HARMAN & HARMAN

[2014] FamCA 1101

FAMILY COURT OF AUSTRALIA

HARMAN & HARMAN [2014] FamCA 1101

FAMILY LAW – CHILDREN – With whom a child spends time with – Orders – Contravention – mother failed to facilitate time between the father for several weeks – mother alleges father physically abused the children – whether mother has reasonable excuse – allegations were raised prior to the making of consent orders – mother has no reasonable excuse – mother has shown a serious disregard for the orders.

Family Law Act 1975 (Cth) s 70NAC, 70NAE, 70NEA
Family Law Rules 2004 (Cth) r 21.08

Elspeth & Peter; Mark & Peterand John & Peter [2007] FamCA 655

APPLICANT: Mr Harman

RESPONDENT: Ms Harman

FILE NUMBER: ADC 2601 of 2012

DATE DELIVERED: 10 December 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Calderwood Atkinson

COUNSEL FOR THE RESPONDENT: Ms Lee

SOLICITOR FOR THE RESPONDENT: Mahony's Lawyers

Orders

1. That the contravention application is adjourned to 23 December 2014 at 2.15pm before the Honourable Justice Berman for the Court to hear submissions from the parties as to penalty and costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harman & Harman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: ADC 2601 of 2012

Mr Harman

Applicant

And

Ms Harman

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. The proceedings concern an Amended Application for Contravention of orders filed on behalf of Mr Harman (“the father”) on 25 September 2014.

2. The respondent is Ms Harman (“the mother”).

3. The Application for Contravention alleges nine counts involving J born in 2003 and S born in 2006 (“the children”).

4. It is alleged by the father that the mother has failed to comply with orders of this Court and that in respect of each and every count she did so without reasonable cause or excuse.  The evidence was heard and final submissions made on 3 December 2014.  These reasons are in respect of that hearing.

5. The parties were both represented by counsel.

6. In addition to the contravention proceedings the father had filed an Application seeking orders for recovery of the child pursuant to Section 67Q of the Family Law Act 1975 (Cth) (“the Act”). That application has been adjourned to 23 December 2014.

7. At the commencement of the proceedings counsel for the mother made application for an order pursuant to Section 69ZW of the Act seeking information from Police SA (“SAPOL”) in respect of matters involving allegations that the father had physically assaulted the children.

8. I did not consider that it was appropriate to make such an order on the basis that whilst the proceedings were clearly child related, I do not hold the view that SAPOL is a “prescribed state or territory agency”. On the basis that the definition of “a prescribed child welfare authority” means a person or authority who is responsible for the administration of child welfare laws of a state or person.  I do not consider that is the task of the police.

9. If the mother had issued a subpoena directed to SAPOL, no leave is required.  The difficulty is that there was no link between the subpoena, the documents likely to be held by SAPOL and the consideration of the Amended Contravention Application.  It was not suggested that the proceedings should be adjourned to enable the mother to make further enquiries and when pressed, counsel for the mother agreed that it was unlikely any police officers would be called and in any event there was no certainty as to what documents would ultimately be produced and how they would be relevant to the current hearing.

10. The use of a subpoena is not intended to supplant proper discovery.  It is also meant to target documents that are known to exist which in some way have a nexus to the current proceedings.  It is difficult to see, in the absence of any affidavit material highlighting the relevance of any anticipated documents, that such a process should or could form the foundation for the contravention proceedings being adjourned in circumstances where the mother has been on notice since 18 August 2014 when the initial Application for Contravention was filed.

11. The oral application on behalf of the mother was ill-considered and comes on the heel of the hunt in respect of the proceedings.

BACKGROUND

1. The mother was born in 1971.  The father was born in 1978.  The parties commenced cohabitation in 2003, were married in 2006 and separated finally on 14 February 2012.  There are two children of the marriage namely J born in 2003 and S born in 2006.

2. The proceedings have a long history, with the father filing an Initiating Application on 10 July 2012, amending the application on 6 September 2013 and a Response of the mother was filed on 10 September 2012.

3. The children remained in the primary care of the father since about April 2013.  The mother spent time with the children from Thursday to Monday of each alternate week and at such other times as agreed.

4. The mother seeks orders that the children return to her primary care and it is only under strict conditions of supervision that the father should spend time with them.  Obviously the father resists the orders sought by the mother.

5. Unfortunately the case is marred by ongoing allegations by each of the parties that they have engaged in sexual abuse against each other, the subject children and a non-biological child of the father.

6. The father for his part alleges that the adult children of the mother namely M and B engaged in sexual abuse and assault of J and S.

7. The allegations have been the subject of extensive investigation by the relevant authorities.

8. No charges have been laid against the father, but criminal proceedings are now directed against the adult child B.

9. The proceedings reached trial on 26 May 2014 and following extensive negotiations a final consent order was made.

10. The orders provide for the following unusual notations:-

    A.Each party acknowledges that the children have been at risk during the relationship as a result of the parties failure to protect the children;

    B.Each party acknowledges the history of domestic violence during the relationship;

    C.Each party acknowledges the need for the children to have ongoing counselling and that the parties need to participate in personal counselling for the benefit of the children;

    D.The mother will notify the father in writing in the event she becomes aware that [B] has been charged by South Australian Police in relation to allegations made in these proceedings;

    E.The parties acknowledge that as at the date of these orders:-

    (a )No charges have been laid in respect of [B];

    (b)No charges have been laid against the father in relation to allegations made against him by the mother, [Ms V] and [B].

11. The operative orders provided for the parties to have equal shared parental responsibility but with the children to live with each of the parties as follows:-

    ·With the father from the conclusion of school Friday (or 3.30pm if a non- school day) to the conclusion of school Friday (or 3.30pm if a non-school day) commencing on Friday 30 May 2014 and each alternate week thereafter.

    ·With the mother at all other times.

12. The orders were comprehensive and it was hoped that they would produce a lasting resolution to what had become a bitter parenting dispute.

13. It is from the orders of 26 May 2014 that the current Amended Application for Contravention has its genesis. 

14. The current application is the first such application in the proceedings.

APPLICATION FOR CONTRAVENTION

1. At the commencement of the proceedings, counsel for the father decided to confine the proceedings to what might be considered the more serious and contentious breaches namely, those that related to a breach of paragraph 3.1 of the orders made 26 May 2014.  Accordingly, I dismissed all counts that allege a breach of paragraph 6 of the orders namely, those alleging a breach on 20 July 2014, 3 and 31 August 2014 and 14 September 2014.

2. The proceedings were limited to the breaches as set out in paragraph 7 (count 1), paragraph 11 (count 2), paragraph 15 (count 3), paragraph 17 (count 4) and paragraph 21 (count 5) of the application.

COUNT 1

1. Count 1 is alleged to have occurred at 3.30 pm on 11 July 2014 at the G Police Station. This count alleges a breach of paragraph 3.1 of the orders made 26 May 2014.

2. The statement of the alleged contravention is as follows:-

   The father attended at the [G] Police Station at 3.30pm.  The officer in charge advised the mother had rung and said she would not be delivering the children.  I attempted to ring the mother and there was no response.  The mother has without reasonable excuse refused the father time with the children.

3. Paragraph 3.1 of the orders provides:-

   That the children live with each of the parties as follows:-

   3.1With the father from the conclusion of school Friday (or 3.30pm if a non-school day) to the conclusion of school Monday (or 3.30pm if a non-school day) commencing on Friday 30 May 2014 and each alternate week thereafter.

COUNT 2, 3, 4 AND 5

1. These counts allege a breach of paragraph 3.1 of the orders on 25 July 2014, 8 August 2014, 22 August 2014 and 5 September 2014.

2. The statement of alleged contravention is the same for each of the counts namely that:-

   The father attended the primary school to collect the children.  The children were not present.  The respondent has without reasonable cause prevented the father from spending time with the children.

THE LAW

1. It is Division 13A of Part VII of the Act that designates the legislative pathway concerning an Application for Contravention of orders made under the Act. The alleged contraventions as set out arise out of parenting orders made by consent on 26 May 2014 by this Court.

2. Subdivisions C to F of Division 13A of Part VII provides the orders available to the Court that can be made in instances where:-

   (a)The contravention has been alleged but not established (subdivision C);

   (b)The contravention is established but reasonable excuse for the contravention is found (subdivision D);

   (c)The contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (subdivision E);and

   (d)The contravention is found to have occurred without reasonable excuse the contravention is “more serious” (subdivision F).

3. At the conclusion of the evidence and as part of the submissions made by counsel for the father, I was urged to find that if one or more of the counts are proven in circumstances where was no reasonable excuse available to the mother in respect of the said breach or breaches, the Court should find that the mother has “behaved in a way that showed a serious disregard for his or her obligation under the primary order (subdivision F)”.

SECTION 70NAC – MEANING OF “CONTRAVENED” AN ORDER

1. A person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:-

   (a)Where the person is bound by the order – he or she has:-

   (i)Intentionally failed to comply with the order; or

   (ii)Made no reasonable attempt to comply with the order.

SECION 70NAE – MEANING OF “REASONABLE EXCUSE FOR           CONTRAVENING” AN ORDER

(1)The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this Act affecting children including, but not limited to, the circumstances set out in subsection (2), (4), (5), (6) and (7).

(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this act affecting children if:-

(a)The respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b)The Court is satisfied that the respondent ought be excused in respect of the contravention.

(3)If a Court decides that a person had a reasonable excuse for contravening an order under this Act for the reasons referred to in paragraph (2) (a), it is the duty of the Court to explain to the person, in language likely to be readily understood, the obligations imposed by the order and the consequences that may follow if he or she again contravenes the order.

(4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:-

(a)The respondent believed on reasonable grounds that the actions constituting a contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

(b)The period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health of safety of a person referred to in paragraph (a).

(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order:-

(a)The respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)The period during which because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:-

(a)The respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)The period during which, because of the contravention, the child and person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:-

(a)The respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)The period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health of safety of the person referred to in paragraph (a).

SECTION 70NAF – STANDARD OF PROOF

(1)  Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this division is proof on the balance of probabilities;

(2)  Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention;

(3)  The Court may only make an order under:-

(a)   Paragraph 70NEB (2) (a) (d)  or (e); or;

(aa) Paragraph 70NEB  (1) (da); or

(ab) Paragraph 70NECA (3) (a); or

( b)Paragraph 70NFF (3) (a)

if the Court is satisfied beyond reasonable doubt that the grounds for making the order exists.

LESS SERIOUS OR MORE SERIOUS CONTRAVENTION

1. Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered “less serious”.  Section 70NEB sets out the powers of the Court as follows:-

   (1)If this subdivision applies, the Court may do any or all of the following:-

   (a)Make an order directing:-

   (i)The person who committed the current contravention; or

   (ii)That person an another specified person; to attend a post separation parenting program;

   (b)If the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates the person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

   (c)Adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII discharges, varies or suspends the primary order, or revives some or all of an earlier parenting order;

   (d)Make an order requiring the person who committed the current contravention to enter into a bond in accordance with Section 70NEC :-

   (da) If the person who committed the current contravention fails, without reasonable excuse to enter into a bond by required by a person required under paragraph (d) – impose a fine not exceeding ten penalty units on that person;

   (e)If:-

   (i)The current contravention is the contravention of a parenting order in relation to a child; and

   (ii)The current contravention resulted in the person not spending time with the child (or the child not living with the person for a particular period); and

   (iii)The person referred to in subparagraph (ii) reasonably incurs expense as a result of the contravention;

   make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

   (f)Make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings and this division; and

   (g)If the Court makes no other order in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

2. Section 70NEC provides for the terms and conditions of a bond if a Court requires a person to enter into a bond under Section 70NEB (1) (d).

3. In respect of the more serious contravention, the provisions are to be found at Section 70NFA.  The orders that are available to be made by the Court in respect of the breach pursuant to Section 70NFB are to be found in subparagraph (2) and in those circumstances the Court is empowered to make a community service order under Section 70NFC, an order requiring a person to enter into a bond under Section 70NFE to make a parenting order to compensate a person for time not spent with the child, a fine of more than 60 penalty points or to impose a sentence of imprisonment on a person in accordance with Section 70NFG.

4. Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outline the procedure for the hearing of an application for contravention of orders.

RULE 21.08 PROCEDURES FOR HEARING

1. At the hearing of an application mentioned in Items 1A, 2, 3, 4 or 5 in Table 21.1 the Court must:-

   (a)Inform the respondent of the allegations;

   (b)Ask the respondent whether the respondent wishes to admit or deny the allegations;

   (c)Hear any evidence supporting the allegations;

   (d)Ask the respondent to state the response to the allegations;

   (e)Hear any evidence of the respondent; and

   (f)To determine the case.

1. As set out at the commencement of these reasons, the counts that were not dismissed upon the application of the applicant father were read to the respondent mother and it was her clear response that she denied each and every allegation in support of the various counts.  The mother was represented at all relevant times.

2. The father relied upon a short affidavit filed 18 August 2014 which provided brief evidence in respect of counts 1, 2 and 3.  The father gave oral evidence in relation to counts 4 and 5.  The mother’s evidence is contained in an affidavit filed 10 October 2014.

EVIDENCE AND SUBMISSION – COUNT 1

1. Simply put, the father says that in accordance with orders made 26 May 2014 the children’s time was shared between the parties.  The children were last in his care on 4 July 2014 when pursuant to the orders the mother collected the children from school.

2. The father attended the police station at G on 11 July 2014, but the children were not present.  The father alleges that he received an advice from the police officer in charge that the mother had called and advised that she was not bringing the children for the handover.  The father attempted to ring the mother on two occasions but she refused to speak to him.  The mother’s evidence was somewhat confused.  She says that in early July 2014 anticipated charges against B alleging sexual abuse against the child J were laid.

3. In compliance with the orders the mother advised the father that B had been charged.

4. The mother agrees that the children spent time with the father between May 2014 and early July 2014.  Upon the children returning to her care on 4 July 2014, she says that shortly before the children were to return to their father, J had asked her to look at a note that he had written.  The note forms Annexure JKH2 to the mother’s affidavit.  Whilst there is no context to the note, nor any date indicating when and in what circumstances it was written, it is alleged that the child wrote the note because he did not wish to return to the father’s care.  The text of the note is as follows:-

   I don’t want to go to my Dad’s house because he hurts my head, ears and my legs.  [J].

5. The child J also said that his father would throw him on the bed when he is mad at him, holds him up against a wall and yell and spit in his face.  A further allegation is that the father would drink alcohol and drive whilst the children were in the car.

6. Following the alleged disclosure by J, the mother then spoke to the child S who corroborated the earlier allegation.

7. On 4 July 2014, the mother says that she took the children to the G Police Station and a report was taken from J as to the father’s behaviour and conduct.  Importantly, the mother concedes that she was not told to retain the children in breach of the consent order.

8. The mother admits that she did not take the children to the father.

9. Accordingly, the mother admits the breach but it is her defence that she had a reasonable excuse.  There is no suggestion that she did not understand the orders but rather, she says that the allegations of the children would have been contrary to her obligation to protect the children from harm if she had complied with the order and allowed the children to come into the father’s care.

10. The mother acknowledges that there was significant involvement by Families SA, but rather than focussing on the allegations purportedly made by J and S, the Department’s concern was on the removal of B from the household.

11. The cross examination of the mother revealed that following the note left on the table by J, a notification was made to the Child Abuse Helpline at 1:04 pm on 11 July 2014. That short chronology is inconsistent with the matters raised in the mother’s affidavit.

12. There is also some uncertainty as to the date upon which the mother took the children to the G police station following a conversation with them where she says:-

    I sat both children down and told them that it was important that we speak to police about what the father was doing.  [J] agreed he wanted to speak to the police and once again said he didn’t want to return to the father’s house.

13. The child J was interviewed by the police on 4 July 2014 and whilst the mother asserts that the police did not support a breach of the current orders, “they could not recommend that I return the children to the father’s care given the recent disclosures made by [J]”.  I do not accept the mother’s evidence on this point.

14. The mother was questioned on inconsistencies arising out of paragraph 15 of her affidavit.  The report to the police did not contain allegations that the father would throw J onto the bed, hold him up against the wall and yell and spit in his face.  No complaint was made that the father was drinking and driving with the children in the car.

15. The mother’s evidence on these inconsistencies was unconvincing.

16. At the time of the mother’s refusal to handover the children to the father, she was hoping that there would be an investigation by Families SA and a police investigation.  She had been given no comfort by either organisation that they would take any action in respect of the various allegations and notifications made alleging that the father had behaved inappropriately to the children.

17. It may well be the case that the children were reluctant to spend time with their father, but that is as a result of the mother’s behaviour rather than there being any evidence to support the mother’s allegations.  The mother admitted the contravention and I do not find that she has established a reasonable excuse on the balance of probabilities.

COUNTS 2, 3, 4 and 5

1. There follows a litany of notifications made to Families SA.  Various allegations were made on 14 July 2014 that S and J would often engage in rough play. That following a phone call from the father, S had wet his bed and importantly, that J was so distressed at his involvement with the father that he held a knife to his chest and throat.

2. This is not a new allegation and apparently occurred in mid-June.  There is also a reference to J using a knife in the mother’s trial affidavit.

3. The mother alleges that J informed her that he had held a knife to his throat because the father wanted S and J to lie about B. That assertion lacks credibility.

4. What is clear however is that the mother was frustrated that she could not divert the focus of the police and Families SA away from B and to the father.  The mother’s evidence puts it beyond doubt that by 25 July 2014 (the date of the second count), she had been told by the police and Families SA that there was no further investigation pending in respect of the allegations made against the father.  Their focus was however the removal of B from the home.

5. Unfortunately, the continual notifications by the mother and those associated with her had the unfortunate repercussion of the children being interviewed by the police and the department.  That process was clearly distressing to the children and in circumstances where there was no substance to the allegations, it shows an alarming lack of insight on the part of the mother to the emotional fragility of the children, but also provides a window into the negative environment that the mother has created in her home directed against the father.

6. The mother confirmed in her evidence that Families SA appeared only interested in matters relating to B.  That is not surprising.  The mother annexes the information and summons relating to B which shows that he has been charged with three counts of sexual intercourse with the child J between 1 November 2011 and 1 April 2012. 

7. The allegations made by the mother were nothing more than a recitation of previous allegations set out in the mother’s earlier trial affidavit. 

8. The mother admitted that in an interview with officers from Families SA that she had no intention and would not comply with the relevant Court orders.

9. The mother’s behaviour had a serious impact on the children in that she removed them from their school and they were only returned in October 2014 following the commencement of proceedings by the father and what was apparently an indication given to the mother that the children’s continuing absence from school would be a focus of obvious criticism.

10. Notwithstanding the finding that I have made in respect of count 1, there remained not the slightest scintilla of evidence that would have supported the mother’s actions in keeping the children from school and her failure to comply with Court orders.

11. If it is the case that the children have now become resistive to spending time with their father, it is unlikely that such a development is as a result of the father’s behaviour but rather, by the inappropriate nature of the mother’s behaviour and her persistence in involving the children in the dispute.

12. The mother has admitted the contraventions and I find that she has not established a reasonable excuse on the balance of probabilities.

CONSIDERATION OF SUBDIVISION E, SUBDIVISION F OF DIVISION 13A OF PART VII OF THE ACT

1. Counsel for the father strongly submits that the contraventions should be dealt with under subsection F namely as “more serious contraventions” as opposed to under subdivision E which is reserved for “less serious contraventions”.

2. I am unaware that there have been any previous contravention proceedings and accordingly this is the first occasion that the mother has been found to have contravened an order without reasonable excuse. Section 70NFA (2) therefore does not apply.

3. The application of section 70NFA (2) is reserved for circumstances where I am satisfied that the mother has “behaved in a way that shows a serious disregard for his or her obligations under the primary order”.  There does remain a discretion to apply the provisions of subsection E if it would be appropriate to do so (Section 70NFA (4)).  Section 70NFA (2) (b) provides:-

   The Court dealing with a current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

4. The thrust of the Full Court in Elspeth & Peter; Mark & Peterand John & Peter [2007] FamCA 655 is to have regard to the circumstances of the case and in particular where the Court finds cases of “deliberate, premeditated non-compliance with the orders and continued and protracted breach”.

5. There needs to be a “persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order”.

6. In the decision of Gravis & Major [2010] FamCAFC 239 the Full Court citing Finn J in Clintock & Levier (2009) Fam LR 248 at 258 did not consider it appropriate to apply a global approach in terms of the contravention in attempting to show the requisite “serious disregard”.  It is therefore not appropriate to stand back from the matter and consider the overall effect or consequences that flow from a cumulative view of the proven contraventions.  Each contravention must be considered individually.

7. The evidence in respect of count 1 is not sufficient to establish that the mother held “a serious disregard” in respect of the orders contravened.

8. I am however of the view that the evidence in respect of counts 2, 3, 4 and 5 demonstrates deliberate behaviour by the mother designed to interfere with the father’s time and in circumstances which cause significant distress to the children, and deliberate interference with their education designed to further frustrate any attempt by the father to spend time with the children pursuant to the orders and an outcome that may well have made the children irrationally concerned at spending time with their father.

9. I consider that the mother’s behaviour supports a finding that she held “a serious disregard” for her obligations under the relevant orders made 26 May 2014.

10. Following a finding of serious disregard there are a number of sentencing options which range from a fine, community service, a bond or a sentence of imprisonment.  The question of costs and the extent to which if any the mother should be required to pay the father’s costs of the contravention proceedings is also a matter to be considered.

11. Accordingly, I will receive further submissions as to the penalty, if any, that should be imposed when the father’s application for a recovery order is listed for hearing on 23 December 2014.

12. I make orders at the commencement of these reasons.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 December 2014.

Associate: 

Date:  10 December 2014.