Fielding & Doull (No. 2)

[2016] FamCA 488

FAMILY COURT OF AUSTRALIA

FIELDING & DOULL (NO. 2) [2016] FamCA 488

FAMILY LAW – ENFORCEMENT OF ORDERS – Contravention of orders – Where the Court found the mother contravened orders without reasonable excuse on two occasions  - Where the mother has previously contravened orders - Where the Court found that contraventions should be dealt with under subdivision F (more serious contravention) – Where the mother ordered to enter into a good behaviour bond with a security of $1,000 – Where good behaviour bond requires the attendance upon family counselling if requested by the appointed psychologist - Where there is a history of family violence and substance abuse – Where primary parenting Order suspended to enable counselling between father and children before recommencement of time with father.

Family Law Act 1975 (Cth) s 11F, Division 13A, Part VII, ss 70NAA, 70NBA, 70NEB, 70NFA, 70NFB, 70NFE, 90FA

APPLICANT: Mr Fielding

RESPONDENT: Ms Doull

FILE NUMBER: BRC 4139 of 2009

DATE DELIVERED: 17 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 13 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Thomson Law

Orders

1. For the contravention on 20 December 2014 of paragraph 3 (f) of the Order made 30 May 2011 without reasonable excuse, pursuant to subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”):

   (a)The respondent mother shall within 7 days enter into a bond upon the following conditions:

   (i)The bond shall be with a $1000 security paid to the Registrar of the Family Court of Australia by way of money order, bank cheque or credit card and the security sum shall be held as special public monies;

   (ii)The mother must be of good behaviour for the duration of the bond, which shall include compliance with the Order made this day and the parenting Order made 30 May 2011 (subject to the Order made this day suspending the operation of paragraph 3(a) and 3(f) until 1 October 2016); and

   (iii)The mother must attend family counselling if requested by the psychologist appointed pursuant to the Order made this day;

   (iv)The bond shall be for a period of 12 months, commencing on the date the mother enters into the bond.

   (b)The applicant father shall spend additional time with the children D born … 2001, E born … 2003 and F born … 2006 by way of compensation for the time he did not spend with the children as a result of the contravention as follows:

   (i)For three additional weeks to be spent in three separate and non-consecutive one week blocks at times during school holidays nominated by the father to occur after the commencement of school term 1 in 2017 upon the provision of no less than 30 days’ notice in writing to the mother.

2. Upon the expiration of the bond period the mother is at liberty to apply to the Registrar of the Family Court of Australia, on notice to the father, for the return of the security. In the event the mother has complied with the bond conditions the Registrar is authorised to refund the security sum to the mother.

3. For the contravention of paragraph 1 of the Order made 30 May 2011 without reasonable excuse, pursuant to subdivision F of Division 13A of Part VII of the Act, the respondent mother shall within 7 days enter into a good behaviour bond upon the following conditions:

   (a)       The bond shall be without security and without a surety;

   (b)The mother must be of good behaviour for the duration of the bond, which shall include compliance with the Order made this day and the parenting Order made 30 May 2011 (subject to the Order made this day suspending the operation of paragraph 3(a) and 3(f) until 1 October 2016); and

   (c)The bond shall be for a period of 12 months, commencing on the date the mother enters into the bond.

4. Within 14 days hereof the mother shall serve upon the father a sealed copy of the bonds she enters pursuant to this Order.

5. The operation of paragraphs 3 (a) and 3 (f) of the Order made on 30 May 2011 be suspended until 1 October 2016.

6. That Dr P be retained by the parties to provide therapy between the father and the children for the purpose of re-establishing the children’s relationship with the father prior to the re-commencement of operation of paragraphs 3(a) and 3(f) of the Order made 30 May 2011.

7. The mother shall ensure that each child or the children together attend each appointment as may be requested by Dr P.

8. In the event Dr P requests the mother to attend for an appointment or appointments then the mother shall so attend.

9. Any invoices issued by Dr P in relation to the appointments attended by the mother, father and/or children pursuant to this Order shall be paid promptly by the father.

10. Within 3 days hereof the father forthwith attend upon a General Medical Practitioner to obtain a referral to a reputable pathologist in his local area for the purpose of undertaking a supervised urine analysis testing for illicit drugs and a supervised liver function analysis testing for alcohol consumption.

11. The mother pay the total costs of the urine analysis and liver function analysis and for this purpose shall deposit into the trust account of her lawyer a sum estimated to cover the costs of the tests and provide an irrevocable authority to her lawyer for the payment of those tests or reimbursement to the father in the event he is required to meet the cost in the first instance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fielding & Doull (No. 2) 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 BRISBANE

FILE NUMBER: BRC 4139  of 2009

Mr Fielding

Applicant

And

Ms Doull

Respondent

REASONS FOR JUDGMENT

1. This matter was last before me on 23 May 2016 when I delivered judgment in a contravention hearing that occurred on 16 May 2016. 

2. The parties to this proceeding are Mr Fielding (“the father”) and Ms Doull (“the mother”). The parties have three children, namely, D Fielding born in 2001, E born in 2003 and F born in 2006. 

3. It was the father’s application that the mother be dealt with for contravening a parenting Order made on 30 May 2011 (“the primary parenting Order”).

4. I found that the respondent mother had contravened paragraph 3 (f) of the primary parenting Order without reasonable excuse by failing to fulfil her obligations to cause the children to spend time with the applicant father commencing 20 December 2014 for holiday time (first count) and that the respondent mother contravened paragraph 1 of the primary parenting Order without reasonable excuse by failing to consult the applicant father and make a genuine attempt to come to a joint decision before changing the school of the child, F born in 2006 (second count). A third count was dismissed.

5. I adjourned the matter to 13 June 2016 to hear submissions on what sanctions and/or further orders should be made. I also made an order requiring the parties and children to attend upon a family consultant pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”).

6. On the adjourned date the mother was represented by a solicitor and the father continued to represent himself.

Evidence from family consultant

1. Ms Q, social worker and family consultant with the Family Court of Australia, provided an oral report after having met with the father, the mother, and the children individually and then together on 13 June 2016. 

2. During the individual interviews with the parents it was common ground that the party’s relationship, which endured from 2000 until 2007/2008, was marked by family violence (the father alleged each of the parties engaged in violence while the mother alleged the father was the aggressor), alcohol abuse by both parties and illicit drug use by both parties.  On 30 May 2011, the parties entered into final parenting orders by consent.  Pursuant to those orders, the parents were to have equal shared parental responsibility, the children were to live with the mother and spend time with the father each alternate weekend and for holiday time. 

3. Prior to 30 May 2011, each of the parents submitted to random drug tests and paragraph 15 of that Order restrained the father from consuming alcohol during any period in which he was spending time with the children and for a period of 12 hours prior to such time.  The Order also required the father to continue ongoing treatment for alcohol and drug dependency under the supervision of his treating practitioner. 

4. The father concedes that, contrary to the 2011 Order, he consumed alcohol when the children where in his care but submits that this has not occurred since in or about 2013 or 2014. The two eldest children, in their interviews with Ms Q, refer to the father’s misuse of alcohol during weekend times that they have spent with him.  They have not spent any time with him since in or about February 2015.

5. More particularly, during her interview with the child, D, Ms Q reports his recounting his memory of the family violence in the relationship between his mother and father.  He also recalled an incident in January 2009 and it is apparent from his description of these events that he considers his father to be at fault.  He told Ms Q that there were fun times when he visited his father with his siblings but that when his father started drinking, which the child said occurred most alternate weekends, the situation was no longer fun.  He recounted his father assaulting him and calling him names.  He told Ms Q that whilst he misses his father, he does not miss what he does.  He told Ms Q that he did not want to see his father until he was older and that he had a telephone number for his father but had no plans to contact him at this time.

6. Ms Q describes her interview with the child, E, as one where the child remained distressed throughout the interview and in tears.  He also recounted memories of his father calling him derogatory names and consuming alcohol during the times the children spent with their father.  He told Ms Q that he had been in trouble at school because of his bad behaviour and he related this to his father.  At a recent attempted changeover this year, he told Ms Q that his father had said that his mother was going to go to jail and that they would all have to come and live with him.

7. All three children expressed concern about seeing their father and their fear that he would be angry at them for the things they had told Ms Q during interview.  The children told Ms Q that they did not want to see their father on the day of the interviews although it would seem that Ms Q’s failure to explore that possibility related more to time constraints. 

8. The two older children also made allegations that would indicate a concern by them that their father was continuing to use illicit substances, as at the time of their last visit.  They described feeling unsafe with their father.

9. Ms Q noted that the parents had previously undertaken a parenting orders program and that the children had in the past spent supervised time with their father at a contact centre.  Ms Q saw little benefit in the parties undertaking further parenting programs or for the children spending time with their father at a contact centre, particularly given the ages of the older two children.

10. Ms Q did see benefit in the children and the father undertaking some therapy to enable the children’s relationship with the father to be repaired (from their perspective) and for the children to have the opportunity to raise any concerns they have with their father. In her view, the children need to be reassured.

11. Neither party sought to cross examine Ms Q.

Orders sought by the father

1. The father pressed for sanctions to be imposed against the mother and submitted that a bond and/or suspended sentence would be appropriate.  He also sought compensatory time.  Although initially requesting an order that he be reimbursed for the costs of driving to and from the Region N, he ultimately abandoned that claim.

2. The father submitted that the children have been turned against him by the mother and sought an order that the children live with him.  He submitted that the last occasion he spent with the children in early 2015 was a wonderful weekend.  He said that he would be prepared to move from Suburb B, Brisbane to Region N, where the children live, in order to facilitate a change in their primary care.  He conceded, however, that such an order would be difficult to facilitate given the expressed current wishes of his older two children. 

3. Ultimately he conceded that an appropriate order would be for therapy involving the children and himself to occur in order to provide reassurance to the children (should that be needed) so that the alternate weekend and holiday time can resume.  He volunteered to meet the costs of such therapy.

Orders sought by the mother

1. Mr Thomson, on behalf of the mother, submitted that a 12 month bond would be an appropriate sanction pursuant to s 70NFE of the Act. He submitted that the following conditions to the bond should be made:

   a)A $1,000 security; and

   b)That the mother be of good behaviour during the period of the bond and comply with all current and future parenting orders. 

2. He submitted that the primary parenting order providing for the children to spend time with their father be suspended for a period of approximately two months to enable the family therapy to occur.  I note that this was also adopted by the father. 

3. Mr Thomson sought an order that the father submit to a liver function test and drug test at his client’s expense.

4. The father did not oppose the testing sought by the mother, although referred to having completed approximately nine previous drug and alcohol tests which were randomly undertaken and submitted that the results of those tests were all clear. Mr Thomson did not demur.

5. Mr Thomson also submitted that upon the resumption of the primary order, the father have compensatory time with the children but submitted that any such time should occur after a period of a graduated introduction of time between the children and the father.

The statutory consequences for contravention of a parenting order

1. Division 13A of the Act sets out the statutory consequences of failure to comply with an order affecting children. The simplified outline of the division (see s 70NAA) states that it deals with the powers that the Court has to enforce compliance with orders under the Act affecting children and notes that the Court always has the power to vary the primary parenting order.

2. In this case, I have already made a finding that the mother has contravened a parenting order on two counts without reasonable excuse.  This occurs in circumstances where the Court has previously made an order ‘taking an action’ in respect of a contravention (see s 90NFA(3)).  I am referring of course to the order of Hogan J on 12 December 2013 for the father to spend time with the children on additional specified dates as a result of a finding that the mother had contravened a parenting order without reasonable excuse. This has consequences because it allows me to deal with the matter under subdivision F (more serious contravention) rather than subdivision E (less serious contravention).

3. In considering what order to make, I note that pursuant to s 70NBA, I may make an order varying a primary parenting order if:

   a)Proceedings in relation to the primary order are brought before the Court (as they have been in this case); and

   b)It is alleged in those proceedings that a person committed a contravention of a primary order (as has occurred in this case); and

   c)The Court finds that the person committed a contravention of the primary order (as has occurred in this case).

4. Section 70NBA(2) of the Act requires me to take into account certain considerations if subdivision F applies to the contravention.

Application of subdivision F

1. Section 70NFA of the Act provides that subdivision F applies where a person has contravened an order without reasonable excuse and the Court has previously made an order ‘taking an action’ in respect of the contravention. However, the Court retains a discretion to deal with the contravention under subdivision E if satisfied that it is more appropriate to do so.

2. If subdivision F of the Act applies, s 70NFB sets out the orders that are available to be made by the Court and, in particular, provides that the Court must make an order that the person who committed the contravention pay all of the costs of the other party to the proceedings unless satisfied that it would not be in the best interests of the children to make that order. Whether or not an order is made in relation to costs, the Court must consider making at least one order under s 70NFB(2), which sets out the orders that are available to be made and in summary are as follows:

   a)A community service order;

   b)A bond;

   c)A further parenting order that compensates a person for time;

   d)A fine of not more than 60 penalty units;

   e)Imprisonment;

   f)An order compensating a parent for expenses incurred in relation to the contravention; or

   g)A costs order.

3. An order made under this section may take effect immediately or at the end of a specified period or on the occurrence of a specified event and when an order is made under this section, the Court may make any other orders that the Court considers necessary to ensure compliance with the Order that was contravened.

4. Section 70NFE provides that a bond is to be for a specified period of up to two years and may be with or without surety and with or without security. The conditions that may be imposed on a person by a bond relevantly include a condition that requires the person to attend family counselling or to be of good behaviour.

5. If I do require the mother to enter into a bond, I am required by s 70NFE(5) to explain to her in a language likely to be relevantly understood:

   a)The purpose and effect of the proposed bond; and

   b)The consequences that may follow if she fails to enter into the bond or, having entered into the bond, fails to act in accordance with the bond.

6. Section 70NFG relevantly provides that a sentence of imprisonment, if imposed, is to be expressed for a specified period of 12 months or less and must not be imposed unless I am satisfied that in all of the circumstances of the case it would not be appropriate to deal with the contravention under any of the other paragraphs set out in s 70NFB(2).  I am empowered under s 70NFG(5) to suspend any term of imprisonment upon such terms and conditions as I may determine. 

7. If I determine pursuant to s 70NFA(4) that it is more appropriate for the contravention to be dealt with under subdivision E, the powers of the Court are set out in s 70NEB, which relevantly provides that I may make all or any of the following orders:

   a)Direct the mother and/or the father to attend a post separation parenting program;

   b)Make a further parenting order that compensates the father for the time he did not spend with the children as a result of the current contravention;

   c)Require the mother to enter into a bond;

   d)Require the mother to compensate the father for some or all of the expenses incurred by him as a result of the contravention.

8. Mr Thomson for the mother submitted that before I could apply subdivision F, I needed to be satisfied that the mother had behaved in a way that showed a serious disregard for her obligations under the primary parenting order. This is a reference to s 70NFA(2)(b) and applies where there has been no prior order in respect of a contravention or where proceedings had been adjourned pursuant to s 70NEB(1)(c). Section 70NFA(2) does not apply to the current case because there has been a prior Order made by the Court in respect of a contravention and in those circumstances, s 70NFA(3) imposes no such requirement. The fact that the mother has been found to have contravened an Order without a reasonable excuse on a second occasion, and having regard to the circumstances of the contraventions in this case, I would nevertheless consider it indicates a serious disregard for her obligations under the primary order.

What are the appropriate consequences for the mother’s contravention?

1. In relation to the first count, in my view, it is appropriate that this matter be dealt with under subdivision F as the Court has previously made an Order in respect of a contravention. The father has acted for himself throughout the proceedings so there are no costs within the meaning of s 70NFB(2)(g) but I am nevertheless required by s 70NFB(1) to make such an order unless I am satisfied pursuant to s 70NFB(1)(a) that it would not be in the best interests of the children concerned to make an order under s 70NFB(2)(g). Although an odd finding to be required to make in the circumstances, I do so, as statutorily required.

2. I propose to make at least one order under s 70NFB(2).

3. I consider the requirement to enter into a bond to be the most appropriate sanction in the circumstances of this case and for a further parenting order that compensates the father for time he did not spend with the children as a result of the contravention in the first count.

4. I propose to make an order requiring the mother to enter into a bond for a period of one year with the following conditions:

   a)To be of good behaviour;

   b)To attend family counselling if requested by the psychologist appointed pursuant to the order made 17 June 2016; and

   c)To be with a security of $1,000.

5. In relation to the second count, in my view, it is appropriate that this matter be dealt with under subdivision F and I do not propose to make an order pursuant to s 70NBA(2)(g) for the reasons outlined above.

6. I consider the requirement to enter into a bond to be the most appropriate sanction in the circumstances of this case.

7. I propose to require the mother to enter into a bond to be of good behaviour for one year.

8. By way of completeness I note the requirements of s 70NEB(3) which provides that the Court may only make an order under:

   (aa)      s 70NEB(1)(da) (fine for failure to enter into a bond); or

   (ab)     s 70NECA(3)(a) (fine where failure to comply with bond); or

   (a)s 70NFD(2)(a), (d) or (e) (community service order, fine or imprisonment); or

   (b)s 70NFF(3)(a) (fine for failure to comply with community service order or bond);

   if the Court is satisfied beyond reasonable doubt that the grounds for making the order exist.

9. As I do not propose to make any order pursuant to that section it has no application, although, I have in any event stated in my reasons for judgment delivered on 23 May 2016 that I was satisfied beyond reasonable doubt in relation to the evidence relied upon to support counts one and two.

The consequences of failing to comply with the requirement to enter into a bond or failure to comply with the bond

1. The purpose of requiring the mother to enter into a bond is to induce her future compliance with the primary parenting order and the Order made this day. 

2. The consequence for the mother should she either fail to enter into the bond or fail to comply with the bond will be the forfeiture of the $1000 security and her potential liability for a fine of up to 10 penalty units (being $180 per penalty unit) or the imposition of some other form of sanction including imprisonment.

Should there be a variation of the primary parenting order?

1. While I have taken into account the evidence of Ms Q, I have made no findings of fact in relation to any of the matters raised by the parties or the children during their interviews with Ms Q, save that I have relied upon the non-contentious history as follows:

   a)There was family violence during the relationship; and

   b)Both parties abused alcohol and used illicit substances during the relationship.

2. While I have taken into account her evidence as to what the children told her about their experiences with the father, I have done so in the context of a recognition of the reality, particularly given the ages of the two older children, that some assistance will be required in addressing from the children’s perspective the matters that they raised with Ms Q, which indicate at least a prima facie breach in the relationship between the father and the children. 

3. Whilst the father asserts that any breach in the relationship between the children and himself arises solely as a result of the mother “alienating” the children from him, I must deal with the practicalities associated with the mother’s future compliance with the primary parenting order and I have determined that the best way to ensure her compliance is to assist the children’s transition to a resumption of their time with the father with the assistance of family therapy. 

4. I note that the father embraced the proposal of family therapy and he certainly impressed as a parent who was prepared to do whatever it takes to resume his relationship with his children.

5. Taking into account the evidence of Ms Q and her recommendation for family therapy, or at least therapy involving the children and the father, and the ultimate concessions by the father and mother that such an order would be appropriate, I propose to suspend the operation of the ‘spend time with’ primary parenting order until 1 October 2016. 

6. This will enable the children to have the opportunity of engaging with an appropriately qualified child psychologist who will be tasked with assisting in re-establishing the relationship between the children and the father prior to the re-commencement of the ‘spend time with’ order.  I consider such an order to be in the best interests of the children.

7. The orders that I propose to make will include the name of the psychologist agreed to by the parties to conduct the therapy and will require the mother to ensure the attendance of the children upon the psychologist.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 17 June 2016

Associate: 

Date:  17 June 2016