Greyson and Greyson (No 2)

[2009] FamCA 1061

FAMILY COURT OF AUSTRALIA

GREYSON & GREYSON (NO. 2) [2009] FamCA 1061

FAMILY LAW – CHILDREN – contravention of parenting orders – sentencing – imposition of bond pursuant to s 70NEC

Family Law Act 1975 (Cth) ss 70NEB, 70NEC

APPLICANT: Mr Greyson

RESPONDENT: Ms Greyson

FILE NUMBER: MLC 8527 of 2007

DATE DELIVERED: 7 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 August 2009

REPRESENTATION

FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Whitchurch

SOLICITOR FOR THE RESPONDENT: Samantha Ward Pty Ltd

Orders

IT IS ORDERED:

1. That in relation to penalty for the contraventions found proved on 17 July 2009:-

   a)     In respect of the first count the mother MS GREYSON is required to enter into a bond for a period of two years without security or surety the condition of which is to be of good behaviour and abide orders of this Court;

   b)     In respect of the second count there be compensatory time spent by the child O born … March 2000 with the father:-

   i)from after school on Friday 21 August 2009 to 4.00 pm on Sunday 23 August 2009; and

   ii)from after school on Friday 16 October 2009 to 4.00 pm on 18 October 2009;     

   c)     In respect of the third count there be further compensatory time between the child O born … March 2000 and the father :-

   i)from after school on Friday 13 November 2009 to 4.00 pm on 15 November 2009; and

   ii)by way of an extension of time to be spent during the September 2009 school holidays there be extra time from Friday 25 September 2009 to 4.00 pm on 27 September 2009; and

   d)     In respect of the fourth count there be further compensatory time for the child O born … March 2000 with the father over the long summer school vacation 2009/2010 in that the time with the father is to be extended by an additional four (4) days.

IT IS NOTED BY THE COURT that the mother proposes and the father accepts that the child C born … October 1998, who also lives with the mother, will accompany the child O on the compensatory time provided for in sub-paragraphs 1(c)(i) and 1(d) of this Order.

IT IS FURTHER ORDERED:

1. That the arrangements for collection and return of the child for the purpose of the compensatory time are to be the same as those contained in the Order made 22 January 2009 for like times.

2. That the contravention application of the father filed 24 June 2009 be and is hereby otherwise dismissed.

3. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8527 of 2007

MR GREYSON

Applicant

And

MS GREYSON

Respondent

REASONS FOR JUDGMENT

ex tempore

1. On 17 July 2009 I found that on four counts the mother had contravened the parenting orders made on 22 January 2009 by failing to make the child, O, born in March 2000, available to spend time with the father, and did so without having a reasonable excuse within the meaning of the Family Law Act 1975 (Cth) (‘the Act’).

2. I adjourned the matter to today for the mother to be able to obtain advice in relation to her entering a bond pursuant to section 70NEC of the Act. Mr Whitchurch of counsel appears on behalf of the mother. The father represents himself.

3. The mother is prepared to enter into a bond with a condition that she be of good behaviour. I will further specify that she abide orders of this court.

4. It is important not to lose sight of the fact that orders have been made by the court which are considered to be in the best interests of the child and that it is in the interests of the child that there be compliance with orders. 

5. The mother has not, until the hearing before me, been found to have contravened an order. Whilst there are four contraventions and whilst they are quite serious, I am of the view that they do not fit the classification of serious contraventions in the legislation. The court will therefore consider the second stage of sentencing options, pursuant to section 70NEB of the Act.

6. The effect of a bond is that if the mother does again breach orders without reasonable excuse, she will be sentenced again for the offence for which she received the bond as well as for the instance in which she is subsequently found to have breached the order without reasonable excuse. 

7. It is submitted on behalf of the mother that whilst his client will enter into a bond, the court should look at the duration of the bond being a maximum of two years as the most serious bond that I would impose.  Counsel’s submission was that a short, sharp bond would be appropriate in this circumstance, which was initially suggested to be six months.  However, counsel for the mother did not make clear to me why a bond of two years duration is more onerous than a bond of shorter duration if all the mother is required to do is to abide orders of the Court. 

8. I will impose a bond in relation to the first contravention, which I consider to be the more serious of the contraventions.  It was the first period of holiday time that O was to spend with the father and his other siblings.  The bond will be for a period of two years and it will be without surety or security, and the condition for the mother to be of good behaviour and to abide orders of this court. 

9. In relation to the second contravention, I will impose a penalty which involves make-up time to be had by the father on the weekends of 21 August and 16 October. 

10. In relation to the third contravention, I will impose make-up time on 13 November and the September school holidays.

11. With regards to the fourth contravention, I impose make-up time over the summer school holidays. 

12. The father gave notice of the times that he sought make-up time and that the mother has agreed to those without exception.  The extra time will not be convenient for the mother. However, she has agreed with what the father sought and that is to be commended.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  15 October 2009