprisonment if the court is satisfied that the person will, if he or she is released, comply with the order concerned. This is not punishment for its own sake. It is basically coercive in nature. There are circumstances where it is important to uphold the authority of the court and impose a penalty as a specific or general deterrent. (see Tate and Tate (No 3) (2003) FLC 93-138 where long after the need for discovery of documents had passed and the trial had been completed, periods of imprisonment were imposed for the callous disregard for the orders of the Court).

1. The mother has now served two periods of incarceration as part of the orders for one month's imprisonment.  She was arrested on 19 May, the day the orders were pronounced and remained in gaol until 26 May when a stay was obtained.  Contact took place between father and daughter on 29 and 30 May.  She was rearrested on 16 June when she failed to attend at a Court hearing date and the stay was lifted. She remained incarcerated until 21 June when a further stay was obtained.  So she has served 12 days so far of the 30 days.

1. When she was rearrested on 16 June G was placed in her father's care until further order and was not returned to her mother's care until 4 August.  The child has obviously now had a significant period in which to commence to rebond with her father. 

1. On 4 August Dawe J ordered that the child be returned to her mother's care, revamped the contact orders slightly and adjourned the further hearing of the father's application for residence until 19 October.  Two contact periods have taken place in accordance with Dawe J's orders since then, on the weekend of 6 August and the weekend of 20 August.  Apart from the mother arriving some 40 minutes late for the weekend of 20 August, which was no doubt extremely irritating to the father, there has been compliance with the order.

1. Unlike the situation before the Magistrate in May of 2004, the mother is now indicating that she will comply with the orders of the Court.  As the Magistrate optimistically put it, the term of imprisonment has given the mother a chance to "deeply reflect upon the consequences of her noncompliance". 

1. From what she has put in her material and from what she has told me, she has not changed her basic view that contact is not in G's best interests.  The hostility between mother and father, who both appear in person in the proceedings before me, is palpable.  However, the purpose, as I have indicated, of the orders is not to punish for punishment's sake or retribution but to ensure compliance with the orders.  The circumstances have changed since the Magistrate made his orders.  I am fairly confident that the suspension by me of the remaining 18 days is warranted on the condition that the mother will comply with the orders of the Court.  Should she fail to comply, then it is open to a court to remove the suspension and require the mother to serve the balance of time.

1. I am conscious that the father is not in agreement with this course but I am fortified by the view that the Child Representative shares my position that, firstly, there seems to have been some serious change in the mother's understanding of her need to comply with the orders, although not necessarily in her understanding of why she needs to comply with them, and secondly, that it is not going to be in G's best interests to further separate her from the mother in the traumatic circumstances that accompany a period of incarceration.

1. In those circumstances, for reasons unassociated with the Notice of Appeal but because of the further material that is now before the Court, I propose to allow the appeal in part and to suspend the balance of the sentence imposed upon the strict condition that the mother comply with the existing orders relating to contact.

DISCUSSION

1. My preliminary research of the authorities has not been able to disclose any case where the issue of the power of the Court to impose a suspended sentence has been dealt with directly.  It seems implied in many of the judgments of the Full Court that the power exists.  I make reference in passing to the decision of Taylor v Taylor, Appeal SA 34 of 2003.  I am fairly confident that the power to imprison includes the power to impose a suspended term of imprisonment.  In the circumstances that is what I propose to do.  I propose to suspend the balance of the sentence of 18 days as yet unserved for a period of 12 months conditional upon the mother complying with all orders of the Court relating to contact between the father and his daughter.

1. The formal orders of the court are as follows:

1.That the appeal be allowed in part.

2.That the balance of the term of imprisonment imposed by Lindsay FM on 19 May 2004, namely, a period of 18 days yet to be served, be suspended conditional entirely upon the mother A complying with all orders of the court relating to contact that is to occur between D and G for a period of 12 months from this date.

I certify that the preceding 21 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
The 7th day of September 2004

Associate: