Elspeth & Peter; Mark & Peter and John & Peter
[2007] FamCA 1072
•13 September 2007
FAMILY COURT OF AUSTRALIA
| ELSPETH & PETER; MARK & PETER AND JOHN & PETER | [2007] FamCA 1072 |
| APPEAL – CONTRAVENTION – PENALTY – This Full Court previously allowed an appeal by the mother against the penalty imposed for her contravention of parenting orders – As stated in the primary judgment the mother’s contravention should be dealt with in accordance with Sub‑Division E of Division 13A of Part VII – Although a bond would be an appropriate penalty reflecting the seriousness of the contravention, the Court does not feel it can properly perform its obligations under s 70NEC(5) to explain to the mother the consequences of failing to enter into the bond as the consequences themselves are unclear – As adjustments had already been made to make the orders more workable, and as make-up time had been ordered, the only effective penalty is to require the mother to contribute to the father’s costs of the contravention proceeding |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
Stevenson and Hughes (1993) FLC 92-363; (1993) 16 Fam LR 433
| APPELLANTS: | ELSPETH, MARK and JOHN |
| RESPONDENT: | PETER |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Waterhouse |
| FILE NUMBER: | HBF | 150 | of | 2003 |
| APPEAL NUMBERS: | SA | 18, 22 & 23 | of | 2007 |
| DATE DELIVERED: | 13 September 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Faulks DCJ, Kay & Penny JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 February 2007 |
| LOWER COURT MNC: | [2007] FamCA 96 |
REPRESENTATION
| COUNSEL FOR THE FIRST NAMED APPELLANT: | Mr Ackman QC and Ms Macmillan |
| SOLICITORS FOR THE FIRST NAMED APPELLANT: | Murray and Associates |
| COUNSEL FOR THE SECOND NAMED APPELLANT: | Mr Brett and Ms Higgins |
| SOLICITORS FOR THE SECOND NAMED APPELLANT: | Bishops Barristers & Solicitors |
| COUNSEL FOR THE THIRD NAMED APPELLANT: | Mr Crawford |
| SOLICITORS FOR THE THIRD NAMED APPELLANT: | Rae & Partners |
| COUNSEL FOR THE RESPONDENT: | Mr McGuire |
| SOLICITORS FOR THE RESPONDENT: | Temple-Smith Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Fitzgerald |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER | PL Corby & Co |
ORDERS
The appellant mother pay four thousand dollars ($4,000) towards the respondent father’s costs of the proceedings before the Honourable Justice Benjamin on 19 and 20 February 2007.
The Court grants to each of the appellants a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 each of the appellants in respect of the costs incurred by each appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the respondent in relation to the appeal.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 18, 22 & 23 of 2007
File Number: HBF 150 of 2003
| ELSPETH; MARK AND JOHN |
Appellants
And
| PETER |
Respondent
REASONS FOR JUDGMENT
On 5 July 2007 we delivered a judgment allowing an appeal by Elspeth (the mother) against the penalty imposed for a contravention of a child related order and allowing appeals by Mark (the son) and John (the son in-law) against conviction and penalty in orders pronounced by the Honourable Justice Benjamin on 20 February 2007.
We then directed that the mother file and serve written submissions in relation to penalty and in relation to costs of the contravention proceedings and the appeal, that the son and son in-law file and serve written submissions in relation to the costs of the contravention proceedings and the appeal and that the respondent (the father) file and serve any submissions in response. We have now received submissions from each of the parties relating to the matters that affect them.
THE COSTS OF THE APPEAL
The mother submitted that the father should pay all or at least a portion of her costs of the appeal on the ground that the appeal was partially successful. She submitted that the financial affairs of herself and the father were modest. In the alternative she sought an order that the Court grant a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) on the basis that the appeal had succeeded on a question of law.
The son sought an order that the father pay his costs, or in the alternative, that he receive a certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). He provided evidence as to his financial position and submitted that the father was wholly unsuccessful in the appeal proceedings.
The son in-law sought an order for costs as against the father relying entirely upon the proposition that the father had been wholly unsuccessful in the proceedings. In the alternative he also sought a certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
The father resisted the grant of any order for costs against him and submitted that the matter was appropriate for the grant of certificates. He provided evidence of his financial position which disclosed that he had a modest income and was the owner of a house of an unidentified value which was subject to a mortgage.
Given that the appeals have succeeded by reason of the trial judge’s errors, we conclude that it is appropriate that each party receive the relevant certificates under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) and that it is inappropriate for there to be any orders for costs between the partes.
COSTS OF THE CONTRAVENTION PROCEEDINGS
The mother submitted that there should be no order as to costs in relation to the contravention proceedings. Neither the son nor the son in-law sought any order for costs in relation to the contravention proceedings. The father sought an order that the mother should pay his costs of and incidental to the contravention proceedings and we propose to deal with his application when we examine the issue of the appropriate penalties to be imposed on the mother in relation to the contravention that was found proven by the trial judge.
PENALTY
In the course of our primary judgment in the mother’s appeal against conviction and penalty, we indicated that as it was the first proven contravention of orders it was appropriate that the matter be dealt with in accordance with Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 70NEB empowers the Court when dealing with a contravention without reasonable excuse of a parenting order under Subdivision E to do any or all of the following:
(1)
(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;
(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…
The singularly most significant result of an imposition of a penalty in this case is that any subsequent proven contravention of the orders may attract the more serious penalties under Subdivision F of Division 13A of Part VII of the Act including the imposition of a fine or a sentence of imprisonment (see s 70NFA(3)(a)).
It is perhaps convenient to recall that the proven contravention concerned the failure of the children to spend time with their father for one week commencing 14 January 2007. When the trial judge found that the contravention was proven, amongst the orders that his Honour made was an order by way of compensatory time that the children spend time with their father from Sunday 8 April 2007 until Sunday 15 April 2007. It is now submitted to us on behalf of the mother that it would be inappropriate to make any further compensatory orders. The trial judge also made further orders altering the place where the children were to be made available to their father and limiting the persons who could attend at the changeover.
It is submitted on behalf of the mother that it is not appropriate to require the mother to enter into a bond, saying that the trial judge had indicated that it would serve no significant purpose.
It is further submitted that if the Court is however of the view that a bond is appropriate, the Court should define with particularity the obligations of the mother pursuant to the bond in relation to taking reasonable steps to persuade the children to spend time with their father and to positively encourage same.
In his submissions as to penalty the father submitted that we should impose a penalty which has the dual purpose of deterring the mother specifically and persons generally against contravention of orders. He submitted that a fine would be an appropriate penalty. He also sought an order that the mother pay his costs of and incidental to the contravention proceedings.
The issue of an appropriate penalty in this case is not without its difficulty. We have evidence that the mother is suffering from a terminal illness. We have evidence that the mother’s religious beliefs, which were until the time of separation those of the father’s as well, do not easily allow her to encourage the children to have a relationship with their father who has abandoned those beliefs.
Be that as it may, given that the trial judge determined that it was appropriate for the children to spend time with their father it remains incumbent upon the mother to comply with the orders of the Court.
The powers available to the Court when dealing with the first breach of an order under Subdivision E of Division 13A of Part VII of the Act are very limited. It seems appropriate to us that we endeavour to impose a sanction that will reinforce the seriousness of the proven contravention and endeavour to militate against future contravention. To that end it appears to us that we should require the mother to pay the father’s costs of the contravention proceedings pursuant to s 70NEB(1)(f), and to enter into a bond for a period of twelve (12) months in the sum of two thousand and five hundred dollars ($2,500) without security pursuant to s 70NEB(1)(d). It would be a condition of the bond that the mother be of good behaviour and comply with the orders of the Court.
There is however a difficulty with us requiring the mother to enter into such a bond. Section 70NEC(5) provides:
If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a)the purpose and effect of the proposed requirement; and
(b)the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond – fails to act in accordance with the bond.
It is fairly self apparent that in the event that the mother fails to act in accordance with the bond the sum promised by the bond may become the subject of forfeiture. The precise consequences that flow if the mother fails to enter into the bond are not so readily identifiable.
When the Family Law Act1975 (Cth) was first passed in 1975 s 70(6) read:
If the court having jurisdiction under this Act is satisfied that a person has knowingly and without reasonable cause contravened or failed to comply with the provision of this section, that court may:
…
(b)require the person to enter into a recognizance, with or without sureties, in such reasonable amount as the court sees fit, that that the person will comply with the relevant order, or order that person to be imprisoned until that person enters into such a recognisance or until the expiration of three months, whichever first occurs.
The consequences of failing to enter into a recognizance were clearly spelt out.
In 1989 there were extensive amendments to the Act that inserted Part XIIIA into the Act. This Part was headed “Sanctions for failure to comply with orders and contempt of court” and applied to all orders made under the Act including those relating to property and children. The new s 112AD provided sanctions for failing to comply with orders without a reasonable excuse. Section 112AD(2) set out the sanctions which could be applied ranging in seriousness from:
·a sentence of imprisonment;
·a fine;
·a recognizance;
·a community based order;
·a sequestration of property;
·an order to deliver a document to the Registrar; or
·the provision of make up time where the matter concerned the deprivation of contact.
Section 112AF first introduced the requirement that the Court explain the purpose and effect of the recognizance and the consequences of failure to enter into a recognizance or breach of a recognizance. However, the amendments did not introduce any provisions detailing the actual consequences of failure to enter into, or breach of a recognizance. The explanatory memorandum to the amending Bill stated:
The consequence of failure to comply with a recognizance is that the breach can be dealt with under new section 112AD as a breach of an order under the Act.
It did not provide any guidance as to the consequences for not entering into a recognizance. Presumably the Court could impose a more serious penalty if the contemnor refused to enter into the recognizance.
In 2000 Division 13A was inserted into Part VII of the Act. This Division was headed “Consequences of failure to comply with orders, and other obligation, that affect children”. The Division created two different stages in contravention proceedings being contraventions which were considered to show a serious disregard for the obligations under the primary order, and contraventions which were considered not to show serious disregard.
For the first proven contravention, provided that it did not show a serious disregard for obligations under the primary order, the Court’s powers were limited to directing persons to attend parenting programs and making compensatory orders (s 70NG). For subsequent or more serious contraventions s 70NJ(3) empowered the Court to:
·make a community service order;
·require the person to enter into a bond;
·impose a fine on the person; or
·impose a term of imprisonment.
In relation to more serious contraventions, s 70NM(5) contained the requirement that the Court must explain the consequences that may follow if the person failed to enter into a bond, or having entered into a bond, failed to act in accordance with it.
Section 70NN provided the procedure and consequences where a bond was contravened without reasonable excuse. It read:
…
(7)If:
(a) in accordance with this section, the person is brought before the court; and
(b) the court (whether or not constituted by the judge or magistrate who made the community service order or required the bond to be entered into in accordance with section 70NM) is satisfied that the person has, without reasonable excuse, failed to comply with the order or bond;
the court may take action under subsection (8).
(8)The court may:
(a) without prejudice to the continuance of the community service order or the bond entered into in accordance with section 70NM, impose a fine not exceeding 10 penalty units on the person; or
(b) revoke the community service order or the bond entered into in accordance with section 70NM and, subject to subsection (9), deal with the person, for the contravention in respect of which the community service order was made or the bond entered into, in any manner in which the person could have been dealt with for the contravention if:
(i)the community service order had not been made or the bond had not been entered into; and
(ii)the person was before the court under section 70NJ in respect of the contravention.
(9)In dealing with the person as mentioned in paragraph (8)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account:
(a) the fact that the community service order was made or the bond was entered into; and
(b) anything done under the community service order or pursuant to the bond; and
(c) any fine imposed, and any other order made, for or in respect of the contravention.
There existed no equivalent section outlining the consequences where a bond was not entered into, however it can be assumed that the consequence would be to impose an alternate available sanction. In any case, the section relating to consequences for failing to act in accordance with a bond was applicable only to the more serious contraventions and provides limited assistance in relation to less serious contraventions.
In 2006 the Act was again amended to what is now its present form. Contraventions of parenting orders continue to be classified within the same two stages though are more explicitly labelled as “less serious contraventions” (Subdivision E of Division 13A of Part VII) and “more serious contraventions” (Subdivision F of Division 13A of Part VII).
The ability to require a person to enter into a bond was introduced in relation to the Subdivision E or less serious contraventions and the power is contained in s 70NEB(1)(d). Subdivision F relating to more serious contraventions contains sanctions not available for less serious contraventions. These include the ability of the Court to make orders for community service, the imposition of a fine or a term of imprisonment.
Section 70NEC deals with the bonds imposed in relation to Subdivision E or less serious contraventions and contains the subsection reproduced above in paragraph 19 requiring explanation of the consequences of not entering into a bond and of failing to act in accordance with a bond. While this section substantively mirrors the section dealing with bonds in relation to Subdivision F or more serious contraventions, there is no follow-up section similar to s 70NFF in Subdivision F (in substance the former s 70NN) which outlines the consequences of failing to act in accordance with a bond. Further, there are no provisions regarding the consequences of failing to enter into a bond in relation to either less serious contraventions or more serious contraventions.
It seems to us curious that the present legislation, when dealing with a less serious contravention, still requires the Court to provide an explanation of the consequences that may follow if a person who is required to enter into a bond fails to do so, but does not set out or explain anywhere what those consequences might be. We are unable to discern what those consequences might be.
That being so, even though in this case the mother has indicated that her faith does not in any way prevent her from entering into an undertaking with the Court to do all actions to affect compliance with the court orders, if we were to require her to enter into such a bond we could not meet our legislative obligation to explain to her the consequences of her failure to do so, other than to say that there are no apparent consequences. In the circumstances it seems pointless to create an obligation that is likely to be ignored.
Whilst there is scope for an argument that the failure to comply with an order that required a person to enter into a bond might itself constitute a contempt of court that could attract the imposition of a sanction under s 112AP of the Act it seems unlikely that the legislature intended such an outcome when it established a graduated scale of penalties to be applied for breaches of parenting orders depending on the seriousness of the contravention. If the legislature anticipated that the failure to enter into a bond ought attract a more condign penalty than we would expect the legislation to clearly say so.
The mother also seeks that we spell out precisely what it is that we would require her to do to ensure compliance with the orders should she enter into such a bond. We resist the temptation to undertake that task. The mother’s obligation is to obey the orders of the Court. The extent to which she has to go to obey those orders of the Court has already been spelt out by the Full Court in Stevenson and Hughes (1993) FLC 92-363; (1993) 16 Fam LR 433. We do not think it is helpful to add any further gloss to that case at this time.
The only effective way of now dealing with the proven contravention is to require the mother to make a contribution towards the father’s costs and to remind the mother that any further proven contraventions may be dealt with under Subdivision F of Division 13A of Part VII and may attract a fine or a period of imprisonment.
I certify that the preceding Thirty Six (36) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court
Associate:
Date: 13 September 2007
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