Farquar and Farquar

[2008] FamCA 523

FAMILY COURT OF AUSTRALIA

FARQUAR & FARQUAR [2008] FamCA 523

FAMILY LAW – ORDERS – Contravention – mother pleaded guilty to 18 counts of alleged contraventions – mother acknowledged had no reasonable excuse – 17 contraventions of order requiring parties to deliver children to school on time – penalty – bond not appropriate – satisfied beyond reasonable doubt contraventions were without reasonable excuse and of a serious nature – mother fined 20 penalty units ($2,200)

Family Law Act 1975 (Cth) ss 70NFB(2)(d)

Crimes Act 1914 (Cth) s 4AA

Dobbs & Brayson [2007] FamCA 1261

APPLICANT: Mr Farquar

RESPONDENT: Ms Farquar

FILE NUMBER: DNC 431 of 2007

DATE DELIVERED: 6 JUNE 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 6 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: David Charles Story

SOLICITOR FOR THE RESPONDENT: David Charles Story

Orders

UPON NOTING:-
(a)     that the father seeks to withdraw the alleged contravention of 24 July 2007; and

(b)the mother’s admission that without reasonable excuse she contravened each of the remaining 18 counts

UPON THE COURT FINDING that the mother has contravened all remaining 18 counts of alleged contravention of Orders made in this Court on 19 June 2000 as set out in the father’s Application for Contravention filed herein on 27 September 2007

IT IS ORDERED:-

1. That on the father’s own application, the alleged contravention of 24 July 2007 is dismissed.

2. On or before 4.00 pm on Friday 5 September 2008 the mother must pay to the Registry Manager of the Darwin Registry of this Court a fine of TWO THOUSAND TWO HUNDRED DOLLARS [$2,200.00].

AND UPON NOTING that the trial of these proceedings is listed before the Honourable Justice Strickland at 10.00 am on Thursday 12 June 2008 IT IS FURTHER ORDERED:-

1. That the father’s oral application for costs in relation to the Application for Contravention filed by him on 27 September 2007 is adjourned for mention before the Honourable Justice Strickland at 10.00 am on Thursday 12 June 2008 in order for his Honour to determine whether or not he is in a position to resolve that issue or whether it is a matter to be listed for hearing before the Honourable Justice Burr on a date and at a time to be fixed.

2. That the father do all things reasonably possible to file and serve on or before 10.00 am on Thursday 12 June 2008 an affidavit detailing the expenses incurred by him in the pursuit of his aforesaid Application for Contravention UPON NOTING that the father may have difficulty in securing from his employer the material necessary to be annexed to his affidavit.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 431  of 2007

MR FARQUAR

Applicant

And

MS FARQUAR

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me the father’s Application for Contravention filed 27 September 2007.  On the father’s own application, I dismiss his application in relation to the alleged breach of 24 July 2007.  As I have earlier found, I am satisfied that personal service was effected, that the mother had knowledge of the Orders that were alleged to have been breached and in her own words today when contacted by the Court, she pleaded guilty to each of the 18 counts of alleged contraventions and acknowledged that she had no reasonable excuse for those breaches. 

2. As I indicate later in these reasons, I have determined that it is appropriate to impose a fine upon the mother for her breaches.  In doing so, I must be satisfied beyond reasonable doubt that the grounds for imposing a fine exist.  In Dobbs & Brayson [2007] FamCA 1261, the Full Court said:-

   “In our view, having regard to general principles applicable to proceedings in which sanctions may result and to the terms of s70NAF(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 subdiv F of Div 13A applies, and, subject to what we next say, if imprisonment is imposed, the inappropriateness of other available orders.”

   I have no difficulty in being so satisfied.  The mother has made full and complete admissions, acknowledging the breaches and indicating that she had no reasonable excuse for doing so.  She has been represented by experienced Counsel throughout.

3. I turn to the issue of penalty.  Mr Story, for the mother, has asked me to consider the imposition of a bond.  As I have indicated to him, it is my view that a bond is not appropriate in the circumstances of this matter for a number of reasons.  The mother was previously required to enter into a bond by Federal Magistrate Brown on 18 August 2003 and whilst the father alleges that there were a number of breaches by the mother of the Orders of the Court and it was a condition of the bond that she comply with existing Orders of the Court, he took no contravention application and hence there is nothing before the Court on which I can act today in relation to those alleged breaches.  Thus I need to consider, on the information before me, that the mother abided the conditions of the bond.

4. The Order of the Court to which 17 of the alleged breaches relate, are contained in paragraph 10 of the Orders of the Court made on 19 June 2000.  That Order obliges the parties to not, without reasonable excuse, fail to deliver the children on time to the B School each day.  Thus they are not orders that relate to the father’s time with the child, although that was also part of his application and part of the contraventions acknowledged by the mother. 

5. My point is that if I impose a bond requiring the mother to abide Orders of the Court specifically in relation to ensuring that the child R attend school when she should, I have no confidence on the evidence before me that she will do so.  The affidavit of the father annexes absentee records of the B Primary School in relation to R.  Those records indicate that R did not attend school at all on the dates of 17 March 2006, 20 March 2006, 24 April 2006, 12 May 2006, 15 May 2006, 16 May 2006, 6 November 2006, 24 November 2006, 27 November 2006, 8 December 2006, 11 December 2006 and 12 December 2006.  The father did not include in his Application for Contravention however a number of other possible breaches by the mother of paragraph 10 of the Orders of 19 June 2000.  The school records indicate that he could well have included further breaches of the Court’s order if he had chosen to do so.  Those records indicate a quite significant number of other dates on which R did not attend school.  Those records also indicate that R did not attend school on 5 February 2007, 19 February 2007, 21 May 2007 and 4 June 2007.  Thus, there is clear evidence before the court that there is a long history by the mother of failing to comply with an Order of the Court which clearly is designed to advance the child’s education and serve her best interests in the educational and developmental sense.

6. There is a clear and consistent record of breaches by the mother of Orders that will have significant effect upon R’s capacity to specifically conclude her education within a reasonable time and as effectively and satisfactorily as is possible.  Thus, it is not a matter of depriving the father of time with the child, it goes rather more to the core interests of the child in relation to educational, social and general development.

7. In my view, imposing a bond that requires the mother to ensure that R attend school given that long history of breach is not likely to be effective.  It is therefore my view that it is appropriate to impose a different penalty in the hope that it might have some impact upon the mother in helping her to understand how important it is that R attend school and concludes her education in as full a sense as is possible.

8. In my view, the other penalties that are available to me under the Act are not appropriate. I am left, in my view, only with a fine as is indicated by Section 70NFB(2)(d) of the Act. I am aware that such a penalty is one which can be imposed only where the Court is of the view that the contraventions are in the nature of more serious contraventions. Given the mother’s previous history and the previous findings of the Court as to earlier contraventions made by her, I deem it inappropriate to use the other provisions of the Act as set out under subdivision E (e) of Division 13A of Part VII as they relate to less serious contraventions. Instead I turn to subdivision F. Section 70NFB(2)(d) enables me to fine the mother an amount of no more than 60 penalty units. Penalty units are as determined by Section 4AA of the Crimes Act 1914 and that Section provides that a penalty unit amounts to $110. Thus the maximum that I can impose on the mother in that regard is a fine of $6,600.

9. I am satisfied beyond reasonable doubt that the breaches occurred without reasonable excuse and that the breaches are serious.  I am not satisfied that the mother will comply if I impose a bond.  I am satisfied that the harsher penalty in the nature of a fine is appropriate.  I note the submissions of Mr Story, not based on evidence before the Court, that the father has not been paying child support.  The father indicated, as I understand it, that the Child Support Agency has undertaken an assessment of his capacity to pay and indicated that he does not have that capacity and that is the reason he is not paying.  Thus the mother bears full responsibility financially for the support of her children and whilst a fine is appropriate, I need have regard to the impact upon the mother’s family and household and hence upon the children by making life more difficult for them in a financial sense.

10. In all of the circumstances, I deem it appropriate that the mother pay a fine in the nature of 20 penalty units, being an amount of $2,200 and I further Order that the said amount be paid on or before 4.00 pm on Friday 5 September 2008.

11. I note the father’s application for costs and I give him leave to file an affidavit detailing the expenses which he has indicated that he has incurred, supported by such documentary evidence as he can secure.  Therefore, upon noting that the trial of this matter is listed before Strickland J at 10.00 am on Thursday 12 June 2008, I adjourn the father’s application for costs to 10.00 am on that date in order for his Honour to determine whether or not he is in a position to resolve the issue for the parties or whether it should be a matter listed for subsequent hearing before me.  Upon further noting that the father may have difficulty in securing from his employer the material necessary to be annexed to his affidavit, I order that the father do all things reasonably possible to file and serve on or before 10.00 am on Thursday 12 June 2008 his affidavit detailing the expenses incurred by him in the pursuit of his application for contravention.

I certify that the preceding eleven (11) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  6 June 2008