H & V
[2005] FMCAfam 519
•3 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & V | [2005] FMCAfam 519 |
| FAMILY LAW – Contravention of Child Order – children aged seven and five removed by father from mother for 47 days in contravention of residence and contact orders made by the Family Court and taken interstate – children returned after execution of recovery order – father acknowledges breach and has no previous findings of contravention against him – whether stage two or three of Parenting Compliance Scheme applies – does father’s conduct amount to a serious disregard of parenting order – whether sentence of imprisonment should be imposed – issues of general and personal deterrence – whether sentence should be suspended in whole or part – father sentenced to four months imprisonment to be released on a bond following one month of sentence being served. |
| Family Law Act 1975, ss.70NF, 70NO, 70NJ |
| The Queen v De Simoni (1981) 174 CLR 383 Cummings and Cummings (1976) FLC 90-100 |
| Applicant: | J S H |
| Respondent: | S D V |
| File Number: | ADM4007 of 2001 |
| Judgment of: | Brown FM |
| Hearing date: | 28 September 2005 |
| Delivered at: | Darwin |
| Delivered on: | 3 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms H |
| Solicitors for the Applicant: | N T L A C |
| Counsel for the Respondent: | Ms T |
| Solicitors for the Respondent: | J T B & S |
ORDERS
The court finds that, on his own acknowledgement, the respondent
S D V has contravened orders of the Family Court of Australia made at Adelaide on 24 September 2003, without reasonable excuse, in that he failed to return the children of the relationship T N H-V born on
20 August 1996 and A A V born on 26 August 1998 to the applicant J H at the W S Police Station at 5.00 pm on 18 October 2003 as required by the aforesaid order and thereafter he unlawfully withheld the said children from the applicant until 5 December 2003.
The court further finds that the respondent has behaved in a way that showed a serious disregard for his obligations under the orders made on 24 September 2003 and is satisfied that it is appropriate for the respondent to be sentenced under the provisions of section 70 NJ of the Family Law Act 1975.
The court further finds that it is not appropriate for the respondent to be sentenced other than in accordance with the provisions of section
70 NO(1) of the Family Law Act 1975 that is by way of a term of imprisonment and no other of the sanctions as set out in section
70 NJ(3) are appropriate to the circumstances herein.
Pursuant to the provisions of section 70 NJ(3)(e) of the Family Law Act 1975 the respondent is sentenced to a term of imprisonment of four months to be calculated to commence from 28 September 2005 in respect of the contravention of child order as set out in order one hereof.
Pursuant to the provisions of section 70 NO(5) of the Family Law Act 1975 it is directed that the respondent be released from imprisonment on 26 October 2005 on a bond in his own recognisance in the sum of $500.00 on condition that he be of good behaviour for a period of two years and obey all orders of the Family Court of Australia and the Federal Magistrates Court of Australia to which he is a party in respect to the children of himself and the applicant herein J H and any other orders of these Courts to which he is a party.
In the event of the respondent breaching the terms of the recognisance ordered this day the respondent be imprisoned and serve the balance of the sentence imposed herein namely the period of three months imprisonment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ADM4007 of 2001
| J S H |
Applicant
And
| S D V |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to an Application for Contravention of Child Order filed by J S H on 10 December 2003. The respondent to the application is S D V. The parties are the parents of two children
T N H-V born 16 August 1996 and A A H-V born 26 August 1998.
In her application, Ms H alleges that Mr V has contravened some orders made by Registrar K in the Family Court at A on 24 September 2003. The particular orders concerned are orders 4 and 5 of the orders of 24 September 2003, which read as follows:
“4.That paragraph 2 of the Orders of 17 April 2001 is suspended in relation to overnight contact.
5.That during the period of the adjournment that the father have contact with the children T N H-V born on 20 August 1996 and A A H-V born on 26 August 1998 each alternate Saturday from 10.00am until 5.00pm to commence on Saturday 4 October 2003.”
The orders of 17 April 2001, referred to above, were made by Her Honour Justice M, in the Family Court at A, following an eight-day hearing. The children concerned were separately represented in the proceedings. A family report was prepared. Ms H was legally represented throughout the proceedings. Mr V was represented in respect of certain aspects of the proceedings.
In her initial judgment in the matter, handed down on 21 February 2001, Justice M granted the residence of the two children concerned to Ms H and dismissed her application to relocate with the children from A to D. The later orders of 17 April 2001, related to the contact Mr V should have to the children in those circumstances and given that Her Honour had found that the parties had a turbulent and difficult relationship with one another. Order 2 of these orders provided as follows:
“2.That the mother do give and the father do have contact with the infant children T N H-V born on the 20th day of August 1996 and A A H-V born on the 26th day of August 1998 each alternate weekend from 10am on Saturday until 5pm on Sunday commencing 21st April 2001 the handover venue to be at the A S Police Station until the handover venue can become the Children’s Access Program at B B the parties to do all such things and sign all papers necessary to enable such venue PROVIDED HOWEVER that all such contact take place within the metropolitan area of A and overnight shall take place either at the paternal grandparents’ home or at the father’s sister’s home.”
Ms H’s Contravention application presently before the court alleges as follows:
“On the 18th of October 2003 the father failed to return the children to the W S Police Station at 5.00pm pursuant to the Orders of 24th September 2003.”
As required by Rule 25B.04 of the Federal Magistrates Court Rules, this allegation was read to Mr V at the commencement of the hearing on 28 September 2005 and he was asked whether he wished to admit or deny the allegation. Mr V was represented by his counsel, Ms T, at this hearing. He indicated to the court that he admitted the contravention and was guilty of it. The hearing of the application then commenced.
Accordingly these proceedings are concerned with the appropriate sanction to be imposed upon Mr V for his admitted breach of orders. The proceedings are governed by Division 13A of Part VII of the Family Law Act 1975.
The relevant rules of the court require an applicant in contravention proceedings to file an affidavit in support containing sufficient facts to enable the court to deal with the particular contravention application. In this case, counsel for Ms H, Ms H, supplied a list of the documents her client relied upon. Ms T objected to the admission of some of these documents.
During the course of the hearing I ruled that Ms H was entitled to rely on the following documents:
i)Two affidavits of herself filed on 20 October 2003 and 12 December 2003 respectively;
ii)The judgment of Her Honour Justice M handed down on 21 February 2001.
The first affidavit was Ms H’s principle affidavit in the matter. The second affidavit related to an application Ms H later made to the Family Court in A to relocate with the children to D. Her reasons for wishing to so relocate related to the circumstances of the contravention.
I ruled that this affidavit was relevant to the current proceedings and should be read in them. I also considered that the judgment of Justice M was relevant, as it provided extensive background to the parties’ long involvement with the court process over several years.
Ms H had also prepared a chronology of the parties’ litigation in this court and the Family Court in A. The chronology was sought to be tendered as an aide memoire for the court. Ms T objected to the chronology. In particular the assertion contained in it that Mr V had previously, on six occasions, “unlawfully” removed the children from the mother, five of these occasions having allegedly occurred prior to Justice M’s orders. The sixth being the subject of these proceedings. The five earlier occasions were each alluded to in Her Honour’s judgment.
Ms H conceded that none of these five incidents had resulted in either contravention or contempt proceedings before this court or the Family Court of Australia and accordingly could not form the basis for any finding of prior contravention for the purposes of section 70NJ of the Act. Ms H therefore conceded that the word “unlawful” should be excised from the chronology. I elected not to admit the chronology. Rather I relied on the court’s own file to follow the history of the parties’ litigation with one another. Thus I was able to follow the various applications listed by the parties and see their outcomes.
I also upheld the objections of Ms T to the admission of material, in affidavit form, which related to Mr V’s conduct since the breach, particularly since he had come to D most recently and been released on a recognisance to appear before the court in respect of these proceedings. I ruled that the relevance of this material was limited but its potential to be prejudicial to Mr V was great.
A perusal of Justice M’s judgment indicates that Her Honour was critical of Mr V for keeping or removing one or other of the children from Ms H at various times between July 1999 and April of 2000. These incidents are now some years ago and importantly occurred before Her Honour’s orders were made. It should also be noted that Her Honour was also critical of Ms H for unilaterally removing the children from A, where they had been living up to that stage, to D between May and August of 2000, without obtaining Mr V’s consent or indeed consulting him.
None of these various incidents resulted in specific contravention or contempt proceedings, although recovery orders were issued on a number of occasions. Ms T was concerned that these various incidents had the potential to prejudice unfairly the court against Mr V. As a result of reading Justice M’s judgment, I am aware of Her Honour’s adverse findings against Mr V in respect of his removal of the children from Ms H (and indeed of Her Honour’s criticisms of Ms H’s unilateral action in coming to D with the children). However, I am also aware that Mr V is not to be punished for matters in respect of which he has not been charged and to which he has not been given an opportunity to formally put a defence or raise any reasonable excuse he may otherwise have.
In The Queen v De Simoni[1], Gibbs CJ, with whom Mason and Murphy JJ concurred, said at 389:-
“. …the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects for present purposes, that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”
[1] The Queen v De Simoni (1981) 174 CLR 383
These are proceedings in respect of civil contempt. The parties to the proceedings were involved in a defacto relationship for some years and are the parents of two children. It is clear that they have been involved in vitriolic and protracted proceedings with one another in this court and the Family Court at A over very many years. In my view, the current proceedings and the appropriate sanction to be imposed in respect of them, cannot be dealt with in an artificial vacuum away from the parties’ background with one another. Early authorities from the Family Court of Australia, notably Cummings and Cummings[2], stress the importance of the court considering the nature of the parties’ future relationship, as the well as the need to ensure compliance with particular orders in future, as some of the matters to be considered in deciding what penalty should be imposed for a civil contempt relating to family law proceedings.
[2] Cummings and Cummings (1976) FLC 90-100
In my view, it is equally important for the court to be aware, in general terms, of the nature of the past relationship between the parties in order to determine how a particular contravention is to be dealt with. In the vast majority of such cases, contravention applications occur against a difficult and troubling background. In such cases, individual events cannot be artificially excised from the parties’ concerned long and troubled background with one another. As His Honour Justice Opas observed in U and U [3]:
“The breakdown and the events leading to the breakdown of a marriage are frequently traumatic to the parties and to the children. Emotions are seared; pride is damaged. Some feel inadequate and unable to cope. Sometimes great bitterness is engendered and even hatred. Such emotions in tumult have not infrequently resulted in violence and even tragedy. Where parties are in conflict they not infrequently seek to use the children as weapons in their warfare. The wilful disobedience of orders in relation to children is a common occurrence.”
[3] U and U (1979) FLC 90-648 at page 78,421
However, I must not lose sight of the principles laid down in De Simoni to which I have already referred. Mr V is not to be punished for offences or contraventions in respect of which he has never been charged.
The circumstances surrounding the contravention
Pursuant to the orders of Registrar K, made on 24 September 2003, Mr V was to have contact to T and A on alternate Saturdays from 10.00am to 5.00pm. This arrangement was to commence on 4 October 2003. Mr V had contact to the children on this particular Saturday, the children being exchanged between the parties at the W S Police Station.
On Saturday 18 October 2003, Ms H delivered the children to Mr V at the W S Police Station, as the orders required. She returned to the police station at 5.00pm that day to collect the children. Neither Mr V nor the children attended. Ms H waited forty-five minutes but to no avail – the children were not delivered up to her. In addition she attempted to contact Mr V by mobile phone but was unsuccessful. On the following Monday she attended at the children’s schools to see if they were there. They were not. As a result, she promptly made application in the Family Court of Australia at A for a recovery order. This recovery order was issued by the court on 22 October 2003, at which stage Mr V’s contact order was also suspended.
Agents of the Australian Federal Police were not able to locate easily either Mr V or the children concerned. The authorities believed that the children were living with Mr V in his car. As a result of these difficulties, Ms H applied further to the court for an order allowing publication of details of the proceedings in the media so that the children might be traced. Such an order was made by the court on 7 November 2003.
On 3 December 2003, information was received by the Australian Federal Police, which caused the police to believe that Mr V and the children were in the C area. As a result, Ms H immediately flew to C by means of monies advanced to her by the S A D of F and Y S. She arrived in C on the evening of 4 December 2003. Federal Agents executed the recovery order on 5 December 2003. Ms H was on hand to accept the children from the agents involved in the recovery. Accordingly, the children were removed from Ms H’s care, in contravention of Justice M’s residence order, for a period of approximately forty-seven days.
By his acknowledgement of the contravention allegation, at the commencement of these proceedings, Mr V is taken to have formally admitted these facts. At a later stage of the proceedings, he himself elected to give sworn evidence in respect of the incident. Up to that stage, he elected not to file any affidavit material in response to the allegation. This of course is his entitlement.
Background of the parties
Mr V was born on 22 June 1963. Ms H was born on 2 September 1973. The parties were involved in a defacto relationship between June 1995 and June of 1999. After the parties separated, Ms H commenced a relationship with Mr M. She and Mr M have two children, Z and A.
In her judgement, Justice Murray said as follows:
“Following separation there has been a history as regards T and A comprising lulls of successful contact interrupted by the father on several occasions removing one of the children from the mother, he says, with her consent, she saying against her will, and finally she taking both children to D with Mr M without the consent of the father. Both Mr M and the mother have family in D. Both have declared their intention to marry.”
It is not useful at this late stage to detail exhaustively the parties’ history with one another, as recorded by Justice M in her judgement other than to say that Her Honour criticised the conduct of both parties in taking actions independent of the other in regards to the children. On several occasions recovery orders were issued. On one occasion Mr V took T to B from A. Any reasonably intelligent person reading the judgement would be well aware, from its tone, that the Family Court disapproves of such conduct.
It is also clear that Mr V was deeply suspicious of Mr M and believed that he was an inappropriate person to have any dealings with his children, particularly A. He also believed that Ms H had difficulties with illicit drugs and has been at times a neglectful and incompetent parent.
In her judgement, Justice Murray described Mr V as follows:
“The father is deeply emotionally attached to his two children, so much so, I find that his deep affections have blunted his perceptions. He has not thought through the consequences of his actions on a number of occasions. I assess him as having good parenting capacities, save and except that his impetuosity impedes the level headedness a parent ideally should have. He is presently unemployed. He last worked as a plasterer in early 1999. I give little weight to his evidence that he has been looking for work.”
Overall Justice M determined that the children’s best interests would be served if they lived with Ms H. However, Her Honour did not believe that it would be in either child’s best interests if their residence was changed from A to D, as this would have the consequence of interrupting the parental relationship between Mr V and the children. However, Her Honour was concerned at the father’s previous behaviour in unilaterally removing one or other of the children from Ms H in the period leading up to the conclusion of the first case. Her Honour said as follows:
“The father did undertake that he would not snatch the children again, and I am of the view that he needs to have the opportunity to prove himself so that the children may benefit from his love and affection for them. I assess both parties and Mr M as having been unable to think very far ahead so as to appreciate the consequences of their actions.
Ms L was of the view that the father should undergo counselling before he was allowed unsupervised contact, as she regarded his behaviour in taking the children, should it be repeated, as having a long term adverse impact on the children’s behaviour. She noted too that the children could pick up on the mother’s tensions and anxieties. She was further of the view that there should be not too much contact too quickly.”
Ultimately it seems that Justice M accepted Mr V’s undertaking regarding what Her Honour described as the “snatching” of the children. As a result, orders for alternate weekend contact were made. These were subject to the proviso that the contact should take place within the A Metropolitan area and at either Mr V’s parents’ or sister’s home.
These orders did not end litigation between the parties. A perusal of the court record indicates that Mr V has issued nine contravention applications against Ms H in the period since. In addition, he has attempted to change the residence arrangement in respect of the children. In my view, this history indicates that Mr V has never accepted the adjudication of Justice M and the orders which she made but rather he has constantly sought to undermine them.
All of Mr V’s contravention applications have been dismissed. Orders for costs have been made against him. A constant theme of Mr V’s applications is that Ms H is an unfit mother and the children concerned are at risk in her care. He has made notifications to the relevant authorities of his belief that Ms H has abused or allowed the children to be abused whilst in her care. No court has made a finding to this effect.
A number of Mr V’s contravention applications, involving Ms H, were heard by me in the Federal Magistrates Court in A on 15 April 2003. In the course of his evidence, Mr V was cross-examined by counsel for Ms H and admitted that he was not taking overnight contact with the children at either the home of his mother or sister as Order 2 of the Orders of 17 April 2001 required.
As a result of this acknowledgement, Ms H brought an application to vary the orders in the Family Court at A. This was the application which was dealt with by Registrar K on 23 September 2003, and which resulted in Mr V’s contact being reduced from overnight to daytime only.
I should also point out that, at the end of the hearing on 15 April 2003, I dealt with an application by Ms H to have Mr V restrained from bringing further applications concerning the children without the leave of the court. It being Ms H’s position that she was mentally exhausted at the seemingly endless applications from Mr V, which from her point of view seemed maliciously motivated and which, up to that stage, no court had found to have any foundation. I granted Ms H’s application.
It also appears that the parties had been excluded from the children’s contact handover service administered by R A at H. It is Ms H’s position that this was as a result of misconduct on Mr V’s part. I am unable to make any finding in this regard. However, on 11 December 2001, Federal Magistrate M made an order, with the consent of the parties, that all future handovers in respect of the children should take place at the W S Police Station.
It is clear that Mr V was aggrieved at the decision of Registrar K to alter the terms of contact. He commenced his own proceedings to vary the contact. His application was listed at the same time as Ms H’s application to reduce his contact. As a result of my order of 15 April 2003, Registrar K was of the view that she was unable to deal with Mr V’s application other than by striking it out. No doubt Mr V considered that this was grossly unfair to him.
In my view, it cannot be said that Mr V did not understand the meaning of Registrar K’s order. It is clear that Mr V complied with the order on 4 October 2003. He returned the children as required on the Saturday afternoon. At the time the parties had been involved in almost constant litigation for over four years. Both were well aware of the significance of court orders. Indeed it is a theme of Mr V’s various applications that Ms H herself does not have proper regard for them.
On 18 December 2003, the Family Court at A, made orders allowing Ms H to move to D with the children concerned. It seems that Mr V was not greatly involved in these proceedings. The children having only recently been recovered from him. At some stage thereafter, at least temporarily, Mr V also moved to D, presumably to be closer to the children. Ms H made it clear that she wished to proceed with her contravention application, which apparently had been filed in tandem with her application to relocate the children. On 20 August 2004, Judicial Registrar F transferred Ms H’s Contravention Application to the Federal Magistrates Court at D. The court record indicates that Mr V appeared at court on this occasion via the telephone. The order for transfer is prefaced with the notation that “both parties are now residing in D”.
The matter first came before me in D on 31 August 2004. Mr V did not appear and the proceedings were adjourned to 5 October 2004. On
5 October 2004, Mr V appeared before the court by telephone. As I recall, the court telephoned Mr V of its own initiative. The proceedings were adjourned to 26 October 2004. On 26 October 2004, Mr V again appeared by telephone. He indicated that he would be coming back to D shortly but was currently interstate. As a result, the proceedings were adjourned to 25 January 2005.
On 25 January 2005, in spite of his assurance that he was returning to D, Mr V did not appear in person but was telephoned by the court. Again he reiterated that he was intending to return to D. As a result a warrant for his arrest was issued but it was directed that it should lie on the court file until 24 February 2005. By this stage my patience in respect of Mr V’s assurances that he was coming to D had worn thin.
I wished him to understand that if he did not return to D voluntarily he would be brought here against his will. I indicated to him that the warrant would issue if he did not appear on 24 February 2005.
On 24 February 2005, Mr V did not appear but was once again telephoned by the court. Mr V, as I recall, reiterated his intention to come to D but indicated that his finances were strained. It was ordered that the warrant should issue. The contravention application was fixed for hearing on 26 April 2005. Mr V did not appear.
Due to an administrative error the warrant ordered to issue on
24 February was not directed to the appropriate authorities until 8 April 2005. The proceedings were mentioned from time to time but Mr V did not appear. The original warrant expired and a fresh one issued.
On 25 August 2005, Mr V came to D and surrendered himself to Agents of the Federal Police. He was immediately brought before me in court and I ordered his release pending the hearing of the contravention application. His release was subject to a reporting and residential condition. In addition he was restrained from contacting either Ms H or the children concerned. The proceedings were adjourned so that Mr V could obtain legal advice. It is common ground between the parties that Mr V has not had physical contact with either T or A since the Federal Police removed them from his care in December of 2003.
Mr V’s evidence and my assessment of it
Initially Ms T indicated that Mr V would not give evidence in these proceedings. However during her submissions on penalty, Ms T indicated that it was her client’s instructions to her and his position that the children concerned had been in telephone contact with their mother during the period they were away from her and he himself had been in discussion with Ms H as to how the children were to be returned to her. In Ms T’s submission these were factors that diminished the gravity of the contravention. In addition the reason given by Mr V for contravening the orders was that he wished to visit relatives in C with the children, particularly his father who, at the time, had recently undergone serious heart surgery. Again it being the implication of Ms T’s submissions that Mr V had given in to understandable human impulses when he took the children.
Ms H indicated, through her counsel, that she did not accept the truth of any of these assertions. As a result Mr V elected to give evidence in regards to these matters and to be cross-examined by Ms H. I also had the opportunity to make some assessment of Mr V’s credibility. Regrettably, I did not find him to be a truthful witness. I did not believe much of what he said. In my assessment many of his assertions were made in an attempt to extricate himself from the difficulties he currently faces. I am unable to make a positive finding that Mr V’s father had had heart surgery at the relevant time.
I disbelieve him when he says that he was in discussion with Ms H to return the children to her. The evidence is clear that the full process of the law had to be followed before the children were returned to Ms H. Ms H may have been able to speak to the children from time to time via the medium of Mr V’s mobile telephone. However it is clear that Mr V did not give any indication to Ms H as to the actual whereabouts of the children. She remained in the dark in this regard.
In his evidence Mr V indicated that he was sorry for what he had done and said that he “should not have done it”. He publicly apologized to Ms H, directing his apology personally to her to where she sat in court. If I am any judge of human demeanour, so far as Ms H was concerned, the apology fell on deaf ears. To me it rang as hollow and contrived. If Mr V is sorry for anyone, it is for himself and the fact that he has not seen T and A for nearly two years. In that sense the proceedings present something of a dilemma for Mr V. On the one hand he would be glad to protract or avoid them for as long as possible but on the other hand this will mean his relationship with T and A will be further interrupted. I accept that Mr V loves both children very much. However I do not believe that I am being unduly cynical when I reach the conclusion that Mr V is not greatly remorseful for his actions and the emotional consequences they have had for Ms H.
To my mind it was telling that Mr V indicated in his evidence that at the time he removed the children from Ms H he thought that they would be better off in his care. This has been the tenor of his actions throughout the litigation to date. Indeed it is the tenor of two cards he wrote to the children at Christmas time of 2004, which were tendered into evidence by Ms H. In the cards he offers inducements to the children to come and live with him. The cards paint a picture of a naïve and manipulative person. In my assessment Mr V is not a particularly insightful person and is one who does not consider the consequences of his actions either for himself or for others.
Mr V has an extensive history of involvement in the family law process. He is aware that the court takes a dim view of parties taking things into their own hands so far as arrangement for children are concerned. He himself has been a victim of such behaviour in the past and has felt aggrieved by it. In addition, in 2001, he himself has previously promised the court that he will not again remove the children concerned from Ms H without proper authorization. Justice M gave him the benefit of the doubt in this regard.
Since the orders of April 2001 were made, Mr V has mounted a concerted campaign against Ms H in the form of almost constant self-managed litigation against her. No court has found any of his concerns about Ms H to have any merit. Ultimately it has been determined that his further applications should be vetted by the court before being served on Ms H so as to avoid her and those funding her being put to unnecessary expense and to spare Ms H herself from unnecessary harassment. No doubt this decision annoyed Mr V but it was not subject to appeal by him.
As a result of Mr V’s admission that he was not taking overnight contact where he was supposed to and was himself contravening court orders, Ms H commenced proceedings to change the contact orders. She was successful in her application. Once again, no doubt, Mr V felt aggrieved at this decision, his sense of grievance being intensified by the fact that his application to vary the contact orders to suit himself was dismissed at the same time. It is against this background that his actions in removing the children from their mother for a period of forty seven days must be considered.
I find it difficult to reach any other conclusion than that Mr V’s actions were considered and came about in deliberate defiance of the Court’s orders, which he considered wrong and unfair. In addition, in my assessment, his actions had an element of vindictiveness so far as Ms H was concerned. The children were taken interstate, far away from their usual place of residence. Their education was interrupted. The children were recovered from Mr V only with the intervention of the police and after information had been disclosed to the police after an advertising campaign.
For reasons already provided, I do not accept that Mr V is truly remorseful. Mr V has taken his time to deal with the contravention application, which seems to have been transferred to D with some element of acquiescence on his part. In any event he has given many indications to the court of his willingness to come to D and at least at one stage was living in D. In my assessment Mr V has come to the realisation that the only means by which he may recommence his relationship with A and T is by disposing of these proceedings. In that sense I do not consider his plea either spontaneous or heart felt. In my view his behaviour in defying the court order must be regarded as a serious matter.
The applicable law
Division 13A of Part VII of the Family Law Act is headed “Consequences of failure to comply with orders, and other obligations, that affect children”. It provides a comprehensive regime designed firstly to avoid contravention proceedings by creating mechanisms to ensure that orders pertaining to children are followed in the first place and, secondly, if orders are breached that appropriate remedies are available to deal with those breaches. The Division effectively creates a three-tier system of enforcement.
The first tier is designed to prevent breaches occurring in the first place, through a process designed to convey knowledge and information about children’s orders to the parties to such orders. That is to ensure that people, who are parties to orders know what the orders themselves mean and what are the possible consequences of them being breached.
The second tier deals with people who have been found to have contravened an order for the first time and creates a regime whereby such people can be educated as to the consequences of their breaches and so avoid committing further breaches in the future. The chief mechanism for this is for a person to be directed to attend a Post Separation Parenting Program. At this stage, the court also has power, under section 70NG, to make a further parenting order that compensates for lost contact or otherwise to vary the contravened order. It is also open to the court to adjourn the contravention proceedings to allow either or both of the parties to the primary order to apply for a further parenting order.[4]
[4] See Family Law Act section 70NF(1A) and (1B)
The third tier is reached when there have been repeated breaches of orders, or there has been such a serious breach that it is appropriate that a punishment be imposed, both to deter the parent concerned and to reinforce to members of the wider community the importance of compliance with children’s orders. The powers open to the court at this stage range from the imposition of a bond to a term of imprisonment.[5]
[5] See Family Law Act section 70NJ (1A) and (1B) and section 70 NF (2)
As has already been indicated, Mr V has not been previously found to have breached a relevant court order in respect of children. In those circumstances it is the submission of Ms T that Mr V should be dealt with under the second tier of the contravention regime – that is under the remedies available under section 70 NG of the Family Law Act. Ms H believes that it is appropriate that the third tier should be invoked as, in her submission, Mr V’s conduct demonstrates a serious disregard for his obligations under the orders.
Was there a serious disregard of the primary order?
In support of her submissions, Ms T points to the fact that this is the first time that Mr V has been charged with a contravention of child order. This is so. As I have already pointed out, I cannot deal with Mr V in respect of matters in respect of which no charge has been laid and he has been given no opportunity to defend himself. However I do believe I am entitled to take into account the fact that Mr V has previously undertaken to the court not to remove the children from Ms H and is well aware of the disapprobation the court has of those who exercise self-help in regards to arrangements for children’s care. Mr V cannot be described as a neophyte in this regard.
Ms T furthers her submission by pointing out that Mr V has never had the benefit of previously attending a post separation parenting course or some other appropriate form of counselling. In such circumstances, it is her submission that it is the clear implication of the legislation that the court’s emphasis in penalty should be on reformation rather than on punishment. In her submission attendance at such a course is likely to be the best means of reforming Mr V’s conduct and attitude rather than some more condign punishment. Accordingly, it is her submission that, it would be unwarranted for the court to skip over the second tier at this stage. She also points to the fact that Mr V has not sought to contest the charge against him and, in her submission, as such, is to be taken to have demonstrated remorse for his actions.
Pursuant to section 70 NF(2) of the Family Law Act, the second tier of the enforcement regime contained in Subdivision B does not apply if “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.”
In Ms H’ submission, Mr V has shown such a serious disregard for his obligations under the residence order made in Ms H’s favour. She points to the length of time the children were out of her client’s care; the fact that they were recovered only after the intervention of the police and a recovery order had been made; the fact that Mr V took the children interstate far away from where they habitually lived; and the fact that Mr V was present when the order contravened was made and is well conversant with court procedure and the importance of adherence to orders of the court.
I agree with Ms H’ submission. In my opinion Mr V’s conduct has passed the point where the reformation of his behaviour is the most important consideration for the court. Cases where one parent knowingly and in defiance of court orders removes a child from a parent who has a residence order in his or her favour is behaviour which must be treated as extremely serious by the courts. Such cases strike at the court’s authority and if not dealt with firmly undermine the worth of such residence orders. Cases involving the unlawful and protracted removal of children raise issues of both general deterrence for others in the community who would act in the same way and of specific deterrence for the individual offender concerned.
In my view, this was a protracted removal, being almost seven weeks in duration. It is an aggravating circumstance that the children were removed interstate. I have no difficulty in reaching the conclusion that Mr V knew that what he was doing was wrong and his actions contained a strong element of deliberation. He deliberately thumbed his nose at both the court and Ms H. For reasons already provided, I have reasons to doubt the genuiness of his regret for his actions. In my assessment, he lacks insight into both the seriousness of his behaviour and its implications for others. In those circumstances, I am not persuaded that it is likely that he will greatly benefit from a post separation parenting course or some other form of counselling.
In G and G[6] Watson S.J. said as follows:
“Punishment for contempt arising out of child abduction should be based upon the two principles earlier stated by me namely:
(a)the punishment should be sufficiently severe to deter others from treating the orders of the court with contempt;
(b)the punishment of the contemnor should be specifically directed to deterring him from offending again.”
[6] G and G (1981) FLC 91-042 at p 76,370
As the Full Court of the Family Court remarked in Tate & Tate[7]
“The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.”
[7] Tate & Tate (2003) Fam CA 112 (unreported) Full Court of the Family Court Nicholson CJ, Kay and Monteith JJ judgment handed down the 13th of February 2003
In order to bring home to the community as a whole that the integrity of orders of this Court and the Family Court will be preserved, it is imperative that litigants know that orders of both Courts will be enforced and in appropriate cases sanctions imposed for breaches of orders. Litigants are entitled to have an expectation that court orders will be obeyed and that the court will impose sanctions if this does not occur. As Evatt CJ said in G & G[8]:
“What is in issue is to ensure the proper functioning of the mechanisms provided by the Family Law Act for the resolution of family conflict. These mechanisms have as their guiding principle the protection of the welfare of children. If the court is not seen as effective in this function, if it is difficult to bring a case before the court or to secure compliance with its orders, people will be tempted to turn away from the legal system and to take what they want by whatever means are open to them including force. If individual instances of defiance are ignored, then the effectiveness of the whole system will be eroded and the court’s power to protect a weaker party against oppression will be diminished. The protection of children’s welfare will be subordinated to the selfish interests of one party or another.”
[8] G & G (supra)at page 76,361
In all the circumstances of the case, I am satisfied that Mr V has behaved in a way which shows a serious disregard for his obligations under the primary order. Because of the objective seriousness of the breach, I am satisfied that that this matter cannot be satisfactorily dealt with under subdivision B. In my view the sanctions available under that subdivision are inadequate to address the consequences of Mr V’s non compliance with the residence and contact orders made in this matter. Accordingly he must be dealt with under subdivision C.
The appropriate penalty under s.70NJ (3) of subdivision C
Section 70NJ(2)(a) of the Family Law Act provides that the Court must make the order or orders available under subsection 3 that it considers to be the most appropriate in the circumstances. Section 70NJ(3) lists the available orders as follows:
·a community service order;[9]
·a bond;[10]
·an order varying the order contravened;
·a fine of no more than 60 penalty units;
·a sentence of imprisonment.
[9] Section 70 NK (2A) sets out the various kinds of community service orders available. These include attendance centre orders or work orders or similar orders, however described.
[10] See section 70 NM
Section 70NO provides that a sentence of imprisonment imposed pursuant to section 70NJ(3)(e) is to be expressed for a specified period of 12 months or less, or for a period ending when the person complies with the order concerned or has been in prison for 12 months or such lesser period specified by the court, whichever happens first.
Pursuant to section 70NO(2) a court must not sentence a person to imprisonment unless satisfied that in all the circumstances of the case, it would not be appropriate to deal with the contravention under any other of the subparagraphs of section 70NJ(3). If a sentence of imprisonment is imposed, the Court must state the reasons it is satisfied no other sanction is appropriate and cause them to be entered into the records of the court. Accordingly, it is clear that a sentence of imprisonment is a sentence of last resort.
Pursuant to sections 70NO(4A) and (5) a court may suspend the operation of all or a portion of a sentence of imprisonment or order early release pursuant to the conditions of a bond.
A sanction imposed for a contravention of an order must be proportionate to the contravention. The principle of proportionality applies – that is the sentence must be of a severity which is appropriate in all the circumstances. So, too, does the principle of parsimony – as imprisonment is a sentence of last resort, a court should not impose a sentence which is more severe that that which is necessary to achieve the purpose for which it is imposed.
Other general principles of sentencing need to be considered when considering an appropriate penalty. These include the nature and circumstances of the contravention or contraventions and factors relevant to the person found to have contravened the orders. The Court can consider factors personal to the offender (such as his or her character, antecedents, age, means and physical or mental condition, so far as is relevant and known to the Court) and conduct since the contravention occurred, such as remorse.
However, in imposing an appropriate sentence, the Court must also consider issues of general deterrence and the preservation of the effective operation of the legal system itself, which is designed to adjudicate matters in dispute between parties. In large part, such a system can only be effective if its decisions are enforced. A society governed by the rule of law cannot countenance the wilful and deliberate breach of an order of a court of cognisant jurisdiction. Such conduct must be condemned.
Ms H submitted that, given the seriousness of Mr V’s actions and the clear indications in the applicable authorities that cases of child abduction should receive condign punishment, the only available penalty for the court to impose was imprisonment. Ms T submitted that this was a case were it was appropriate for Mr V to be released on a bond subject to conditions. She argued that this was likely to be the best mechanism to ensure Mr V’s compliance with future orders of the court.
Mr V has qualifications as a plasterer. In 2001, Justice M doubted that it was likely he would obtain employment in such a capacity in the foreseeable future. Ms T indicated to me that Mr V planned to work as a self-employed plasterer in D and had been approached to do jobs in the town. It seems to me that Mr V has not been regularly employed for many years. Mr V claimed impecuniosity as the main reason for his tardiness in attending court in D. Accordingly I doubt his capacity to pay any fine the court may impose.
I accept that Mr V has had a difficult and unhappy life. He was taken away from his own mother and did not meet her for many years. These difficulties do not excuse his behaviour. I also accept that it has been a great hardship for him not to see A or T for such a long period of time. However that is a difficulty of his own making and he cannot be described as having acted in a way which has been calculated to bring these proceedings to a conclusion sooner rather than later. However I take into account the sadness Mr V has experienced in being deprived of the company and affection of his two daughters. However that is a long way from me accepting that Mr V is genuinely remorseful for what he has done.
In all the circumstances of this case, I do not believe that a community service order is an appropriate penalty. Cases involving child abduction in the Family Law jurisdiction are ones which strongly raise issues of general deterrence. The community has an expectation that residence and contact orders in particular will be enforced and that the court’s adjudication in respect of children’s issues will be respected.[11] The court cannot condone any parent, no matter how convinced of the righteous of his or her position and no matter how deluded in this regard, from taking things into his or her hands after a decision has been made.
[11] See Ibbotsen v Wincen (1994) FLC 92-469 where the Full Court of the Family Court highlighted the Community’s interest that court orders are obeyed and said that “blatant disregard of the authority of the court and the rule of law in our society…gives rise to consternation and concern within the community generally”.
This is not a case were a variation of orders would address either the deterrent or punitive effects that are necessary for this particular offender. It must be brought home to both Mr V and others that the court will not tolerate parents who are bound by residence orders openly defying those orders. Mr V has said to the court in the past that he will not “snatch” the children in future. His actions show that he cannot easily be trusted in this regard. This is a factor that militates against release pursuant to a bond.
As I have already found, I consider that Mr V’s actions were calculated to some degree. It is a very long way from A to C. If this was purely a spontaneous and ill-considered action, I would have expected Mr V to have come to his senses and to have returned the children to Ms H of his own volition, long before the necessity for the recovery order to be utilised. He did not do so. I consider that at least part of what he did resulted from a desire to pay-back Ms H for attempting to reduce his contact. The court cannot tolerate such self-help or condone it in anyway. However, apart from the matters raised in the proceedings currently before me, there is nothing to suggest that Mr V is not a person of good character. I take this into account. I do not believe that he is entitled to any reduction in his sentence by reason of his acknowledgement of guilt. The case against him was overwhelming. It took him a considerable period of time to surrender himself to the court.
In all these circumstances, I have come to the view that the only appropriate sentence available is one of imprisonment. The issues that remain are the length of that sentence and whether any of or the entire sentence should be suspended. It is essential that there should be a level of consistency in sentencing. In this regard it is appropriate for the court to consider the sentence imposed in other cases involving the contravention of child orders.
In H & B[12] Scarlett FM sentenced a respondent to four months imprisonment. There the children concerned were removed for nine months and returned to their rightful custodian after lengthy court proceedings and pursuant to a recovery order. In K & J[13] the offender concerned unlawfully withheld a child from his mother for a period of over a year. The father had taken the child on holiday to G with the mother’s consent but broke his undertaking to return the child to A. The mother was compelled, in spite of the rulings of a G court in her favour, to forcibly recover the child in G. In these circumstances the Full Court considered that a sentence of nine months was appropriate.
[12] H & B (2002) FMCA fam 326
[13] K & J (2004) FLC 93-177
Ibbotson and Wincen[14] was also a case involving international abduction. The child concerned was out of his rightful custodian’s care for a period of about nine months. The Full Court considered that the offender’s actions were conscious and deliberate and his behaviour a blatant challenge to the court’s authority. He was sentenced to twelve months imprisonment to be suspended after six months subject to conditions. The Full Court described this sentence as a moderate one.
[14] Ibbotson and Wincen (supra)
W & B[15] was a decision of His Honour Justice Coleman in respect of a sentence of imprisonment imposed in the Federal Magistrates Court in respect of a contravention of child order. The sentence imposed at first instance was one of seven months. No portion of this was suspended. The case involved the removal of two children from their lawful custodian (the father) for a period of about forty eight days. The circumstances surrounding the removal of the children were unfortunate and violent.
[15] W & B (2003) EA 23 of 2003 unreported Coleman J delivered 6 May 2003
On appeal it was found that the learned Federal Magistrate concerned had taken into account extraneous factors regarding this removal and in particular the conduct of the respondent’s husband in the removal and so there had been an error in the sentencing process and the sentence itself was manifestly excessive. The respondent concerned (the mother) had moved interstate with the children, realising her actions had got her into serious trouble. However a recovery order that had been issued for the return of the children was not utilised as the children were returned to the father via the agency of a third party. The mother was found to be contrite and had promptly pleaded guilty to the contravention. On appeal the mother was released from prison after serving three months of the sentence imposed by the Federal Magistrate at first instance, on condition that she be of good behaviour for two years and obey orders of the court in respect of her and the father’s children. If she breached the terms of the recognisance it was ordered that she serve the remaining four months of the sentence originally imposed.
The maximum sentence available to the court in this matter is one of twelve months. Such a sentence must be reserved for the most serious offences. This is clearly not the most serious offence or contravention. Mr V is a first offender. Accordingly the court cannot rule out the possibility of Mr V seeing the error of his ways in future and being rehabilitated, so far as the requirement for him to adhere to children’s orders is concerned. The removal of the children from the mother, although significant, was a matter of weeks rather than months or years. No element of extraterritoriality was involved. In all the circumstances, I have come to the conclusion that the appropriate sentence is one of four months imprisonment. The sentence should commence on the day Mr V was taken into custody to await sentence that being 28 September 2005.
Mr V has signalled his intention to live in D in future and, in due course, seek the court’s leave to institute proceedings to reinstate some form of contact between him and T and A. In the past Justice M found that there was a significant relationship between him and these children and it was in the children’s best interests for that relationship to be maintained. How Mr V’s application will play out in future and what is the state of that relationship now, I cannot say. Both the community at large and the individuals concerned in these proceedings have a vested interest in ensuring that Mr V complies with all orders of the court in future. If and when Mr V does resume his contact with T and A, it is likely to be helpful if Mr V does have it in his mind that he is subject to the jurisdiction of the court in this regard and is liable to condign punishment if he flagrantly takes things into his own hands again. I agree with Ms T that this is likely to have some reformative effect, so far as Mr V’s conduct in future is concerned.
In these circumstances I have come to the conclusion that Mr V should be released from prison on 26 October 2005, if he is prepared to enter a bond pursuant to section 70NO(6) that he be of good behaviour for a period of two years and that he obey all orders of the court during that period. In these circumstances, the orders of the court will be as set out at the commencement of these reasons for judgement. In compliance with the applicable legislation, I publish these reasons to the parties concerned and direct they remain on the court’s file.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C White
Date: 3 October 2005
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