Daymond & Joslyn

Case [2021] FedCFamC1F 2

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Daymond & Joslyn [2021] FedCFamC1F 2

File number(s): SYC 6975 of 2020
Judgment of: MCCLELLAND DCJ
Date of judgment: 1 September 2021
Catchwords: FAMILY LAW – CHILDREN – CONTRAVENTION – Where the father makes an application under sub-division E of Div 13A Pt VII of the Family Law Act 1975 (Cth) alleging a less serious contravention – Where the father alleges the mother contravened interim parenting orders by not facilitating the children spend time with him – Where the mother acknowledges the contravention and accepts it was without reasonable excuse – Where the mother forewarned of contravention and was put on notice by the father of his opposition – Consideration of appropriate penalty – Orders made requiring mother to attend post-separation parenting program.
Legislation: Family Law Act 1975 (Cth) Pt VII Div 13A Sub-Divs E and F, ss. 4(1), 70NEB(1), 70NEC(3) and 70NFA
Cases cited:

McClintock & Levier (2009) FLC 93-401

R v Ellis (1986) 6 NSWLR 603

Winch & Jackson (2015) FLC 93-649

Division: Division 1 First Instance
Number of paragraphs: 33
Date of hearing: 28 July 2021
Place: Sydney
Solicitor for the Applicant: Mr Karras
Solicitor for the Respondent: Mr Daymond
Solicitor for the Independent Children's Lawyer: excused from attending.

ORDERS

SYC 6975 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1

BETWEEN:

MR JOSLYN

Applicant
AND:

MS DAYMOND

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

1 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.Within 28 days, the mother is to enrol in a post-separation parenting program, as defined in section 4(1) of the Family Law Act 1975.

2.For the purpose of Order 1 herein, the mother may attend the post-separation parenting program electronically, by utilising online technology.

3.By consent, within 28 days, the mother pay the father’s costs of this Contravention Application, fixed in the sum of $1,800.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daymond & Joslyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ:

INTRODUCTION

  1. This matter concerns a Contravention Application filed by Mr Joslyn (“the father”) alleging Ms Daymond (“the mother”) has contravened Orders made by this Court on 12 February 2021, in respect to the two children of the parties’ relationship: X,…

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AGLC
Daymond & Joslyn [2021] FedCFamC1F 2
Case
[2021] FedCFamC1F 2
Decision Date

CaseChat Overview and Summary

The father filed an application against the mother in relation to contraventions of parenting orders made by Rees J on 12 February 2021. The application was heard by Ryan J, who considered the evidence provided by both parties and made orders regarding the contraventions and the mother's obligation to attend a post-separation parenting program. The court found that the contraventions were less serious and ordered the mother to attend a post-separation parenting program and compensate the father for some of the costs incurred in the proceedings.

The primary legal issue for the court to decide was the appropriate response to the mother's contraventions of the parenting orders. The court had to consider the nature of the contraventions and determine the appropriate remedy under the Family Law Act 1975 (Cth). The court also had to decide whether the contraventions were serious enough to warrant more severe penalties or if they fell within the less serious category, which allowed for alternative remedies.

The court found that the contraventions were less serious and fell within the contemplation of sub-division E of Division 13A Part VII of the Family Law Act 1975 (Cth). The court considered the powers available to it under s 70NEB(1) of the Act and decided that ordering the mother to attend a post-separation parenting program and compensate the father for some of the costs incurred in the proceedings was appropriate. The court did not consider it necessary to impose further penalties, such as fines or further parenting orders, as the contraventions did not show a serious disregard of the mother's obligations under the primary order.

The court made orders that the mother attend a post-separation parenting program and compensate the father for some of the costs incurred in the proceedings. The mother was also ordered to pay the father's costs in a lump sum amount of $1,800. The court did not consider it necessary to make further orders or impose additional penalties.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The mother relied upon the following documents:(a)Affidavit of the mother filed 27 July 2021, with annexures (“the mother’s Affidavit”); and(b)Email correspondence between the parties’ respective solicitors and the Independent Children’s Lawyer dated 18 June 2021, which is included at pages 63 to 65 of the mother’s court book.BACKGROUND AND RELEVANT CONTENTIONS On 12 February 2021, Rees J made the interim orders by consent of the parties, which relevantly provide that:IT IS ORDERED BY CONSENT1.That pending further Order and without prejudice to the Orders sought by the father in his Response to Initiating Application filed on 7 October 2020, the children X born on … 2008 and Y born on … 2010 ("the children") spend supervised time with the father as follows:-1.1For six hours every Sunday between 10:00am and 4:00pm. …2.That all such supervised time be facilitated by B Contact Service or any other facilitator as agreed by the parties and the Independent Children's Lawyer. 3.That the father's mother, Ms C, be permitted to be present during the occasions when the children are spending supervised time with their father, subject only to the availability and guidance of the nominated supervisor. …6.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders. The potential contravention was forewarned, in letter dated 14 May 2021 which was sent by the solicitors for the mother to the solicitors for the father, attached as Annexure ‘B’ to the father’s Affidavit. Relevantly, that letter was three (3) paragraphs in length, set out as follows:We refer to the above matter.We are instructed that the children will not be available on the weekends of 19/20 June 2021 and 26/27 June 2021. Our client has notified B Contact Service, who have confirmed that they are in a position to facilitate a supervised skype call for 30 minutes of Sunday 20 June 2021 and Sunday 27 June 2021 instead.If your client would like to exercise the Skype call, please advise. The reference to “B Contact Service” is a reference to the supervising agency, B Contact Service, nominated in Order 2 of the interim orders, to which I have earlier referred. By way of response, in what, in my opinion, was an entirely reasonable and balanced letter dated 20 May 2021, which is attached as Annexure ‘C’ to his Affidavit, his solicitors explained that the father expected the mother to comply with her obligations under orders of the Court, and, understandably, requested that the mother “[p]lease articulate the basis upon which [the mother] seeks to unilaterally depart from the orders which have been made by the Court”. On 9 June 2021, the solicitors for the mother responded to that enquiry from the solicitors for the father in a letter of the same date. That letter relevantly advised that: [The mother] has made arrangements to travel to the Gold Coast with the children during the upcoming Term 2 school holidays, thus, why it was previously foreshadowed that they would not be available on the weekends of 19/20 June 2021 and 26/27 June 2021.

Evidence

Evidence Before The Court

The mother admits that, on 20 June 2021, without reasonable excuse, she did not facilitate the children spending time with the father “pursuant order 1.1 of the orders made [by the Court] on 12 February 2021”. The mother further admits that a similar contravention occurred on 27 June 2021, and accepts that this contravention was also without reasonable excuse.EVIDENCE The father relied upon the following documents:(a)Contravention Application filed 15 July 2021; (b)Affidavit of the father filed 15 July 2021, with annexures (“the father’s Affidavit”); and(c)Supplementary Affidavit of the father filed 26 July 2021, with annexures (“the father’s Supplementary Affidavit”). The mother relied upon the following documents:(a)Affidavit of the mother filed 27 July 2021, with annexures (“the mother’s Affidavit”); and(b)Email correspondence between the parties’ respective solicitors and the Independent Children’s Lawyer dated 18 June 2021, which is included at pages 63 to 65 of the mother’s court book.BACKGROUND AND RELEVANT CONTENTIONS On 12 February 2021, Rees J made the interim orders by consent of the parties, which relevantly provide that:IT IS ORDERED BY CONSENT1.That pending further Order and without prejudice to the Orders sought by the father in his Response to Initiating Application filed on 7 October 2020, the children X born on … 2008 and Y born on … 2010 ("the children") spend supervised time with the father as follows:-1.1For six hours every Sunday between 10:00am and 4:00pm. …2.That all such supervised time be facilitated by B Contact Service or any other facilitator as agreed by the parties and the Independent Children's Lawyer. 3.That the father's mother, Ms C, be permitted to be present during the occasions when the children are spending supervised time with their father, subject only to the availability and guidance of the nominated supervisor. …6.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders. The potential contravention was forewarned, in letter dated 14 May 2021 which was sent by the solicitors for the mother to the solicitors for the father, attached as Annexure ‘B’ to the father’s Affidavit. Relevantly, that letter was three (3) paragraphs in length, set out as follows:We refer to the above matter.We are instructed that the children will not be available on the weekends of 19/20 June 2021 and 26/27 June 2021. Our client has notified B Contact Service, who have confirmed that they are in a position to facilitate a supervised skype call for 30 minutes of Sunday 20 June 2021 and Sunday 27 June 2021 instead.If your client would like to exercise the Skype call, please advise. The reference to “B Contact Service” is a reference to the supervising agency, B Contact Service, nominated in Order 2 of the interim orders, to which I have earlier referred.

Decision

Reasons for decision

I am, therefore, satisfied that it is appropriate for the mother to be better informed, in respect to her obligations under court orders, by attending an appropriate post-separation parenting program. As previously noted, the mother has agreed to pay the costs of the father in respect to these proceedings, in a lump sum amount of $1,800.CONCLUSION Accordingly, for these reasons above, I make the orders as set out at the commencement of these reasons for judgment.

Ratio Decidendi

Legal Principle Established

Despite that chain of correspondence, the mother did take the children on a holiday to the Gold Coast and, consequently, she did not facilitate the children spending time with the father on 20 June 2021 and 27 June 2021. It is acknowledged, however, that the mother has subsequently made arrangements for the children to spend make up time with the father.CONSIDERATION At the hearing of this matter, the legal representatives for both parties presented the contraventions, which are the subject of the father’s Application, as falling into the less serious category of contraventions, in terms of sub-division E of Div 13A Pt VII of the Family Law Act 1975 (Cth) (“the Act”). This is an alternative course to proceedings pursuant to sub-division F which, by way of reference to s 70NFA of the Act, applies in circumstances where the party who has contravened a relevant order of the Court “behaved in a way that showed serious disregard of his or her obligations under the primary order”. I agree that this matter has been appropriately categorised as a matter falling within the contemplation of sub-division E. In those circumstances, s 70NEB(1) of the Act sets out the powers of the Court, as follows:(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.