IDANOV & DUNSTABLE
[2018] FamCA 440
•14 June 2018
FAMILY COURT OF AUSTRALIA
| IDANOV & DUNSTABLE | [2018] FamCA 440 |
| FAMILY LAW – CONTRAVENTION APPLICATION – where the mother admits the many breaches but says she has a reasonable excuse based on the safety of the children – where that evidence is dependent upon the relevant supervisors having some cogent and admissible reason for the views they express – where the evidence is not made available – where the court finds there is no reasonable excuse. FAMILY LAW – CONTRAVENTION – where the court considers that a bond is the appropriate outcome but gives the mother 24 hours to consider her position – where other options including fines are considered inappropriate as only adversely affecting the children. FAMILY LAW – PARENTING – Variation Application – where the mother filed an application to discharge contact orders but altered that to seeking only the opportunity to seek specific supervisors of the father’s time with the children – where the father opposes the mother’s proposal and seeks to have his family involved as supervisors – matter adjourned to the Senior Registrar for those matters to be considered on appropriate evidence – where the Court expresses concern about unregulated supervisory companies not being accountable to the court. |
| Family Law Act 1975 (Cth) |
| Ackersley & Rialto [2009] FamCA 817 |
| APPLICANT: | Mr Idanov |
| RESPONDENT: | Ms Dunstable |
| FILE NUMBER: | MLC | 7400 | of | 2014 |
| DATE DELIVERED: | 14 June 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 14 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Potter |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| THE RESPONDENT: | In Person |
Orders
Upon hearing Mr Potter for the applicant father and the respondent mother in person AND UPON the mother conceding the parenting orders had not been complied with and UPON REJECTING her argument of reasonable excuse
IT IS ORDERED:
That by 4.00pm on 15 June 2018, the mother attend upon a registrar of his court and enter into a bond to comply with all orders of the court for a period of 12 months and attend if required to do so.
If the mother fails to attend by 4.00pm on 15 June 2018 as required by paragraph (1), the matter be relisted for further determination.
The mother’s application in a case is adjourned to the Senior Registrar’s list of cases on 19 July 2018 on the issues of:
(a) Whether there should be variation of the supervision requirements of the orders of Thornton J made on 7 July 2016;
(b) The father’s application to replace the existing supervision order with a supervisor nominated from his family members; and
(c) The mother’s request for her whereabouts to remain secret.
That if practicable, on the return date before the senior registrar, all parties have any proposed supervisor available for cross-examination in the event that the senior registrar considers it necessary prior to the execution of any undertaking by such supervisor.
That the mother filed and serve an amended application in a case and any affidavits in support therefore in respect of the above issues by no later than 4.00pm on 27 June 2018.
That the father file and serve any response together with any affidavit material upon which he relies in respect of the said issues by no later than 4.00pm on 12 July 2018.
That both parties file and serve a statement of financial circumstances.
That the father’s costs of the contravention proceedings are reserved to the senior registrar’s list of cases for determination if practicable but otherwise returned for determination in the future by the Honourable Justice Cronin.
That the contravention application of the father is otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Idanov & Dunstable has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7400 of 2014
| Mr Idanov |
Applicant
And
| Ms Dunstable |
Respondent
REASONS FOR JUDGMENT
The long running parenting dispute between Mr Idanov (“the father”) and Ms Dunstable (“the mother”) continues with this discrete matter.
The immediate applications are:
(a)An application by the father that the mother be dealt with by the court for contravening parenting orders over many months of 2017 and into 2018; and
(b)An application by the mother for a discharge of the relevant parenting orders.
The father was represented by counsel and the mother attended unrepresented. The difficulty that the mother’s absence of legal representation presented was that her affidavit material in respect of both applications was unhelpful. She was also disadvantaged by the fact that she did not challenge any of the father’s evidence. That is not to say that she was not given the opportunity. I asked her specifically about that and warned her that an absence of challenge may mean that unless the evidence was implausible, I would accept it. She declined to cross-examine but then in her own evidence made many criticisms of the father and as to which he had no opportunity to respond.
The hearing began only on the issue of the contravention because, as the father’s counsel agreed, if the mother’s position was accepted, there was no basis for the father to oppose the mother’s application.
I explained the process and asked the mother about each of the counts of alleged breaches. She admitted that the orders had not been complied with but her argument rested on accepting she had a “reasonable excuse” for that non-compliance.
There was a contravention application before the Federal Circuit Court in early 2017 at which the mother was represented by counsel briefed by a solicitor. The matter is shown in the court record as having been resolved and culminating in consent orders. The mother wanted to go behind those orders with evidence of what she said was a pattern of the father’s behaviour. Those were orders to which she consented. Under them, contact between father and children was resumed after she had stopped it unilaterally and indeed, compensatory time was provided. It could not now be said that those orders were not in the best interests of the children particularly as she was represented by counsel at the time. Her view was that her consent was given under “duress”. When pressed as to what was meant by duress, she acknowledged she had not gathered the evidence she wanted to present and was given advice by her counsel accordingly. I have inferred that she the felt pressured to agree to a resumption of the father’s time and to go a step further to agree to “make up” time. This was a deliberate decision made knowing of the paucity of evidence but having regard to that make-up time, I see no reason why I ought not infer that at least the Federal Circuit Court Judge understood the orders were in the best interests of the children and was not told otherwise.
That said, the allegation of the mother about being pressured into arrangements has caused me to carefully scrutinise what she now says. She was combative with counsel and argumentative including at times avoiding answering a question by saying that she did not intend to go where counsel wanted her to respond. His questions were directed to the fact that contact under supervision had been conducted without any welfare concerns of the type she was alleging. She refuted that.
The present application was initially listed in the judicial duty list and was not begun until late in the afternoon. That ought not to have been a handicap because the parties had both prepared affidavit material and as I have already said, there was no challenge to the evidence of the father. The mother’s evidence, unsurprisingly prepared by a person representing herself, was rhetorical and vague. When I raised the difficulty, she tendered what could only be described as a raft of notes from contact supervisors over many months including prior to the consent orders. I permitted the admission into evidence of that material despite it being proffered so late. There was no opposition from counsel for the father.
The mother’s position was that these notes showed what the children were subjected to by the father and in her mind they established that continuation of the father’s time was contrary to their welfare. Significantly, if accepted that this all occurred, the father did it under the watchful eye of a privately paid supervisor. The mother went further to say that the supervisors had refused to continue with the task. None of the notes indicated either of those matters. When the notes were handed back to identify where this could be found, she became flustered. That led to an adjournment for her to get her house in order. The matter then returned for a further hearing on 14 June 2018.
On the return date, Ms Dunstable presented more notes from the people she described as the contact supervisors. One was from a Ms O. The first document tendered without opposition was a summary of events which Ms O said occurred in 2016 and between October and November 2017. The immediate difficulty was that these were the impressions of Ms O whose notes recorded that she has qualifications in law and economics and has had a relevant police check. I am unclear how she had the expertise to make the opinions she did and, when I inquired whether Ms O was to be called as a witness or at least that there was an affidavit by her, the mother told me that she had been advised by the owner of this supervision service that she did not know where Ms O was. The owner also indicated an unwillingness to attend court. Suffice to say, the mother produced an email from the owner simply indicating her service was no longer willing to undertake supervision. Whilst the mother said she was told things by this person, I have not been able to give any of this any weight absent some cogent evidence to enable an inference to be drawn that the father’s behaviour was such, or the children’s reaction was such, that the supervision service was not willing to be involved. That could not be drawn here.
For such a service to indicate to the mother that they could not assist her with such important evidence is very odd. Having regard to the seriousness with which this court takes supervision, to respond in such a way, if true, is quite alarming and the Court, in my view, should be very cautious about endorsing that service.
The mother then tendered two reports from Ms O as a supervisor both of which were critical of the father but both related to the period prior to the 2017 orders.
Thus the essential new evidence from the mother was much the same as that which she had produced on the previous hearing but the new document was a disputed summary, vague in its terms and which could not be tested by cross-examination leaving aside any question of the author’s capacity to give expert evidence.
In my view, the new evidence should be given no weight.
The mother’s strongly held, and emotively expressed, views are that the children are in danger and that the Court is ignoring that risk which she says is seen by everyone. I emphatically reject that this Court is not interested in the protection of her children but there are limitations in a private law system, even with all of the loosening of the evidentiary rules, as to what the Court can do. The Court has specific findings of Thornton J to which I turn in a moment and to the extent that the mother is now insisting that she has been the subject of the father’s family violence, a cursory reading of the findings would not enable that view to be given credence. In addition, the mother conveyed the impression that Thornton J had made findings against the father for having sexually assaulted at least one of the children. That too would be an incorrect assumption. The reasons of Thornton J show that her Honour was asked not to make findings that the father had sexually abused one or more of the children. Indeed, the reasons indicate the parties’ respective positions as the case came to an end after 6 days of hearing. The mother wanted supervision and the Independent Children’s Lawyer supported the father’s position that there should be none. It was her Honour who decided the outcome consistent with the mother’s position.
Before turning to the critical question of whether or not the mother’s excuse for non-compliance was reasonable, some background gives context.
The genesis of the present dispute is found in the orders of Thornton J on 7 July 2016. As the mother’s view was that the orders were not in the best interests of the children and indeed, contrary to them, it is important to set some context.
The orders made were:
[2]The mother have sole parental responsibility for the major long term issues of the children [B] born … 2007, [C] born … 2009 and [D] born … 2011 (“the children”).
…
[8]Unless otherwise agreed between the parents in writing, the children spend time and communicate with the father for a period of up to:
(a) 3 hours on a weekday each week after school; and
(b) 5 hours on a weekend day each week;
with such time to occur on a supervised basis at [E] Family Services, or such other independent professional supervision service or contact centre as recommended by the Independent Children’s Lawyer and at such times as may be facilitated by that supervision service.
[9]For the purpose of the children’s time with their father pursuant to Order (8) herein, and insofar as is necessary, the parents shall both register with the nominated supervision service and complete an intake interview and attend to all other requirements of that service to facilitate supervised time between the children and the father.
[12]Pursuant to s 68P of the Family Law Act 1975 (Cth) (“the Act”), these orders are, and may into the future continue to be, inconsistent with an existing family violence order made by the Magistrates’ Court of Victoria. That inconsistency arises by virtue of the father named in these orders spending time with the children, albeit supervised. Insofar as it is considered necessary, further reasons for any inconsistency are contained in the Reasons for Judgment which follow.
Thornton J gave extensive reasons after reviewing the evidence and the following matters were her Honour’s views:
[394]In weighing the risk, the more serious the consequences the higher the risk, even if the odds of the happening of the relevant event are comparatively low. The potential benefit to the children of spending unsupervised time with the father is not outweighed by the serious consequences and detriment to the children of the type of sexual abuse complained of here.
[395]I am not satisfied balancing the risk to the children of sexual abuse with the benefits of a meaningful relationship with the father, that the risk to the children would be outweighed in the children spending unsupervised time with the father.
[396]I am satisfied that [B] and [C] continue to seek to spend supervised time with the father and that there is a benefit to all of the children to continue to spend supervised time with the father.
[397]I am satisfied that the children’s current supervised spend time arrangements with the father have been satisfactory and that it is appropriate to incorporate that regime into final orders. I am satisfied on all the evidence that those arrangements are in the best interests of the children having regard to the unacceptable risk of sexual abuse should the children be placed in the unsupervised care of the father.
Her Honour’s judgment concluded with the following:
[440]In considering the magnitude of the risk, I am satisfied that the risk is unacceptable having regard to the seriousness of the allegations, and the other matters I have found in answering the questions posed by Fogarty J in N & S and the Separate Representative.
[441]I find that there is an unacceptable risk of the children being sexually abused in the unsupervised care of the father. I am satisfied that it is in the best interests of the children to spend supervised time with the father in accordance with the current arrangements under the interim orders. This is the only realistic option here.
The father appealed against the orders and in July 2017, the Full Court dismissed his appeal. In a carefully worded judgment, the Full Court (Aldridge, Kent & Austin JJ) held that each of the matters amounted to findings that were open to her Honour. Thus, whether the findings were seen as right or wrong, the appeal court considered they were open. The mother can take little comfort from that. However, she argued in this present application that the Full Court had agreed with her position. A cursory reading of that judgment will also show that the Full Court decided the matter on standard appellate lines namely that the findings and orders were open to the trial judge.
It is also significant that the mother referred counsel in cross-examination to the fact that the G Centre had been involved and that centre had expressed a view. When inquiry was made as to why that evidence was not before the Court, she said it would not as a matter of the policy of the G Centre. However, whatever the views of the centre were, at least their involvement was known to Thornton J because her Honour said:
[443]The mother seeks an order that she facilitate the children’s attendance at the [F Hospital, G Centre] for counselling in accordance with the recommendations in the family report. The father in evidence stated that he would have no objection to the children being counselled by an independent person. There were no submissions about this issue and the father did not seek such an order.
[444]The family consultant, in his report, recommended in the event the Court substantiates the allegations, that the children attend upon a counsellor to process their experience of abuse from their father.
[445]As there have been no findings regarding the veracity of the allegations of abuse, it is inappropriate to make such an order. The mother has sole parental responsibility for the children and it is appropriate for her to make decisions about counselling for the children if required in the future.
As her Honour said, there were no findings about the allegations of abuse. That brings me back to the contravention application.
The evidence of the critical people upon whom the mother would seem to rely was not before the Court and it is inappropriate for me to guess about what view they may have taken (or may take) about what is good, or otherwise, for the children.
Whilst documents such as the notes of the paid supervisors may give some insight into what was going on, leaving aside their accuracy, it beggars belief that over a number of hours, their observations were confined to a few lines. The evidence of these supervisors (if that is what it was) could not be tested nor indeed expanded. Because of the very nature of the supervision, the mother was not there and unless she could say exactly what the supervisors were concerned about, the notes have little probative value.
Only in final submission did the mother also indicate that she had difficulty getting the 10 year old child to attend. That had not been obvious from the notes nor from her evidence.
Another example of the dilemma is that counsel for the father produced a screenshot of an electronic communication between the paid supervisor and the father. The “screenshot” suggests the communication was on 4 December (presumably 2017) but the mother did not accept its authenticity. In my view, it is relevant on the basis that she did not challenge the evidence of the father and it was contained in his sworn affidavit (see paragraph [19]). The tenor of the statement was that a person named Ms P who was apparently an employee of the supervisor had told the father that the mother cancelled a visit. The supervisor told the father that the mother had claimed “harassment” (whatever that meant) and went on to say:
“She (the mother) would not call me as I had a go at her last time remember poor kids is all I can say how confusing stopping and starting contact with you”
The father’s evidence was that there had been problems with supervisors in the past and the owner of the business had changed the supervisor. Thus, the mother’s position of an escalation of danger and the children’s welfare being at risk is hard to follow.
The mother’s evidence for both the contravention and the variation of parenting orders was otherwise contained in her affidavit filed 25 May 2018. It was the only affidavit upon which she desired to rely. In it, she said:
·The father had consistently breached an intervention order;
·The father had aggravated the existing trauma of the children due to his aggressive and inappropriate behaviour;
·Several supervisors had refused to work with the father;
·One supervisor outlined disturbing behaviour of the father;
·The record showed countless examples of disturbing, aggressive and disrespectful behaviour towards the children.
The difficulty is that none of these allegations is founded in any evidence. The mother said that she was receiving harassing calls from an unnamed source which she viewed as being from the father. That sort of evidence, even as part of a bigger picture, is simply conjecture and unhelpful but in any event, it would seem that the police are not pursuing the father.
The intervention order protecting the mother was breached by the father but curiously, the relevant court made a diversion order. It is uncontentious that a magistrate found that the father had driven past the school of the children. The nature of the penalty, in the context of the maximum penalty under Victorian law, reflects how that court viewed the seriousness of the breach. There was no other evidence of consistent breach.
The existing trauma of the children was left unsaid. The supervisors did not report anything of that nature. To the extent that Thornton J saw such a problem, her Honour still made the contact order.
There was no evidence of several supervisors refusing to work with the father and no evidence of what the mother meant by disturbing behaviour. If that evidence related to the period prior to the orders of the Federal Circuit Court judge, it is inconsistent with the mother’s consent.
The “record” to which the mother related was a broad assertion without any evidence.
The issue for the court is now whether the mother’s assertions, limited as they are, could be seen to amount to a reasonable excuse.
By s 70 NAC of the Act, a contravention of an order occurs if, and only if, relevantly in this case, the respondent mother, is bound by the order and has intentionally failed to comply with it or made no reasonable attempt to comply. That step has been conceded by the mother. An assessment must then be undertaken about whether or not the mother had a reasonable excuse for that non-compliance.
Section 70 NAE sets out the circumstances under which a person may be taken to have had, a reasonable excuse for contravening an order. The Act provides a number of examples none of which is more than a guide to the types of things that the court should consider. They include not understanding the obligations of the order, believing, on reasonable grounds, that action was necessary to protect the health or safety of either herself or the child, or, any other excuse which the court considers is such as justify the respondent being excused. It seems that here, the mother refers to the health and safety provision but as I have already observed, no application was brought until now to vary the orders and indeed, that application was flagged in the Federal Circuit Court in May 2017. The mother’s evidence for not bringing the application was that she was gathering the evidence. If so, she has failed because of the matters to which I have already referred.
The court’s emphasis will be on enforcing compliance with the orders (Ackersley & Rialto [2009] FamCA 817) but the paramount consideration will still be the best interests of the child (see s 60CA). The document attached to the Court’s order, and which was incorporated into the order, makes clear that a parent cannot take the law into their own hands and must endeavour to make the orders work. To the extent that the mother has concerns about the welfare of the children, it not apparent from any of the material she presented. No reasonable excuse has therefore been made out.
Counsel for the father urged me to find that this fell within subdivision F which begins and is found in s 70NFA. There is a temptation to accede to that submission but in this case, although there has been a previous contravention application, I consider I should approach the relevance of that application cautiously because the father agreed to withdraw it.
Subdivision F is a consideration where the contravention is without reasonable excuse and in the “more serious” category. One approach is to consider that
s 70NFA(2) identifies a previous order “imposing a sanction or taking action in respect of a contravention” as a basis to have the parent fall within this subdivision.
I interpret that provision to mean that there has been a finding of a breach because otherwise a sanction or action could not be imposed.
In the circumstances and without argument from the mother, I intend to place her breaches in subdivision E.
Section 70NEA and s 70NEB relevantly provide as follows:
S 70NEA
(1)this Subdivision applies if:
(a)a primary order has been made…,and
(b) a court having…is satisfied that a person has…committed a…of the primary order; and
(c)the person does not prove that… she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies;
(2)For the purposes of paragraph (1)(d), this subsection applies if no court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(3)For the purposes of paragraph (1)(d), this subsection applies if:
(a)a court has previously:
(i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
(4)This Subdivision does not apply if, in circumstances mentioned in subsection (2), 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.
I do not accept that the mother showed serious disregard for her obligations under the orders. I consider her misguided. She took the view that she alone would decide whether there was a risk to the children and she then set about gathering evidence. That task was unsuccessful either because she did not do it adequately, or because she met resistance from the contact service or, because she did not understand her obligation to go back to court to rectify the position she then faced. Notwithstanding the record appears to show this was not the first time this problem had occurred, and indeed that she agreed to a resumption of time, there can no longer be any doubt about her understanding her responsibilities. There is no better example of that than her having now acknowledged that she has read the pamphlet attached to the orders of the courts.
That then leads to s 70NEB which provides for the powers of the court. It provides:
(1)If this Subdivision applies, the court may do any or all of the following:
(a)make an order directing:
(i)the person who committed the current contravention; or
(ii)that person and another specified person;
to attend a post-separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(e)if:
(i)the current contravention is a contravention of a parenting order in relation to a child; and
(ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
There are other provisions that are not directly relevant but one consideration is whether the court should seek the assistance of a family consultant about attendances on programs that may result in a resolution. These parties have been in a bitter battle for years and the Court has previously had the benefit of involvement of a family consultant and other experts in the final hearing before Thornton J. I can see no point in sending the mother to a parenting program where she sees no apparent value to the children in their father being in their lives. Her strident attitude is made clearer by the fact that although she also filed an application in a case which says that she wanted the orders discharged (although not in those words) she indicated that she now wanted only the supervision to remain in place. The dispute there arises out of the difficulty that the father has in obtaining those services. But I also have concerns about the private sector being unregulated. Now, the father’s desire is to involve his family if a supervisor is necessary.
In respect of the father’s family, the mother’s position was that they were considered in the final hearing and Thornton J made findings rejecting them as being inappropriate. I have read her Honour’s judgment and can find no such finding. It may be that there was some discussion in the transcript which should be available as there was an appeal against her Honour’s orders. The mother was not able to point to that because she could not say whether she had the transcript and, if her lawyers held it, she still owed them money.
The Act also requires the court to consider compensatory time but that too is problematic because all time has to be supervised. In addition, the Act requires the court to be satisfied that it is in the best interests of the children for that time to take place. It is made more difficult here because I do not know what the reason is for the previous supervisor declining to be further involved.
A new supervisor will be necessary but I have little confidence in the parties coming to agreement. They tried at court and did not agree. I do not know why the father’s family members are inappropriate and for that reason, I have adjourned the mother’s application in a case and made orders to enable her to decide what orders she proposes generally but the focus will be on supervision.
For the sake of whoever hears that application in a case, the issue has been identified and the mother understands that if she is promoting a “professional service”, that supervisor, as distinct from the owner, will have to provide evidence including their relevant expertise and be available for limited cross-examination on the day as an undertaking may be required.
So too, the father will need to have his proposed supervisor on affidavit and be available for cross-examination for the same reason. The mother indicated some cynicism about that evidence being presented on the basis that she considers the family would lie to assist the father. I have more faith in the cross-examination system particularly where the court can make its own inquiries of a witness.
The most obvious of the possible orders here as an outcome is a bond requiring the mother to comply with future orders. I informed the mother that I was not prepared to require her to enter a bond immediately but rather, she had 24 hours or so to decide what she wanted to do. If she declines, other sanctions then have to be considered. If the mother is willing to enter into the bond, it will be conditional upon her agreeing to comply with all orders in the period of 12 months. That does not preclude her from bringing the applications that have been foreshadowed including an application for suspension or discharge of the orders.
In the course of her evidence, the mother withdrew from her starting position of discharging the parenting orders saying that I had made clear that she could not succeed. She was correct in respect of the evidence that she presented. I gave her the opportunity to bring comprehensive and clear evidence that I could make a determination upon and what I have set out above is what she provided. I am not to be taken to say that I would not suspend the orders if there was a danger to the children with satisfactory evidence.
Turning then to the bond issue, the relevant provisions of the Act provide:
(1)This section provides for bonds that a court may require a person to enter into under paragraph 70NEB(1)(d).
(2)A bond is to be for a specified period of up to 2 years.
(3)A bond may be:
(a)with or without surety; and
(b)with or without security.
(4)The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a)to attend an appointment (or a series of appointments) with a family consultant; or
(b)to attend family counselling; or
(c)to attend family dispute resolution; or
(d)to be of good behaviour.
(5)If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a)the purpose and effect of the proposed requirement; and
(b)the consequences that may follow if the person:
(i)fails to enter into the bond; or
(ii)having entered into the bond--fails to act in accordance with the bond.
I have left the execution of the bond to the mother but it has to be done at the Court by 4 pm 15 June. She understood that she had to attend at the Court’s counter and speak to a registrar who has been given the bond.
Finally, counsel for the father sought costs. The mother’s position is that she has no money and any order would take needed money from the children. Upon counsel for the father indicating there is an outstanding property dispute, the mother said she had accepted the father’s offer of $100,000. She denies she will ever get any such money and it seems that nothing has been documented. However, as counsel for the father was unable to tell me what his costs were, I have adjourned that issue to the senior registrar in July as well.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 June 2017.
Associate:
Date: 14 June 2017