Daymond & Joslyn
[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
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, born in 2008 and Y, born in 2010 (collectively, “the children”). The orders made by Rees J on 12 February 2021 (“the interim orders”) were made by consent of the parties, and provided for the father to spend six (6) hours every Sunday with the children, with that time to be supervised by a professional supervision service.
The issue to be determined in this matter is what penalty should be imposed upon the mother for contravening parenting orders, in circumstances where she has acknowledged the contraventions alleged by the father and admits that she did so without reasonable excuse. That admission must also be considered in the context that, prior to the hearing of the Application, the mother had agreed to provide for the children to spend additional time with the father, to make up for the time not spent by reason of her contraventions. The mother has also agreed to pay the father’s costs of this Application in a fixed sum amount.
ALLEGED CONTRAVENTIONS
The father alleges, as set out in his Contravention Application filed 15 July 2021, that the mother has committed the following contraventions:
(1)On 20 June 2021 at 10.00 am, the mother “without reasonable excuse refused to allow the [father] to spend time with the children”; and
(2)On 27 June 2021 at 10.00 am, again, the mother “without reasonable excuse refused to allow the [father] to spend time with the children”.
For each contravention, the father alleges that the mother has contravened Order 1.1 of the interim orders, which provide that the children should spend supervised time with the father “[f]or six hours every Sunday between 10:00am and 4:00pm”.
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 CONSENT
1.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.
In that response the mother proposed, for the first time, that:
[I]n lieu of the children spending time with [the father] on Sunday 20 June 2021 and Sunday 27 June 2021, the children, instead spend time with [the father] on … 2021, which [the mother’s solicitors] note is Y's birthday, and either Tuesday 6 July 2021 or Wednesday 7 July 2021, in the second week of the school holiday period.
The letter from the solicitors for the mother was sent in the context of her solicitors having been advised by the solicitors for the father that the father intended to file a Contravention Application.
The mother contends that, in circumstances where she had offered make up time to the father, it was unreasonable for the father to have filed the contravention application. The father, on the other hand, attests that he adopted that course of action in the context where the contraventions which occurred on 20 and 27 June 2021, were not the first contraventions by the mother of the interim orders that have occurred.
In that respect, reference was made to an email which the father received from the director of B Contact Service sent 4 May 2021, which is attached as Annexure ‘D’ to the father’s Affidavit. That email relevantly states as follows:
Contact Arrangements are as follows: Please note the change of day and time on Saturday to accommodate Mother’s Day and X’s soccer match.
Also [the mother] called me today to say that X has a birthday party to attend on Sunday the 23rd of May in the morning. She will therefore bring Y for the first couple of hours by herself and X will come around 11.30am for the remainder of the visit. I have already asked [the assigned supervisor] whether he could start later to include both children for the entire visit but that is not possible on this occasion. The day also cannot be changed as X has soccer and another birthday party on the Saturday.
By a letter dated 14 May 2021, the solicitors for the father wrote to the solicitors for the mother, referring to that email from the Director of B Contact Service. That letter, attached as Annexure ‘E’ to the father’s Affidavit, while indicating that the father “had no issue in accommodating Mother’s Day”, but stated:
With respect, it is not for [the mother] to decide whether X attending a birthday party is more important than X spending the (circumscribed) time that he has with his father. It is notable that [the mother] appears to assume that she has the discretion to depart from the Orders of the Court without requesting the consent of [the father]. There may have been something lost in the translation of [the mother’s] position to the supervisor, but it presents as a fait accompli, and this is not acceptable.
The letter appropriately, in my view, gave notice to the mother that it was the father’s expectation that she would not unilaterally vary the time which the children spend with the father, but, rather, that she seek his consent prior to any variation to their time with their father. As I will explain below, significantly, the letter requested the solicitors for the mother to “discuss this issue with [the mother] so that she is better informed as to her position regarding the Orders and her compliance with them”.
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.
Relevantly, in this matter, the father contends that an appropriate penalty to impose upon the mother is a requirement that she:
(1)attend a post separation parenting program, pursuant to s 70NEB(1)(a) of the Act; and
(2)enter into a bond without surety or security, pursuant s 70NEB(1)(d) and s 70NEC(3) of the Act.
The father also contends that, in the circumstances of this matter, it is appropriate that the mother be ordered to pay the father’s costs of the Application, assessed on a party/party basis. As I have earlier noted, in the period subsequent to the hearing of this matter, the mother has agreed to pay the father’s costs, assessed in a lump sum amount of $1,800.
While that the legislative provisions under subdivision E enables the Court to impose civil penalties rather than criminal penalties, it has been determined that it may be appropriate for the court to have regard to sentencing principles. In that respect, the Full Court in Winch & Jackson (2015) FLC 93-649 (“Winch & Jackson”) at [48], by reference to the decision of McClintock & Levier (2009) FLC 93-401, summarised the relevant principles which the Court is to consider, in respect to the imposition of a penalty arising from a contravention of the Act, as follows:
•The focus of a court in dealing with a contravention application under Div 13A of Pt VII is in making orders which will enforce future compliance with its orders.
•The court’s focus is on the individual party.
•A penalty imposed to deter other likeminded persons would constitute an error of law.
•The court can have regard to criminal sentencing principles.
•If there are multiple contraventions in relation to which the court determines to impose a “global” sanction, particular care is required to ensure the total sanction is not manifestly excessive.
•Reasons must be provided for the imposition of a particular sanction.
In considering what penalty is appropriate to impose in this matter, I have had regard to the fact that the mother proceeded to take the children on a holiday to the Gold Coast, despite the clear notice given to her, that the father opposed her unilaterally deciding to vary the interim parenting orders that are in place, and in circumstances where the time which the children do spend with the father is already quite limited.
In those circumstances, had it not been for the mother’s acknowledgement of her contravention and her admission that she did so without reasonable excuse, I would have made the orders as sought by the father. That is, I would have made orders which required the mother to attend an appropriate post-separation parenting course and, further, to enter a bond without surety or security.
In contemplating that cause of action, I note that the Full Court in Winch & Jackson stated, at [50], that “[i]t needs to be understood that the imposition of a bond is no trivial thing; a fact plainly recognised by the other less draconian powers and remedies referred to in s 70NEB”.
In deciding not to require the mother to enter into a bond, I have had regard to existing criminal sentencing principles that, in determining what sentence should be imposed, it may be appropriate to have regard to a person’s admission of guilt. In that respect, in R v Ellis (1986) 6 NSWLR 603 at 604, Street CJ said:
The leniency that follows a confession of guilt in the form of a plea of guilty is a well-recognised part of the body of principles that cover sentencing.
It is relevant, in this matter, that the mother has not only acknowledged the fact of her contravention without reasonable excuse, she has also agreed to and facilitated the children having make up time with the father, and, further, she has agreed to pay the costs incurred by the father in commencing this action, fixed in a lump sum amount. Accordingly, in those circumstances, I have determined not to require the mother to enter into a bond.
However, having regard to the purpose and intent of the contravention provisions, being to “enforce future compliance with its orders” (referring to the Full Court in Winch & Jackson at [48]), I have determined that it is appropriate for the Court to make an order requiring the mother to attend a “post-separation parenting program” in accordance with s 70NEB(1)(a)(i) of the Act. That program should be one chosen by the mother, on the understanding that it is a program which falls within the definition of “post-separation parenting program” set out in s 4(1) of the Act. In the context where public health orders are currently in place to prevent and manage the spread of the COVID-19 virus, the mother’s attendance in that program is permitted to be by way of online participation.
In determining that it is appropriate for the mother to attend such a program, I have had regard to the contents of the letter dated 14 May 2021, from the solicitors for the father to the solicitors for the mother, wherein it was requested that the mother’s solicitors discuss with the mother the nature of her obligations under court orders, to ensure that “she is better informed as to her position regarding the Orders and her compliance with them”. Specifically, I have noted that, despite that request being made, the mother nonetheless proceeded to take the children on a holiday to the Gold Coast, which necessarily meant that she did not comply with her obligations, pursuant to the interim orders, during that relevant period.
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.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McClelland. Associate:
Dated: 1 September 2021
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