Ehlers and Geering

[2015] FamCA 1066

FAMILY COURT OF AUSTRALIA

EHLERS & GEERING [2015] FamCA 1066

FAMILY LAW – CONTRAVENTION – PENALTY – where the mother contravened an order without reasonable excuse – where the father submits that the mother should attend a parenting course – where the mother submits that no further penalty should be imposed – where the Court is not satisfied that the mother has behaved in a way that shows a serious disregard for her obligations under the order – where consideration is given to the powers of the Court – where the contravention application is dismissed.

Family Law Act 1975 (Cth) – s 70NEA, s 70NEB

APPLICANT: Mr Ehlers

RESPONDENT: Ms Geering

FILE NUMBER: ADC 968 of 2007

DATE DELIVERED: 2 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Adelaide

JUDGMENT OF: Justice Dawe

HEARING DATE: 12 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Furtado

SOLICITOR FOR THE APPLICANT: Phillips Green & Associates

COUNSEL FOR THE RESPONDENT: Mr Dillon

SOLICITOR FOR THE RESPONDENT: Carol Willans Lawyers

Orders

1. The Contravention Application filed on 7 November 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ehlers & Geering (Penalty) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 968  of 2007

Mr Ehlers

Applicant

And

Ms Geering

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 12 October 2015 orders were made in relation to the contravention proceedings.  Findings were made that the mother had contravened an order of the Court without reasonable excuse.  Consent Orders were made at the time varying some of the orders concerning communication between the parties.  By consent it was also ordered that each party should bear their own costs in respect of the matter.  Judgment was reserved in relation to penalty, if any, to be imposed.

The contravention

1. As set out in the ex tempore reasons made on 12 October 2015 the Court found that the mother had contravened paragraph 10 of the order of 6 October 2011 without reasonable excuse.  Paragraph 10 of the order provided:

   The father shall provide 14 days written notice via appropriate email to the mother of his intention to be in Australia and the times that he will be available to spend with [B] during that time.

2. The mother admitted the contravention of the order.  Her oral evidence indicated that she had “blocked the father from her email address”.  She claimed to have reasonable excuse.  The Court found that she did not have a reasonable excuse. 

3. Following the findings consent orders were made which were as follows:

   In addition to the Orders of 6 October 2011 the following orders will apply in relation to communication between the parties:

   a)    the father shall only communicate via email on issues concerning the child’s health, education and his trips to Australia and for no other purpose;

   b)   the father shall send no more than one email per any 2-week period on such issues unless they refer to a medical emergency or update the mother in respect of a change in travel arrangements;

   c)   the mother shall forthwith remove any blocking on the father’s email addresses.

   Each party shall bear their own costs in respect of the matter.

4. These orders relate to the arrangements made for the parties to communicate and for the father to spend time with the child B born in 2005 (“the child”).  Proceedings have been outstanding before this Court for a period of time during which there have been serious allegations concerning the father’s behaviour and the mother’s attitude.  It is also alleged that the child has been diagnosed with Autism Spectrum Disorder and has emotional difficulties.

The Law

1. Section 70 NEA provides;

SECT 70NEA

Application of Subdivision

(1)Subject to subsection (4), this Subdivision applies if:

(a)a primary order has been made, whether before or after the commencement of this Division; and

(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and

(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and

(d)either subsection (2) or (3) applies;

and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.

(2)For the purposes of paragraph (1)(d), this subsection applies if no court has previously:

(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

(3)For the purposes of paragraph (1)(d), this subsection applies if:

(a)a court has previously:

(i)     made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

(ii)    under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and

(b)the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.

(4)This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.

1. There was no submissions made and the Court was not aware of any previous sanction or adjournment of contravention proceedings.

2. In any event, under ss (3) it would be more appropriate for the contravention to be dealt with under this subdivision.  The Court is not satisfied that the mother behaved in a way that showed a serious disregard for her obligations under the primary order.  (s 70 NAE (4)).

3. Section 70 NEB sets out the powers of the Court:

SECT 70NEB

Powers of court

(1)If this Subdivision applies, the court may do any or all of the following:

(a)     make an order directing:

(i)     the person who committed the current contravention; or

(ii)    that person and another specified person;

to attend a post-separation parenting program;

(b)if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;

(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;

(e)if:

(i)     the current contravention is a contravention of a parenting order in relation to a child; and

(ii)    the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

(iii)   the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

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

(g)if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

Note 1: The court may also vary the primary order under Subdivision B.

Note 2: Paragraph (1)(a)--before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).

(2)The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:

(a)the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and

(b)the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.

(3)If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.

(4)If:

(a)the current contravention is a contravention of a parenting order in relation to a child; and

(b)the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

the court must consider making an order under paragraph (1)(b) to compensate the person for the 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 contravention.

(5)The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.

(6)In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:

(a)whether the primary order was made by consent;

(b)whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;

(c)the length of the period between the making of the primary order and the occurrence of the current contravention;

(d)any other matters that the court thinks relevant.

(7)The court must consider making an order under paragraph (1)(g) if:

(a)the person (the applicant ) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent ) who committed the current contravention committed a contravention of the primary order or that other primary order; and

(b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:

(i)     was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or

(ii)    was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.

Conclusions

1. On behalf of the father it was submitted that the Court should order the mother to attend a parenting course.  On behalf of the mother the submissions were that there should be no further penalty taking into account the consent orders which were made in October 2015 substantially overcoming the difficulties which the father incurred communicating with the mother about his time to be spent with the child.

2. In these circumstances the penalty may be a bond or fine.  The other provisions of the section are not appropriate, taking into account the background of this matter.  In particular the post-separation parenting programme is not likely to be useful in these circumstances unless both parties attended and did so willingly, rather than as the result of a Court order.

3. Having found that the mother contravened an order without reasonable excuse, it is significant that the mother will now be on notice that if in the future she contravenes an order of this Court in relation to the child, she will be at risk of much more significant penalties under the provisions of Subdivision F which include, imprisonment, community service and substantial fine.

4. Therefore taking into account the orders made on 12 October 2015 and in exercising the discretion pursuant to s 70 NAB it is not appropriate to make any further order by way of penalty.

5. The contravention application is therefore dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 2 December 2015.

Associate: 

Date:  2 December 2015