Frape-Lindstrom and Frape-Lindstrom (No. 2)

[2007] FamCA 844

FAMILY COURT OF AUSTRALIA

FRAPE-LINDSTROM & FRAPE-LINDSTROM (NO. 2) [2007] FamCA 844

FAMILY LAW - CONTRAVENTION – Sentencing – Respondent fined $770 on four counts.  No penalty on one count.  Serious contravention.

Family Law Act 1975 (as amended); s 70NJ(1) of Subdivision C; s 70NJ(3); s 70NK; s 70NM; s 70NO

APPLICANT: Ms Frape-Lindstrom

RESPONDENT: Mr Frape-Lindstrom

FILE NUMBER: MLF 3515 of 2004

DATE DELIVERED: 10 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 10 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Mackinnon Jacobs Horton & Irving

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That there be no penalty in respect to Count 1 (the Contravention of 10 June 2006).

2. That in respect to Count 4 (the Contravention of 14 November 2006) the husband be fined $110.00.

3. That in respect to each of Count 5 (the Contravention of 6 February 2007), Count 6 (the Contravention of 6 March 2007) and Count 7 (the Contravention of 20 March 2007) the husband be fined $220.00.

4. That the husband do pay the total fines in the sum of $770.00 to the Registry Manager (Family Court of Australia) (Melbourne Registry) not later than 9 October 2007.

5. That the wife’s Form 18 Application – Contravention filed on 30 March 2007 be otherwise dismissed.

6. That all extant applications relating to the property proceedings be adjourned for final determination before the Honourable Justice Guest at 10.00 am on 10 September 2007 AND THAT each of the parties do file and serve any further affidavit material upon which they may seek to rely not later than 3 September 2007.

7. That the wife forthwith serve by pre-paid post upon the husband at his address … a sealed copy of these orders AND THAT the wife do file an Affidavit of Service thereof.

8. That the ex tempore judgment delivered this day be transcribed, placed on the Court file and made available to the parties.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Frape-Lindstrom & Frape-Lindstrom (No. 2)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3515  of 2004

Ms Frape-Lindstrom

Applicant

And

Mr Frape-Lindstrom

Respondent

REASONS FOR JUDGMENT

1. In this matter the wife filed a Form 18 Application for Contravention on 30 March 2007 alleging that the husband contravened orders of this court made by consent on 5 May 2006.  Those contraventions were alleged to have taken place on 10 June, 23 September, 7 November, 14 November 2006 and on 6 February, 6 March and 20 March 2007.  The application came on for hearing before me on 23 May 2007 with Mr Hebblewhite of counsel appearing for the wife.  There was no appearance by or on behalf of the husband. 

2. I heard the matter that day, and following evidence given by the wife and upon hearing counsel, I dismissed the contraventions alleged on 23 September and 7 November 2006.  I found that the contraventions alleged on 10 June, 14 November 2006, 6 February, 6 March and 20 March 2007 were made out.  The reasons for my findings were delivered ex tempore, placed on the court file and subsequently posted to the parties on 13 June 2007. 

3. Given a typographical error in the orders made on 23 May 2007, a sealed copy of the amended orders was posted to the wife's practitioner and to the husband at his address for service on 29 May 2007.  By reason of the husband's failure to attend the hearing of the contravention application and in order to provide him with the opportunity to be heard on penalty, I adjourned the further hearing for sentencing to this day. 

4. The provisions of the Family Law Act 1975 (as amended) dealing with sanctions are quite clear, albeit reasonably complex. The parenting compliance regime consists of three discrete stages. Stage 1 is the preventative stage. Stage 2 is the remedial stage which is designed to assist parents to resolve conflicts about parenting and which is in my view, given all the circumstances known to me, is an inappropriate stage to invoke in these proceedings, particularly given the husband's failure to attend the substantive hearing and this day. Stage 3 is styled as the sanction stage which is invoked as a last resort where a parent deliberately disregards a parenting order.

5. Thus it is that, given all the circumstances discrete to the wife's application before me, I am of the clear view that I should impose a penalty.  As I will shortly explain, I am satisfied that the husband showed a serious disregard of his clear obligations under the orders of 23 May 2006 and thus the effect of s 70NF(2) of the Act is that Subdivision B and the sanctions prescribed pursuant to s 70NG do not apply. 

6. It is in these circumstances that I must act in accord with the provisions of s 70NJ(1) of Subdivision C and turn my consideration to the more serious sanctions that are available under s 70NJ(3) of the Act.  They are as follows: 

   (a) a community service order (see s 70NK);

   (b) an order requiring the husband to enter into a bond (see s 70NM);

   (c) an order varying the contact order;

   (d) a monetary fine of up to 60 penalty units, being a maximum of $6,600, and

   (e) a sentence of imprisonment for up to 12 months (see s 70NO).

7. On the issue of penalty, there is in my view a factually qualitative difference in the contravention of 10 June 2006 when weighed against those of 14 November 2006 and those of 6 February, 6 March and 20 March 2007.  I give weight to the fact that the wife said in the course of her evidence that had it been the only breach, she would not have instituted the proceedings for contravention.  It is clear to me, however, that the husband acted, as I said, in a dictatorial manner, ignored the authority of the court and took matters into his own hands.

8. Having regard to the wife's evidence, I do not propose to impose a penalty on this count.  I also take into account that the contravention occurred in June 2006.  However, it must be understood that in the event the husband does at some time in the future contravene the orders of this court, my order remains and may well, subject to the discretion of the sentencing judge, be used in the course of penalty.  I have made my position quite clear and in so doing I bring into account the penalties I otherwise propose to order in relation to the remaining contraventions. 

9. The contravention of 14 November 2006 and those of 6 February, 6 March and 20 March 2007 are of quite different severity and seriousness.  My judgment of 23 May 2007 sets out with singular clarity my view of the husband's conduct. 

10. In assessing penalty, I take into account that:

    firstly, the husband was fully aware of the terms of the orders to which he consented on 5 May 2006; 

    secondly, on each occasion the husband acted unilaterally and without regard to those orders.  His gross indifference was both marked and obvious and in the circumstances ought not be tolerated; 

    thirdly, his breach of the orders on 6 February, 6 March and 20 March 2007 was, in my view, built on spite, no doubt arising from the fact that the wife had changed the children's place of schooling and her residence.  He had ample notice of this fact and every opportunity, in the event of any perceived grievance, to bring the matter to court in the proper manner for hearing and determination.  This he chose not to do; 

    fourthly, in respect of the three contraventions in 2007, the husband paid little, if any, regard to the welfare of the children or their best interests but chose to feed upon his own anger and bitterness and cast aside respect for and obedience to orders of this court; 

    fifthly, I have no doubt whatsoever that the husband's actions were flagrant and intentional, built on resentment and in bare-faced disobedience of his obligation pursuant to the orders to which he consented.  In this regard it should not be lost that he contravened those orders which were made to serve the best interests of the children.

11. I do not see a community based order as being appropriate (see s 70NJ(3) and s 70NK).  In any event, the husband must have explained to him, in language that is likely to be readily understood, the purpose and effect of such an order and the consequences upon non-compliance (see s 70NK(4)).  He is absent from court this day.  That is his election.  I have had him called at the commencement of the proceedings.  He failed to respond to the call. 

12. As to a bond, given the husband's absence at the hearing on 23 May 2007 and this day, I do not consider it appropriate to require him to enter into a bond for it is clear to me that more likely than not he would fail and/or refuse to cooperate in the effectiveness of that process.

13. Insofar as a sentence of imprisonment is concerned, I may only consider this as an option if I am satisfied that a disposition cannot appropriately be dealt with by utilisation of one of the other Stage 3 orders listed in s 70NJ(3) of the Act.  I do not propose to incarcerate the husband in all the circumstances, although it was open for me to do so and to suspend the sentence, perhaps under certain terms and conditions.  I do not see, however, that it could advance obedience and may in any event have a deleterious impact upon his relationship with the children.

14. Although I have little evidence of the husband's financial circumstances other than an affidavit of the wife in collateral property proceedings, it appears to me to be appropriate to impose a fine of $110 in respect of the contravention of 14 November 2006 and a fine of $220 in respect of each of the contraventions of 6 February, 6 March and 20 March 2007, a total of $770 in all to be paid within two calendar months of this date.  The differential in the fines reflects what I regard as the gravity between that of the contraventions on 14 November 2006 and those of 2007.

I certify that the preceding fourteen  (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  21 August 2007.