Dursley and Aleksovski

[2009] FamCA 605

FAMILY COURT OF AUSTRALIA

DURSLEY & ALEKSOVSKI [2009] FamCA 605

FAMILY LAW – CONTRAVENTION – Admitted contravention of parenting orders – bond not appropriate – parenting course and costs

APPLICANT: Mr Dursley

RESPONDENT: Ms Aleksovski

FILE NUMBER: MLC 13135 of 2007

DATE DELIVERED: 11 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Chenarky

SOLICITOR FOR THE APPLICANT: Pearce Webster Dugdales

COUNSEL FOR THE RESPONDENT: Mr A. Scriva

SOLICITOR FOR THE RESPONDENT: Rigoli Lawyers

Orders

IT IS ORDERED:

1. That I grant leave to the father to withdraw the following counts in his amended application filed 17 December 2008:-

   a)Count one in which it was alleged that from 13 August 2008 to 3 October 2008 the mother without reasonable excuse allowed the child … born … August 2003 to come into contact with Mr G and did so in contravention of paragraph 6(a) of the Orders made 13 August 2008;

   b)Count two in which it was alleged between 3 and 5 October 2008 the mother through her servants or agents took the child to Dr E at S Hospital in contravention of paragraph 6(b) of Orders made on 13 August 2008 and did so without reasonable excuse;

2. That leave is granted to the father to amend count four of his amended contravention application filed 17 December 2008 to refer to paragraph 2 of the Orders made by Federal Magistrate O’Sullivan on 13 August 2008 as orders it is alleged were contravened by the mother.

3. That I find counts three and four of the father’s application proved in that:-

   a)On 27 October 2008 at 6.30 pm the mother failed to return the child to the father in breach of an Order made by Senior Registrar FitzGibbon on 27 October 2008;

   b)On 5 October 2008 the mother failed to return the child to the father in breach of paragraphs 2 and 4(a) of the Orders made on 13 August 2008.

4. That the mother has not proved that she had a reasonable excuse for the said contraventions or either of them.

5. That pursuant to section 70NEB of the Family Law Act 1975, the mother shall within 7 working days from the date of this order make contact with Lifeworks, the parenting program provider as nominated by the Court and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the mother, the mother shall attend that program or that part of the program.

6. That the costs of the father be fixed in the sum of $1760.00 and to be paid by the mother on or before 11 April 2009.

7. That the contravention application of the father filed 23 October 2008 be otherwise dismissed.

IT IS NOTED for case management purposes that the parenting proceedings are listed before the Senior Registrar on 2 March 2009 at 9.45 am

IT IS DIRECTED:

1. That a copy of these Orders be sent to the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Dursley & Aleksovski is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13135 of 2007

MR DURSLEY

Applicant

And

MS ALEKSOVSKI

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This matter comes before me in the judicial interim hearing list and is the amended application of the father filed 17 December 2008, in which he seeks to have the mother dealt with for contravention of orders made in this court on 13 August 2008 and 27 October 2008 concerning the parties’ child, a daughter born in August 2003.

2. Relevantly the Order made by FM O’Sullivan on 13 August 2008 provides:-

   2.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

   […]

   4(a)       Each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday commencing 22 August 2008 and upon the child commencing school from after school Friday until 5.00 pm Sunday;

   […]

   6.That the mother her servants and agents be and are hereby restrained from:_

   (a)Bringing the child into contact with [Mr G]; and

   (b)Taking the child to a Doctor, Medical Practitioner or Hospital save for an emergency and in such case will notify the Husband within one hour of doing so.

   7.The father shall insofar as it is practicable ensure that the child attend, if necessary, the [S] Medical clinic or Dr. [N] and shall advise the Wife as soon as practicable of any medical emergency or major medical or dental appointment.

3. Relevantly the Order made by Senior Registrar Fitzgibbon on 27 October 2008 provides:-

   1.That the wife forthwith return the child […] born […] August 2003 to the husband in the foyer of the [M] Police Station this day at 6.30 pm.

4. There were originally four counts. 

5. In Count One it was alleged that from 13 August 2008 to 3 October 2008 the mother without reasonable excuse allowed the child to come into contact with one Mr G and did so in contravention of paragraph 6(a) of the orders made on 13 August 2008.  That count was withdrawn.

6. In Count Two it was alleged that between 3 and 5 October 2008 the mother, and/or her servants and agents, without reasonable excuse took the child to Dr E at S Hospital in contravention of paragraph 6(b) of the orders made on 13 August 2008.  That was withdrawn.

7. The counts which proceeded were Count Three and Count Four.

8. In Count Three it is alleged that on 27 October 2008 at 6.30 pm the mother failed to return the child to the father and did so without reasonable excuse and in breach of paragraph 1 of orders made by Senior Registrar FitzGibbon on 27 October 2008.

9. The mother admitted that the child was not returned at the specified time, but initially asserted that she had a reasonable excuse for doing so.  Subsequently she amended her position to admit that she had contravened the Order.

10. In Count Four it is alleged that on 5 October 2008 the mother failed to return the child to the father and did so allegedly in breach of paragraph 4(a) of the orders made on 13 August 2008.  There was an amendment to this count to incorporate also paragraph 2 of the orders made on 13 August 2008.  The mother originally denied the contravention but, in the running, admitted it.

11. I find the Counts Three and Four proven.  

12. I am now required to look at and determine the consequences of the failure to comply with the orders.

13. It is common ground that the mother has not previously been found to have contravened orders or any orders have been made adjourning proceedings pursuant to Section 70NEB(1)(c). As such, the appropriate consequences are set out in Section 70NEB of the Family Law Act.  Of the seven consequences, there are only three provisions which are relevant to this case. They are:-

    a)Section 70NEB(1)(a) whereby I can make an order requiring the mother, and indeed the father, to attend a post-separation parenting program;

    b)Section NEB(1)(d) pursuant to which I could make an order requiring the mother to enter into a bond in accordance with Section 70NEC; and

    c)Section NEB(1)(f) which enables me to make an order requiring the mother to pay some or all of the costs of the other party or any other parties to proceedings under this division.

14. My reasons will be brief because it is late in the day and the parties have requested that the matter be concluded within the day. 

15. The contraventions that I am satisfied have occurred are serious contraventions indeed.  They follow immediately upon orders having been made.

16. I inquired of counsel for the mother whether she was prepared to agree to enter into a bond and I indicated that the bond could be for a period of up to two years and include as a condition that she abide orders of the Court. 

17. I was informed that counsel for the mother could not recommend to his client that she agree to enter into a bond in those terms.  That is a significant concession to make but, in my assessment, an entirely appropriate and responsible position if it be the case that the mother has doubts about her ability to abide the conditions of the bond. 

18. That leaves me with the options of directing that the mother attend a post-separation parenting program and ordering that she pay some costs. 

19. Whilst I have said that these contravention proceedings are serious, I am not of the view that either amount to “more serious contraventions” within the meaning of Section 70NFA.  If similar acts were to occur in the future, I would expect that subsequent contraventions, if proved, may qualify as more serious contraventions.

20. In mitigation of the mother's position, I was informed by counsel for the mother that the mother in hindsight accepts that she had no reasonable excuse to fail to return the child to the father on 5 October 2008 or on 27 October 2008.  On 5 October 2008 the mother apparently took advice from her sister who had, by subterfuge, taken the child to a hospital and had the child examined.  The mother says that she then relied upon the views of her sister that the child had been assaulted or injured or was in such a condition that she should not be returned to the father.  It is now recognised by the mother that a more prudent and responsible course would have been to make herself inquiries of the hospital. 

21. In summary, it is submitted that the mother’s fears at the time for the child’s safety were genuine, but in hindsight she can see that they were not reasonable.  She recognises now that a reasonable person would have taken other steps to verify the child’s welfare.

22. I was informed that the mother was somewhat in the thrall of her sister, with whom she then had a close but volatile relationship.  Now there has been a falling-out with her sister.  She is no longer in her thrall. I did not receive any further details of that.  It is not particularly relevant.  There is always the possibility that they will reassociate.

23. Counsel for the mother relied on extracts from the reasons for decision of Senior Registrar FitzGibbon on 27 October 2008, in particular paragraphs 40 and 41 in which the Senior Registrar makes findings as to the mother being easily led, vulnerable, and possessed of social and intellectual difficulties that could well see her fall into error.  I take into account those matters when assessing the appropriate sanctions for the mother.

24. It was also said on behalf of the mother, and perhaps most poignantly, that her greatest punishment has been that the actions which are the subject of the contraventions have also led to the court varying the parenting orders so that the mother sees the child for two hours a fortnight on a supervised basis at a contact centre.  The orders that were in place prior to that variation, being the Order made on 13 August 2008, entitled the child to spend each alternate weekend with the mother from Friday afternoon to Sunday afternoon, each alternate Wednesday and a portion of the school holidays.

25. I accept that the mother might interpret the reduction in her time with the child as her greatest punishment.  However, from observing the mother’s demeanour in Court, it appears that it has now hit home to her that her actions have resulted in the child missing out on time they could have spent together if the mother had abided orders of the Court.  Surely, that must be the mother’s heaviest burden.

26. This matter proceeded late into the day and would have been adjourned part heard to April 2009 consequent on my granting leave to the father to amend his application. I accept that one of the matters which motivated the mother to admit the contraventions was that she did not want to compromise her application before Senior Registrar Fitzgibbon on 2 March 2009 when she proposes to seek a re-instatement or enlargement of the time that she can spend with the child and for the time not to be supervised.

27. In the circumstances, it is appropriate that I order the mother to undertake a post-separation parenting course. 

28. I will also require the mother to pay the costs of the father.  The costs are sought in the sum $1760.  That is $880 for each of the two days that we have been at court. 

29. On 12 January 2009, the mother appeared on her own behalf, although Mr Davis, a member of the Victorian Bar, appeared as amicus curiae for the mother.  There is a notation that the mother was not in the courtroom at the time that Her Honour adjourned the proceedings and reserved costs of this day.  It is apparent from the orders that the mother was said to have suffered an epileptic fit and could not participate in the proceedings.  The costs were reserved and counsel's fees were fixed at $880.  The father’s understanding was that, on 12 January 2009, the mother admitted three or the four alleged contraventions and that the matter was adjourned part heard, due to the mother becoming ill, and that the only outstanding issue was for penalty to be determined. Clearly the matter is not part heard. The mother, through her counsel, said that she did not previously admit the contraventions but, as matters resolved, the mother did not give evidence to that effect.

30. Counsel for the father says that the father’s costs for this day costs are $880 as well.

31. The costs are a matter which can be imposed as a sanction pursuant to 70NEB(1)(f).  I am informed that the mother is in receipt of legal aid and that that legal aid does not extend to these contravention proceedings, which mean that the persons who represent her, or pay those who represent her, may not be reimbursed.

32. It was submitted by counsel for the mother that the father is in a stronger financial position than the mother. However, impecuniousity and inferior financial position cannot be a justification or a reason, per se, to escape penalty in relation to contravention of an order.  Just as the respective financial position of the parties is relevant under section 117, so is the fact that proceedings may be necessitated by virtue of one party's failure to abide an order of the court. These days, it is rare that parties can afford legal proceedings.

33. On 12 January 2009, Brown J inter alia made the following Order:-

    3.That the mother attend a medical practitioner this day and by 6 February, 2009 file and serve an affidavit sworn or affirmed by such medical practitioner setting out with specificity:

    (a)observations of the mother;

    (b)the history given by her of the alleged epilieptic fit suffered by her at court this day; and

    (c)his or her diagnosis, if any.

34. The mother did not file an affidavit by 6 February 2009. The mother has tendered and relies upon three medical certificates from two medical practitioners.  She has not complied with paragraph 3 of the orders made on 12 January 2009 in that those certificates were not part of an affidavit and they did not cover the history of her alleged epileptic fit suffered in court that day or the doctors' diagnoses.  On balance I am satisfied that the mother was probably affected by some epileptic condition on that day.  In my view, however, with all of the proceeding having been necessitated by the mother’s failure to comply with orders of the Court, her having fallen ill on 12 January 2009 makes the proceedings more costly for the father. It is unfortunate that the mother became indisposed but it should not add to the financial burden of the father in properly prosecuting his contravention application.

35. There was a submission from counsel for the mother that anyone who takes a contravention application does so as a matter of election.  I do not accept that submission.  This is a court of private law.  If the person entitled to the benefit of an order or the protection of an order does not prosecute breaches of it, no-one else will. One would have to wonder why orders would be made in the first place if non-compliance has no consequences. In the circumstances of this case, bringing a contravention application was reasonable and justifiable. The father should have his costs of doing so. 

36. There is no issue taken as to the quantum of costs.

37. I assess the father's costs at $1760 and will require the mother to pay them. 

DISCUSSION

1. I enquired of counsel for the mother what stay he sought in respect of the costs order of $1760.  He said that his client did not have those monies available. Counsel for the father indicated that his client would not oppose a stay of 60 days. It was stated by counsel for the father that the mother recently came into an inheritance from the estate of her late father. The mother said through her counsel this was not the case. I invited counsel for the mother to call his client to give evidence and be cross examined on the issue of her financial circumstances but he declined to do so and, thereafter, did not seek a stay of more than the 60 days on offer.  In my view, 60 days is appropriate, so I will grant a stay for 60 days in relation to the payment by the mother of the father’s costs of $1,760.

2. Finally, I should record that at the commencement of the contravention proceedings the independent children’s lawyer appeared as a matter of courtesy. At that time, which was much earlier in the day, it was thought that the contravention application may be disposed of by 1.00 p.m. and that the Court could proceed to hear the matter as the first day of the less adversarial trial procedure, if that was what was appropriate. The rulings on objections and applications to amend in this matter took longer than I expected and we are now out of time. It is appropriate that the matter remain listed before the Senior Registrar in March 2009. However, the parties should give consideration prior to that hearing to the disposition of the matter thereafter. That consideration should include the appropriateness of transferring the matter back to the Federal Magistrates Court (which made the final Order) after a completion of the matter before the Senior Registrar.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  18 February 2009