H v B
[2002] FMCAfam 326
•20 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & B | [2002] FMCAfam 326 |
| FAMILY LAW – Contravention of contact order – sentence of imprisonment. Family Law Act 1975 ss.70NF, 70NJ, 70NO Sahari and Sahari (1976) FLC90 – 086 |
| Applicant: | L H |
| Respondent: | B B |
| File No: | PAM149 of 2002 |
| Delivered on: | 20 September 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 20 September 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Solicitors for the Respondent | In person |
ORDERS
The allegations of contraventions by the Respondent between
22 December 2001 and 9 August 2002 of Orders 1, 2 and 3 made on
16 August 2001 are found proved.The Respondent has not proved that he had a reasonable excuse for contravening the said Orders.
The Court is satisfied that the Respondent who contravened the said Orders has behaved in a way that showed a serious disregard for his obligations under the said Orders.
The Court is satisfied that, in all the circumstances of the case, it would not be appropriate to deal with the said contraventions under any other paragraph of subsection 70NJ(3) except paragraph 70NJ(3)(e).
Pursuant to subsection 70NO(3) the reasons why the Court is so satisfied are:
(a)the intentional nature of the contravention of Order 3;
(b)the duration of the contraventions of Orders 1 and 2; and
(c)the continuing serious disregard of the Respondent’s obligations of the said Orders.
Pursuant to subsection 70NJ(3) the Respondent B D B is sentenced to imprisonment for a period of four (4) months to commence forthwith.
Pursuant to subsection 117(2) the Respondent is ordered to pay the Applicant’s costs of these proceedings as assessed or agreed within twelve (12) months from the date of these Orders.
I grant liberty to apply in respect of Order 7 on seven (7) days’ notice.
Pursuant to subsection 121(9)(d) leave is granted to publish a notice or report of these proceedings in a newspaper or periodical production, radio broadcast or television program in a form approved by the Registrar of the Federal Magistrates Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM149 of 2002
| L H |
Applicant
And
| B B |
Respondent
REASONS FOR JUDGMENT
The Application before the Court today is an Application for the Respondent Father to be dealt with for contravention of Orders which were made relating to the residence of the parties' daughter. The Orders were made in the local Court of New South Wales at P on 16 August 2001. Those Orders were made by consent and provided that the parties' child, J D B, who was born on 8 December 1999, should reside with the Applicant Mother but the parties should share the responsibility for the child's long-term care, welfare and development and that the Father have contact with the said child. That contact was envisaged to take place either in P or in K.
The circumstances which bring the matter to Court are that it is alleged that the Mother made arrangements for the Respondent Father to have contact to the child in K on Saturday, 22 December 2001. The parties met, the child J went with the Father, and some hours later at 3.30 pm the child was not returned to the Mother. The child, in fact, was not returned to the Mother until 9 August 2002 as a result of the child being found by the Australian Federal Police.
A Recovery Order was issued by the Family Court, proceedings were transferred to this Court. A Location Order was made and on
20 January this year, this Court issued a warrant for the arrest of the Respondent. A Publication Order was made permitting details of the child to be made available to the media and, indeed, members of the general public were asked if they could find the child. The Woman's Day, a national magazine, in fact ran an article about that particular issue. The photograph of the child, J, appeared on the website of the Federal Magistrates Court. The information before the Court is that it was a person who had read the article which was published in
the Woman's Day on 5 August this year and believed that that person had recognised the child from the photographs and notified the police, that lead to the child being found by the police and returned to the Mother.
Contravention proceedings brought before the Court were filed on
16 August. There are three alleged contraventions. They are:
(1)That in accordance with the Orders of 16 August 2001, the Mother made arrangements for the Father to have contact to the child in K on Saturday, 22 December 2001 and that the Father failed to comply with Order (3) of the Orders of
16 August 2001 in failing to return the child at 3.30 pm to the Mother, as required by those Orders.
(2)That since 22 December 2001 until 9 August 2002, the Father has retained the child, J D B, born 8 December 1999 in his care in contravention of Order (1) of Orders made 16 August 2001, namely, that the child reside with the Applicant Mother and that the Mother have the sole responsibility for the day-to-day care, welfare and development.
(3)That since 22 December 2001 until 9 August 2002, the Father has retained the child, J D B, born 8 December 1999 in his care contrary to Order (2) of Orders of 16 August 2001, providing that the parties share the child's long-term care, welfare and development.
The Respondent was brought before the Court, having been arrested, on 16 August 2002. At that stage, he was represented by a solicitor. The solicitor, on the Respondent's behalf, sought an adjournment so that she may make enquiries and obtain suitable instructions as to whether the allegations contained in the Contravention Application filed that same day, should be admitted or denied. As a result, the Court granted the Application for an adjournment and the matter was adjourned to Thursday, 5 September. The Respondent was released on a recognizance for the sum of $2000 in cash, on certain conditions relating to where he should live, to report to police on Mondays, Wednesdays, Fridays and Saturdays, and that he should attend Court on 5 September at 9.30 am.
The Respondent did, in fact, appear in Court on 5 September at
9.30 am. He was, again, legally represented. At that stage, the allegations were read to him. The Court enquired of him, through his solicitor, whether he had understood the three allegations. The Court was informed that he did. In respect of each allegation, he was then asked whether he admitted or denied the allegation. He informed the Court that in respect of each of those allegations, he admitted them.
An adjournment was then sought in order that the Respondent may prepare and make available any Affidavit material or other material and provide his solicitor with sufficient instructions so that she could adequately represent him when the Court was deciding what Orders should be made. At that stage, it had been made clear by Mr Kenny of counsel, appearing for the Applicant, that the Court would be asked to impose a serious penalty, in fact, the penalty of imprisonment.
Mr Kenny submitted to the Court that it would be that the Court should regard the matter very seriously indeed.
The Court decided to grant the adjournment to enable the Respondent to obtain the material which he may require. He had complied with his previous recognizance to attend Court and, accordingly, it was decided that he should be placed on a fresh recognizance to attend Court today. The reporting conditions were changed slightly and an Order was made that he was not to approach or contact the Applicant, that was a condition of the recognizance.
What then happened was that the Court was informed yesterday that the solicitors who had been acting for him were no longer representing him. Nevertheless, the Respondent did appear at Court at 9.30 this morning, the time when he was required to do so. He attended Court and he made certain submissions relating to his part in the matter and produced certain documents that he asked the Court to consider. I take into account the fact that the Respondent did, in fact, comply with the two recognizances upon which he was placed.
Submissions were made by Mr Kenny of counsel relating to the serious view that the Court should take of the matters. Certain authorities were tendered to the Court relating to earlier decisions made by the
Full Court of the Family Court, whose decisions are binding on this Court.
An Affidavit was prepared by the Mother and filed at the Court. In that Affidavit, the Mother described the anguish that she felt when her child was not returned. She described herself as saying:
“I was totally devastated and in the deepest agony. J is my only child. She was a planned pregnancy and I devoted my life to being her mother. That first night I could not sleep.”
She indicated a period of ongoing anguish. She sought medical advice, was prescribed Valium, she had difficulty sleeping. She said:
“I hated the night-time as I would be by myself. The nights were the most difficult time for me.”
She suffered from certain symptoms, she said, including mouth ulcers, symptoms of depression and grief. Over the first two or three months of J being taken, she said:
“I hardly left the house. I felt that I could not cope emotionally to meet anybody in the street who knew me and who knew J.”
She described how she was required to attend Federal Police headquarters in Sydney where she viewed various video footage of a child, but was not able to identify that child as hers and, in fact, it turned out that it was not. She then sets out in the Affidavit how the police informed her at 4.30 pm on 9 August that they had some information for her, and at 8.30 that evening, she was informed by the police that they had a positive identification of the child. This was the first time that she had had any indication of the whereabouts of the child J.
She and her Mother travelled to Cairns the following day and were taken to the home of the carer that was looking after the child. She described the child as being very hesitant and looking somewhat different, wearing a faded sleeveless dress that was very worn, and no shoes on. She described the child as having been different since she had been returned to her care and it has taken some time to renew her relationship with J. Apart from being older, the Mother says it is also clear that she has achieved a number of developmental milestones while she was away:
“It was a great shock to me to hear her speak when she was only beginning to talk when she was taken. When she was returned to me she could speak in full sentences.”
She goes on to describe difficulty about getting the child into a sleeping routine, for the child is fearful of the dark. She describes how when the child was first returned to her, she saw that her hair was different, her fringe had completely grown out and she says:
“The hair had blonde ends and it appeared her hair had been dyed. The blonde ends were about two inches around the bottom of the hair. The rest of her hair appeared to be quite a lighter shade than what it used to be. It appeared to me that she had seen a lot of sun.”
The Mother goes on to describe various aspects of the child's behaviour and also describes the fact that the child seems to have had some delay in her development, in that she is behind in her social interaction with other children, and in general development. She is still in nappies and demands a dummy. The Mother says:
“I became upset when one of the other mothers asked why she was still in nappies and using a dummy.”
She says:
“I can see clearly that most of the other children at her age are well out of nappies and not using a dummy. She is also not able to use a cup and is very clumsy with liquids.”
The Father has addressed the Court about his own circumstances and has produced some material which has been admitted into evidence. He produces four documents by way of character references. They all speak highly of him. One is from the Reverend W C, the minister of the K Baptist Church. One is from a P M, who taught him when he was at TAFE studying Year 10. She describes in her reference:
“In the second semester, B missed some classes because of his commitment to travel to Sydney for custody visits. B expressed concern to me about the amount of time and work he was missing, but his priority was to his daughter.”
There is a reference from Richard Watson, who is an elder of the K Baptist Church, who speaks highly of him; and Mr J C of Lighting Electrical at K, who knew the Respondent for a period of 13 months while he was employed. All of those documents speak highly of the Respondent.
The Respondent has also provided an Affidavit sworn at Atherton in Queensland in September 2002 from his brother, M J B. That Affidavit disputes some items referred to in an earlier Affidavit of the Mother, although in the circumstances, Mr Kenny of counsel for the Mother informed me that certain matters were not being relied on. So, the Affidavit does not take the matter any further.
What now has to happen, is for the Court to decide what are the appropriate Orders to be made. The Court's powers to make Orders in respect of contraventions of Parenting Orders are set out in Division 13A of the Family Law Act, which is headed:
Consequences of failure to comply with orders, and other obligations, that affect children.
Section 70NF refers to the application of Subdivision B which relates to the:
Powers of court where a person contravenes an order under this Act affecting children: stage 2 of parenting compliance regime.
Section 70NF(1)(c) refers to a situation where:
either of the following applies:
i)no Court having jurisdiction under this Court has previously determined that the person has, without reasonably excuse, contravened the primary Order;
ii)the Court having jurisdiction under this Act has previously determined that the person has, without reasonable excuse, contravened the primary Order but the Court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision;
and, if the primary Order is an Order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
Sub-section (2) of s.70NF goes on to say:
This Subdivision does not apply if, in circumstances mentioned in sub-paragraph (1)(c)(i), 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.
It was put to me, on an earlier occasion, and I accept it to be true, that no Court having jurisdiction under this Act has previously determined that the Respondent has, without reasonable excuse, contravened the primary Order, that is, the Order made by the P Local Court on
16 August 2001. I am of a view, however, that the circumstances described here, which involved not returning a child from contact; removing her from the state of New South Wales; and keeping her away from the Mother, with whom the child would normally reside pursuant to an Order, for a period of time going from December 2001 to August 2002, is a matter which would satisfy the Court that the person who contravened the primary Order has behaved in a way that showed a serious disregard for his obligations under the primary Order.
As I am satisfied that this serious disregard for the obligations has been made out, notwithstanding the fact that there has been no previous determination of a contravention, I am of the view that Subdivision B does not apply, or should not apply. I propose, therefore, to deal with the matter under Subdivision C of Division 13A. That is headed:
Court to take action in respect of person who contravenes an order: stage 3 of parenting compliance regime
The powers of the Court that are set out are covered in s.70NJ of the Family Law Act. The Orders that are available are set out in s.70NJ(3). That says:
The Orders that are available to be made by the Court are:
(a)if the Court is empowered under section 70NK to make a Community Service Order - to make such an Order; or
(b)to make an order requiring a person to enter into a bond in accordance with section 70NM; or
(c)if a person has contravened a Parenting Order - subject to sub-section (5), to make an Order varying the Order so contravened; or
(d)to fine the person not more than 60 penalty units; or
(e)subject to sub-section (6), to impose a sentence of imprisonment on the person in accordance with
section 70NO.
Sub-section (6) which prohibits the Court from making an Order imposing a sentence of imprisonment in respect of Child Maintenance Orders, does not apply.
Section 70NO is the section of the Act which covers sentences of imprisonment. It says:
A sentence of imprisonment imposed on a person under paragraph 70NJ(3)(e) is to be expressed to be:
(a)for a specified period of 12 months or less; or
(b)for a period ending when the person:
(i)complies with the Order concerned; or
(ii)has been imprisoned under the sentence for
12 months or such lesser period as is specified by the Court;
whichever happens first.
I should make it clear that it is being pressed upon the Court by the Applicant that a sentence of imprisonment should be imposed. There are some statutory limitations on such matters. Section 70NO(2) says that:
A Court must not sentence a person to imprisonment under paragraph 70NJ(3)(e) unless the Court is satisfied that, in all the circumstances of the case, it would not be appropriate for the Court to deal with the contravention under any of the other paragraphs of subsection 70NJ(3).
Section 70NO(3) says:
If a Court sentences a person to imprisonment under paragraph 70NJ(3)(e), the Court must:
(a)state the reasons why it is satisfied as mentioned in
sub-section (2); and
(b)cause those reasons to be entered in the records of the Court.
What the Court must do at this stage is look at the circumstances of the contraventions and look at the seriousness of them. I have already given an account of the circumstances whereby the Father took the child and did not return the child from contact which had been arranged pursuant to the Orders of the Court, and from December 2001 until August 2002 took the child to live, apparently, in the state of Queensland, and made no attempt to contact the Mother.
The Full Court of the Family Court has looked at matters of this nature in a number of cases, going right back as far as Sahari v Sahari (1976) FLC 90-086. There the Full Court said that imprisonment should only be imposed if there is no alternative method available to achieve the remedy the breached Order seeks to effect, and contempt procedures should be used sparingly and imprisonment invoked only as a last resort.
In more recent years, the Full Court of the Family Court has looked at the issues in In the Marriage of Schwarzkopff v Schwarzkopff (1992) FLC 92-303. In that case, the Full Court approved a lengthy sentence of imprisonment in respect of various breaches. Those breaches, I might point out, involved serious violence.
I look also at the decision of the Full Court of the Family Court of Australia in In the Marriage of Ibbotson v Wincen (1994) FLC 92-469. That was a case where a father, with the wife's consent, had taken the child to the United States for a holiday. They were to return to Australia but the father wrote and indicated that he had unilaterally decided to extend the time that they stayed away and, in due course, the father remained out of Australia with the child. It was not until some months later that the wife, in fact, found the child with the father in Cypress. On that occasion, the Family Court imposed a gaol sentence which was described on appeal as a "moderate one". It was a sentence of 12 months, suspending after six.
It is important to look at what the Full Court has said about the seriousness of these matters. I can go no further and, indeed, perhaps find no better summary of the attitude to be taken by, not only the Full Court of the Family Court, but by the Federal Magistrates Court, to actions by parties who have taken children and not returned them in flagrant defiance of the Orders of the Court, than to look at the Judgment of the Court in Ibbotson v Wincen, commencing where Their Honours said:
“The facts of this case are particularly blatant. It was a conscious and deliberate attempt by the husband to thwart the Orders of the Court and to act in complete disregard of the rights of his former wife and his child. In addition, it is important to bear in mind the substantial community interest which is involved in cases of this type and the importance of a general deterrent.
Child abduction, whether the child is retained in Australia or is taken overseas, is one of the scourges of this jurisdiction. It happens all too frequently, it causes great heartache to the families involved, it is usually a blatant disregard of the authority of the Court and of the rule of law in our society, and it gives rise to consternation and concern within the community generally. It also involves considerable cost to the other party and to the community. The Court must be vigilant to mark out its disapproval of conduct of that type in a positive way and give proper weight to the interests involved in the particular case and in the wider community and indeed the international concerns which cases of this type frequently attract.”
That, to my mind, sets out clearly and strongly how seriously the Courts must regard behaviour of this nature. The very circumstances of the contraventions, the keeping the child away in an intentional manner, not just for a few hours but for a period of months, is a breach of the Orders that are so serious that the Court cannot regard any lesser penalty as appropriately meeting the seriousness of the matters concerned. This is not a matter where, to my mind, a Community Service Order would impose a sufficient deterrent. This is not a matter where requiring the Respondent to enter into a bond would be seen as a sufficient sanction to exercise the Court's disapproval and society's disapproval of his behaviour.
It would be appropriate to make an Order varying the Orders so contravened, but I understand the available Orders under sub-section (3) of s.70NJ as being alternatives and varying the Parenting Order and nothing else would, to my mind, impose a sufficient penalty either to deter the Respondent from re-offending or to deter other members of the community or to mark the Court's disapproval.
It would be open to the Court to impose a fine. I note that the Respondent points out that he is impecunious. He has not been able to obtain Legal Aid but he has not been able to obtain legal representation today. He has informed the Court that his financial circumstances are not good. A fine even of $6000 or more would not be sufficient to mark the seriousness of the matter nor, on the material available to me, would it be apparent that the Respondent would have the resources to pay such a heavy fine.
It all gets down to the fact that an offence of this nature must attract an Order relating to imprisonment. However, the Court must take into account on deciding, once the appropriate penalty is decided for an offence of this nature, matters that are subjective to the Respondent. He has, as I said, produced character references which indicate that he is certainly regarded by other people in the community as being a person of good character. He is entitled to have that previous good character taken into account, and I do take it into account in his favour.
It has always been before the Court that he has not previously been dealt with by any Court for a contravention of this Order. The fact that there has been no prior history of contraventions is a matter that will be taken into account in his favour. He has admitted each of the contraventions alleged, after he was given legal advice. He made a frank admission and has not sought to shy away from the fact that he has contravened the Orders as alleged. He has not offered a reasonable excuse nor sought to do so. An admission of wrongdoing has traditionally been regarded by the Courts as clear evidence of remorse.
He has also made submissions to the Court. He has described the break up of the relationship with the Applicant, the length of the separation, which was a separation that he did not want. He has described his frustration with the amount of contact that he had with his daughter J. He described how, after an incident between the Mother and himself when he saw the child, that he had no contact for a period of five months and, indeed, had no idea where she was. He described how, when contact arrangements were made, that he would travel down from K, and at some inconvenience to himself, to exercise contact.
He describes how he loves the child, and he has apologised today not only to the Court but also to the Applicant for the hurt that he has caused. Indeed, not knowing where his child was for a period of five months would perhaps give him some idea of the anguish that the Applicant must have felt for a period of some eight months. He said:
“I just wanted to be with my daughter”
and he says:
“I am not condoning what I have done”
but he said:
“I didn't want to lose my daughter.”
He could not, he said, contact the Mother, even let her know that the child was all right because of the fact that he knew that the police would be on to him and that that would give him away. But he does say:
“I can understand L’s anguish.”
He says it was a rash decision and his feelings took over.
It is most regrettable that the Respondent, frustrated at the amount of contact that he had, which he did not consider to be sufficient, did not take steps to apply to a Court with appropriate jurisdiction. He indicated that his financial circumstances were poor and he had been refused Legal Aid, but he was one of those people who have enough resources not to get Legal Aid but often not enough resources to undergo lengthy proceedings in either the Family Court or perhaps the Federal Magistrates Court.
In hindsight, however, it would have been more appropriate if he had attempted to make arrangements through the Family Court or this Court to endeavour to work out a more suitable contact arrangement rather than taking matters into his own hands as he did, and then keeping the child away for a lengthy period of time. Not only did the Mother suffer a great deal of anguish but the child has been deprived of her right under the Act to have regular dealings with her Mother, because the Court takes the view, as other Courts have done, that this is a deliberate and conscious attempt to thwart the Orders of the Court. Admittedly, it was another Court and not this Court at the time, but it is now an Order of this Court, having been registered in this Court.
It is for all of those reasons that I am of the view that the offence is so serious that no penalty other than a sentence of imprisonment is appropriate. What I do, however, do is take into account previous good behaviour, the previous good character, the early admissions of wrongdoing, and the expression of contrition given before the Court today, as bringing about a substantial reduction in what otherwise would have been the penalty. I would comment, however, that it is not necessary for there to have been repeated offences for a sentence of imprisonment to be imposed. I am of the view that the circumstances of this matter, and the continuation of it and the intentional act that I have found, is sufficient.
Pursuant to the provisions of s.70NJ of the Family Law Act, you are sentenced to imprisonment for a fixed term of four months commencing today.
The question of costs is, of course, set out under s.117 of the Family Law Act. It begins under s.117 with sub-section (1) with the premise that subject to sub-section (2), each party to the proceedings bear his or her own costs. Sub-section (2), however, says that if the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to sub-section (2A) and the applicable Rules of Court, make such Order as to costs as the Court considers just.
There are a number of matters set out in s.117(2A) of the Family Law Act. Under paragraph (a), the financial circumstances of each of the parties is relevant, and I accept the fact that at the moment the Respondent has given evidence that he is impecunious and he is unlikely to be in the position to earn any income in the immediate future. I am also mindful of paragraph (b):
whether any party to the proceedings is in receipt of assistance by way of Legal Aid
and I note that the Applicant is in receipt of such assistance.
I take into account the conduct of the parties to the proceedings and I note that this is a matter where the Respondent has admitted the allegations, he has attended Court when required, and has complied with the terms of his recognizance. He cannot be criticised in that regard.
The most important matter, however, I would consider is that under paragraph (d):
whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous Orders of the Court.
That, of course, is exactly what these proceedings were about, in fact, a wilful disregard of the Orders. The Respondent is to pay the Applicant's costs of these proceedings as assessed or agreed. At this stage, I will allow 12 months to pay.
This is a matter where I am of the view that there should be some publication. I note that the evidence before me indicates that it was as a result of an article published in the Woman's Day on 5 August 2002 that a sharp-eyed citizen identified the child and made the report to the police that brought about the child's recovery. I note that the Respondent is perhaps critical of some details of the article, but the cooperation of the media and the attitude taken by the media leading towards assisting in the recovery of the child, is something that the Court would regard very favourably indeed. I do not believe that the publication should only be restricted to the Woman's Day, but the media generally should be permitted to publish a limited account of the proceedings, for two reasons:
(1)To bring finality to the proceedings which have already been reported, and I note the details of the Applicant, the child and the Respondent have already become public knowledge; they have been referred to in the article.
(2)On a more general basis, the public should be aware of the Court's attitude towards breaches of Orders in this way. It is important for the public to be made aware that the Court will deal strongly, where it is appropriate, with breaches of Orders which have been made and where it is necessary for a punishment to be imposed.
I do, therefore, propose to make an Order permitting publication. However, details of publication are to be as approved by the Registrar of the Federal Magistrates Court of Australia, so it will be necessary to communicate with the Registrar in order that there be some supervision by the Court of the material that is published.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 25 September 2002
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