DICKENS & DICKENS

[2015] FamCA 294

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS [2015] FamCA 294

FAMILY LAW – ENFORCEMENT OF ORDERS – Contravention of orders – Sanctions – Where the mother was found to have contravened court orders without reasonable excuse – Where the father asked the Court to deal with sanctions under Subdivision F of Division 13A of Part VII of the Family Law Act 1975 – where it was appropriate to deal with the sanctions under Subdivision E of Division 13A of Part VII of the Family Law Act 1975 – Where the mother was ordered to enter into a bond with conditions.

Family Law Act 1975 (Cth) – Subdivision E, Division 13A, Part VII; Subdivision F, Division 13A, Part VII; s 70NAB(1) s 70NEB(1)

McClintock & Levier (2009) FLC 93-401

APPLICANT: Mr Dickens

RESPONDENT: Ms Dickens

FILE NUMBER: SYC 739 of 2010

DATE DELIVERED: 10 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 10 April 2015

REPRESENTATION

FOR THE APPLICANT: Mr Dickens in person

SOLICITOR FOR THE RESPONDENT: Ms Kensell, solicitor of Hamish Cumming Family Lawyers

Orders

1. That in relation to the father’s Application in a Case filed on 5 March 2015 in the Court’s view there is no scope for a stay of orders in relation to paragraphs 1 and 3 and such applications are dismissed.

2. That by consent order 5 of the orders made on 27 January 2015 is stayed pending completion of the father’s appeal.

3. That the father is given leave to withdraw the applications at paragraphs 4 and 5 of the said Application in a Case.

4. That in relation to the Court’s finding that the mother has contravened orders under the Family Law Act 1975 made by the Federal Magistrates Court on 20 December 2011 the mother forthwith enter into a bond for a period of twelve (12) months to be of good behaviour and to comply with all Court orders and to promise to owe to the Commonwealth of Australia the sum of $3,000.00 to be levied on her goods and chattels, land and tenements in the event that she should fail in the compliance with the conditions of the bond.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens 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 SYDNEY

FILE NUMBER: SYC 739 of 2010

Mr Dickens

Applicant

And

Ms Dickens

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is what I might describe as the second stage in contravention proceedings, which I heard on 20 May 2014, between Mr Dickens, to whom for convenience I shall refer to as “the father”, and Ms Dickens, to whom for convenience I shall refer as “the mother”.

3. The father filed a contravention application on 3 October 2013, alleging various breaches by the mother of parenting orders in relation to the parties’ children B, born in 2001 and C, born in 2003.  That application came initially before Rees J, who after a short time recused herself from hearing the proceedings.  In those circumstances, the father’s application came before me on 20 May 2014.

4. On that occasion I heard three alleged breaches of orders of the Federal Magistrates Court made on 20 December 2011.  The breaches were alleged by the father to have occurred on 5 April 2012, 1 June 2012 and 3 May 2013.  As it turned out, I found that the mother committed breaches of the orders on 5 April 2012 and 3 May 2013 without reasonable excuse.

5. I adjourned the proceedings to 4 September 2014 for submissions in relation to sanctions.  The father had also filed a contravention application against the mother’s partner, Mr D.  On 4 September 2014 I ordered that the hearing about whether to impose a sanction in respect of the mother’s breaches on 5 April 2012 and 3 May 2013 be adjourned to follow consideration of the father’s contravention application against Mr D.  I subsequently dealt with the alleged breaches against Mr D and gave oral reasons.  That is the explanation for why there has been a delay between making the findings against the mother on 20 May 2014 and hearing submissions about sanctions on 10 April 2015.

6. On 20 May 2014 I gave oral reasons in support of my findings of the breaches on 5 April 2012 and 3 May 2013.  Those reasons should be read with these reasons.

7. I shall come to the circumstances of each alleged breach soon.

8. At an early stage of the hearing, although the father takes some issue with this, I was informed that Ms Dickens admitted the alleged breach on 5 April 2012, and that she would not be bringing a case for reasonable excuse.  I made a careful note on the day, that is on 20 May 2014, that the mother conceded at the earliest opportunity on that day to having breached the order.  The father took some issue with that, expressing his view that the mother did not immediately admit that.  In my view, however, given the procedure which is followed in these cases, I have no reason to revisit my recorded view on that occasion.  That is something which I shall take into account in determining what are the appropriate sanctions.

9. The relevant orders were made by the Federal Magistrates Court, as it then was, on 20 December 2011.  The breach on 5 April 2012 was a breach of order 4 of those orders which is as follows:

   4.The Mother have sole parental responsibility for the Children, on condition that:

   (a)Unless an emergency, the Mother advise the Father in writing at least a month in advance of any major decision she proposes to make, with the reasons for her proposed decision;

   (b)The Mother have regard to any issues raised by the Father in response before finalising her decision;

   (c)The Mother notify the Father in writing when the final decision has been made.

10. What had occurred was that the mother had arranged for the children to attend upon a psychiatrist, Dr F.  The mother readily conceded that she had done that without complying with the requirements of order 4(a), that is, that unless it was an emergency, she was to advise the father in writing at least a month in advance of such a decision. 

11. The father says that this was a very serious breach because due to this contravention, he did not spend time with his boys.  He has a view that the children attending upon Dr F, and these are my words not his, is an ingredient in bringing about a situation where these boys have become alienated from him.  I stopped the father during the course of his submissions along these lines because there is no way that in the context of the present proceedings, that such a matter could possibly be established.  Nevertheless, that is clearly a view which the father has. 

12. Subsequently, the mother made an application for the appointment of an appropriately qualified behavioural scientist to provide some therapy to the boys in the very complex family situation that they were facing.  Again, I have dealt with those matters and I have given ex tempore reasons in respect of that matter.  I considered the possibility of appointing Dr F but ultimately, I determined that Mr Q be the person to provide assistance to the boys.

13. There was a strong submission by the learned solicitor for Ms Dickens that to the extent that the Court might have entertained concerns that the mother might not comply with court orders in future, the Court would be able to draw some comfort from the fact that when it became clear to the mother that she should have acted in accordance with order 4(a) of the orders, she then acted appropriately by filing her application for appointment of a therapist.

14. The second alleged breach which I found the mother to have committed without reasonable excuse was on 3 May 2013 as I have said.  This involved an allegation that the mother had failed to comply with order 8 of the orders of the Federal Magistrates Court on 20 December 2011.  In broad terms, this was an order which made provision for the children to spend time with their father each alternate weekend from after school Friday until before school on Monday.  The mother conceded that the children were supposed to have time with their father on 3 May 2013 pursuant to the order.  The mother conceded that they did not have time with their father on that occasion.  She endeavoured to bring a case for a reasonable excuse. 

15. There were somewhat complicated events which had occurred prior to 3 May 2013.  I have referred to the relevant matters in my reasons for making a finding of a breach on that occasion.  But there had been certain behaviours by the boys prior to that time.  There was an instance where both boys had left their school so that they would not be collected by their father.  They walked to Suburb K Police Station.  A week or two later B had left his father’s home and walked to Suburb K Police Station.  The mother took the view, and there was correspondence from her solicitor to the father about the matter, that in the circumstances of the behaviours that had been manifested at that time, that is in the weeks prior to 3 May, she considered it to be in the best interests of the children not to make them available.  As things turned out, as can be seen from my reasons, I accepted that that was a reasonable excuse in respect of B.  But I did not accept in all the circumstances that that was a reasonable excuse so far as C was concerned.  I found a breach in those circumstances.

16. The father asks the Court to make a whole range of orders against Ms Dickens.  He asks the Court to make an order that Ms Dickens submit to a bond to be of good behaviour to comply with all court orders and to promise to pay to the Commonwealth of Australia the sum of $10,000 in the event that she might fail in the conditions of her bond.

17. The father also seeks orders which would have the effect of discharging orders which I made now some time ago, suspending time between himself and the children or certainly, C.  The father asks in addition that the Court would order compensatory or make up time.  He says that he has not seen the boys, or particularly C, now for a long time.  He says he lost nine days which he should have had with the boys under the orders, before I made the orders that I made.  He asks the Court to make orders which would enable time to be spent between himself and C or perhaps both boys for the remaining part of their school holidays.

18. I have given consideration to a minute of orders which the father presented early in the hearing today which involve 18 paragraphs of orders.  These orders conclude with the order that Ms Dickens be placed on a bond for $10 000.  The remaining orders are, in fact, substantive or perhaps mostly substantive orders.  In summary, these orders if made would bring about a reversal of the children’s residence from their mother with whom they have always lived and who has sole parental responsibility for them under the final orders of the Federal Magistrates Court.  Some of the orders involve restraints against the mother and also Mr D.

19. Initially, Mr Dickens asked the Court to deal with the question of sanctions under Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). That Subdivision is headed “Contravention without reasonable excuse (more serious contravention)”. And Mr Dickens submitted that this was the appropriate part of the legislation for the Court to consider. I indicated that in my view that was not correct. I have not moved away from that view. Subdivision F is included to provide for the court to deal with what it sees as more serious contraventions. I indicated that in my view the contraventions before the Court today are serious in their nature. But there are degrees of seriousness as I have endeavoured to explain to the parties.

20. In my view, the appropriate Subdivision for this Court to act under in respect of this matter is Subdivision E. That is headed “Contravention without reasonable excuse (less serious contravention)”. At an early stage, I informed Mr Dickens that he needed to address me in respect of the powers which the Court has under sub-section 70NEB(1) of the Act.

21. I suggested to Mr Dickens that there might not be power under the Subdivision or perhaps Division 13A to make some of the orders sought in his minute of orders, particularly what appear to be substantive orders. But I have noted since we had that discussion, that Subdivision B of Division 13A provides for variation of parenting orders. Sub-section 70NBA(1) provides that a court having jurisdiction under the Act may make an order varying a primary order if proceedings in relation to the primary order are brought before the court and it is alleged in those proceedings that a person has committed a contravention of the primary order or the court finds, or does not find, that the person committed a contravention of the primary order.

22. So it is arguable that a court dealing with an application such as the present application might have power to vary substantive orders.  But the view that I take about this is that the interests of these children will be best served by the parents’ respective substantive applications being considered in the regular, orderly manner involved in the court process rather than in the context of an enforcement proceedings.  I note in this regard that the substantive proceedings have been listed for the first day in the less adversarial trial on 22 April 2015. 

23. In all the circumstances, in my view, it is not appropriate to make the substantive orders and injunctions the father is pressing for in his minute of orders in the context of these proceedings.

24. On the other hand, Ms Kensell for Ms Dickens has made a very strong submission, in which there are various threads.  Firstly, as indicated above, she said that the Court would have confidence that the mother would comply with the court orders because the mother has already demonstrated an appropriate approach following her realising that not notifying the father about her intention to make the arrangement for the children to have an appointment with Dr F, was an error and then she brought the matter back to the Court.  And it was said on her behalf that in those circumstances, it is not necessary for the Court to impose a sanction on her.

25. It is also said that the mother has already experienced some punishment.  Perhaps a better word might be some hardship in the sense that she has had to come to court now on nine occasions in respect of the various contravention applications.  As the father pointed out, not all of these involved her personally.  But I stood over this matter about the sanctions hearing certainly, to 4 September 2014 and it was necessary for the mother to be at Court on the majority of occasions that various applications have been listed.

26. It is also said on the mother’s part that she has risked her employment in respect of these matters, that she has exhausted all her leave entitlements by coming along and having to participate in these proceedings and that she has had the question of sanctions hanging over her head now for a very long time.  The inference is that that has all been a very difficult and unpleasant experience for her which has brought home to her the seriousness of court orders and the need for parties to comply with court orders.  It is submitted that therefore it is unnecessary for the Court to impose any sanction.

27. I was referred to the case of McClintock & Levier (2009) FLC 93-401, a Full Court decision where Cronin J said that the focus of the court in hearings, such as this sanctions hearing, must be to make the order which will enforce future compliance with court orders. Again, learned solicitor referred back to the proper action which the mother had brought or had taken in bringing an application to this Court for appointment of the therapist in contradistinction from what had occurred on the occasion of 5 April 2012.

28. There is a further submission on behalf of the mother that there is little remaining of the substantive orders which would be available for enforcement.  Ms Kensell took me carefully through what remains of the orders of the Federal Magistrates Court on 20 December.

29. The first relevant substantive order is that the children would live with their mother.  It was said that the mother does not need any incentive to comply with that order.

30. The children are not spending time with their father, so it was said that the entirety of the orders which were directed to that are not relevant at this point, unless the Court was to put in place some orders for compensatory time. 

31. The next relevant order would be order 4(a) which, of course, was the subject of the admitted breach on 5 April, that is, the sole parental responsibility order in favour of the mother and the conditions that I have referred to attaching to that.  It was said that apart from that, very little remains of the substantive orders as a consequence of subsequent orders suspending their operation.  It was submitted that therefore there would be little point in imposing a sanction on the mother.

32. The father, in reply to the submissions on behalf of the mother, re-emphasised the need for compliance with court orders.  He was again, quite critical of the mother.  He made submissions really, which reflected his frustration, concern and disappointment about the fact that he is not spending any time with his children at present, the responsibility for which he clearly sheets home to the children’s mother.  He renewed his submission about a need for the Court to make all the orders sought in his (lengthy) minute of orders.

33. I make it very clear that I regard it appropriate to consider the powers of the Court under Subdivision E of Division 13A of Part VII of the Act which are the powers set out in sub-section 70NEB(1).

34. The first power that the Court has under the sub-section is to require a person to attend upon a post-separation parenting program.  In my view, that would not an appropriate order.  These parties have long been involved in litigation.  There has been counselling.  They have had the benefit of what I might describe as quite sophisticated counselling, conciliation and mediation services provided to them as part of the court process.  Ms Kensell, informed me on an earlier occasion and confirmed today that, in fact, the mother has attended a post-separation parenting program.  In all the circumstances, in my view, that is not appropriate.

35. I did overlook one matter that the father asked me to consider.  That is to order, as part of a package of orders, that the mother attend counselling.  But I take a similar view to that which I have just expressed in respect of considering whether it would be appropriate for the mother to attend a post-separation parenting program.  In my view, any consideration of further counselling needs to be done in the context of the substantive proceedings.  There have been numerous well qualified and highly experienced behavioural scientists dealing with the parents in these complicated and difficult parenting proceedings.  They have not been able to bring about a situation where the litigation has been able to have been abated.  The relationship between the parties and the overall situation facing the family is very poor.  Circumstances for these children appear to be becoming increasingly complex, rather than less complex.  For all of these reasons I do not propose to make orders for counselling.

36. The next relevant matter is whether it is appropriate to make a compensatory order for the children, or at least C, to spend time with the father or to have communication with him.  As might be expected, Mr Dickens has made a very strong submission about this matter.  He says that there is no reason whatsoever why the boys should not be seeing him, that they had a good relationship with him and that experts have referred to the strength of the relationship which he has with the boys.  He says the current difficulty is all the fault of the mother and that she has alienated the children.  He says that in all the circumstances, it would be appropriate for the Court to order make-up or compensatory time. 

1. I must say I do not share the father’s view about this.  Perhaps in the context of the substantive proceedings, when presumably there will be opportunity for a Court expert to be appointed to assist the parents and the children, a decision for the children to resume spending time with their father might be able to be made.  But I am far from persuaded that that would be in the interests of the boys at this time.  I have previously given brief reasons going back to 16 September 2014 why in my view it was in the best interests of C to suspend the time between him and his father set out in the substantive orders.

2. I pause to repeat an observation that I made in court today.  This is that there have been a number of occasions where endeavours have been made during the course of various proceedings before me in relation to these children, to try and bring about an arrangement under which these boys would be able to spend some time with their father.  I was reminded today that Mr Moylan, the Independent Children’s Lawyer, had made some endeavours to broker an arrangement between the parents which would enable the boys, under some appropriate supervision, to be able to spend time with their father.  When I raised this matter with Mr Dickens, on more than one occasion he expressed the view that supervision was completely inappropriate, that there was no need for supervision and that he would not consider such an arrangement to be in the best interests of the children.  He made it clear that he was not interested in taking that matter any further.

3. Accordingly, given the complexity of the family circumstances, I cannot see how it could be in the interests of these boys to be spending time with their father.  In those circumstances, make-up or compensatory time would not be an appropriate order for the Court to make.

4. The remaining matter is to consider whether it is appropriate to order the mother to enter into a bond.  In my view, this is the appropriate sanction.  I have not cleared from my mind the very strong submission which Ms Kensell made about the justification for such an order.  It is true that at the present time most of the current orders are orders which favour the mother.

5. However, there is the sole parental responsibility order and the conditions attaching thereto.  I cannot put out of the way the possibility that there might be further orders made fairly soon in this matter when the matter comes before this Court in the substantive proceedings.  I accept that the order that the Court would put in place in these circumstances would be an order which would encourage the observance and compliance with court orders.  I take into account and draw some comfort from the appropriate conduct of the mother once it became clear to her that she made a transgression and should have referred the question of the children’s appointments with Dr F to the children’s father.  I note that she took the appropriate action and brought the matter before this Court.

6. However, given the complexities of this family, given the state of the relationship between the parties, given the duration of the litigation between the parties and the fact that neither the other Court, nor this Court, appear to have been able to put in place orders which have been able to end the litigation between the parties, in my view, it is appropriate for a bond to be entered into by the mother in the interests of these boys.  This would be an endeavour to ensure that there would not be any breach of either the current orders or future orders.

7. In respect of the surety, I take on board the financial material which Ms Kensell drew from her client from the witness stand about her financial circumstances.  I do not propose to go into the details of that except to say that it is clear that Ms Dickens does not own any property of any significant value.  She says that she owns a motor vehicle to which she attributes a value of about $4,000 but she says there is $15 000 or $16 000 owing in respect of that.  The overall impression I have from her evidence is that she owes a very substantial amount in respect of credit cards, loans to her parents and a debt to her partner, Mr D.  She said that there is an outstanding liability to Z School.  Her income is a package which all up, including superannuation, is approximately $150 000 per annum.  In respect of child support, she receives no child support but the actual child support situation has a level of complexity because Ms Dickens had incurred a debt to Mr Dickens some time ago.  The net effect of the current child support situation is that although the father has been assessed to pay approximately $16 a month in fact this delivers no money to Ms Dickens because of a child support debt which the mother has to Mr Dickens.

8. The overall impression I have about the mother’s financial circumstances is that she is seriously in debt.  But having considered that matter, in my view, some appropriate monetary amount needs to be included in the bond.  As I have said, Mr Dickens asked the Court to make an order that the amount be $10,000.  On the other hand, I was asked not to include any monetary component in any bond. 

9. In my view, the appropriate amount is $3,000.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 10 April 2015.

Associate:     

Date:              27 April 2015