Donald and Donald
[2007] FMCAfam 1098
•11 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONALD & DONALD | [2007] FMCAfam 1098 |
| FAMILY LAW – Contravention application – whether text message (SMS) advising delayed arrival reasonable excuse. |
| Family Law Act 1975, ss.13A, 70NAF, 70NFB, 70NFE |
| Applicant: | HENRY DONALD |
| Respondent: | NADIA SARAH DONALD |
| File number: | MLC 11984 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 11 December 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms M.E. Agresta |
| Solicitors for the Applicant: | Maria Barbayannis & Co |
| Respondent: | In person |
ORDERS
UPON FINDING THE CONTRAVENTIONS ALLEGED IN PARAGRAPHS 7, 9, 11, 15 and 17 IN THE APPLICATION FOR CONTRAVENTION FILED 1 NOVEMBER 2007 PROVED IT IS ORDERED:
Pursuant to ss.70NFB(2)(b) and 70NFE of the Family Law Act 1975 (the Act) the Respondent Mother be placed on a good behaviour bond in the sum of $100.00 for a period of twelve months commencing
11 December 2007 continuing to 11 December 2008.
The contraventions in paragraphs 13, 19 and 21 are dismissed.
Pursuant to ss.70NFB(1)(a) and 70NFB(2)(g) of the Act the Respondent Mother pay the Applicant Father’s costs fixed in the sum of $990.00 within three months of the date of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11984 of 2007
| HENRY DONALD |
Applicant
And
| NADIA SARAH DONALD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The application before the court is an application filed on 1 November 2007 by Henry Donald (the father) against the respondent, Nadia Sarah Donald, (the mother). The contravention application is supported by an affidavit of the father which was sworn by him on 25 October 2007. The application relates to orders made by the Federal Magistrates Court on 23 July 2007. Those orders related to the arrangements concerning a child of the father and mother; namely, Lucy Jane Donald, born December 2002, who I will refer to as the child.
The contravention applications now before the court are summarised as follows:
Contravention 1 - It is alleged that contrary to paragraphs 4(a) and 6 of the orders made by the court on 23 July 2007, the mother on 9 August 2007, without just cause or excuse, failed to deliver the child to the father at 3.30 pm at the N police station. It is alleged that the mother did not deliver the child to the father until 4 pm.
Contravention 2 - The second allegation is an allegation which again asserts contravention of orders 4(b) and 6 of the orders made on 23 July 2007. The allegation is that on 16 August 2007, the mother again, it is alleged, without just cause or excuse, failed to deliver the child to the father on 16 August 2007 at 3.30 pm. It is alleged that the mother did not deliver the child to the father until 4.15 pm.
Contravention 3 - The third allegation, again relying upon an alleged contravention of paragraphs 4(a) and 6 of the orders made 23 July 2007, alleges that on 6 September 2007, the mother, without just cause or excuse, failed to deliver the child to the father on 6 September 2007 at 3.30 pm again at the N police station. It is alleged that the mother did not deliver the child to the father until 5 pm that day.
It is appropriate that I make a number of observations about the first three alleged contraventions. The first is that the mother, who appears self-represented, has admitted each and every one of those allegations though has asserted that in each case there is a reasonable excuse.
The remaining alleged contraventions are:-
·The fourth allegation which is not admitted is that on 11 September 2007, in breach of paragraph 19 of the 23 July 2007 orders, that following a changeover at N police station, "The respondent wife abused the applicant husband in the presence of the child by spitting in the applicant's face."
·The fifth allegation is that on 28 September 2007, in breach of paragraphs 4(f) and 6 of the 23 July 2007 orders, the respondent, without just cause or excuse, failed to deliver the child to the applicant on 28 September 2007 at 6 pm at the N police station for the purpose of spending a holiday period with the applicant pursuant to paragraph 4(f) of the orders.
·This allegation alleges that on 4 October 2007, in breach of paragraph 19 of the orders made by the court on 23 July 2007, at approximately 4.15 pm at the N police station, "The respondent wife abused, insulted, belittled and denigrated the applicant husband in the presence of the child, Lucy." The evidence in support of that allegation would appear to relate to words uttered by the respondent allegedly at the police station which included using the words towards the father of "criminal" and "bastard".
·Contravention number 7 alleges that on 4 October 2007, again at 4 pm at the N police station, in breach of paragraph 20 of the orders made by the Federal Magistrates Court on 23 July 2007, the respondent "discussed family law proceedings in the presence of the child".
·It is relevant to note that a further allegation, allegation 8, was dismissed by the court for want of particulars. That allegation alleged that the mother, without just cause or excuse, failed to comply with paragraph 2 of the orders made on 23 July 2007 by enrolling the child at H School without consulting the father, in breach of paragraph 2 of the orders made on 23 July 2007. I dismissed that allegation on the basis that there was no date, time or place provided. Had a date been inserted, then the particulars of that charge would have been evident. I refused leave to the father to amend the application by now inserting a date.
It is my view that applications of this kind, being quasi-criminal in their nature, require, at the very least, particulars of a significant allegation of that kind to be inserted in the application prior to the time of service of the application upon a mother. Certainly the application could have been made to amend on the last occasion when the matter was before the court, namely 30 November 2007, when I adjourned the matter to hearing this day. I did so on the basis of the mother's then claimed illness, and further did so on the basis of allowing the mother further time to prepare her material. In any event, for the reasons given, I decided to dismiss the allegation which I refer to as allegation 8, which appears in paragraph 20 and 21 of the application.
The Orders
For convenience I set out the relevant orders of 23 July 2007 –
“(2)That the mother and father have equal shared parental responsibility for the long term, care, welfare and development for Lucy Jane Donald born December 2002 (“the child”).
…
(4) That the child spend time and communicate with the father:
(a)Each alternate week from the conclusion of kindergarten or school on Thursday (and if on a non school day, 3.30 pm) until the commencement of kindergarten or school on Tuesday;
(b)In each off week on Thursday from the conclusion of kindergarten or school until the commencement of kindergarten or school on Friday morning;
…
(f)For half of all kindergarten or school term holidays, by agreement, failing agreement for the second week;
…
6.That changeover for the purposes of time spent in paragraph 4 herein occur at the child’s kindergarten or school, however if it falls on a non kindergarten or school day then changeover occur at the N Police Station.
…
19.That the Mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the Father to or in the presence or hearing of the said child or any of them and from permitting any other person so to do.
20.The Father and Mother, and his/her servants and agents, be and are hereby restrained by injunction from discussing the within proceedings with or in the presence or hearing of the child and from permitting any other person so to do.
…”
Preliminary Issues
At the outset I should indicate that in an application of this kind, the law requires me to be satisfied on the balance of probabilities in relation to the allegations made. It is important to note that the standard of proof is provided in s.70NAF of the Family Law Act 1975 (the Family Law Act). That section quite clearly provides that the standard of proof to be applied in determining matters in proceedings under this division is proof on the balance of probabilities. Likewise, when the court has to consider the issue, as raised squarely in this case in relation to the first three contraventions, of a reasonable excuse for contravention, then the standard of proof is the same; namely, balance of probabilities. So much is evident from the provisions of the Family Law Act.
In the present case, I have made due allowance for the fact that the mother is self-represented. It is clearly evident in the manner in which the proceedings were conducted that the mother has what could only be described as extremely strong and genuine feelings in relation to these proceedings. He has asserted throughout the course of the hearing conducted during the listing of 18 other matters on a duty list day, and scheduled to commence at 9 am for the convenience of police witnesses called by the applicant and for the convenience of the parties. This ex tempore judgment is delivered at 5.45 pm, having heard evidence from the father, two police officers and the mother.
Having made due allowance for the fact that the mother is self-represented, I have endeavoured throughout the day to ensure that there was minimum disruption to these proceedings. To that extent, I ensured that other applications listed for hearing this day were delayed from entering the courtroom until the matters were called on and after I had stood down this matter for a short time. Hence, although somewhat disjointed, I am satisfied that the parties have had the opportunity to properly present their case.
As a preliminary matter, I should also add that the mother in these proceedings sought leave to call two other witnesses. It is not necessary for me to name the witnesses, save to indicate that one was present and one was not. However, the witnesses, it was indicated, were able to give evidence of a general nature concerning the mother, and indeed concerning the history of what can only be described as an unfortunate saga of conflict between the parties before the court this day. The saga is evident throughout the history of the matter, given orders have been made in the Family Court some two or three years ago, were subject to an appeal, the matter was then the subject of a defended hearing in this court and to the orders made which are now allegedly contravened.
I note in passing for the record that those proceedings and the orders made on 23 July 2007 are currently the subject of a notice of appeal filed by the mother on 20 August 2007 and a directions hearing is scheduled for tomorrow. I mention the appeal is pending but note further that upon the filing of that appeal, the orders before the court which are the subject of the application for contravention have not been stayed. Accordingly, I can see no prohibition in this court, dealing as I intend to deal with the application for contravention this day, notwithstanding that there is a pending appeal by the mother in relation to the very orders which are the subject of this application for contravention. It is not necessary for the court to further refer in detail to the grounds of appeal in that notice of appeal.
Reasoning and Findings
It seems to me appropriate, however, that I should indicate at the outset that having considered the affidavit evidence of the father and having heard the evidence of the father and police witnesses, namely, Leading Senior Constable Glen Smith and Sergeant Kenneth Francis Rich, both of the N police station, and having heard the evidence of the mother and having had the benefit of submissions from counsel for and on behalf of the father and the mother, it is my considered view that at least two of the charges ought to be dismissed namely contraventions 4 and 7.
Contravention 4
I refer specifically to contravention 4 alleges that on 11 September 2007 at 8.45 am at N police station following a changeover at that police station, the mother abused the father in the presence of the child by spitting in the father 's face. The evidence before me from the father indicates that this was a deliberate and intentional event by the mother which occurred after the mother had placed the child in her car and walked what I find to be a distance of approximately two car widths between the vehicles and approached what I find to be the driver's side window of the father's vehicle which, as with the mother's vehicle, was then parked in the carpark at the N police station.
The father alleges that this was a deliberate event following an altercation between the parties. I perhaps might pause to observe that altercations between these parties, whether directly or indirectly through SMS messages, does not seem to be an unusual event. In any event, the mother in her evidence of this particular charge, which I note is not corroborated by any other witness, denies strongly the allegation that she spat in the father’s face. Instead she claims to have uttered in Greek a word which, when translated into English, is taken to mean "I spit on you."
In any event, in the absence of corroboration, I am not prepared to find on the balance of probabilities that that charge is proved. Further, I am also not prepared to find on the basis of the evidence before me that the event, if it did occur in the manner described by the father, did in fact occur sufficiently for the purposes of the allegation in what could be described as being "in the presence of the child". I find that the child at all material times in relation to this allegation was situated in the passenger side of the mother's vehicle and that that vehicle was parked at least two car widths away from the driver's side window of the father's vehicle.
Hence, I am not prepared to accept that that event, if it did occur as described by the father, occurred in the presence of the child. Hence, for reasons which will become apparent, I am not prepared to find in relation to that allegation that there has been a contravention of order 19 of the orders made on 23 July 2007. I have incorporated all the relevant orders in this judgment at the commencement of this judgment so that ready reference can be made to the relevant orders in relation to each and every alleged contravention. However, having regard to my finding in relation to contravention 4, it is clear that the appropriate order in relation to that contravention should be that it is dismissed.
Contravention 7
Contravention 7 alleges that on 4 October 2007 at 4.15 pm at N police station, in breach of paragraph 20 of the orders, the mother “discussed family law proceedings in the presence of the child". When I consider the evidence, it is important to also note that order 20 as set out in this judgment provides that there be a restraining injunction against the parties and their servants or agents from "discussing the within proceedings with or in the presence or hearing of the child or from permitting any other person to do so". (emphasis added)
An interesting issue arose as to whether or not the words allegedly uttered, to which reference will be made presently, could properly be described as a reference to the within proceedings. The within proceedings in those orders would appear to be those proceedings which occurred in this court in application DGM 3905 of 2005. For the sake of clarity, and having heard the argument, I am prepared to accept that if there is an application for variation and/or an application for contravention, any discussion about either of those applications, and indeed other applications which may arise from the orders made on 23 July 2007, order number 20 is broad enough to cover not simply the within proceedings as they were before the court in July but those proceedings which then give rise and are the foundation stone of other proceedings. It is broad enough in my view to cover the concept of proceedings in that sense. Hence, that is not a criticism of this charge which I found made out.
I am satisfied that if it is alleged that the mother were to discuss for example, in the presence of the child, contravention proceedings, then that would be sufficient to constitute a discussion of what is described as the within proceedings in order 20 of the orders made on 23 July 2007. However, my concern in relation to this charge arises out of the allegation made by the father in his affidavit which he had adopted in his oral evidence before the court and which to some extent appears to have been corroborated by Leading Senior Constable Glen Smith. I refer in particular to paragraph 12 of the father's affidavit to which reference was made earlier. In that affidavit, after referring to another allegation concerning one of the contraventions, he claims that the mother said -
“takes me to Court to make me suffer, please, you must tell him because he writes lies, he’s going to say that I didn't let him take our daughter, but he will be, now, he just has to throw this thing out, we had an agreement through mediation.”
It is clear from the evidence that the father also relies in the same paragraph as a reference to her saying in the presence of the daughter that he was taking her to court. It is not so clear as to whether or not that was an assumption made by the mother based upon her observations of what purports to be a piece of paper which she concluded was a statutory declaration then held by the father and presented to the police station.
It is not immediately apparent to me that as at that date, that is, 4 October 2007, the father was directly referring to a contravention of these orders but rather may well have been referring to other court proceedings which may, having regard to some of the evidence, include proceedings which may properly be taken in the State Magistrates Court arising out of what might be alleged to be summary criminal conduct. Because I am not satisfied that there was a direct reference to then proceedings of a kind which I would regard, taking a broad view of the matter, as within proceedings, then I am not satisfied that this charge has been made out.
The second concern and reservation I have in relation to this alleged contravention is it would appear that there were simply statements made by the father of a general nature to which I have referred in the affidavit material of the father. I do not take the evidence to constitute what might be regarded as even a loose discussion but rather might more appropriately be regarded as an outburst by the mother who, I find on all the evidence, at that time was clearly agitated and upset. Hence, for those reasons, in my view it is appropriate that that charge be dismissed.
Contraventions 1, 2 and 3
Having dismissed Contraventions 4 and 7, it remains for the court to consider the remaining charges. I shall deal with contraventions 1, 2 and 3 together. They all relate to what might be described as not a failure to deliver the child in accordance with the order but rather a failure to deliver the child at the time prescribed by the orders set out earlier in this judgment. Each charge is admitted.
When considering the question of reasonable excuse, it is clear that the mother has sought to argue that there were a number of reasons which would constitute reasonable excuse for each and every alleged contravention. The mother claimed in her evidence that she was busy, that she was a single mother looking after the child and that on occasions did not want to wake the child in order to ensure that the child attended the N police station at 3.30 pm, which was the subject of the order.
It is relevant to also note the dates, in my view, of these alleged contraventions. The alleged contraventions commenced with an alleged contravention on 9 August 2007. The third alleged contravention occurred on 6 September 2007. Those contraventions had occurred within approximately two months of the orders having been made by the court after a contested hearing. I note in passing that the notice of appeal was filed 20 August 2007. Hence on 20 August 2007, it would appear that the appeal was lodged but by that date two contraventions are alleged to have occurred, one on 9 August and another on 16 August.
When dealing with the reasonable excuse, having regard to the admission by the mother, I also note in passing that the transcript of SMS messages forwarded by the mother to the father appears as an exhibit marked B to the affidavit of the father sworn 25 October 2007. Both parties referred to this exhibit. It is relevant to note that in relation to the Contravention 1, there appears in the material that I have referred to, namely, exhibit B in the affidavit, a relevant SMS message which appears to be dated 9 August 2007. That refers to the following:
“I will be in Dandy around 3.30 pm. Do you want to pick up Lucy at the reception of Oasis at 3.40 pm?”
A concern was expressed by the mother that no reply was received to that SMS. It raises the very interesting question of whether the forwarding of an SMS message by the mother in these circumstances could constitute reasonable excuse.
In my view, where one party is obliged to comply with an order of the court and simply leaves a message with the other party suggesting an alternative later time at a different venue in contravention of the order, then in the absence of agreement, that cannot constitute a reasonable excuse.
Had the message referred to other matters and had other matters been the subject of corroboration, for example, serious illness or other event, then the communication of that event would not also of itself constitute reasonable excuse; rather, it would be the event itself which would constitute reasonable excuse. The mere communication by SMS message of matters of that kind, in my view, both in relation to this contravention and others, cannot of itself, in the absence of agreement, constitute reasonable excuse. On the balance of probabilities, having regard to the matters raised by the mother, I reject the submission made by the mother that in relation to Contraventions 1, 2 and 3 a reasonable excuse has been established.
In relation to other alleged contraventions including contravention 1, the following SMS message appears to have been forwarded on 16 August 2007 (Contravention 2). It reads:
“We r coming at 4 pm Lucy is having a rest. AND STOP PLAYING YR DIRTY GAMES WITH ME! It will all backfire on you at the end”.
Again, no response and no agreement was reached, but rather an assertion made by one party obliged to comply with orders of the court made in the interests of the child. Having regard to the interests of the child being paramount, which is clearly the statutory duty of any court in this jurisdiction the order cannot then be the subject of a unilateral communication by SMS message indicating that the order would not be complied with and that some other arrangement should be considered. If, on the other hand, the father agreed, the orders providing as they do for times as otherwise agreed, that may have occurred and may have occurred legitimately. However, that is not the case in the present application before the court.
In relation to Contravention 3, there appears to be a further SMS message, and my comments in relation to the SMS message remain applicable to that message. That message reads, "Lucy is busy until 4.45."
Again, whether or not that is true and whether or not that may provide a reasonable excuse is a matter for the court to consider on the balance of probabilities. In this instance, as I have indicated, I am not satisfied that that of itself is a sufficient reason, or at least a reasonable excuse, for non-compliance with the orders.
I find the Contraventions 1, 2 and 3 proved. I am not satisfied on the balance of probabilities that a reasonable excuse has been established.
Contravention 5
Contravention 5 allegedly occurred on 28 September 2007. On that occasion, in breach of paragraphs 4(f) and 6 of the orders made on 23 July 2007, it is alleged that the mother, without just cause or excuse, failed to deliver the child to the father on 28 September at 6 pm. On that occasion it is clear that the purpose of the delivery of the child on that occasion was to spend a holiday period with the father pursuant to paragraph 4(f) of the orders which were made on 23 July 2007.
It is interesting to note that in relation to this particular allegation, that there is a conflict of evidence. On the one hand the father says that he attended ready for collection and remained at the N police station until 6.20 pm. The mother in her evidence suggests that in fact she arrived at the police station late but arrived there at 6.15 pm. I find as a matter of fact that regardless of the precise times which both witnesses referred to, it is improbable that they both would have been present at the N police station at the same time.
Whether or not there is some inaccuracy in the evidence of the father or indeed the mother is really of little importance. What is of importance is the fact that the child was not delivered in accordance with the order at 6 pm. So much is clear from the evidence. What is equally significant in my view is that on that day the parties did not meet, the child was not delivered, and I am satisfied that the order was accordingly contravened.
It seems to me that there may well be other issues between the parties in terms of communications, one with the other; that is, it may be that the mother was endeavouring to make a further arrangement or endeavouring to ensure that the child may have been collected the next day. So much is clear from SMS on 29 September 2007 from the mother to the father suggesting, and I accept this, that the mother had waited for the father to attend a mediation earlier that day.
It is clear, that the father did not attend, because he misunderstood the date, so the mother is correct in relation to that, but then the SMS message goes on to suggest that the mother had also waited for the father to collect the child at the police station and asserts, "You did not turn up." The mother then says in the SMS message, "I am taking Lucy to circus at 2 pm. You can take her after that."
Again, my comments in relation to the assertion, which I regard as a mere assertion, an SMS message of that kind does not exculpate the mother from her obligations to comply with orders of the court, nor does the SMS message in that form provide a reasonable excuse, if indeed a reasonable excuse is offered. I reject the evidence of the mother in relation to the suggestion she has made to this court that there was an accident on the freeway on that occasion which caused her delay.
There is nothing in the evidence to suggest that the mother could not, upon attending, as she said, the N police station, albeit late on 28 September 2007, have then communicated as she had by SMS message or by telephone with the father in order to arrange for his immediate return to the N police station for collection of the child. It is unacceptable to simply wait until the next day and then provide an opportunity in the alternative, clearly in breach of the orders, for that holiday period to then commence. In my view Contravention 5 is proved and there is, on the balance of probabilities, no reasonable excuse demonstrated.
Contravention 6
That leaves the court to consider Contravention 6, which is the contravention alleging that on 4 October 2007 at the N police station at 4.15 pm, in breach of paragraph 19 of the court orders made on 23 July 2007, the mother abused, insulted, belittled and denigrated the father in the presence of the child.
It is clear that the allegation has now been particularised and was particularised in the affidavit in support sufficiently to note that the allegation was that in the presence of the child, at the police station, at the time and date referred to, the mother is alleged to have uttered the words, directed towards the father, that he was a ‘criminal’ and/or a ‘bastard’.
It is clear from the evidence of the father that he asserts that those words were uttered. In support of his application, the father has sought to call evidence from two police officers; the first, Leading Senior Constable Glen Smith, who gave evidence and was cross‑examined. During the course of his evidence, Leading Senior Constable Smith referred to the demeanour of the mother. He gave evidence that throughout the material period of time the child was present. He gave evidence that there was clearly a statement by the mother referring to the father where she called him a ‘criminal’.
He did not, however, indicate at any stage during the course of his evidence that the mother referred to the father as a ‘bastard’. However, he was strong in his evidence that the mother had used the word "criminal". He specifically said in his evidence that the mother "definitely did use the word 'criminal' on a couple of occasions". He further gave evidence that the mother used a strong voice and had an accent.
He gave evidence that he had been a police officer for 14 years and has dealt with a range of people from different backgrounds and has an understanding of those backgrounds and what might be described as a level of agitation. He gave that evidence, disagreeing with the suggestion that perhaps he did not make due allowance for the mother's background and perhaps her personality and the fact that she was in an agitated, upset state.
Further evidence was given for and on behalf of the father by Sergeant Kenneth Francis Rich, also of N. The evidence of that witness, in my view, in relation to this particular allegation, was somewhat limited. However, he did give evidence that the mother was "upset and aggressive". He gave evidence that the child was present and that the mother was asked to leave. He was cross-examined. He gave evidence in cross-examination that the mother was talking loudly. He stated in his evidence, "It could be heard through the whole police station." He clearly gave evidence that the mother, during the course of the time he observed her, was in an agitated state.
In relation to the state of the father and in relation to the word ‘criminal’ uttered, I accept that the evidence of the father as corroborated by the two police officers is correct. I accept that their evidence is accurate and correct. I do not accept that there is any suggestion or can be any suggestion of a conspiracy or any other suggestion that those witnesses were doing anything other than giving an honest and true account of what they observed and what they heard on that occasion. I conclude and find as a fact that when the mother attended the police station at or about 4.15 pm on 4 October 2007, she was in an agitated and aggressive state.
I further accept that in the presence of the child the mother did utter the word on at least a couple of occasions, directed to the father, that he was a ‘criminal’. I do not accept, however, that the word ‘bastard’ was also uttered by the mother. That evidence is evidence of the father uncorroborated by the police witness, and in particular by Leading Senior Constable Glen Smith, even though the father himself asserted that the words ‘criminal’ and ‘bastard’ were uttered at or about the same time in the presence of that witness.
In my view it is improbable that a police witness who has been a policeman for 14 years would not have recorded and given evidence that the word ‘bastard’ was uttered in his presence by the mother on that occasion. Hence I do not find that that word was used. Having found, however, that the word ‘criminal’ was used in the presence of the child, I am satisfied in the circumstances that the allegation made, which constitutes what I have referred to as contravention 6, has been proven. I am further satisfied on the balance of probabilities that there is no reasonable excuse established in relation to that allegation.
It seems to me that when one party refers to another, in the presence of a child, as a ‘criminal’, that is sufficient to constitute either abuse or an insult of a kind which would come within the ambit of order 14 of the orders made by the court on 23 July 2007.
Accordingly, I find contraventions 1, 2, 3, 5 and 6 proved.
Penalty
I am prepared to place the mother on a bond pursuant to the provisions of s.70NFB of the Act in the amount of $100.00 without special conditions to remain in full force and effect for a period of 12 months. I am satisfied that the events occurred within a short period of time from the date the orders were made. I am also satisfied that no serious harm came to the child as a result. But I am satisfied that Subdivision F of s.13A of the Act applies, namely, that it is a contravention without reasonable excuse, and for the reasons advanced, I am satisfied contraventions at least of 4 and 6 are more serious contraventions. I am further satisfied that in any event, s.70NFA(3) applies because there had previously been an order made. However, for the reasons I have given, I am satisfied it is sufficient for a bond to be imposed.
Costs
I have been asked to make an order for costs. It is clear that one of the factors I can take into account, having regard to my conclusion that this is a matter to which Subdivision F of s.13A of the Family Law Act applies, in making an order that I must make under paragraph (2)(g) of s.70NFB is whether or not I am satisfied it would be in the best interests of the child concerned to make the order.
I am prepared to make an order for costs. It seems to me, had the costs sought not been in the sum of the amount of $990.00, I may well have reduced the costs, having regard to the interests of the child. I may well have also reduced the costs that I am asked to fixed, having regard to the fact that I have dismissed three of the alleged contraventions. But having regard to the schedule which applies, which clearly would involve a costs order of something in excess of $2,000.00, it is in my view reasonable in the circumstances to have regard to the interests of the child to make a more modest order and to make that order payable within three months; that is, to provide a stay.
I am not satisfied that the mother, having regard to her current situation, is unable to pay the sum of $990.00 in a three-month period. In addition ordering that the mother enter into a bond, I will further order that the mother pay the father’s costs which I fix in the sum of $990.00 to be paid within three months of the date of this order.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 11 December 2007
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