Gottlieb & Ors and Bauman
[2019] FamCA 422
•5 July 2019
FAMILY COURT OF AUSTRALIA
| GOTTLIEB AND ORS & BAUMAN | [2019] FamCA 422 |
| FAMILY LAW – CHILDREN – Contravention Application – where the father was incarcerated –consent orders were made for the child to live with the mother and for the mother to have sole parental responsibility – where consent orders required the mother to forward gifts sent by the father to the child for a period of two years – where consent orders were made between the parents and the paternal grandparents – where the mother was to encourage a relationship between the child and the paternal grandparents – where the mother relocated to Country E – contravention of orders by the mother – where there were issues serving the Contravention Application upon the mother – where the Contravention Application was heard almost four years after it was filed – delay in the Contravention Application being listed – where the child is almost eighteen – Court determines there is a case to be answered – whether “serious disregard” of primary orders – where there are no viable orders pursuant to Subdivision E of Division 13A of the Family Law Act 1975 (Cth) – Applications dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Service of an initiating process outside Australia – consideration of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 – consideration of Part IIAB of the Family Law Regulations1984 (Cth) – Court determines mother was properly served – failure of mother to file Notice of Address for Service pursuant to Rule 8.05 of the Family Law Rules 2004 (Cth) – proceeding ex parte – definition of “default judgment” under the Family Law Rules 2004 (Cth) and Family Law Regulations 1984 (Cth). |
| Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matter 1965 art 2, 5, 6. Family Law Act 1975 (Cth) ss 60CA, 64B, 65X, 65Y, 70NAA, 70NAC, 70NAF, 70NEA, 70NEB, 70NFA, 70NFB, 70NFG, 112AD Evidence Act 1995 (Cth) ss 3, 140 Family Law Regulations 1984 (Cth) regs 21AC, 21AF, 21AG, 21AH, 21AJ, 21AK, 21AL, 21AM Family Law Rules 2004 (Cth) rr 1.03, 1.04, 1.05, 8.05, 8.06, 21.02, 21.07 21.08 Federal Court Rules 2011 (Cth) r 10.61 Uniform Civil Procedure Rules 2005 (NSW) rr 11.A1, 16.2 Uniform Civil Procedure Rules 1999 (Qld) rr 130A |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Briginshaw v Briginshaw (1938) 60 CLR 336 Cachia v Hanes (1994) 179 CLR 403 Chin & S Law Firm (No. 2) [2011] FamCAFC 154 Malcher & Malcher (No. 2) [2017] FamCA 989 Marriage of Lindsay (1995) FLC 92-638 McClintock & Levier (2009) FLC 93-401 Saldo & Tindall [2013] FamCA 951 |
| FIRST APPLICANT: | Mr Gottlieb |
| SECOND & THIRD APPLICANTS: | Mr B Gottlieb & Ms A Gottlieb |
| RESPONDENT: | Ms Bauman |
| FILE NUMBER: | SYC | 2538 | of | 2009 |
| DATE DELIVERED: | 5 July 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 9 May 2019 |
REPRESENTATION
| THE FIRST APPLICANT: | In Person by telephone |
| THE SECOND & THIRD APPLICANTS: | In Person by telephone |
| THE RESPONDENT: | No Appearance |
Orders
The Contravention Application filed by the Applicant Father on 15 November 2015 hereby be dismissed.
The Contravention Application filed by the Second and Third Applicants, being the Paternal Grandparents, filed on 16 November 2015 hereby be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gottlieb and Ors & Bauman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2538 of 2009
| Mr Gottlieb |
First Applicant
And
| Mr B Gottlieb and Ms A Gottlieb |
Second & Third Applicants
And
| Ms Bauman |
Respondent
REASONS FOR JUDGMENT
This judgment relates to two Application-Contraventions in these proceedings, which were listed for hearing on 9 May 2019.
The proceedings were commenced in 2009 in the Federal Magistrates Court of Australia (as it was formerly known). They concern the child X born … 2001 (“X”). X will therefore turn 18 in just a few days. She was only a few months from adulthood when these applications were heard.
For the purposes of this judgement it is only necessary to make reference to some salient aspects of the matter’s long history.
The Applicant, Mr Gottlieb, is X’s father (“the Father”). The Respondent, Ms Bauman, is her mother (“the Mother”). The Second and Third respondents, Mr B Gottlieb & Ms A Gottlieb, are the paternal grandparents (“the paternal grandparents”).
The father and paternal grandparents both sought parenting orders in respect of X as Applicants. The mother sought parenting orders in a Response.
In respect of the paternal grandparents, final parenting consent orders were made in the Federal Circuit Court of Australia by his Honour Judge Kemp on 7 November 2013 (“the paternal grandparents’ orders”). Those orders were in the following terms:
1) That the child X born … 2001 ("the child") spend time and communicate with the paternal grandparents Mr B Gottlieb and Ms A Gottlieb in accordance with the child's expressed wishes.
2) That the mother will pass to the child any mail and/or gifts sent to the child by the paternal grandparents.
3) That the mother shall authorise in writing the principal of any school attended by the child to provide to the paternal grandparents, at the paternal grandparent's expense, copies of all school reports and school photograph order forms relating to the child.
4) That the mother shall encourage and foster the child's relationship with the paternal grandparents.
5) That the mother shall encourage contact by the child with the immediate and extended paternal family including contact by telephone and in writing.
6) That the mother not denigrate the paternal grandparents or members of the paternal family to the child or in the presence of the child or at all.
7) That otherwise the Further Amended Response filed by the Second and Third Respondents on 4 September 2013 filed herein is dismissed.
Thus in summary, in regards to the paternal grandparents, X was to spend time with them in accordance with her expressed wishes, while the mother was obliged to pass on mail and gifts from them to X, foster X’s relationship with them, encourage contact by telephone, and authorise any school principal to provide the grandparents with copies of school reports.
In respect of the parents, Judge Kemp made final parenting orders on 19 November 2013, including an order for sole parental responsibility in favour of, and that the child live with, the mother (“parents’ orders”). The orders in full are as follows:
By consent, orders made in accordance with the document consented to by the parties and initialled by me and placed with the papers, namely that:
1) The mother is to have sole parental responsibility for the child X born … 2001 ('the child') including but not limited to:
a. Providing all authorities necessary to cause and /or permit the child to travel to and from Commonwealth of Australia and any time;
b. Providing all authorities necessary to cause and/or permit the renewal of any passport for the child without the signature of the father.
2) The child is to live with the mother.
3) The mother is to provide the father with a Post Office Box address to which he can send letters and/or gifts to the child, and the mother is to check that Post Office Box and collect any items therein no later than the 15th day of each of the following months: February, April, June, August, October and December.
4) The father is restrained, in any material sent to X, from referring to the mother, and/or to any family law or criminal court proceedings and/or to any allegation raised by either parent in any of those proceedings.
5) The mother is at liberty to review any material sent by the father to ensure its compliance with order 4 above.
6) Subject to the father's compliance with order 4, the mother shall ensure the child receives any letters and/or gifts from the father sent via Post.
7) For a period of two (2) years from the date of these Orders the mother shall provide to X any letters or gift sent by the father within 7 days of the collecting of those letters or gifts in accordance with Order 3 above and shall do so in the presence or vicinity of Ms C of the Town D Women's and Children's Service.
8) The Court accepts an undertaking from Ms C to provide written confirmation by email, within 3 days, to the paternal grandparents Mr B Gottlieb and Ms A Gottlieb that the correspondence and/or gifts has been provided to the child.
9) The said Ms C may be discharged from her undertaking with the written consent of both parties.
10)In the event that Ms C is unable or unwilling to continue to provide the written confirmation to the paternal grandparents as required by Order 8 above then the mother shall obtain, file and serve an undertaking from a suitable person from the Town D Women’s and Children's Service or such other agency nominated by the mother with such undertaking to be considered in Chambers.
11)That the child communicate with and spend time with the father in accordance with her expressed wishes.
I will refer to the paternal grandparents’ orders and the parents’ orders collectively in these reasons as the primary orders.
It can be seen that under the parents’ orders the mother had sole parental responsibility which specifically included the sole authority to obtain a passport for X and to obtain authorities to “cause or permit” X to travel to and from Australia. The only contact the father was to have with X was to be through letters and gifts, the delivery of which to X was to be overseen by Ms C of the Town D Women's and Children's Service, or according to X’s expressed wishes. It should also be noted that the obligation on the mother to provide X with letters and gifts was only for a period of two years from the date of the primary orders. At the time the parents’ orders were made, the father was serving a seven-year term of imprisonment with a non-parole period of five years. On … 2011, the father had been convicted of four counts of sexual assault upon the mother.
Clearly the primary orders allowed a very limited scope for engagement with X’s father and her paternal grandparents.
It is clear that the mother unilaterally relocated to Country E in about December 2014. This was also during the father’s incarceration. It was also prior to the expiration of the two (2) year period specified in Order 7 of the parents’ orders. There was no evidence before me about the mother’s reasons for relocation, although it was undisputed that she had extended family in Country E. I infer also that the assaults suffered at the hands of the father may also have been a motivating factor.
Although the applicants made no reference to s 65Y of the Family Law Act 1975 (Cth) (“the Act”), it could be argued that the parents’ orders were parenting orders to the extent that they provided that X was to communicate with the father, and the paternal grandparents’ orders were also parenting orders to the extent they provided that X spend time and communicate with her paternal grandparents, so as to fall within the definition of parenting orders to which Subdivision E of Division 6 of Part VII applied: see s 65X(1) of the Act. Therefore as parenting orders, s 65Y(1) of the Act prohibited the mother taking X out of Australia except with the consent of the father and grandparents or as provided in a Court Order. Order 1(a) of the parent’s orders may have been interpreted by the mother as consent of the father to allow her to travel to Country E. By its terms, Order 1(a) does not clearly permit travel outside Australia. On one view it is limited to giving the mother parental responsibility to obtain authorities for travel, as opposed to authorising travel itself. On the other hand, it could be argued that permission to travel outside Australia is implicitly granted by the order. Since there was no argument directed to s 65Y of the Act, I will express no concluded view as to whether the mother contravened that section. This does not however conclude questions about the interpretation of the primary orders concerning overseas travel. I will return to this question later in these reasons.
On 16 November 2015 the paternal grandparents filed an Application-Contravention supported by an Affidavit of Mr B Gottlieb sworn on 12 November 2015 and an Affidavit of Non-Filing of a Family Dispute Resolution Certificate.
On 19 November 2015 the father filed an Application-Contravention supported by an Affidavit of the father sworn on 31 October 2015 and an Affidavit of Non-filing of a Family Dispute Resolution Certificate.
On 14 December 2016 the proceedings came before his Honour Judge Kemp. At that stage the mother had not been served. His Honour noted that the mother had left the jurisdiction and was resident in Country E. His Honour also noted that the father and the paternal grandparents had arranged for the Contravention Applications to be served on the mother in City G, Country E. The proceedings were adjourned to 5 May 2017 and it was noted that the father would investigate if there were any other documents relevant to the effective service on the mother.
Service
On 5 May 2017, the proceedings were adjourned to 15 September 2017 at the request of the father to enable service of documents on the mother through the Attorney General’s Department in Canberra. The matter was then further adjourned for mention on 15 December 2017.
On 15 December 2017 Judge Kemp ordered the transfer of the proceedings to this Court and his Honour further noted:
7. The applicants wish to ensure that they understand as the mother’s breach of orders and the removal of the child from this jurisdiction should be dealt with, so that in the case of the father and the grandparents the child, X does not view them as having abandoned her.
The proceedings were then listed before Registrar Mordaunt in this Court on 29 May 2018 for directions. On that occasion there was no appearance by the mother.
Registrar Mordaunt placed the matter in the short matter pool awaiting hearing. It was also noted:
The outstanding proceedings are applications for contravention filed by the father on 19 November 2015 and the grandparents on 16 November 2015 both filed in the Federal circuit Court
The mother in 2014 took X to Country E and has not returned. There were proceedings in the City G, Country E District Court in which the father appears to have taken part. Ultimately the City G, Country E Court of Appeal confirmed the orders made by Judge Kemp in November 2013
…
The current contravention applications have now been served on the mother through the Attorney General Department.
Service of the Applications-Contravention and supporting documents was effected upon the mother in Country E on 19 December 2017 pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 (“the Convention”). It is necessary to consider this procedure in some more detail.
Country E is a Contracting Party to the Convention. Service pursuant to the Articles of the Convention is dealt with in Part IIAB of the Family Law Regulations1984 (Cth) (“the Regulations”).
Regulation 21AF of the Regulations provides that a person may apply to the Registrar of this Court for service in a Convention country of “local judicial documents”. Such documents are defined in reg 21AC of the Regulations to mean “a judicial document that relates to civil proceedings in the court.” The application to the Registrar must be accompanied by the documents specified in reg 21AF(2) of the Regulations, which include a draft request for service abroad, the documents to be served and a summary of the document to be served.
Upon being satisfied that the application and its accompanying documents comply with reg 21AF of the Regulations, the Registrar must sign the request, and forward the “relevant documents” to the Central Authority of the relevant Convention Country: reg 21AG of the Regulations. The “relevant documents” are defined in reg 21AG(2) of the Regulations as the request for service abroad, the documents to be served, a summary of the documents to be served and, if required, a translation of the documents.
The Applicants tendered a Certificate pursuant to Article 6 of the Convention. This became Exhibit A. This Certificate included a copy of the request executed by Registrar Bastiani on 13 November 2017, a summary of the documents to be served and a copy of documents to be served. I am satisfied that the procedure set out in reg 21AF of the Regulations was followed and the Registrar signed the request for service abroad in accordance with reg 21AG of the Regulations.
The Ministry of Justice of Country E is the designated Central Authority for Country E, pursuant to Article 2 of the Convention. The Certificate bears the seal of the Ministry of Justice and was signed by “Ms F, Legal Advisor” on 21 December 2017.
Exhibit A specifies on its face that service took place “in accordance with the provisions of sub-paragraph a) of the first paragraph of Article 5 of the Convention”. Article 5 is in the following terms:
Article 5
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –
a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.
If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.
That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.
A certificate in “due form” certifying service of the documents is, “in the absence of any evidence to the contrary”, sufficient proof of service “by the method specified in the certificate on that date”: reg 21AJ of the Regulations. A Certificate is in due form if it complies with reg 21AH(2) of the Regulations, including being in accordance with Part 2 of Form 1A in Schedule 1. I am satisfied that the Certificate is in “due form” for the purposes of reg 21AH of the Regulations, since it “in accordance with” Part 2 of Form 1A.
I am satisfied that the Certificate attests to the service upon the mother on 19 December 2017 of the relevant documents, including the Applications-Contravention, and is sufficient proof of service upon the mother. There is no evidence to the contrary.
I am satisfied that the Certificate proves that the method of service was a method prescribed by the internal law of Country E for the service of documents in domestic actions upon persons who are within its territory. I am satisfied the mother was within the territory of Country E when she was served.
I am satisfied that the mother has had knowledge of the Applications-Contravention since 19 December 2017.
This however does not conclude consideration of issues relating to service and more importantly the question of the mother’s absence from the listing for hearing before me on 9 May 2019, and whether the hearing should proceed in her absence.
I note that the copies of the Application-Contraventions served upon the mother had a court date of 15 December 2016. Clearly that date was long past by the time the mother was actually served on 19 December 2017. The documents served could give no accurate indication of when the matter would next be before either the Federal Circuit Court or the Family Court of Australia.
At this point, it is important to emphasise that despite the fact of service upon the mother in Country E on 19 December 2017, at no stage thereafter did the mother file in this Court any Notice of Address for Service in accordance with the Family Law Rules 2004 (Cth) (“the Rules”). A Notice of Address for Service is essential to permit the Court and other parties to know where or how to contact a party. This is reflected in Rule 8.05 of the Rules which is in mandatory terms as follows:
(1) A party must give an address for service if:
(a) the party files or responds to an application; or
(b) the party seeks to be heard by the court.
(2) A party must give only one address for service for each application filed.
(3) A party may give an address for service:
(a) in the first document filed by the party; or
(b) by filing a Notice of Address for Service.
(4) An address for service:
(a) must be an address in Australia where documents may be left or received by post;
(aa) must include a telephone number at which the party may be contacted; and
(b) may include a facsimile number and an address for service by electronic communication.
(5) A party may include an address for service by electronic communication only if documents sent to or from that address can be read by the computer software of each party and the court.
Rule 8.05 applies equally to all proceedings in the Court including proceedings commenced by an Application-Contravention. Part 21 of the rules deals with Applications in respect of Contraventions. Rule 21.02 requires the filing of the appropriate form of Application as specified in table 21.1. However, part 21.1 of the rules does not specify any separate requirements for service. Thus by reason of Rule 8.05, the mother was required to file a Notice of Address for Service. She failed to do so.
I note the mother did file a Notice of Address for Service on 12 November 2012 for the proceedings in the Federal Circuit Court, at about the time her then lawyers filed a Notice of Ceasing to Act. I infer from this that the mother had some understanding of the importance of a Notice of Address for Service and its purpose.
I was informed by the Applicants that none of them had a contact address for the mother in Country E or Australia. The father told me that orders had previously been made for details of the mother’s address to be suppressed. The details about this were scant and somewhat unclear. During the hearing, the father and the paternal grandfather mentioned that the mother was a protected person in Country E and that is why they could not obtain her address in Country E. Additionally, they stated that the mother is an Australian Citizen and her details in the Australian Electoral Commission records is her previous address in Town H. They informed the Court that they are certain she no longer resides at that address. When asked if they could serve her by electronic means, they said they had no email address for the mother.
However, the Certificate did include an address for the mother in City G, Country E where, according to the Certificate, she was actually served in December 2017.
When the proceedings were allocated a hearing date, the Court contacted the Applicants and notified them of the hearing on 9 May 2019. I have been informed by the Case Management Officer that the Court attempted to notify the mother by sending an email to an email address which was available on the Court file pursuant to the Notice of Address for Service file by the mother in the Federal Circuit Court Proceedings. In any event, this form of notification was unsuccessful. The email sent by the Court bounced back indicating it had not been received by the mother.
I note here that Rule 8.06 requires that where a party’s address for service changes during a case, a fresh Notice of Address for Service must be filed within 7 days after the change of address. There is nothing to suggest any compliance with this rule by the mother.
By reason of the mother failing to provide any updated formal address for service, which complied with the Rules, or at all, there was no means of contacting her, available to the Court, or the Applicants.
An initial question therefore at the hearing was whether it was appropriate to proceed ex parte in the absence of the mother in circumstances where service of the Contravention Applications and supporting documents, as they existed on 19 December 2017, was proved, but no Notice of Address for Service was ever provided by the mother, and nothing further was served upon her in relation to the Contravention Applications, nor was it proven that any notification was received by her of the hearing on 9 May 2019.
The alternative, of course, was to adjourn the proceedings with orders for further attempts to contact the mother to be undertaken, to inform her of the adjourned date and a likely hearing in her absence if she did not appear.
In my view it was appropriate to proceed to hear the Applications in the absence of the mother, for a number of reasons.
First, there is the issue of the best interests of X. Section 60CA makes the best interests of the child the paramount consideration “in deciding whether to make a particular parenting order in relation to the child”. Section 60CA falls in Subdivision BA of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Subdivision BA applies to any proceedings under Part VII in which the best interests of a child are the paramount consideration. A “parenting order” is defined in Division 5, s 64B(1) to be an order under Part VII dealing with a matter mentioned in s 64B(2). The consequences of contravention of parenting orders are set out in Division 13A of Part VII of the Act. Apart from the powers specified in Subdivision B to vary parenting orders, none of the possible orders available to the Court in Division 13A deal with a matter mentioned in s 64B(2). Therefore, unless the Court makes orders under Division 13A varying existing parenting orders, the best interests of a child are not the paramount consideration when making orders following the establishment of a contravention.[1]
[1] S.70NFB(1)(a) makes the best interests of a child expressly relevant in relation to the imposition of a sanction under s.70NFB(2)(g)
However, in my view in exercising a discretion to deal with the Contravention Applications ex parte, the best interests of X are relevant, even if they are not strictly paramount. X has been the subject of plainly acrimonious parenting disputation which extend back over many years. She is only a few days from turning 18. For the limited remaining time during which this Court would have jurisdiction over her welfare as a minor, it is appropriate to consider whether it would be in X’s best interests to prolong the proceedings by an adjournment with orders for further attempts at service upon or notification to the mother of the hearing of the Contravention Applications which even then may possibly proceed undefended. In my view, it would not be in X’s best interests.
Secondly, although I accept there is a likelihood that the mother was unaware of the listing on 9 May 2019, the evidence satisfies me that this situation arose by reason of her failure to comply with the Rules and to file a Notice of Address for Service in this Court or for that matter any other means of contact such as an active email address.
The history of the proceedings related earlier demonstrates that the mother was no stranger to litigation and had experience of proceedings in the Australian judicial system as well as the Finnish judicial system. Her unilateral decision to leave Australia and remove the child from jurisdiction to Country E in 2014 raises an inference that she was prepared to, and did, turn her back on the Australian court system, at least in so far as parenting proceedings were concerned. It is a reasonably available inference that the mother made a conscious decision not to participate in the contravention proceedings brought by the father and the paternal grandparents.
In those circumstances the mother made it very difficult, if not impossible, for either the Applicants or the Court to be in a position to make contact with her. I take account of the fact that there was an address in Country E in the Certificate, at which the mother had been served in December 2017. But it is unknown whether the address in Country E remains current. The mother did not tell the applicants or the Court whether it was or if she had a new address or any means of contact.
In my view it was not incumbent upon the Applicants to undertake extensive and possibly expensive searches of the mother’s whereabouts in Country E, in circumstances where she chose, I infer, to withhold any means of contact which conformed to the requirements of the Rules. I accept the mother was a person who enjoyed or had enjoyed the benefit of orders suppressing the disclosure of her address. This however did not relieve her from supplying the Court with some address for contact. This is particularly so where the mother herself had, in the past, filed a Notice of Address for Service in the Federal Circuit Court of Australia and appeared to understand the necessity for doing so, and then sought suppression of her address, I again infer, to prevent the father or his family knowing her whereabouts. Nor do I consider it incumbent upon the Court to speculate how contact should or could be made with the mother.
The Full Court decision in Chin & S Law Firm (No. 2) [2011] FamCAFC 154, although based on very different facts, has some analogous features and is supportive of dealing with the matter in the absence of the mother. The Full Court proceeded to hear an application to dismiss an appeal in circumstances where the appellant had failed to provide a notice of change of address for service as required by rule 8.06 of the Rules. The Full Court deemed it appropriate to proceed in those circumstances even though they viewed it as likely that the appellant had not seen documents proposed to be relied upon by the respondent in seeking dismissal.
The next two reasons are also related to the consequences of prolonging the proceedings.
Thirdly, any possible injustice to the mother, arising from an ex parte hearing, although an important consideration, does not stand alone nor is it unqualified. Recently in Strahan & Strahan [2019] FamCAFC 31 the Full Court dismissed an appeal from a single judge who dealt with property proceedings on an undefended basis after refusing the wife’s application for an adjournment. The wife thereafter did not appear. At [61] their Honours referred to the principles established by decisions of the High Court such as Sali v SPC Limited [1993] HCA 47; (1993) 116 ALR 625 and, later, Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 as summarised in Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 at [51]:
a) What is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court;
b) What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
The Full Court in Strahan continued at [62] that a history of protracted litigation, its impost upon ever-scarcer public resources and importantly, the impact upon other litigants seeking to avail those resources were all relevant considerations in the exercise of a discretion to refuse an adjournment and hear a matter in the absence of a party.
I take account of the fact that, unlike Strahan, I am dealing with Contravention Applications and not property adjustment proceedings. The facts in Strahan were very different to this case. Contravention proceedings may have serious and penal consequences for a contravening party. Nonetheless, the matters adverted to by the Full Court in Strahan have some resonance.
Furthermore, the Rules themselves recognise that contravention proceedings may proceed in the absence of a party. Rule 21.08 of the Rules sets out the required steps at a hearing of a Contravention Application such as those filed against the mother. Rule 21.08 is in the following terms:
At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:
(a) inform the respondent of the allegation;
(b) ask the respondent whether the respondent wishes to admit or deny the allegation;
(c) hear any evidence supporting the allegation;
(d) ask the respondent to state the response to the allegation;
(e) hear any evidence for the respondent; and
(f) determine the case.
The procedure is clearly designed to ensure a respondent is not required to make a formal response or give evidence until a case to answer is made out. The Full Court’s decision in Bande & Cade [2011] FamCAFC 93; 45 Fam LR 376 at [121] emphasises the mandatory force of the rule.
However, the operation of rule 21.08 is also predicated upon the presence of a Respondent who has engaged in the proceedings. Implicit in this is the likelihood that an appearing respondent has filed a Notice of Address for Service. The respondent in these proceedings did not do so. The mother has never engaged in relation the Contravention Applications. Thus rule 21.07 of the Rules is relevant. It provides that where a respondent fails to attend, the Court may nonetheless determine the Contravention Application.
Fourthly, allowing the Contravention Applications to continue unresolved any longer would not be consistent with the Court’s duty to promote the main purpose of the Rules (see Rules 1.04 and 1.05) to resolve each case in a just and timely manner, although I acknowledge that the aspiration of the main purpose has already been somewhat disappointed by the time taken for the Contravention Applications to reach a hearing. This does not however detract from the necessity to bring them to finality as quickly as possible. Chapter 1 of the Rules prevails over other Chapters of the Rules: Rule 1.03, including the rules applicable to Applications-Contravention.
Fifthly, Division 3 of Part AB of the Regulations should be mentioned at this point. Division 3 deals with “default judgment” following service abroad of an initiating process. No argument was directed to it by the Applicants, no doubt because they were self-represented, but in my view the Court is obliged to consider its potential application. This is so because regs 21AL and 21AM in Division 3 of the Regulations impose certain restrictions on the Court’s power to enter “default judgment” where service has taken place overseas, but the defendant has failed to appear or file a Notice of Address for Service.
Division 3 applies to “civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country”: reg 21AK. This regulation makes it tolerably clear that Division 3 is to apply to initiating processes served in a Convention country pursuant to one of the methods specified in the Convention.
The facts of this case are apt for the application of Division 3. The expression “initiating process” is defined in reg 21AC to mean “any document by which proceedings (including proceedings on any cross-claim or third party notice) are commenced.” An Application-Contravention when filed receives the same file number as the proceedings in which the primary orders, allegedly contravened, were made. However, an Application-Contravention may be filed many years after primary orders are made and sets in train discrete proceedings in which issues of contravention, reasonable excuse and possible sanction are dealt with. I am satisfied an Application-Contravention filed pursuant to rule 21.02 of the Rules falls within the definition of “initiating process”.
A further question is whether such an Application-Contravention initiates “civil proceedings” for the purposes of the Regulations. The answer to this question is less clear. The expression “civil proceedings” is defined in reg 21AC of the regulations to mean “any judicial proceedings in relation to civil or commercial matters.” This definition is replicated in a number of state and federal rules and regulations across the Commonwealth of Australia, such as, rule 11A.1 of the Uniform Civil Procedure Rules2005 (NSW), rule 10.61 of the Federal Court Rules 2011 (Cth) and rule 130A of the Uniform Civil Procedure Rules1999 (Qld). It has received no judicial comment, as far as my researches show. Interpreting the text in its ordinary meaning, it seems to me that proceedings and orders made in the best interests of children under Part VII of the Act are “civil matters” and proceedings for contravention of such orders are judicial proceedings “in relation to” those matters.
I also observe that earlier authority, dealing with contravention of non-parenting orders, is consistent with this conclusion. The Full Court in Marriage of Lindsay (1995) FLC 92-638 held that proceedings instituted under s 112AD of the Act were “civil proceedings” for the purposes of s 140 of the Evidence Act1995 (Cth). Section 112AD falls within Part XIIIA of the Act, which provides for sanctions for failure to comply with orders that do not affect children. Section 3 of the Evidence Act 1995 (Cth) defines “civil proceeding” as a proceeding “other than a criminal proceeding”, and a “criminal proceeding” as a prosecution for an offence, being an offence arising against or under an Australian law. As the Full Court pointed out in Lindsay, trial courts in Australia generally accepted that in dealing with contraventions of an order made by a Civil Court, the standard of proof has been the civil standard. Thus such proceedings for contravention were more properly understood as civil not criminal proceedings. This is also consistent with the entrenched distinction between civil and criminal contempt of Court.
The standard of proof specified in Division 13A supports the view that proceedings under it are civil proceedings for the purposes of the Regulations. Division 13A provides for sanctions ranging from orders for make-up time to fines and imprisonment. Sub-section 70NAF(1) of the Act provides that the standard of proof to be applied in determining matters under Division 13A is proof “on the balance of probabilities”. This is the civil standard and is readily distinguishable from the criminal standard of proof “beyond reasonable doubt”. However, sub-section 70NAF(3) provides for the criminal standard of proof, in relation to the imposition of more serious types of sanctions such as imprisonment, bonds and community service orders or fines of not more than 60 penalty units.
Many cases have pointed to the distinction between contravention proceedings under Division 13A, which may be “quasi-criminal”, and criminal proceedings for contempt of court or other offences. Austin J said in Saldo & Tindall [2013] FamCA 951 at [14]:
“It is important to differentiate between conduct that amounts to contravention of a Court order and the more serious delinquent conduct that amounts to contempt of the Court... Even a more serious instance of contravention of an order without reasonable excuse does not encapsulate a flagrant challenge to the authority of the Court, for that would constitute contempt and be amenable to prosecution and sanction pursuant to Part XIIIB of the Act.”
Austin J continued at [28]:
“It is important to recognise that the imposition of sanction upon respondents under Division 13A is not an identical process to the imposition of sentence upon defendants for offences, even though the process may be analogous or “quasi-criminal” (see Dobbs & Brayson at [45]). That is because, by reference to the definitions of “civil proceeding”, “criminal proceeding” and “offence” found within Part I of the Dictionary within the Evidence Act 1995 (Cth), proceedings under Division 13A of the Act are civil proceedings, not criminal proceedings.”
I am satisfied that these proceedings initiated by the Applicants by filing their Applications-Contravention fall within the expression “civil proceedings” in Division 3 of Part AB of the Regulations, and Division 3 applies.
As already discussed, the applicants have filed the Certificate. As already pointed out, this raises for consideration the possible engagement of reg 21AL of the Regulations which imposes restrictions on entering “default judgment” after service on a party in an overseas jurisdiction. Regulation 21AL of the Regulations is in the following terms:
Restriction on power to enter default judgment if certificate of service filed
(1) This regulation applies if:
(a) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form, within the meaning of subregulation 21AH(2)) that states that service has been duly effected; and
(b) the defendant has not appeared or filed a notice of address for service.
(2) In circumstances to which this regulation applies, default judgment may not be given against the defendant unless the court is satisfied that:
(a) the initiating process was served on the defendant:
(i) by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory; or
(ii) if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in the country, by that method; or
(iii) if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily; and
(b) the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.
(3) In paragraph (2)(b), sufficient time means:
(a) 42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or
(b) such lesser time as the court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.
The meaning of the expression “default judgment” in reg 21AL of the Regulations presents some difficulties. In some other Courts, default judgment can be entered where a defendant fails to file a Defence or Affidavit verifying a Defence: see for example the Uniform Civil Procedure Rules, 2005 (NSW) (“UCPR”), Part 16, Rule 16.2. Default judgment under the UCPR could be given on a range of claims, including possession of land, detention of goods, both liquidated and unliquidated claims. Default judgment may be given on application of the plaintiff, which may be dealt with in the absence of the parties and need not be served on the defendant.
Such a concept of default judgment is not found in the procedures of the Family Court under the Act and the Rules. There is a general power in rule 11.02 to dismiss all or part of a case for failure to comply with the Rules, the Regulations or a procedural order. Exercise of this power could be characterised a type of default judgment. But there are no specific provisions for obtaining a judgment in default of filing any particular document. For example, there is no provision in the Rules for an applicant for parenting or property orders to obtain a judgment in default of a Respondent filing a Response. More relevantly, as already pointed out, rule 21.08 of the Rules makes clear that a respondent to an Application-Contravention is not required to file a formal response or give evidence until a case to answer is made out.
However, the terms of reg 21AL of the Regulations are clearly applicable to certain proceedings under the Act in this Court. This must be so since reg 21AL is located in the Regulations. In my view, the expression “default judgment” in reg 21AL of the Regulations is directed to situations where a respondent is in default of appearance. Division 3 of the Regulations envisage judgment being given against a respondent who does not appear, and, at the very least, employs a narrow concept of default judgment limited to default in appearing.
As already noted the requirements reg 21AL(1) of the Regulations are satisfied on the facts of this matter. I am satisfied also that the relevant initiating process, the Applications-Contravention, were served by a method prescribed by the internal law of Country E, and they were served in sufficient time to enable the mother to enter an appearance. Consequently, I am satisfied reg 21AL of the Regulations does not raise any restriction on giving default judgment against the mother.
I conclude therefore that the combined effect of the Rules regarding filing a Notice of Address for Service and Part IIAB of the Regulations do not prohibit giving judgment against a respondent to an Application-Contravention in default of their appearance when that respondent has been properly served in a foreign jurisdiction under the Convention.
For those reasons it is appropriate to proceed to judgment in the absence of the mother.
Contraventions
The contraventions alleged by the father are particularised as follows:
a)In June 2014, August 2014, October 2014, December 2014, February 2015, April 2015 the mother did not collect correspondence as required nor, in the presence of Ms C, provide said correspondence to X.
The contraventions alleged by the paternal grandparents are not clearly particularised. In summary they allege the mother did not encourage or foster X’s relationship with her paternal grandparents, did not pass on their mail and gifts to X and did not authorise the principal of any school attended by X to provide copies of all school reports and school photograph order forms relating to X. Bearing in mind the paternal grandparents were self-represented, I am prepared to accept, in the absence of any argument to the contrary, that their contraventions are sufficiently particularised.
As already pointed out above, s 70NAF(1) of the Act provides that the standard of proof to be applied in determining matters under Division 13A is proof “on the balance of probabilities”, except in relation to the imposition of more serious types of sanctions such as imprisonment, bonds and community service orders or fines of not more than 60 penalty units where proof “beyond reasonable doubt” is necessary: s 70NAF(3) of the Act.
I bear in mind that the degree of satisfaction required within the civil standard can vary. Where the allegations of fact involve criminal or quasi-criminal conduct the degree of satisfaction may need to be stronger: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170-171. These judicial formulations are mirrored in Section 140(2) of the Evidence Act1995 (Cth) which provides that a Court in reaching the requisite degree of satisfaction is to take into account the nature of the subject-matter of the proceeding; and the gravity of the matters alleged.
Section 70NAC of the Act makes it clear a person is taken to have contravened an order “if, and only if” the person intentionally either failed to comply with, or made no reasonable attempt to comply with, the relevant orders.
In summary the father argues that after the mother’s unilateral relocation to Country E in December 2014 she contravened Order 7 on each occasion when the father wished to communicate with the child by sending letters. The father’s argument was that there must have been a contravention of these orders because the mother was not present in Australia.
I accept this must be so.
By relocating to Country E, and thereafter, it is apparent the mother placed herself beyond the possibility of compliance with some of the primary orders. For example, the father’s correspondence could not be forwarded to her. Nor could the child spend any time with the grandparents even if she wanted to. The fact of relocating to Country E and the silence from X thereafter supports an inference that the mother failed to encourage or foster any relationship with the grandparents. There was no evidence of the mother providing any authorisation to a school principal to provide to the paternal grandparents, at their expense, copies of school reports and school photograph order forms relating to X.
As already discussed above, although the mother had sole parental responsibility which specifically included the sole authority to obtain a passport for X and “cause or permit” X to travel to and from Australia, the primary orders did not expressly permit travel outside Australia. As already noted above, another interpretation, which favours the mother, may be that the parent’s orders implicitly permitted overseas travel. However, the mother did not appear to support any such interpretation. I will assume the primary orders did not themselves authorise travel overseas, for the purposes of determining whether a contravention of the primary orders (as opposed to breach of s 65Y of the Act) has occurred.
The relocation to Country E must be seen as an intentional act, and the failure thereafter to comply with the primary orders in the respects identified above, I infer, was also intentional or the product of wilful disregard. There is no evidence that the mother made any attempt at compliance after relocation. I am satisfied on the balance of probabilities the conduct of the mother constituted contravention of the primary orders as defined in s 70NAC of the Act.
I am satisfied that the alleged contraventions have been proved on the balance of probabilities.
Obviously, there is no question of reasonable excuse raised by the mother. I cannot draw any inferences about the reasons why the mother relocated to Country E. It may have been connected to the offences for which the father was incarcerated but there is no evidence on the basis of which I could form any view on this possibility.
I turn then to the question of sanction.
Sanctions
The applicants were clearly not well versed in the details of the provisions of Division 13A of the Act. Division 13A is organised in a progression from lesser to greater seriousness, as explained in s.70NAA of the Act. In summary it deals in turn with:
a)Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdivision A;
b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
d)Contravention established, but a reasonable excuse - the Court can make orders for compensation for time lost, and costs orders: subdivision D;
e)Less serious contraventions, and no reasonable excuse - the Court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
f)More serious contraventions, and no reasonable excuse - the Court has more punitive powers, including fines and imprisonment: subdivision F.
The emphasis is on enforcing compliance with orders. The thrust of Division 13A is coercive rather than punitive: McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401; 223 FLR 179, per Cronin J at [216]. In Malcher & Malcher (No. 2) [2017] FamCA 989 Gill J, after considering the judgments in McClintock & Levier at some length said at [34]:
In short, Division 13A of Part VII is in place to allow the court to make orders with the objective of causing a party to comply with orders affecting children. This is the permissible purpose of sanctions or actions under the Division.
The powers of the Court in respect of contraventions without reasonable excuse are set forth in Subdivisions E and F of Division 13A of the Act. Subdivision E applies to less serious contraventions, while Subdivision F applies to more serious contraventions.
The operation of Subdivisions E and F, stated summarily, by the combined force of ss 70NEA(1) and (2) of the Act, is that Subdivision E should apply if no previous sanction has been imposed for a contravention. Sub-section 70NEA(3) makes Subdivision E apply even where an order has previously been made in respect of a contravention, but the Court is satisfied Subdivision E should apply.
Therefore, before Subdivision F can apply, the criteria in s 70NEA(4) and ss 70NFA(1) and (2) of the Act must be fulfilled. These include a requirement that the Court must be satisfied that the mother “behaved in a way that showed a serious disregard of his or her obligations” under the primary orders.
The expression “serious disregard” is not defined in the Act. In Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655 at [61] the Full Court said:
The theme that emerges from an examination of several decisions... is that “serious disregard” tends to be found in cases of deliberate, pre-meditated non-compliance with orders, and continued and protracted breach.
The Full Court continued at [66]
What seems to be a common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on the first breach does not appear to be sufficient to attract the more stringent sanctions set out under Subdivision F.
In Hugh & Sawer [2010] FamCA 290, at [15], Bennett J summarised the principles derived from Elspeth & Peter (supra) in relation to “serious disregard” as follows:
a) what amounts to a serious disregard will depend on the circumstances of the case and the terms of the order;
b) serious disregard is a description of a degree of intent that is something less than the intent required for a contumacious breach, but something more than the intent present in a finding of a contravention;
c) serious disregard has to be seen as a question of proportion and a question of degree, and [is taken] to require some examination of whether it was premeditated, impromptu or minor in its nature;
d) serious disregard may involve no intention on the part of the respondent to support the primary order and/or an intention to circumvent the provisions of the primary order.
In Gravis & Major [2010] FamCAFC 239 at [131] the Full Court cited the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) which included the following sentence
“What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the removal of a child to another place despite orders of the court or harassment despite repeated warnings and the terms of the parenting order.”
There remains at all times a discretion to apply the provisions of Subdivision E if the Court is satisfied that it is more appropriate for the contravention to be dealt with under that subdivision: s 70NFA(4) of the Act. Cronin J in the Full Court decision of McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401 at [259] held that a judicial officer is “...required by s.70NFA(4) to consider whether the matter should be more appropriately dealt with under sub-division (E)...” The Full Court in Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655 at [50] said:
“Given the consequences that potentially flow from treating the matter under subdivision F rather than subdivision E, we think it was incumbent upon the trial judge to spell out clearly what considerations enliven the extra powers available under that section.”
Each contravention is to be considered individually in determining what orders are appropriate, however, it is acceptable for an order in response to multiple contraventions to be “encapsulated” within one overarching order as opposed to an order for each contravention: McClintock & Levier, supra, at [220].
The submissions of the applicants did not specifically address the statutory provisions concerning sanctions. However, I accept the tenor of their arguments was that the mother’s contraventions should be treated as very serious. Both applicants argued that heavy sanctions should be applied to the mother. The paternal grandfather even suggested a term of imprisonment. These submissions clearly reflected a high level of frustration and anger. Hence the thrust of their arguments suggest Subdivision F should apply.
It should be emphasised that, as already discussed above, these proceedings are not criminal proceedings in relation to contempt of court or other criminal offence. They are civil proceedings under Division 13A of Part VII of the Act.
I further note here, since imprisonment was specifically raised by Mr B Gottlieb, s 70NFG(2) of the Act provides that a Court must not sentence a person to imprisonment (under s.70NFB(2)(e)) unless it is satisfied that in all the circumstances of the case, it would not be appropriate to deal with the contravention by means of any of the other orders provided in s 70NFB(2) of the Act. For reasons which follow I could not be so satisfied.
Having regard to the terms of the primary orders, considerations of proportionality and degree might be thought to weigh against a conclusion of serious disregard. No previous sanction has been imposed upon the mother. None of the contravened primary orders were orders providing with whom X should live, although the parents’ orders did provide for communication with the father, and the paternal grandparents’ orders provided for communication and the possibility of spending time. The child is nearly 18. She will be able to make decisions as an adult within a few days.
On the other hand, I accept that by reason of relocation any breaches of the primary orders were protracted. I recognise that the primary orders were the limited methods of communication by X with her father and paternal grandparents. They constituted the only slender thread by which X could remain engaged with her paternal family. The contraventions objectively prevented some letters being forwarded to the mother and some possible time with the paternal grandparents being denied, if X chose to spend time with them. After relocation there was very little prospect of a relationship between X and the paternal grandparents being fostered by the mother. Seen in that light, the relocation of the mother to Country E severed the thread and the child’s contact with an important part of her parentage and lineage.
Furthermore, the relocation to Country E, being the removal of the child to another place, fits one of the examples of serious disregard specified in the Revised Explanatory Memorandum as outlined above.
However, I am not satisfied that the contraventions of the mother showed a serious disregard of her obligations under the primary orders. Although Mr B Gottlieb, who appeared for himself, gave some evidence seeking to impugn the mother’s evidence against the father and accused her of lying, I cannot on the limited material before me form any view about the level of violence or abuse between the mother and the father, other than the inferences available from the very fact of the father’s conviction for sexual assaults upon the mother. The father himself was more measured in his submissions and appeared to accept he was responsible for perpetrating serious offences against the mother, for which he spent many years incarcerated. The fact of the father’s conviction for serious criminal offences was not in dispute. In my view, in determining whether disregard of Court orders is relevantly “serious”, amongst other things, it is appropriate to take account objectively of the experiences or trauma suffered by the disregarding party at the hands of a party in whose favour the disregarded orders may, partly at least, have been made. Assessed against that background, I am unable to be satisfied that any disregard of the primary orders by the mother can be characterised as “serious”, especially when the primary orders themselves provide for such limited contact between X and her paternal family.
Accordingly, I am not satisfied the statutory preconditions for the application of Subdivision F have been made out.
Furthermore, in the circumstances of this case, bearing in mind the terms of the contravened orders, the age of the contraventions, and the fact the mother had not previously been the subject of any sanction for contravention, in the exercise of discretion, I would have been satisfied it is more appropriate for the contraventions to be dealt under Subdivision E as less serious.
The powers of the Court in relation to less serious contraventions are set out in s70NEB of the Act.
Powers of court
(1) If this Subdivision applies, the court may do any or all of the following:
(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;(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(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; and
(g) 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.
Dealing with the possibilities in turn there is no point to be served by compelling the mother’s attendance at a post-separation parenting program (s 70NEB(1)(a)). The imminent eighteenth birthday of X makes this clear. Moreover, the mother’s domicile in Country E would render any such order futile.
None of the contravened orders were orders making provision for X to spend time with the father or compelled time with the grandparents, so it is inapposite to make any order compensating the applicants for time missed (s 70NEB(1)(b)).
There is no point in making an order requiring the mother to enter into a bond to comply with court orders in the future, since this Court will cease to have jurisdiction very shortly (s 70NEB(1)(d)). Again X’s age and the mother’s domicile in Country E would render a bond futile.
It is open to make an order that the mother pay the applicants’ costs (s 70NEB(1)(f)). For such purposes, the “costs” of the successful party should be confined to liabilities incurred for professional legal services and not include compensation for time spent by an unqualified litigant, like the father, preparing and conducting his case (see Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; Oscar & Traynor [2008] FamCAFC 158 (at [73]-[92]). The applicants were self-represented throughout the contravention proceedings. However, they may have incurred costs in effecting service in Country E, but there was no evidence about such costs. An order compelling the mother’s payment of such costs is not apt.
Overall in the circumstances, the only viable alternative is for the Court to impose no sanction at all.
I have taken account a number of other submissions made by the applicants. They argued that the imposition of a sanction would assist in a rehabilitation of the father’s relationship with X and thus the father’s extended family. It was submitted that X had become alienated from the paternal side of her family. Both the father and the grandfather submitted strongly that they believed X’s views of her father and her extended paternal family were the result of distortions fostered by the mother over many years.
The difficulty with this argument is that, even if it was a relevant consideration, which I will assume for present purposes, the evidence does not permit the formation of a sensible view about the reasons X may have become estranged from her father and his family and what part the mother played on bringing about such an outcome. The history of the proceedings themselves, the undisputed criminal convictions of the father and the long period in Country E may all have played a part. But it is not now possible for me to untangle a very complicated family dynamic, which evolved over a long period, and it would be futile to try. Sanctions for contravention might help even some perception of a scorebook between mother and father in the eyes of X, but I could not possibly be satisfied that it certainly would.
A heavy sanction on the mother can only now be punitive. This is contrary to the permissible purposes of sanctions imposed pursuant to Division 13A of the Act. It may not only be pointless but counterproductive. As I suggested to the father in argument, any punitive order may have the effect of entrenching any negative view X may hold towards her paternal family.
On balance, in the circumstances, the most compelling reason for a sanction appears to lie in the disregard shown by the mother for orders of the Court, which were made in X’s best interests. It may be said that part of the significance of non-compliance lies in the challenge it makes to the maintenance of a proper functioning court system so that Court orders retain their authority and command obedience.
It must be remembered that the applicants took contravention proceedings in 2015. They did not dither in the face of the mother’s relocation. Nonetheless, they were not able to effect service until December 2017. It may be that if the contraventions had been dealt with in 2017 or 2018, orders of a coercive nature may have had some useful impact at that point, even though the mother and child were in Country E, bearing in mind the mother’s obligations under the primary orders were not particularly onerous. However, this is not self-evidently correct and it is not otherwise possible to form a view about this on the material before me.
I accept the applicants had legitimate expectations that orders of this Court would be obeyed. It is inherent in the primary orders, being parenting orders that they were made in the best interests of X. Court orders should be obeyed. It may seem still important for this Court to respond to a contravention by imposing sanctions which might be thought to support the expectations, of not just the applicants but litigants generally, that Court orders will be obeyed. The applicants made arguments for sanctions to be imposed to uphold the integrity of the primary orders. This is really an appeal to concepts of “general deterrence”. As Austin J pointed out at [22]-[26] in Saldo, the Full Court has expressed differing views about the role of general deterrence in sentencing for serious contraventions or contempt, but the weight of authority is that general deterrence has no role to play in determining sanctions under Subdivision E. In truth, the expectations of the applicants have been defeated by the passage of time and the well settled jurisprudence concerning the application of Division 13A.
Taking account of all these considerations, I am not satisfied there is any sanction available which would fall within the permissible objects of Division 13A, being coercion to comply with Court Orders. I reach this conclusion with some misgiving. However, I am bound by the provisions of the Act, and well settled authority.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 5 July 2019.
Associate:
Date: 5 July 2019
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