Dobbs & Brayson

[2007] FamCA 1261

FAMILY COURT OF AUSTRALIA

DOBBS & BRAYSON [2007] FamCA 1261

FAMILY LAW - APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CONTEMPT – Contravention of Court order – Appeal against four month sentence of imprisonment – Federal Magistrate found no reasonable excuse for contravention and found that it was a “more serious” contravention – Sections 70NFB and 70NFF Family Law Act 1975 (Cth) – Failure by Federal Magistrate to identify and apply standard of proof – Section 70NAF Family Law Act 1975 (Cth) – Discussion of civil and criminal authorities on standard of proof and punishment – Section 70NFG(2) – Failure by Federal Magistrate to give adequate reasons for imprisonment – Whether a denial of procedural fairness – Whether Federal Magistrate erred in fact in finding that the mother would refuse to comply with orders if he were to impose a “conditional sanction” – Whether no court would have been satisfied that all other sanctions other than imprisonment were inappropriate – Whether four months imprisonment was manifestly excessive

FAMILY LAW - APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – With whom a child spends time – Orders – Contravention –– Appeal against parenting order –– With whom a child lives – Reversal of parenting orders by Federal Magistrate so that the children were to live with the father for an indefinite period and not for the period of sentence of the mother – Failure of the Federal Magistrate to properly address the requirements of Part VII of the Act before he made the parenting order – Best interests of the children s 60CC Family Law Act 1975 (Cth) – Rejection by Federal Magistrate of making orders for compensatory contact – Whether father was seeking a final order that the children live with him or an order that the children live with him while the mother imprisoned

Crimes Act 1914 (Cth)
Family Law Act 1975 (Cth) Part VII Division 13A; ss 60CC; 70NAA; 70NAF; 70NDA(c); 70NFA; 70NFB; 70NFF; 70NFG; 94(2)
Federal Proceedings (Costs) Act 1981

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd and Others (2003) 216 CLR 161 at 187
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Irvin v Carr [2007] FamCA 492
R v Olbrich [1999] 199 CLR 270
R v Morrison [1999] 1 Qd R 397
R v Storey [1998] 1 VR 359
Sahari and Sahari (1976) FLC 90-086
Sandler & Kerrington [2007] FamCA 479
Tate and Tate (2003) FLC 93-138
Weininger v The Queen [2003] 212 CLR 629
Witham v Holloway (1995) 131 ALR 401

APPELLANT: MS DOBBS

RESPONDENT: MR BRAYSON

FILE NUMBER: NCM 3952 of 2002

APPEAL NUMBER: NA 33 of 2007

DATE DELIVERED: 25 October 2007

PLACE DELIVERED: BRISBANE

JUDGMENT OF: FINN, WARNICK & BOLAND JJ

HEARING DATE: 17 May 2007

LOWER COURT JURISDICTION: Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE: 23 March 2007

LOWER COURT MNC: [2007] FMCAfam 193

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hamwood

SOLICITOR FOR THE APPELLANT: Parker Kissane & Gibson

SOLICITOR FOR THE RESPONDENT: Mr Tester

SOLICITOR FOR THE RESPONDENT: Stephen Tester & Associates

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Dobbs & Brayson.

Orders (17 may 2007)

1. That the appeal against Orders 1 and 2 of the orders made by Federal Magistrate Jarrett on 23 March 2007 be allowed.

2. That Orders 1 and 2 of the orders made by Federal Magistrate Jarrett on 23 March 2007 be set aside.

3. That the father deliver the children to the mother at a time and place to be agreed between the parties and in default of agreement as further ordered.

4. That the mother’s appeal against the orders made by the Honourable Justice Jordan on 12 December 2006 be reinstated and to this end the mother be at liberty to apply to the Northern Region Appeals Registrar for a procedural hearing date.

5. That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.

6. That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.

Orders (25 october 2007)

1. That within 21 days of the date hereof, the appellant file and serve such written submissions as she wishes to make in respect of the future course of the father’s application for contravention filed 17 January 2007 in the Federal Magistrates Court of Australia.

2. That the respondent file and serve such written submissions as he wishes to make in respect of the future course of his application for contravention within 14 days of service of any submissions by the mother or the expiry of the 21 days period above referred to, whichever is the earlier.

3. That the appellant have a further 7 days to file and serve written submissions in reply.

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 33 of 2007
File Number: NCM 3952 of 2002

MS DOBBS

Appellant

And

MR BRAYSON

Respondent

REASONS FOR JUDGMENT

1. Ms [Dobbs], the mother of [X] (aged nearly 8 years) and [Y] (aged 6 years) and the parent with whom the children primarily lived, was sentenced to four months imprisonment on 23 March 2007.  Jarrett FM had found that, without reasonable excuse, she had contravened an order for contact between the children and their father, Mr [Brayson].  The Federal Magistrate also reversed an order made only three months beforehand by Jordan J of the Family Court of Australia, that the children live with the mother, so that the children were to live with the father indefinitely, not just for the period of the mother’s imprisonment.

2. On 17 May 2007, upon hearing the mother’s appeal against both the order sentencing her to imprisonment and the parenting order, we allowed the appeal and set aside both orders.

3. For the reasons that follow, we had concluded that Jarrett FM had failed to identify and apply the proper standard of proof and to adequately set out his reasons for the imprisonment.

4. We also were satisfied that his Honour’s consideration of the matters pertinent to the order about the children’s residence fell well short of that required under the Family Law Act 1975 (Cth) (“the Act”).

5. However, wishing to take some care in the expression of our reasons for those conclusions and to address other arguments, about which we had not then decided, we did not deliver reasons at the time we made the order.

6. Sometimes, though an appellate court is convinced that appellable error has occurred but is not ready to state the reasons, a decision will be reserved.  No orders will be made.  This is especially so if the possibility exists that, if the appellate court re-exercises the trial Judge’s discretion, the same result will be reached and the appeal accordingly dismissed.  Notwithstanding such a possibility here, we concluded that, as the mother had already been in prison for nearly eight weeks, we ought order her immediate release.

7. This we did recognising that if, following a possible reconsideration of the father’s application, the conclusion was that the mother be imprisoned for longer than eight weeks, she could be re-committed.

8. Returning to the arguments on appeal, though there were sixteen grounds of appeal, in his written summary of argument, Mr Hamwood, counsel for the mother, grouped some of them, indicating a commonality of essential points.  In our view, all arguments put are covered either in those that are implicit in the conclusions we have already stated, or which are set out in paragraphs 10 and 11.

9. After a short outline of the statutory “regime” relating to contravention of parenting orders and of the course of proceedings before the Federal Magistrate, we will discuss the reasons for our conclusions reached at the hearing, in respect of the arguments that the learned Magistrate failed:

   (i)to properly address the issue of the applicable standard of proof; and

   (ii)to adequately set out his reasons for the imprisonment.

10. Following that, we will deal with other arguments that related to the issue of contravention, namely:

    (iii)that there had been a denial of procedural fairness;

    (iv)that, in finding that the mother would refuse to comply with the orders of 12 December 2006 if the Federal Magistrate were to impose a “conditional sanction”, the Federal Magistrate erred in fact;

    (v)that no court could have been satisfied that all sanctions other than imprisonment were inappropriate; and

    (vi)that four months imprisonment was manifestly excessive.

11. We will then discuss:

    (vii)the failure of the Federal Magistrate to properly address the requirements of Part VII of the Act before he made the parenting order.

12. We must finally turn to the question of what, if any, further orders should be made.

13. At the time of hearing the appeal we also reinstated an appeal by the mother against the “contact” orders made by Jordan J, an appeal which had lapsed due to inaction by the mother.

Outline of the statutory “regime”

1. Part VII, Division 13A of the Act deals with “Consequences of failure to comply with orders, and other obligations, that affect children”. The first section of the Division discloses its “scheme”, namely that the type of orders that the court can make depends on the “classification” of the outcome of the allegation that there has been a contravention. That section, 70NAA, provides:

   (1)This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.

   (2)The court always has the power to vary the order under Subdivision B.…

   (3)The other orders that the court can make depend on whether:

   (a)  a contravention is alleged to have occurred but is not established (Subdivision C); or

   (b)  the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or

   (c)  the court finds that there was a contravention and there is no reasonable excuse for the contravention. (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).

2. In the instant case, Jarrett FM found that there was a contravention, that no reasonable excuse was established and that it was a “more serious” contravention.  Thus, the orders available, apart from variation of the “primary orders” were those contained within Subdivision F.  These orders included community service orders, bonds, fines and imprisonment (s 70NFB).

3. Among other matters, succeeding sections in Division 13A deal with:

   ▪Meaning of contravened an order

   ▪Meaning of Reasonable Excuse for Contravening an order

   ▪Standard of Proof

   ▪Variation of Parenting Orders

4. As is no doubt apparent from the introduction, the two topics last mentioned will be discussed in detail.

The course of proceedings before Jarrett FM

1. Before the Federal Magistrate, the father was represented by Mr Tester, solicitor.  The mother was unrepresented.

2. The learned Magistrate asked the mother if she was ready to proceed and some of the exchanges that followed will be set out later in relation to the argument that procedural unfairness arose.  For present purposes, we record that the mother admitted that she did not take the children to the contact centre as required by the parenting order but, she claimed, she had a reasonable excuse.

3. Jarrett FM then explained to the mother the course that would follow.  He said:

   Well now, the process is that having received your plea of an admission I’m satisfied that there’s a prima facie case made against you for breach of the order.  The issue becomes whether in fact you’ve got a reasonable excuse.  You’re entitled to cross-examine the father on his affidavit material if you want to and then once that process is gone through I’ll ask you if you want to lead any evidence yourself that supports your claim that you’ve got a reasonable excuse, do you understand that?  Okay, And if you lead evidence then you’ll be liable to be cross-examined by the other side.  Do you want to cross-examine the father?

   MS [DOBBS]:  I do have a couple of questions for him.

4. No issue about that explanation was raised before us.

5. After the mother’s cross-examination of the father, the Federal Magistrate called on the mother to present her evidence.  He identified that she was relying upon two affidavits filed that day and she also said, responding to a question of the Federal Magistrate, that she wished to tell him something further.  She was asked to go into the witness box.  Essentially, the mother restated her case that had become apparent during her cross-examination of the father and through exchanges with the learned Magistrate, namely that she could not afford to put petrol in her car on the relevant weekend, even to go to church, let alone to drive to the contact centre.

6. At the completion of Mr Tester’s cross-examination of the mother, the Federal Magistrate explained to the mother the role of submissions and then heard her submissions.  He did not call on Mr Tester.  He then delivered what are now the first twelve paragraphs of the reasons for judgment as transcribed, culminating in the conclusion expressed as follows:

   12.I find the contravention application proved.  I find that the mother does not establish that she had a reasonable excuse for contravening the orders.…

7. Jarrett FM then heard Mr Tester’s submissions about the orders that he might make.

8. Mr Tester submitted that “…unfortunately it’s a matter where anything short of a custodial sentence would probably be inappropriate.”

9. The Federal Magistrate then invited and received submissions from the mother, during which some exchanges between the Bench and the mother arose about compliance in the future with the orders for the father to spend time with the children.  The Federal Magistrate adjourned to give the mother “…the opportunity to rethink your attitude to those orders.”

10. Upon return, Jarrett FM heard further from the mother and then delivered reasons for the order that the mother be imprisoned, these reasons now contained in paragraphs 13 to 28 of the judgment as published.

11. Finally, the Federal Magistrate dealt with an oral application in relation to parenting arrangements for the children.  His reasons for the orders that he made in disposition of that issue are paragraphs 29 to 36 of the judgment.

Arguments on appeal

1. That Jarrett FM failed to apply the appropriate standard of proof

1. Section 70NAF (with our interlineations to assist cross-referencing) provides:

   Standard of Proof

   (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

   (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)The court may only make an order under:

   (a)paragraph 70NFB(2)(a) (community service order), (d) (fine) or (e) (imprisonment); or

   (b)paragraph 70NFF(3)(a) (fine following breach of community service order or bond);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

2. As earlier seen, ss 70NFB and 70NFF are within Subdivision F, which applies to “more serious” contraventions.

3. Accordingly, we identify four categories of fact to which questions of the appropriate standard of proof relate, namely those going to:

   (i)whether the alleged contravention occurred;

   (ii)whether a reasonable excuse for the contravention existed;

   (iii)whether a contravention without reasonable excuse was “less” or “more” serious; and

   (iv)what order should be made, including whether an order should be made under s 70NFB(2)(a)(d) or (e) or s 70NFF3(a).

4. Although we discussed the meaning of s 70NAF (standard of proof) with the legal representatives during the hearing of the appeal, because, as will be later seen, it is unnecessary in arguing or deciding the instant appeal to choose between the possibilities next addressed, that discussion was abbreviated.

5. Nonetheless, the question of the meaning and effect of the provision being before us, we think we should deal with it, at least in so far as it had necessary application to the instant case.

6. In Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 the Full Court said of s 70NAF:

   47.The matter is further confused by the provisions of s 70NAF which provides that the standard of proof in proceedings under the relevant division is proof on the balance of probabilities but then goes on to provide that an order can only be made for community service, a fine or imprisonment if the Court is satisfied beyond reasonable doubt that the grounds for making the order exist.

   48.The section is both confusing and ambiguous and raises issues of interpretation which will exercise this court on another occasion.…

7. We certainly agree that at the least, the section attracts close scrutiny.  This is because, while read in the abstract its terms may seem plain enough, its application may be at least surprising.

8. On one interpretation, s 70NAF has potential to require an unusual process; an application might commence and proceed on one standard of proof, but ultimately be determined according to another. The standard will be the balance of probabilities, unless the court decides to make one of the orders referred to in subsection 70NAF(3) (as seen, a community service order, a fine, imprisonment or a fine upon breach of a community service order or bond). However, a court may not reach a conclusion about the order to be made until after addresses, or even after a decision has been reserved.

9. The intellectual exercise for the judge of retrospectively reviewing the evidence upon a “new” standard of proof, may often be, at the least, difficult. For the moment, we leave aside any problems arising from that.  A more palpable difficulty is that the integrity of proceedings may suffer if a case conducted on the civil standard (balance of probabilities) is decided upon the criminal standard.

10. True it is that, if a prospect of injustice becomes apparent once the need to be satisfied beyond reasonable doubt is identified, a further opportunity to address might be readily enough granted, but the prospect of re-opening the evidence is more daunting.

11. Against these concerns might be the argument that litigants commence relevant proceedings knowing that the standard of proof initially applied is “the balance of probabilities” and that either that standard or that of “beyond reasonable doubt” will ultimately apply.  Therefore parties ought conduct their cases accordingly and cannot complain if they do not.

12. But even if that is a sufficient response, the “oddity” of the process, rather than obvious ambiguity in the subsection, tends to make one examine the section to see if other interpretations are open.

13. The “oddity” to which we have referred only arises if the term in s 70NAF(3), “… the grounds for making the order”, refers to all the elements of a contravention which must be established by the applicant before an order of the type referred to can be made. This “oddity” of process would be diminished if “the grounds for making the order” referred, not to the proof of a contravention itself but only to those further matters which, after a contravention is proved, must be established before an order of the type referred to in s 70NAF(3) is made.

1. This is not to say that on this alternative interpretation no concerns would remain, for example the imposition of a punitive sentence for a wrong established only according to the civil standard.  Nonetheless, because its impact is less extensive and thus less surprising, we next examine this alternative interpretation.

2. As earlier indicated, Subdivision F only applies to “more serious” contraventions.  Essentially a contravention is only so regarded if the court is satisfied that the contravener has either showed a “serious disregard of his or her obligations” (s 70NFA(2)(b)), or been dealt with in certain ways in respect of an earlier contravention (s 70NFA(3)). Moreover, a court must not sentence a contravener to imprisonment unless satisfied that it would not be appropriate to deal with the contravention by other available order or orders (s 70NFG(2)).  The imposition of these pre-conditions to the making of certain orders might invite the interpretation that it is those pre-conditions that are the “grounds for making” those certain orders, as to which grounds the court must be satisfied beyond reasonable doubt.

3. However, the proposition is not compelling and the application of the section remains troublesome.

4. Thus, we have considered the revised Explanatory Memorandum accompanying the Family Law Amendment (Shared Parental Responsibility) Bill (2005), where it is said:

   259. Section 70NAF replaces section 70NEA in the existing Act. It provides clarification of the standard of proof to be applied by the court in considering enforcement applications. The current test provided by section 140 of the Evidence Act 1995 is the civil standard of proof, the balance of probabilities, with the court to take account of the gravity of matters. Section 70 NAF aims to assist practitioners and self-represented litigants by clarifying the circumstances in which the court will apply a different standard of proof.

   260. New subsection 70NAF(1) specifies that the court should generally apply the civil standard of proof, the balance of probabilities, in considering matters in proceedings under Division 13A of Part VII of the Act. This is subject to subsection 70NAF(3), which provides that a stricter standard applies to orders being considered under the more serious contravention applications that may incur a criminal penalty under provisions in Subdivision F.

   261. New subsection 70NAF(2) clarifies that the court should also apply the civil standard when determining whether a person had a reasonable excuse for having contravened an order affecting a child under this Act. This approach should mean that it is easier for many less serious contraventions to be dealt with by the court as they will not need to be treated as a quasi-criminal proceeding.

   262. New subsection 70NAF(3) provides that a stricter standard of proof, requiring the court to be satisfied beyond reasonable doubt, applies to matters to which Subdivision F applies when a court is considering a criminal consequence for the contravention of an order (for example, imposing a bond, a fine, or a sentence of imprisonment). This is appropriate given the consequences for the individual of orders that impose criminal sanctions.

5. We do not find the Explanatory Memorandum of assistance in the resolution of the particular problem addressed.  However, it does confirm what we think was clear in any event, namely that in respect of excuse, the standard of proof (to be met by the respondent – see s 70NDA(c)) - is upon the balance of probabilities.

6. Returning to the interpretation first discussed, namely that, before a sentence of imprisonment can be imposed, s 70NAF requires the court to be satisfied beyond reasonable doubt of all of the following elements: the commission of a contravention, that the contravention was “more serious” and that other available orders were inappropriate; we note that each of these matters is a “step” required by provisions in Division 13A. Each “step”, in our view, is readily enough seen as a “ground” for making one of the orders in question. This interpretation we think consistent also with general principle, as emerges from the following authorities.

7. While these cases involve contempt, as opposed to contravention proceedings, the issue under discussion by us is the standard of proof in a contravention proceeding resulting in “punishment”.  These authorities themselves draw comparisons between “civil” and “criminal” contempts which we think supports the application of what is there said to the issue in this appeal.

8. In Witham v Holloway (1995) 131 ALR 401, Brennan, Deane, Toohey and Gaudron JJ said at 407:

   Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. … The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt ‘must realistically be seen as criminal in nature’. The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise. (emphasis added).

9. In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd and Others (2003) 216 CLR 161 at 187 Kirby J said:

   Because it would be normal in Australian law to expect that an ‘offence’, the subject of ‘prosecution’ with serious consequences for a person convicted, would be proved beyond reasonable doubt, a provision depriving the party accused of that normal protection is one that, potentially, affects basic civil entitlements. It is therefore a matter upon which the legislature may be expected to speak clearly and unequivocally.

   Hayne J said at 28:

   Arguments founded on classification of the proceedings as ‘civil’ or ‘criminal’ as determinative of the standard of proof, must fail. As reference to the historical matters mentioned earlier reveals, the classification proposed is, at best, unstable. It seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges. There are proceedings with both civil and criminal characteristics.

   …

   [at 35] What does the common law require? Where what is sought is conviction of the defendant for an offence against a law of the Commonwealth, it must be strongly arguable that nothing short of proof beyond reasonable doubt will do.

   …

   … Those tentative conclusions do not depend upon attributing a description of ‘civil’ or ‘criminal’ to the proceedings as a whole or seeking to identify some ‘essential character’ of the proceedings. (By what process of distillation the ‘essential character’ of proceedings could be revealed is not apparent.) Rather, the conclusions proposed focus upon, and attach significance to, the kinds of orders which the proceedings seek. In particular, proceedings are distinguished according to whether or not they seek the conviction of the defendant for an offence.

10. In our view, having regard to general principles applicable to proceedings in which sanctions may result and to the terms of s 70NAF(3), notwithstanding the “oddities” of process that may arise, the effect of s70NAF(3) is this: before an order of the type referred to in that subsection is made, the court must be satisfied beyond reasonable doubt of all the factual matters that relate to the finding of contravention, to the treatment of the contravention as one to which Subdivision F of Division 13A applies, and, subject to what we next say, if imprisonment is imposed, the inappropriateness of other available orders.

11. Facts relevant to the appropriateness of available orders and/or to such matters as the amount of a fine or length of a term of imprisonment may of course be put forward by either party to a contravention. Two questions may arise: firstly, whether respondents must prove facts favourable to them beyond reasonable doubt, and secondly, whether, if the applicant wishes to prove facts arguably outside one of the “steps” required by Division 13A, say relevant only to the amount of a fine, that must be proved beyond reasonable doubt.

12. The terms of s 70NAF(3) may themselves provide the answer, insofar as the subsection says (interpolations and emphases added):

    (3)  The Court may only make an order (for community-service, fine or imprisonment) if the court is satisfied beyond reasonable doubt that the grounds for making the order exists.

13. Arguably, these terms mean that every fact bearing upon the particular order made, at least if advanced by the complainant, must be proved beyond reasonable doubt.  However, as we were not addressed on the aspects under discussion, we again also turn to general principle, which, as will be apparent, has developed in recent years.

14. In R v Morrison [1999] 1 Qd R 397, Pincus JA and Fryberg J said at 403:

    If a foreigner, unfamiliar with our system, were to inquire for what reason trials should be subject to such elaborate safeguards and sentence hearings generally run in a more summary way, none other than a historical explanation could be given. If the inquirer were to ask why the judge’s or magistrate’s decision as to whether or not an offender should be sent to prison, and if so for how long, is determined mainly on the basis of impressions gained from assertions made from the bar table, all one could say is that this is the way things are done.…

15. In a similar vein, in the year before the decision in Morrison, (supra) in the Victorian Court of Criminal Appeal in R v Storey [1998] 1 VR 359, Winneke P, Brooking, Hayne JJA and Southwell AJA said at 371-373:

    Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the Bar table and we see no reason why that practice should not continue. … There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence… . Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order for the jury to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard – not each of the individual facts which is said to bear upon the issue. … We do not intend what we have said to introduce ‘excessive subtlety and refinement’ to the task of sentencing. …

16. Notwithstanding the breadth of the historical approach, in Morrison (supra) the majority in the Queensland Court of Appeal thought it appropriate to bring Queensland into line with the other State jurisdictions by declaring that (at 422):

    … facts implicit in the conviction cannot be controverted. Where a fact is admitted or not challenged, the sentencing judge may act on that fact without making any formal finding in relation thereto. But where it is sought to prove an issue which is adverse to an offender in the sense that, if proved, it would be likely to result in a heavier sentence, and that issue is disputed, it must be proved beyond reasonable doubt. Where, on the other hand, a disputed factual issue, if proved, would favour the accused in the sense that it would be likely to result in a less heavy sentence, the sentencing judge need be satisfied of that proof only on the balance of probability… .

17. The effect of that decision in Queensland was altered by subsequent legislation.

18. In R v Olbrich [1999] 199 CLR 270, the High Court considered an appeal arising out of a sentence imposed for a breach of a Commonwealth statute. The majority (Gleeson CJ, Gaudron, Hayne and Callinan JJ) said at 281:

    [27] As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369 – that a sentencing judge

    “… may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.”

19. However, the complexity of the sentencing process is demonstrated by the discussion more recently, in Weininger v The Queen [2003] 212 CLR 629, a decision focusing on the terms of section 16A(2) of the Crimes Act 1914 (Cth). The majority, Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, said at 636-638:

    [19] … As was recognised in Olbrich, some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.

    …

    [21] … The use of the phrase “known to the court”, rather than “proved in evidence”, or some equivalent expression, suggests strongly that       s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase “known to the court” should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.

    …

    [24] As was pointed out in Storey [1998] 1 VR 359 at 372, it is important to avoid introducing “excessive subtlety and refinement” to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money.”

20. Of course, the Crimes Act 1914 (Cth) does not apply to contravention proceedings under Division 13A of the Family Law Act 1975 (Cth).

21. In any event, this discussion relates at most to what is likely to be a small “pocket” of facts that arises in a small number of cases. We have already concluded that the terms of s 70NAF of the Act mean that all the facts which the applicant must establish before an order of the type referred to in s 70NAF(3) can be made, must be proved beyond reasonable doubt. Cases where other facts are relevant to the particular order made may well be rare.  However, in our view, even in respect of those facts, if adverse to the respondent, they must be proved beyond reasonable doubt.

22. Against our conclusions in respect of the standard of proof that should have been applied in the case under appeal, we turn to the learned Magistrate’s reasons for judgment.  Only one paragraph dealt with the issue.  That was the last paragraph in the second segment of reasons delivered by Jarrett FM on the day of hearing, being the segment in which he dealt with the question of the appropriate order.  He said:

    28. In this case there is evidence that the mother will not comply with Jordan J’s orders. Given her answers to me, I am satisfied beyond reasonable doubt that she will not and in those circumstances my view is that it is appropriate to impose a sentence of imprisonment and that the sentence of imprisonment not be suspended.

23. On the face of it, at the highest, Jarrett FM drew one conclusion of “fact” (and that was about what would happen in the future) beyond reasonable doubt.

24. Even on the narrow (but rejected) interpretation of s 70NAF(3), that was insufficient. On the proper meaning of the subsection, that approach fell short of what was required.

25. At the very least, in our view, the Federal Magistrate should have done something like Benjamin J did in his ex tempore judgment in Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655, namely, recognise (preferably, as Benjamin J did, at the outset of his reasons) that “...the findings of fact I am making are findings beyond reasonable doubt…” Benjamin J applied this standard not just to the facts in respect of a contravention, of itself, but also to those bearing upon whether Subdivision F applied. He said, “Further, I find or the court is satisfied beyond reasonable doubt that the wife and the other respondents have behaved in a manner that has shown a serious disregard of their obligations under the primary orders.”

26. With regard to these findings of Benjamin J, the Full Court, having remarked upon the ambiguity of s 70NAF said:

    …However in this matter these considerations are not relevant because for whatever reason the trial judge indicated from the beginning of his judgment that his findings and determinations were made beyond reasonable doubt.

27. Though the breach of order had been admitted by the mother, we could not be satisfied that Jarrett FM had applied the standard of “beyond reasonable doubt” to the grounds remaining to be proved before he made the order for imprisonment.  Thus, we were satisfied of merit in this argument.

1. [In summary] That the Federal Magistrate failed to satisfy himself that it was inappropriate to deal with the contravention otherwise than by imprisonment and failed to properly state his reasons for being so satisfied.

1. Section 70NFG, the focus of the arguments here considered, is in Subdivision F.

2. The full terms of the two subsections particularly involved in the current consideration are:

   s 70NFG(2)

   (2)A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).

   s 70NFG(3)

   (3)If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:

   (a)state the reasons why it is satisfied as mentioned in subsection (2); and

   (b)cause those reasons to be entered in the records of the court.

3. For convenience, we here set out the terms of s 70NFB(1) and (2):

   (1)If this Subdivision applies, the court must, in relation to the person who committed the current contravention:

   (a)make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and

   (b)if the court makes an order under paragraph (2)(g)--consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and

   (c)if the court does not make an order under paragraph (2)(g)--make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.

   (2)The orders that are available to be made by the court are:

   (a)if the court is empowered under section 70NFC to make a community service order--to make such an order; or

   (b)to make an order requiring the person to enter into a bond in accordance with section 70NFE; or

   (c)if the current contravention is a contravention of a parenting order in relation to a child--to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or

   (d)to fine the person not more than 60 penalty units; or

   (e)subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or

   (f)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;

   to 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); or

   (g)to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or

   (h)to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.

   Note:  The court may also vary the primary order under Subdivision B.

1. As earlier discussed, the first segment of the Federal Magistrate’s judgment dealt with the question of whether the mother had committed a contravention without reasonable excuse. After delivery of that segment, further submissions and an adjournment, the learned Magistrate delivered reasons for the actual orders he made. He said:

   13.Earlier today I found that the respondent in this case had contravened orders of the Family Court of Australia without reasonable excuse. Since doing that I have heard submissions from each of the parties as to the appropriate penalty that might be imposed in this case.

   14.The evidence satisfies me that I ought to deal with this case as a more serious contravention. That is, I should deal with it under Subdivision F of Division 13A of Part VII of the Family Law Act1975.  It is a case where the mother has in the past been placed on a bond for breaching orders, although not the orders with which I am immediately concerned.  It is a case where she made a conscious decision not to comply with orders of a Court in face of a very clear statement by the presiding Judge as to the consequences that might be visited upon her if she did not comply.

   15.There is nothing to suggest, indeed the evidence is to the contrary, that the mother does not or did not understand the significance of the obligations imposed upon her by the orders that she has chosen not to comply with.  It is against that background that I am satisfied that the mother's behaviour constitutes a contumelious disregard of the orders that were made by the Family Court and the contumelious disregard of the authority of that Court. 

   16.The options available to a Court dealing with somebody who has been found to have contravened orders relating to children are set out in Subdivision F of Division 13A of Part VII of the Act are varied (see s.70NFB(2)), but in this case it seems to me that many of the options are inappropriate.

   17.The Court has power to make an order that a person undergo a community service order but that option is only available if there is in place between the Commonwealth and the States arrangements for the facilitation of such orders by State authorities (s.70NFC).  There is nothing to suggest that those arrangements are in place and, indeed, in a decision Peter & Elspeth (Contravention) [2007] FamCA 96, an unreported decision of Benjamin J of the Family Court of Australia, his Honour was given to remark that indeed there are no arrangements between the Commonwealth and the States at this point in time that would permit the making of such orders.

   18.That then leaves a number of other options.  The Court is empowered to make an order that a person enter into a bond in accordance with s.70NFE.  I will return to the bond shortly.  The Court can make an order to fine a person not more than 60 penalty units.  A penalty unit at the moment is about $110 and so the maximum fine available would be $6,600.

   19.I can impose a sentence of imprisonment in accordance with s.70NFG of the Act and, pursuant to that section, I can order that that period of imprisonment be suspended upon terms and conditions to be determined by the Court.

   20.I can also make orders that there be compensatory contact between children and the parent who had the benefit of the order and I can also, indeed, in some circumstances I am required, to make an order that the person who committed the contravention pay the costs of the other party to the proceedings. 

   21.In this case the options seem to me to be, given the contumelious disregard of the mother of the orders of the Family Court, either a bond or a suspended sentence of imprisonment.  I am not satisfied that the imposition of a fine would be appropriate.  If the mother could pay the fine, it would merely amount to the price she should pay to avoid complying with the orders of the Family Court. 

   22.The issue that arises for consideration in respect of either a bond or a suspended sentence of imprisonment is whether any condition that might be imposed on the mother as a term of the bond or the suspended sentence that she comply with the orders in the future would be honoured.  I raised that issue with the mother a short time ago and gave her some time to contemplate her answer to that particular question.  She was unable to tell me that she would comply with the orders in the future if that was a condition of any bond or suspended term of imprisonment that I imposed. 

   23.In those circumstances I cannot be satisfied that she would indeed comply with any of the orders made by Jordan J in December last year.  I am satisfied by her answers, both from the witness box and in answer to some questions that I put to her when she was at the Bar table that she would not comply with those orders unless they provided for the father's time with the children to be supervised.

   24.In those circumstances, and bearing in mind that she has already been placed on a bond before, it seems to me that a bond is entirely inappropriate.  It would be breached on the first occasion that the orders presented for compliance. 

   25.That leaves the question of imprisonment.  Ought there be a sentence of imprisonment and, if so, for how long and should it be suspended?

2. His Honour then further considered the decision to which he had earlier referred, that of Benjamin J in Peter and Elspeth (supra). He said that the case contained some analogies to the case before him, although he identified as a difference the finding of Benjamin J that the orders that had been breached would probably be carried out in the future.  In his final paragraph dealing with sanction his Honour then (as earlier seen) said:

   28.In this case there is evidence that the mother will not comply with Jordan J's orders.  Given her answers to me, I am satisfied beyond reasonable doubt that she will not and in those circumstances my view is that it is appropriate to impose a sentence of imprisonment and that the sentence of imprisonment not be suspended.

3. Mr Hamwood, counsel for the mother, submitted that the Federal Magistrate’s reasons for rejecting orders for compensatory contact and/or a fine, were inadequate and that he was wrong to reject those alternatives.  Based on Jarrett FM’s findings about the mother’s attitude towards compliance, we think a summary dismissal of these alternatives was open.  That is not to say that a summary approach would provide an adequate explanation for the order that was actually made.

4. As to the sufficiency of reasons for imprisonment, we leave until later the argument that the finding that the mother would refuse to comply with the parenting orders if a conditional sanction was imposed, was not open.

5. However, even assuming that finding was correct, we are concerned about some aspects of the Federal Magistrate’s reasoning.

6. Firstly, if Jarrett FM correctly found that the mother would not comply with Jordan J’s orders even if a suspended sentence of imprisonment was imposed, one would then expect some express consideration of whether an actual term of imprisonment would bring future compliance.  While arguably that consideration is implicit, the fact that it is not expressed decreases the cogency of the reasons, particularly in view of what we next address.

7. Secondly, taken literally, in paragraph 28 of his reasons, Jarrett FM sentences the mother because she will not comply in the future, rather than for the contravention on 7 January 2007. In that paragraph (repeated here for convenience), he said:

   28. In this case there is evidence that the mother will not comply with Jordan J’s orders. Given her answers to me, I am satisfied beyond reasonable doubt that she will not and in those circumstances my view is that it is appropriate to impose a sentence of imprisonment and that the sentence of imprisonment not be suspended.

8. While we acknowledge that “deterrence” was a factor properly to be taken into account, the sentence must be only in respect of the offence established.

9. Thirdly, even if the better view, on the reasons overall, is that the Federal Magistrate did sentence the mother for the contravention rather than for her attitude of future defiance, he seems to have done so as a “default” position, arrived at because he concluded that it would not be appropriate to deal with the contravention otherwise.

10. While together, the terms of s 70NFB(1) and s 70NFG(2) require the court to make an order under s 70NFB(2), but proscribe imprisonment unless the court is satisfied other available orders are inappropriate, we think that, rather than arriving at imprisonment by merely excluding alternatives, as we next explain, a need to address the intrinsic aptness of imprisonment to the contravention, remains.

11. Leaving aside any error in the application of principle, such as sentencing for an anticipated rather than an actual breach, we turn to address the adequacy of the reasons for imprisonment.

12. It is well recognised that what is required in reasons is closely linked with context.  Imprisonment is of itself a serious matter. It should be, as the Full Court of this Court said in Sahari and Sahari (1976) FLC 90-086 at 75,406, “…invoked only as a last resort.” For this mother, with primary care of two young children, the more so. The expectation from the context would be of cogent and thorough reasons for imprisonment. In scrutinising Jarrett FM’s reasons to see if they meet that criteria, a further question arises: what matters might fall for discussion within adequate reasons?

13. In Tate and Tate (2003) FLC 93-138 (albeit a case dealing with a contempt), the Full Court of the Family Court said:

    …The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. …

14. There is no discussion of retribution in the Federal Magistrate’s reasons and, as seen, uncertainty about whether deterrence in respect of the mother’s declared intentions overtook all other aspects.

15. Moreover, though Jarrett FM referred to Peter and Elspeth (supra) (where a four month imprisonment was suspended) he did not otherwise discuss the period of imprisonment he chose. There is no other reference to comparable sentences. We acknowledge that sentencing is a discretionary exercise and each case is individual, but “absences” affect the adequacy of reasons, as much as ambiguities and questionable conclusions.

16. There is no consideration of the nature of the parties’ future relationship, nor discussion of factors personal to the offender (such as her beliefs about the father).

17. The statutory requirement in s 70NFG(2) is that, before sentencing a respondent to imprisonment, the Court must be satisfied that “ …in all the circumstances of the case …” (emphasis added) none of the alternatives are appropriate. Subsection (3) requires that the reasons for this satisfaction be explained. In our view, all the circumstances of the instant case were not addressed.

18. In summary, the reasons raise and leave unanswered several questions:

    ·If the mother was defiant in the face of a suspended sentence, would an actual imprisonment produce any different result?

    ·If not, what was the purpose of the sentence?

    ·Did the mother’s defiance become the only foundation for the sentence?

    ·Was imprisonment as such and for the period applied, of itself, the right order in respect of the contravention, rather than a result reached by default?

19. Accordingly, though admittedly against a fairly stringent measure, we concluded that the Federal Magistrate’s reasons for the sentence of four months’ imprisonment were inadequate. Consequently, absent sufficient justification for that sentence, the explanation of why orders under other paragraphs of s 70NFB(2), whether alone or in combination with a period of imprisonment, actual or suspended, was insufficient.

20. Before leaving the question of adequacy of reasons, an issue which of course may arise quite independently of the requirement for reasons contained in s 70NFG(3), we note the terms of s 70NFG(4):

    (4)The failure of a court to comply with subsection (3) does not invalidate a sentence.

21. During the hearing, we raised the question of any possible impact on this ground of appeal of this subsection.  Mr Hamwood suggested it was merely a protective measure for jailors.  Nothing raised in brief submissions about the subsection causes us to think that it has any effect on the issues raised by this ground.

1. That there had been a denial of procedural fairness.

1. After the parties announced their appearances and the solicitor for the father identified his material, the following exchange occurred:

   FEDERAL MAGISTRATE:  You’re ready to proceed with the application this morning?

   MS [DOBBS]:  I don’t see that I have much choice in the matter, your Honour.

   FEDERAL MAGISTRATE:  All right.  Well, I don’t quite understand that response.  The application is listed for this morning.  If you’re ready to proceed we’ll deal with it, if you say you’re not ready to proceed then I would hear any application that you may make for adjournment and decide that if you say that you’re not ready to proceed.

   MS [DOBBS]:  Your Honour, I had to fly here from [M]- - -

   FEDERAL MAGISTRATE:  Yes.

   MS [DOBS]:  - - -and I had to borrow money to get here.

   FEDERAL MAGISTRATE:  Yes.

   MS [DOBBS]:  I can’t afford to keep flying backwards and forwards all the time.

   FEDERAL MAGISTRATE:  Well, what does that mean about whether you’re ready to proceed with this application this morning or not?

   MS [DOBBS]:  Well, I’m as ready as I can be under the circumstances, your Honour.

   FEDERAL MAGISTRATE:  Right, okay.  All right.  Well, just stand up.  The process is that I put the alleged contraventions to you and you tell me whether you admit or deny them.  So the allegation is that on 17 January – sorry, 7 January 2007 at 11 am at the [L] Contact Centre you did without reasonable excuse fail to deliver the children to the [L] Contact Centre for contact to take place in breach of paragraph 1 of the orders of the Family Court of Australia made on 12 December 2006.  Do you admit or deny that allegation?

   MS [DOBBS]:  I admit that they did not get taken to the contact centre- - -

   FEDERAL MAGISTRATE:  Right.

   MS [DOBBS]:  - - -but I did have a reasonable excuse.

2. The Federal Magistrate then explained to the mother the course of proceedings, as earlier set out.

3. During the mother’s cross-examination of the father, the following exchange arose between her and Jarrett FM:

   FEDERAL MAGISTRATE: …what do you say is the reasonable excuse for breaching the order?

   MS [DOBBS]:  I couldn’t afford to get the children to the contact centre.  I had to drive five hours to get them there and we – we just couldn’t afford to drive them that far.

   FEDERAL MAGISTRATE:  At the trial before Jordan J no doubt you were given the opportunity to put before him your financial circumstances.

   MS [DOBBS]:  I did, your Honour, and he ignored them.

   FEDERAL MAGISTRATE:  Right.  Well, you say he ignored them, but you put that evidence before him and his Honour made the orders that he made nonetheless.

   MS [DOBBS]:  Yes, your Honour.

   FEDERAL MAGISTRATE:  Right.  So a fair inference to draw is that his Honour took those things into account, but nonetheless thought that it was appropriate to make orders in the best interests of your children in the terms that his Honour did.  So your reasonable excuse you say is that you just couldn’t afford to drive the children to the [L] Contact Centre, is that it?

   MS [DOBBS]: Yes.

4. After the mother had given evidence in chief to the effect that she could not take the children to the contact centre because of a lack of money for petrol, Jarrett FM asked her if there was anything else she wished to say.  The mother mentioned a letter she had written and which was annexed to an affidavit of the father. The letter was written on 1 January 2007, six days before the contact date to which the contravention related.  Relevant parts of the letter were:

   Due to my many concerns, I will not be facilitating the contact visits between the children and their father.

   …

   This being the case I cannot in good conscience and sound mind, send the children to their father.  I don’t believe they would be safe…

   …I cannot afford to travel this distance this often and still continue to maintain the children.  The father seems to have enough money to keep you on as his full time solicitor, but says that he can’t afford to travel; this seems somewhat contradictory to me.  It would also seem that he is earning a lot of money while stating that he is unemployed, receiving government benefits and dodging child support.  I don’t suppose that it matters much anyway as I would not send them outside of supervised contact, due to the effect that his lack of morality and his criminal behaviour would have on the children.

   …

5. In respect of that letter the following exchange occurred:

   FEDERAL MAGISTRATE: … Is that the one where you said that you weren’t going to comply with Jordan J’s order? --- Yes, your Honour, and I – I think that I was slightly annoyed at ---

   Is that the one where you say “This being the case I cannot in good conscience and sound mind send the children to their father.” That’s that letter, is it? --- Yes, your Honour.

   Can you just point out to me whereabouts in that letter you suggest that you don’t have the finances available to get to [L]? --- I believe it’s on the back page.

   On the back page? --- Yes.

   Oh yes, I see. Thank you. Yes. Yes, do you want to say anything else? --- In hindsight it was a letter that was written in angst and I should probably not have written it. I believe that God put you in your place, your Honour, and you’ve worked hard to get there and I know that I should try my best to comply with the Court orders, but at the same time there is a text in Matthew that says that people who hurt children should be – well, it says that it would be better if a millstone were hung around their neck and that they be drowned in the depths of the sea. And I – I sort of look at that as pointing to myself.

   Sorry, I don’t understand that at all? --- Well ---

   Who do you say should have the millstone hung around them? --- People who hurt God’s children.

   Yes, and in the context of this case who is that? ---Your Honour, you – you’ve read the letter that I wrote.

   No, no, no, please answer my question. In the context of this case who is that? I just want to understand what you just said, that’s all? --- It means anyone, anyone who hurts God’s children.

   …

   Yes, go on. Anything else? Did you bring with you copies of any of your bank statements? --- No, your Honour, I don’t have anything like that with me.

   Right. Did you bring any evidence at all that you don’t have any financial capacity? --- I can get it, but no, I don’t have it with me.

   Oh no, no, no. What I want to know is whether you’ve got it. I mean, you come here today – today’s the Court day, you tell me that you’re as ready as you’re ever going to be to run this case. Your reasonable excuse is that you can’t afford the cost, but are you seriously telling me you haven’t brought any documents that demonstrate that that’s so? ---Yes, your Honour.

   Thank you. Do you want to say anything else? --- No, your Honour.

6. Some events that occurred in the trial before Jordan J also bear upon the “excuse” proffered by the mother to Jarrett FM. In his reasons, the Federal Magistrate first referred to these as follows:

   4.At the time of Jordan J's judgment, the mother was living with the children and her current partner in [N].  The father lives near [B] and, as the evidence unfolded, it became apparent that the father had no means of transport and the mother did.

7. Shortly after, Jarrett FM noted that Jordan J had, during the delivery of his reasons, been interrupted by the mother and after an exchange between bench and bar table and a short adjournment, had continued:

   50.In the course of delivering those reasons and making those orders, the mother addressed the Court and raised some logistical difficulties, which resulted in the matter being stood down.  The father, to his credit, has sought to compromise his position to address some of the mother's concerns and … I propose to modify the orders I started to make …

   …

   54.On the basis that, by the concessions made by the father to meet some of the mother’s practical concerns, this has now reduced to a monthly commitment.  I acknowledge that imposes some financial hardship upon the mother.  It is a hardship that should have been in the mother's contemplations when she chose to move five hours away and that she may be required, and, indeed, that she was so required at the time she unilaterally moved to facilitate the children's relationship with their father.  Accordingly, without denying the reality of the hardship, it is something the mother now needs to deal with in terms of meeting her obligations to care for the children and to facilitate the children's relationship with their father, which is one of her primary responsibilities.  It is on that basis that I propose to make those orders.

1. Finally, as to the mother’s excuse, Jarrett FM said:

   9.In cross-examination before me, the mother made it abundantly clear that she had no intention of complying with Jordan J's orders.  She says that she has a reasonable excuse for her admitted failure to comply with the orders on 7 January this year in that she was unable to afford to drive the children from [N] to [L] for the contact.  But as cross-examination revealed, whether she had the finances available to her or not, the fact of the matter is that she would not and does not intend to make the children available to the father according to the orders made by his Honour.  Indeed, she has indicated, both through her evidence and by submission, that the only basis upon which she would make the children available for time with her father is if their time with him is supervised.

2. Mr Hamwood argued that the Federal Magistrate should have adjourned the father’s application, because the mother had in effect indicated that she was not ready to proceed and in particular, had indicated that she had some documents that demonstrated her financial capacity. In his written submission Mr Hamwood also referred to the mother’s evidence of the attempt to appeal the orders of Jordan J.

3. We reject these submissions. Jarrett FM clearly highlighted to the mother her capacity to seek an adjournment. She did not do so. She filed material on the day upon which she relied. She did not raise any question of late service which had prevented her gathering other material. Though, upon being asked, she said she could get evidence about her financial capacity, even then she did not identify any particular evidence that she wished to place before the court in that regard.

4. We see no error in Jarrett FM proceeding at that point to hear the contravention application.

5. Even if we did, given the Federal Magistrate’s subsequent finding that financial incapacity was not the real reason for the mother’s non-compliance, no unfairness arose from any loss of a chance for the mother to put further financial information before the court.

1. That, in finding that the mother would refuse to comply with the orders of 12 December 2006 if the Federal Magistrate were to impose a conditional sanction, the Federal Magistrate erred in fact.

1. During the cross-examination of the mother, the following exchange occurred:

   MR TESTER:  You had no intention of complying with that order, did you? From the day that that order was made you had no intention of complying with it, did you?---I had intended to appeal the – the judgment.

   Yes, but you had no intention of complying with the order and that’s my question to you.  You’ve sworn an oath- - -?---Mm.

   - - - to tell the truth.  Please tell his Honour from the very day that order was made you had no intention of complying with it, did you?---Well, its hard to send children to somebody who rapes women.

   Yes, I know.

   FEDERAL MAGISTRATE:  Please answer Mr Tester’s question if you would.

   …

   And can you tell the Court your answer, please?---I couldn’t send them.

   …

   The fact is, isn’t it, that whatever order is made by a Judge or Federal Magistrate or Magistrate if you don’t agree with it you won’t comply with it?---I want to do things the right way, I’m just – I’m inadequate at doing it myself and I can’t afford a solicitor.

   …

   You don’t mean to be what?---Well, I don’t – I don’t want to not comply with this Court.  I want to be able to do the right thing.  I don’t – I don’t even have a speeding ticket like – but I’m not – I’m not going to just stand by and watch while somebody you know destroys my children.

   …

   FEDERAL MAGISTRATE:  Ms [Dobbs], can I ask you a couple of questions?  Do you intend to comply with Jordan J’s orders?  I’m asking you about your intention?---I – I can’t comply at the moment, there’s no possible- - -

   I didn’t ask you that.  I asked you whether you intend to comply?---I have a problem with it, your Honour, because I feel that- - -

   Please answer my question directly?---I guess the answer would be no.

   And if you had sufficient funds to fly your children from where it is that they now live to [L] once a month- - -?---Right.

   - - -if you did- - -?---Yes.

   - - - would you do it in compliance with the orders?---Only under a supervised contact order.

   No, the orders don’t provide for supervised contact?---I know that and- - -

   Answer my question directly if you would.  Would you do it?---No.

   No.  So the fact that you might or might not have had any money on 7 January- - -?---Right.

   - - -to bring the children from [N] to [L] has really nothing to do with it?---I guess it has more to do with the concerns that I have.

   Right.  So even if you had money on 7 January to fund a trip from [N] to [L] and return- - -?---Right.

   - - -would you have brought the children down?---Possibly not, no.

   Possibly not.  In what circumstances would you have brought them down?---Well, I don’t know, your Honour, it’s hard to say.  I guess- - -

   Well, I want you to think about it because I want an answer?---I guess I would have been a lot happier if- - -

   I don’t care whether you’re happy or not, what I want to know is in what circumstances would you have brought them down?---To [L]?

   Yes, for contact with their father in accordance with the orders?---None.

   None.  Yes.  Anything else, Mr Tester?

   …

   MR TESTER:  Just this thing.  You’ve not complied – the application before the Court today is in relation to January, but you’ve not brought the children down in February or March either, have you?---No.

   …

   [Shortly after] FEDERAL MAGISTRATE:  Thank you.  All right.  Is there anything else, Ms [Dobbs], that you say – that you want to say that arises out of the questions you’ve just been asked or the answers that you’ve just been given that you want to clarify?---I just want to say that I’ve tried my best over the past seven years to keep my children safe and they’re comparatively happy, your Honour, they enjoy our family and I know I’ve made a lot of mistakes in the past mainly because of my lack of funds and my inability to get any legal representation and I’m not very good at representing myself, as you can see.  I would – I would like to be able to comply with the Court’s orders, but I feel that it’s putting my children in danger and as a mother who cares for her kids I just can’t – I can’t watch someone else destroy them, it’s – it’s too difficult and I guess it sort of to me seems that you either put yourself on the line a bit or – or you put your kids on the line and it just – it hurts me to watch them get hurt.

   Tell me.  The house in [N] that you were living in, do you and your partner own that house?---No, your Honour.

   Was it a rental or something?---Yes.

   I see.  And there’s nothing to prevent you from renting a house again in [N]?---Only that we’re currently looking after- - -

   Yes, well his son has been injured and he’s up in [M], but there’s nothing to prevent you living in [N] with the children?---Well, there’s – there’s nothing there for me now, your Honour.

   Right, so there’s no prospect of you going back to [N] where you were when his Honour made the orders?---No, your Honour.

   Or Brisbane?---No, your Honour.

   Or anywhere else in south-east Queensland or northern New South Wales?---Not at this stage.  My husband’s in [M] looking after his injured son and- - -

   Yes?--- - - - I guess that’s just where our family is at the moment.

2. Mr Tester then asked a few questions about the prospect of the mother living in a house owned by her father in [L], after which the learned Magistrate invited the mother to address him on the issue of “reasonable excuse”. The mother immediately asked for a variation of the orders of Jordan J, to provide for supervision of contact and other changes and then said, “That’s all”. Jarrett FM did not call on Mr Tester and the transcript discloses that the “judgment” (so far as it dealt with whether a contravention without reasonable excuse had occurred) was then delivered.

3. The task confronting the Federal Magistrate at the point under discussion was to decide the facts in respect of 7 January 2007 and whether they constituted an unexcused contravention. It was not to decide, of itself, if the mother would comply in the future with orders that the children spend time with the father or what her then present state of mind was about that.  Some of the preceding quotations from transcript relate to these later questions.

4. However, we accept that a consistency between intentions expressed at about the time of the alleged contravention (eg. the letter of 1 January 2007) and intentions as to the then future, expressed at the trial, may have assisted the Federal Magistrate in rejecting the excuse offered by the mother for non-compliance on 7 January 2007.  Indeed, this ground does not attack the Federal Magistrate’s conclusion of contravention without reasonable excuse.

5. Rather the finding attacked in this ground was essentially that in paragraph 22 of Jarrett FM’s reasons which was repeated in paragraph 28, but which, given Mr Hamwood’s submissions, must also be read with paragraphs 23, 24 and 25.  These paragraphs (some already quoted) are set out here for convenience.

   22. The issue that arises for consideration in respect of either a bond or a suspended sentence of imprisonment is whether any condition that might be imposed on the mother as a term of the bond or the suspended sentence that she comply with the orders in the future would be honoured. I raised that issue with the mother a short time ago and gave her some time to contemplate her answer to that particular question. She was unable to tell me that she would comply with the orders in the future if that was a condition of any bond or suspended term of imprisonment that I imposed.

   23. In those circumstances I cannot be satisfied that she would indeed comply with any of the orders made by Jordan J in December last year.  I am satisfied by her answers, both from the witness box and in answer to some questions that I put to her when she was at the bar table that she would not comply with those orders unless they provided for the father’s time with the children to be supervised.

   24. In those circumstances, and bearing in mind that she has already been placed on a bond before, it seems to me that a bond is entirely inappropriate.  It would be breached on the first occasion that the orders presented for compliance.

   25. That leaves the question of imprisonment.  Ought there be a sentence of imprisonment and, if so, for how long and should it be suspended?

   …

   28. In this case there is evidence that the mother will not comply with Jordan J's orders.  Given her answers to me, I am satisfied beyond reasonable doubt that she will not and in those circumstances my view is that it is appropriate to impose a sentence of imprisonment and that the sentence of imprisonment not be suspended.

6. Mr Hamwood suggested that the findings in paragraph 22 did not support the findings in paragraph 24 because there was no evidence that the terms of an earlier bond had been breached. If that was so, the significance of the reference to the earlier bond is unclear. However, it is clear enough from the terms of paragraph 23 of Jarrett FM’s reasons that his rejection of a bond as an appropriate order was not based on some misconception as to breach of a previous bond.

7. Accordingly, we think the conclusions in paragraph 24 are supported by the findings in paragraph 22, though the reference to the earlier bond seems superfluous.

8. The conclusions in paragraphs 22 and 24 of the Federal Magistrate’s reasons derived from his finding as to the likelihood of compliance by the mother in the future.  As seen, as to that finding Jarrett FM expressed satisfaction beyond reasonable doubt.

9. Apart from the evidence already set out, further exchanges of likely relevance to foundations for the conclusion under attack occurred. These took place not during sworn evidence but during submissions. Though Mr Hamwood remarked upon that, he did not direct any argument against reliance in the fact-finding process upon statements so given. The exchanges included:

   FEDERAL MAGISTRATE:  If I was to place you on a bond it would be conditioned on the basis that you – or indeed, sentenced you to a period of imprisonment that was wholly suspended, it would be on the basis that you complied with the orders of Jordan J.

   …

   FEDERAL MAGISTRATE:  Given what you said earlier I can’t have any confidence, can I, that you will comply with his orders.

   MS [DOBBS]:  I guess that could be construed from it, your Honour.

   FEDERAL MAGISTRATE:  All right, Am I right?

   …

   MS [DOBBS]:  I guess if it means going to prison then I’d have to rethink the whole matter, wouldn’t I? I don’t want my children to have to live with their father that – I mean, they barely know him.

   FEDERAL MAGISTRATE:  I’m going to stand down now till quarter past 12. I’m going to give you the opportunity to rethink your attitude to those orders.

   …

   FEDERAL MAGISTRATE:  Ms [Dobbs], I think before the break I asked you whether, if I placed you on a bond or some other order that was conditioned on you complying with Jordan J’s orders, whether you would and I think you said to me at that time that you would have to think about it.  Have you thought about it?

   MS [DOBBS]:  Yes, your Honour, there’s no easy answer though.

   FEDERAL MAGISTRATE:  I beg your pardon?

   MS [DOBBS]:  There’s no easy answer to it.

   FEDERAL MAGISTRATE:  Right.  So what is your answer?

   MS [DOBBS]:  Whether I would comply if you put me on a bond?

   FEDERAL MAGISTRATE:  Mm.

   …

   MS [DOBBS]:  It would mean I’d have to move back here, that would split our family up.

   FEDERAL MAGISTRATE:  Will you comply?  Should I take your absence of an answer as no?

   MS [DOBBS]:  I don’t know, your Honour, I just – I can’t sit around and watch while my children are abused, it’s really hard for me.

   …

   FEDERAL MAGISTRATE:  All right.  You were telling me why I ought not make an order that sends you to prison.

   MS [DOBBS]:  Yes, your Honour.

   FEDERAL MAGISTRATE:  Is there anything else you want to say about that:

   MS [DOBBS]:  About the children- - -

   FEDERAL MAGISTRATE:  Not sending you to prison?

   MS [DOBBS]:  Your Honour, I guess, you know, it’s your decision whether you break up a happy family or not.

   FEDERAL MAGISTRATE:  Yes.  You say that you don’t have any – you’re not financially well off.

   MS [DOBBS]:  Yes, your Honour.

   FEDERAL MAGISTRATE:  Yes.  All right.  Do you want to say anything else?

   MS [DOBBS]:  I believe that you’ll be placing the children in danger if you put them with your father.

   FEDERAL MAGISTRATE:  Yes, anything else?

   MS [DOBBS]:  It will devastate the children as well.

   FEDERAL MAGISTRATE:  Yes.

   MS [DOBBS]:  They know my husband as their father.

   FEDERAL MAGISTRATE:  Yes.

   MS [DOBBS]:  I just – I can’t watch them be abused constantly, your Honour.

   FEDERAL MAGISTRATE:  Yes, all right.  Thank you.  Thank you.

10. Mr Hamwood argued that the evidence about the mother’s attitude to future compliance was equivocal, particularly her statement that “I don’t know, your Honour…” in response to Jarrett FM’s enquiry as to whether he should take the absence of an answer as “no”.

11. Before addressing the availability to Jarrett FM of the conclusion he drew, we make two observations.

12. Firstly, though as indicated Mr Hamwood took no point about the Federal Magistrate’s reliance on unsworn statements made by the mother in response to questioning by Jarrett FM, we have considerable concern about that.

13. Secondly, in addressing the question of the mother’s future compliance two aspects arose: the mother’s then present state of mind about that and a prediction about what would actually happen in the future.

14. We are not sure which of these aspects the Federal Magistrate was addressing, though taken literally he was making a prediction.

15. That prediction was that if only a conditional sanction was imposed the mother would not comply.  Ignoring for the purpose of this discussion only, the unsworn status of some of the mother’s statements, given what are in our view clear statements by the mother on several occasions, notwithstanding equivocation in one instance, as a matter of deductive reasoning, the prediction may have been open, even beyond reasonable doubt.

16. However, we express no concluded view, as we do not think it was necessary or even wise for the prediction to be made.  The mother’s then present state of mind on the issue of future compliance was, in our view, the more pertinent question and one about which a true finding of fact, rather than a prediction, could have been made.

17. Ultimately we think the ground could have been more usefully directed, but in any event, the outcome of the appeal turned on other grounds.

1. That no court could have been satisfied that all sanctions other than imprisonment, were inappropriate.

1. That four months was manifestly excessive.

1. We think it difficult to fully assess these grounds given what we have so far said of the deficiency of reasons and substantial lack of clarity about the standard of proof applied.  In view of this and what we later say in respect of the course that should now be taken we think that since it is not necessary to decide the appeal to decide these grounds we should refrain from doing so.

1. That, in varying the parenting order, the Federal Magistrate failed to have proper regard to the best interests of the children.

1. As Warnick J pointed out in Sandler & Kerrington [2007] FamCA 479 (paragraph 37), the form provided for contravention applications contains no provision for “orders sought”. However, as his Honour also observed, the Form (18) carries a notice that indicates that at the hearing of a contravention application, the Court may “vary the parenting orders”.

2. Subject to such “notice”, so far as we can tell, in the proceedings before Jarrett FM, the first occasion upon which a claim by the father for a change of residence of the children was made, came when Mr Tester addressed on the topic of consequential orders, after the findings of contravention had been made. This exchange occurred:

   MR TESTER: Well, your Honour, I think that unfortunately it’s a matter where anything short of a custodial sentence would probably be inappropriate.

   FEDERAL MAGISTRATE: Yes. Who would care for the children?

   MR TESTER: The father will make an application if that order is made, an oral application before you today.

   FEDERAL MAGISTRATE: Ms [Dobbs]?

   MS [DOBBS]: Yes, your Honour.

   FEDERAL MAGISTRATE: I’m asked to send you to prison.

   MS [DOBBS]: Yes, I heard that, your Honour.

   FEDERAL MAGISTRATE: Should I do that?

   MS [DOBBS]: No, your Honour.

   FEDERAL MAGISTRATE: Why not?

   MS [DOBBS]: Because I believe the children are in danger with their father and they have a very strong family bond with me and my husband [...] and it would devastate them if I was sent to prison.

3. The discussion seen earlier, between the bench and the mother about her attitude to compliance if a conditional sanction was imposed, then took place.

4. Jarrett FM then delivered judgment in respect of the order for imprisonment, after which the following occurred:

   FEDERAL MAGISTRATE:  Please don’t leave the Court, Ms [Dobbs], you are now in the custody of the Court.  Yes, Mr Tester?

   MR TESTER:  Arrangements for the care of the children in the meantime, the father seeks an order- - -

   FEDERAL MAGISTRATE:  Yes.

   MR TESTER:  - - -that the children be in his care [indistinct] of the sentence.

   FEDERAL MAGISTRATE:  Do you want to say anything about that Ms [Dobbs]?

   MS [DOBBS]:  Yes, your Honour.  I’d ask that the children stay where they are currently with my husband.

   FEDERAL MAGISTRATE:  When will they see their father?

   MS [DOBBS]:  I don’t know.

   FEDERAL MAGISTRATE:  Thank you.

5. The learned Federal Magistrate then delivered his reasons for the order that the children live with the father. He said:

   29.I am asked to make a parenting order that the children, the subject of orders made by Jordan J in the Family Court on 12 December, 2006 now live with the father. 

   30.The making of a parenting order by way of an order which varies an existing order following a contravention application is a parenting order for the purposes of Part VII of the Act, notwithstanding the circumstances in which it is made. That is to say the Court is to be guided by s.60CA of the Act - that is, any orders the Court makes must be in the best interests of the children and in determining that, the Court must consider the matters set out in s.60CC of the Act.

   31.The exercise of considering the s.60CC factors received attention, of course, in Jordan J's reasons and it is significant, in my view, that his Honour made findings that these children have a relationship with their father, albeit one in which they have not been permitted to spend as much time with him as he would have liked.

   32.There was evidence before his Honour that the time that the father had spent with the children had gone well and that the children enjoyed positive experiences with him.  The material before his Honour suggested that for the vast majority of the time the children embraced their father enthusiastically, both physically and emotionally and that they appeared to derive a benefit from the contact.  Apparently, according to the evidence, [J] even appeared to be upset when his time with his father was coming to an end.

   33.The children's primary attachment is to their mother.  That seems to be the purport of Jordan J's findings.  That is a matter that I take into account.  There is, however, according to his Honour an underlying, fundamentally sound foundation to the relationship between the children and their father. 

   34.It must be the case that his Honour determined that there was no unacceptable risk of physical, psychological or emotional harm to the children because, had his Honour been of any other mind, he would have ordered contact which was different to that which was ultimately ordered.  That is to say, he would have ensured either that there was no contact between the children and their father or that the contact was supervised.

   35.The fact that his Honour did not do either of those things must mean, in my view, that he was satisfied that there was no unacceptable risk of physical, psychological or emotional harm to these children spending time with their father. 

   36.In those circumstances it is appropriate, in my view, that the children live with their father.

   ORDER DELIVERED

   37.You will take careful note, Ms [Dobbs], that that order is not limited in time... .

1. A matter of immediate note is that it is certainly not clear that Mr Tester for the father sought any more than that the children live with the father while the mother was in prison. A “final” order, such as Jarrett FM made (of his own initiative) would usually have a very different effect to that of an order for a limited period. The final order arguably put the mother in the position of needing to show a change of circumstances from that contemplated by Jarrett FM, before a fresh application about residence of the children would be heard. At the very least, a likely difference would be a passage of time between the mother’s release from prison and the hearing of any application she might bring, rather than an immediate return of the children to her.

2. As to the broader aspects of this ground, as seen, the Federal Magistrate was aware of the paramountcy of the children’s best interests and the need to consider the matters set out in s 60CC of the Act. He seems to have essentially recorded the same approach to the question of the variation of a primary order as that which Warnick J (subsequently) outlined in Sandler & Kerrington (supra) (paragraphs 41 to 53) and which we approved in Irvin v Carr [2007] FamCA 492 (paragraph 68).

3. However, in our view, though he recorded it, the learned Magistrate did not apply that approach. He did not address all the relevant s 60CC factors and in particular the question of why, an order having been made, it was then appropriate that there be a “final” change. Obviously, the refusal of the mother to provide contact would constitute a change of circumstances but the decision as to whether or not that was sufficient reason for changing the living circumstances of the children could only be made upon a fulsome consideration of all of the relevant factors. Rather, his Honour seems to have approached the matter by asking if there was any unacceptable risk to the children in making the change; that was entirely the wrong test.

4. The orders of Jordan J were made after a two day trial and as seen provided that the children live with the mother and have time with their father on one day, for one weekend per month, commencing on 7 January 2007.

5. While Jarrett FM made reference to parts of the reasons of Jordan J to support his conclusion that there was no unacceptable risk in the children living with the father, there were other observations made by Jordan J which we think compelled attention. These included the following:

   2. The parties separated in June of 2000 when [X] was only 14 months of age and before [Y] was born. The father did have ongoing involvement with [X] for some time but, ultimately, [X] has been in the primary care of his mother, as has [Y].

   …

   4. … There have been lengthy breaks in the periods when the children have enjoyed contact with their father, including periods of over six months.

   …

   20. … The difficulty is that the mother is an outstanding parent doing an outstanding job and she has very firm beliefs about her children’s needs and how they would do best.

   …

   22. As to the father’s application for a change of residence, I have heard the evidence of [Z] and I have read her earlier report which, although it is now two years old, still contains a number of highly relevant observations, given the dynamics of this case, the history of it, and the fact that, in reality, probably very little has changed since [Y] last engaged with the family.

   23. However, [Z] was entirely clear about the viability of a change of residence, given the ages of these children, the fact that they have been in the primary care of their mother, and regrettably had only a limited relationship with the father. She was of the view that a change of residence would be extremely traumatic for the children. She could not discern any positive implications for it. She was concerned about a number of very serious negative implications including imposing upon these children a great deal of anxiety and uncertainty, creating the possibility of depression. (our emphasis)

   24. … In my view, a change of residence exposing these children altogether to too much prospect of harm is not a child focused solution to the current impasse. (emphasis added)

6. We repeat our view that in varying the primary order in relation to the children’s residence, the learned Magistrate’s approach fell far short of what was required.

The course to be taken now

1. There are some difficulties with a re-exercise of discretion.  As to any issues relating to care of the children, further evidence, quite possibly contentious, of events in the months since March 2007 would almost certainly be necessary.  Contentious matters should be decided at first instance.  Moreover, we have not seen the parties, nor been addressed on the evidence, in light of the standard of proof being “beyond reasonable doubt” (although we recognise that the contravention itself was admitted).  We would need to examine for ourselves the transcript to consider whether the mother’s excuse was established, on the balance of probabilities.

2. As stated earlier, we are also concerned, whether on a re-exercise of discretion or remission, about any use of statements made by the mother in response to questions asked of her by Jarrett FM, without any indication as to whether she was or was not obliged to respond, nor as to the possible consequences that might flow from her answers.

3. This concern may be a basis for a permanent stay of the father’s contravention application, but we have not been addressed about such a matter nor about our power under s 94(2) to make such an order.

4. In the circumstances we intend to invite the parties to make further submissions about the course we should now take.  However, if we are not persuaded otherwise, we incline to the view that in all the circumstances, including that the mother has already spent two months in prison, the only further order necessary is that the father’s application for contravention be dismissed.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  25 October 2007