Gervasis and Purdy

[2009] FamCA 255

FAMILY COURT OF AUSTRALIA

GERVASIS & PURDY [2009] FamCA 255

FAMILY LAW – ORDERS – CONTRAVENTION – penalty – order made by consent restraining the mother from allowing the children to have any contact with her new partner – where the mother admits to contravening the order without reasonable excuse – whether contravention to be dealt with under subdivision E or subdivision F of Division 13A of Part VII – where the mother showed serious disregard for her obligations under the Court order – contravention to be dealt with under subdivision E – court’s powers under s 70NEB – where the court is satisfied that the proceedings have been a salutary lesson to the mother – no orders made in relation to the contravention

Family Law Act 1975 (Cth) ss 4, 60CC, 70NEA, 70NEB, 70NEC 70NFA, 70NFB & 117

Elspeth & Peter, Mark & Peter and John & Peter (2007) FLC 93‑341
Short v Trevilian (Contempt and Contraventions) [2008] FamCA 866
Kendling v Kendling and Anor (Contempt) (2008) FLC 93-384

APPLICANT: Mr Gervasis

RESPONDENT: Ms Purdy

INDEPENDENT CHILDREN’S LAWYER: Karen J. Tydeman

FILE NUMBER: ADC 306 of 2007

DATE DELIVERED: 25 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 25 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: Christopher Ganzis and Co

COUNSEL FOR THE RESPONDENT: Ms M. Ross

SOLICITOR FOR THE RESPONDENT: Dixon Gallasch

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Stewart

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission of SA

Orders

1. No orders made in relation to the contravention.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 306  of 2007

MR GERVASIS

Applicant

And

MS PURDY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is the application for contravention filed by the father on 22 September 2008, which alleged that the mother had repeatedly allowed Mr O to be in the presence of the children from the period 22 August 2008 until the time of the filing of the application for contravention on 22 September 2008, a period of one month.  That was alleged to be in contravention of the orders of the Court made on 19 June 2008, when, by consent, it was ordered that “until further order the mother is restrained and an injunction is granted restraining her from allowing either of the children to have any contact whatsoever with [Mr O].”

Hearing

1. The mother appeared before me, represented by counsel, and indicated that she admitted that she had contravened the order in the manner alleged and that she did not have reasonable excuse.  It was then necessary for a decision to be made in relation to the form of penalty to be imposed for that admitted contravention of the Court's orders.

2. The mother was represented by counsel.  The father was also present and represented by counsel.  The Independent Children’s Lawyer's counsel was present.

3. The mother gave brief evidence and was cross‑examined.  During that cross‑examination, the mother indicated that she was aware that the order was made and applied to her.  Indeed, she was present on the occasion that the order was made.  In her affidavit filed in the Court in relation to the contravention (which is an affidavit filed on 21 October 2008) the mother admits that she consented to the order.  She said she did so on the basis that at that time Mr O had told her that he would be residing permanently in Western Australia with his family.  She then says that she and Mr O have always denied the allegations about any inappropriate behaviour by Mr O towards the children.

4. The mother admits in her affidavit that Mr O did drive her to handovers, as asserted by the father and his mother in their affidavits filed in support of the contravention.  She says in paragraph 7 of the affidavit:

   “As to paragraph 7, I say that Mr [O] is not living with us but has his own separate residence at [P], but he does spend time at my home.”

5. In her oral evidence before the Court, the mother admitted that Mr O indeed slept most nights of the week at her home, when the children were present, during the period of 22 August to 22 September and only ceased to do so when she was made aware of the impending contravention proceedings.

6. The mother denies that there was any inappropriate behaviour or any risk to the children during the time that Mr O was spending time at her home. 

7. She displayed naivety in relation to the implications of the Court order.

The Law and Findings

1. In relation to the type of penalty to be imposed, it is necessary to consider and apply the provisions of the Family Law Act 1975 (Cth). In particular, Division 13A of Part VII of the Family Law Act, makes specific provision in relation to the consequences of failure to comply with orders and other obligations that affect children.

2. The order that was made in June 2008, to which this contravention relates, is an order which affects children in accordance with the definition in section 4 of the Family Law Act.  It is also quite clearly a contravention without reasonable excuse, but it is necessary for the Court to determine whether to apply the provisions of Subdivision E, which is headed “Contravention Without Reasonable Excuse (less serious contravention)” or Subdivision F, which is referred to as “Contravention Without Reasonable Excuse (more serious contravention)”.

3. The numbering of the sections in the Act is now particularly clumsy. The commencement of Subdivision E is section 70NEA, which sets out the application of that subdivision. This is a contravention which, on the face of it, may fall within subdivision E, being a contravention where the mother has not proven that she had reasonable excuse for the current contravention and, indeed, has admitted that she did not have reasonable excuse. The Court has not previously made an order in respect of a contravention of the primary order.

4. However, the provisions of section 70NEA (4) say:

   “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.”

5. Section 70NEB then sets out the powers of the Court if that subdivision applies. If, however, the subdivision does not apply, because there has been serious disregard for the obligations pursuant to the Court order, then the contravention falls within subdivision F. Subdivision F specifically refers to applications where the Court is satisfied that the person has behaved in a way that showed a serious disregard for his or her obligations under the primary order. (Section 70NFA(2)(b)). There is, however, a provision in subsection 70NFA(4) which says:

   “This subdivision does not apply if the Court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under subdivision E.”

6. I have referred to all the complicated sections and subsections because in this matter concern has certainly been given to finding that the mother behaved in a way which showed serious disregard for her obligations under the order, which provided that Mr O have no contact whatsoever (and that was actually the wording of the order) with the children.

7. It is clear from the evidence of the mother herself that she allowed the children to have substantial contact with Mr O after he returned in or about early August 2008 until the commencement of the contravention proceedings when the children were retained by the father who then brought the matter before the Court.

8. The application of the Act is made more complicated by a decision of the Full Court of the Family Court of Australia in a case which has been given the large, cumbersome pseudonym Elspeth & Peter, Mark & Peter and John & Peter (2007) FLC 93‑341. In that decision the Full Court has found that the provisions of Subdivision E (which permit the Court to impose a bond for a contravention which is in the less serious category) do not set out the consequences of a failure to comply with the bond and therefore it is pointless to create an obligation that is likely to be ignored. I am bound by this interpretation of the legislation.

9. The Full Court therefore indicated that it was not appropriate, with a contravention which fell within the provisions of Subdivision E, for a bond to be imposed as a penalty. Should I find that there was no serious disregard of the obligations under the order, I am therefore restricted to the other options available under section 70NEB(1).

10. I turn, however, to consider the question of serious disregard.  I am satisfied, on the balance of probabilities, that the mother has shown serious disregard for her obligations under the Court order.  Notwithstanding her last minute guilty plea before the Court, it is still necessary to take into account her behaviour at the time of the contravention.  She brought the children into contact with Mr O knowing the particulars of the order.

11. Having found that the mother has shown serious disregard this would normally bring the matter within the provisions of Subdivision F, notwithstanding that this is the first contravention of the primary order.

12. The provisions of Subdivision F are set out in section 70NFB, the powers of the Court.  The wording is quite distinct, almost incomprehensible and difficult to apply.  The legislation is not created by the Family Court of Australia but is the creature of the Parliament of the Commonwealth of Australia imposed upon the Family Court which is left to deal with the sections in the legislation.

13. Subsection 70NFB(1) says:

    “If this subdivision applies, the Court must, in relation to the person who committed the current contravention: 

    (a) make an order under paragraph (2)(g), unless the Court is satisfied that it would not be in the best interests of the child concerned to make that order.”

14. It is clear that there is an obligation upon the Court.  The Court is not given discretion in relation to an order under paragraph (2)(g) unless the exception is made out; namely, that the Court is satisfied that it would not be in the best interests of the child concerned to make that order.  Therefore, it is immediately necessary to turn to the provisions of subsection (2)(g) to ascertain how that relates to this matter.  Section 70NFB(2)(g) says that the orders that are available to the Court are:

    “To make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this division.”

15. So whilst subsection (2) of section 70NFB speaks of orders “that are available” to be made, implying some form of discretion, the previous wording of section 70NFB(1), using the word "must", removes any discretion, save and except if "the Court is satisfied that it would not be in the best interests of the child concerned to make that order".

16. The "child concerned" in these proceedings must be the children of the parties, who currently live with the father and spend time with the mother.  It is necessary therefore to consider whether it would not be in the children's best interests for an order for costs to be made against the mother in favour of, presumably, the father and/or the Independent Children’s Lawyer.

17. It is not clear from the provisions upon what basis the Court needs to determine what is in the best interests of the children.  In Short v Trevilian (Contempt and Contraventions) [2008] FamCA 866, I have previously discussed whether the provisions of section 60CC apply to a consideration of matters under section 70NFB.

18. It appears that the provisions of section 60CC (which set out requirements to be considered when determining what is in the best interests of the child as the paramount consideration) do not apply to this particular Division 13A. The other significant factor is that, when making an order for costs, the provisions of section 70NFB(1) appear to override section 117(1), which would normally apply in relation to costs. It would therefore be arguable at least that the provisions of section 117(2) which concern the factors to be taken into account, do not relate to an order for costs under Division 13A Subdivision F.

19. Considering all factors including the limited financial circumstances of the parties in these proceedings and the significant difficulties in the legislation it is appropriate to apply section 70NFA(4), because I am satisfied that it is more appropriate for this matter to be dealt with under subdivision E, even though I have found that the mother has shown serious disregard for the order of the Court, which she has contravened.

20. I have determined that it is not appropriate to deal with the matter under subdivision F because of the total inapplicability of the obligations imposed upon the Court by section 70NFB.

21. I accept that the argument may appear circuitous and labouring, but these difficulties have been brought about by the legislation itself.

22. Having determined therefore to deal with the matter under subdivision E, I turn to the options that are available. 

23. I turn then to consider the powers under section 70NEB. The Court may order that a party attend a post-separation parenting program. I have a certificate before me to indicate that the mother has already attended such a post-separation parenting program. I am not given any information which would indicate that any other type of post-separation parenting program would be of assistance to the mother or the parties in this matter.

24. Subsection (b) applies if the contravention relates to a parenting order.  This contravention relates to an injunction which was made for the protection of the children and is therefore not a parenting order. 

25. Subsection (c) refers to the adjournment of the proceedings to enable further proceedings to be brought in relation to the primary order.  This is inappropriate, because I am in the middle of a determination of the final parenting orders in relation to these children. 

26. Subsection (d) relates to placing the person on a bond in accordance with section 70NEC. The Full Court have said that this is not an appropriate order.

27. Subsection (e) relates to compensation for time spent with the child or the reasonable expenses incurred as a result of the contravention and is not applicable. 

28. Subsection (f) relates to the costs of the parties under the division and is again not useful in relation to this particular matter due to the circumstances of the parties. 

29. Subsection (g) says;

    “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. ”

30. That would be entirely inappropriate, bearing in mind that I have found that the mother has admitted that she contravened the order without reasonable excuse and I have found that she has shown serious disregard for her obligations.

31. That exhausts the options of the powers of the Court.  One might therefore give consideration to referring the matter back to subdivision F, which would be even more circuitous.  I have, however, considered the material before me in relation to the evidence that applies to this particular matter, and I am required to give consideration to the particular circumstances of each individual matter when considering what penalty should be imposed.

32. I have already indicated that a penalty would seem to be appropriate because of the serious disregard the mother has shown for her obligations under the Court order.  However, it is also appropriate to take into account that she has come before the Court admitting that she contravened the order without reasonable excuse and, thus, the matter can be compared to a guilty plea.  I also take into account the youth of the mother and the background to the proceedings.

33. I take into account also the serious consequences which have flowed from the actions of the mother in allowing Mr O to have contact with the children, contrary to the order.  Those serious consequences were that, in an application brought by the father, with affidavit material from himself and his mother indicating the mother's failure to comply with the consent order, orders were made placing the children in the care of the father, where they have remained since.

34. There was initially a limited order for the mother to spend time with the children, provided she could provide proof of suitable supervision.  She appeared unable to do so for a substantial period of time and therefore did not spend time with the children.  This is a significant consequence that the mother has suffered.  It could be seen to be a consequence equating to a penalty;  being deprived of the care of her two young children and also being unable of spending time with them for a considerable period of time.

35. If a penalty is not imposed this could raise concerns about ensuring parties are aware that orders of the Family Court of Australia, a superior Court of record, are to be obeyed;  not ignored.  The mother should be made aware that serious consequences flow from contravening an order of the Court.

36. I have given consideration to the recent judgment of the Full Court of the Family Court of Australia in Kendling v Kendling and Anor (Contempt)(2008) FLC 93-384, being a matter decided by the Full Court in October 2008. The Judge at first instance had imposed a sentence of imprisonment for contempt (obviously quite distinct from a contravention matter but being more serious in that it is one where there was a flagrant breach of the Court's orders). In that appeal the Full Court discharged the imprisonment orders and set aside the sentence imposed by the primary Judge. They imposed no sanction in respect of the flagrant challenges to the authority of the Family Court. In concluding that decision, the Full Court said at p 82,930:

    “Accepting the trial judge's justifiably adverse view of the husband, we are nonetheless satisfied that these proceedings will have been a salutary lesson for the husband and provide sufficient illustration of the Court's resolve to deter future litigants who are contemplating flagrantly breaching orders of this Court.”

37. Taking that judgment into account and also taking into account the nature of the proceedings which have already taken place before me in relation to the contravention, I am also satisfied that these proceedings thus far will have been a salutary lesson to the mother and provide her with sufficient illustration of this Court's determination to make sure that parties obey Court orders.

38. The mother is clearly on notice that in future, should the orders of the Court not be obeyed by her, she will immediately fall into Subdivision F of Division 13A, which will then give the Court power not only to fine, impose a community service order or impose a bond but will also give the Court power to imprison her, depending upon the nature of the contravention.

39. In all the circumstances and, in particular, the unusual nature of this matter, I make no order in relation to the contravention but repeat that I have found that the mother has contravened the order without reasonable excuse, by her admission, and that she has shown serious disregard for the orders of the Court in doing so.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  6 April 2009.