Jablon and Sadberry (No.2)

[2014] FCCA 2548

FEDERAL CIRCUIT COURT OF AUSTRALIA

JABLON & SADBERRY (No.2) [2014] FCCA 2548

Catchwords:
FAMILY LAW – Contravention – reasonable excuse – consideration of less or more serious contravention.

Legislation:

Family Law Act 1975, Part VII Division 13A, ss.70NAC, 70NAE, 70NAF, 70NFB

Applicant: MR JABLON

Respondent: MS SADBERRY

File Number: DUC 300 of 2013

Judgment of: Judge Dunkley

Hearing dates: 18, 21 August 2014 and 15 September 2014

Date of Last Submission: 15 September 2014

Delivered at: Parramatta

Delivered on: 18 September 2014

REPRESENTATION

Counsel for the Applicant: Ms Obradovic

Solicitors for the Applicant: Peacockes

The Respondent appeared in person:

ORDERS

1. List the case for sentence at 2.15pm on 17 October 2014 at Parramatta.

2. Grant leave to the Respondent Ms Sadberry to appear at the sentence hearing by either telephone or video link from the Cairns Registry provided that any material that she wishes to be considered at that hearing has been submitted by either facsimile at the Federal Circuit Court at Parramatta to fax number (omitted) or by email to my Associate at (omitted) together with a copy of that material to the father’s Counsel by email to (omitted).

IT IS NOTED that publication of this judgment under the pseudonym Jablon & Sadberry (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

DUC 300 of 2013

MR JABLON

Applicant

And

MS SADBERRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Jablon (hereinafter the father) and Ms Sadberry (hereinafter the mother) are the parents of X born (omitted) 2012. 

2. As a result of an Interim Hearing on 20 March 2014, the mother, by virtue of Order 2 made that day, was ordered to by no later than the conclusion of the Queensland Term One school holidays make X resident in (omitted), New South Wales.

3. The first day of Term Two 2014 for Queensland schools was 22 April 2014. 

4. The mother was, at 20 March 2014, living in (omitted) Queensland, with X and her half siblings. 

5. As a result of the orders made at the Interim Hearing on 20 March 2014, the mother filed an Appeal.  The mother after filing the Appeal also sought a stay of the orders made on 20 March 2014.

6. On 30 May 2014, the mother’s application for a stay was heard and then dismissed. 

7. On 30 May 2014 as part of the hearing of the stay application, Order 2 made on 20 March 2014, being the order referred to above, was discharged, and it was ordered:

   a. By not later than 6 July 2014 the mother is to cause the child X born (omitted) 2012 to be resident in (omitted) New South Wales or in (omitted) New South Wales.

   b. The father is to pay the mother’s reasonable relocation costs from (omitted) to (omitted) New South Wales or (omitted) New South Wales.

8. It was further ordered:

   c. The father is to pay to the mother pending further order by way of urgent spousal maintenance the sum of $100 per week first such payment to be due on date that the mother signs a lease for premises in either (omitted) New South Wales or (omitted) New South Wales with such further payment of $100 per week to be paid by the father to the mother each subsequent seven days.

9. The mother has yet to make X resident in either (omitted) or (omitted).  That is a fact agreed between each of the parties.

Hearing

1. The father filed an Application for Contravention on 4 August 2014.  That application alleged multiple contraventions of the previous orders made.  The Contravention Application was listed for a directions hearing on 18 August 2014 in a Circuit sitting duty list in the Dubbo Circuit of the Federal Circuit Court.  The mother appeared on that day by telephone.

2. On 18 August 2014 the Contravention Application was listed then for hearing at 2.15pm on 21 August 2014. The mother was given leave to appear on 21 August 2014 by Audio Visual Link from the Cairns Registry of the Federal Circuit Court. 

3. On 21 August 2014, one Count from the multiple alleged contraventions in the Application filed 4 August 2014 was formulated and the mother was charged. 

4. The particulars of that allegation that formed the Count can be found in paragraphs 22 and 23 on page 5 of the father’s Application for Contravention filed on 4 August 2014.

5. The Count laid was formulated as follows: 

   That Ms Sadberry contravened order 2(a) made on 30 May 2014 in that she did not cause the child X, born (omitted) 2012, to be resident in (omitted), New South Wales, or in (omitted), New South Wales, by not later than 6 July 2014. 

6. The mother entered a plea of denial to the Count as charged.  She indicated that she wanted to provide a reasonable excuse.

7. The father relied on his Affidavit sworn 1 August 2014.  An earlier Affidavit sworn by him on 6 May 2014 became Exhibit ‘A’ during the course of his cross-examination. 

8. The mother was a self-represented litigant.  She cross-examined the father. 

9. A prima facie case was found for the reasons delivered orally on 21 August 2014. 

10. The case, because of the time of the day that it then was, was adjourned to 15 September 2014 for the hearing of the mother’s evidence, if any.

11. On 15 September 2014, the mother again appeared by Audio Visual Link from the Cairns Registry of the Federal Circuit Court.  She elected to give evidence.  She indicated that she relied on two Affidavits she had previously sworn, being those sworn on 19 August 2014 and 14 August 2014. 

12. She was cross-examined by Counsel who appeared for the father.

13. At the conclusion of the hearing, submissions were received. It was submitted on behalf of the father that if the Contravention were proved that the contravention would constitute, on its finding of being proved, a more serious contravention. 

14. That submission was based on X’s age. It was based on the fact that the mother had not returned X to live in New South Wales as ordered on 20 March 2014 and as varied on 30 May 2014, and, indeed, at the time of the hearing it was an agreed fact that X was not living or resident in either (omitted) or (omitted).

15. It was also submitted that the mother had been denied a stay and that should be factored into the consideration of whether a more serious contravention had occurred if it were found to have occurred. 

16. It was further submitted that by not complying with the orders made, the mother was depriving X of the opportunity to establish and have a relationship with her father. 

17. It was further submitted that the mother’s appeal hearing was still some months away listed to occur sometime in late 2014, and she had already on one occasion not complied with orders to be ready for an appeal hearing and had had an appeal dismissed, but subsequently reinstated by way of application in an appeal.

18. I do not see that the last submission has any relevance to the determination of whether a contravention is a less or more serious contravention. If a Judge on appeal has allowed the re-instatement of an appeal that fact does not relate to this case.

19. The mother submitted the quotes obtained by the father and the offer he made for her relocation costs were so low as to not enable her relocation and this amounted to a reasonable excuse.

The law relating to contravention proceedings

1. Part VII, Division 13A, sets out the relevant legislation in the Family Law Act 1975 relating to contravention of parenting orders. 

2. Section 70NAC(a)(i)(ii) defines the meaning of contravene an order for the purposes of this hearing. 

3. The orders made on 30 May 2014 relating to where X is to live and by what date she is to live in (omitted) or (omitted) is a parenting order. 

4. The other orders made on 30 May 2014 are ancillary to the parenting order, but are not themselves parenting orders, and those ancillary orders were not the subject of this contravention hearing.

5. Section 70NAE defines the meaning of reasonable excuse.  Section 70NAE(5) is the relevant subsection. 

6. Section 70NAF sets out the relevant standard of proof to be “on the balance of probabilities”. 

7. The father bears the onus of proof on the above standard with respect to the Count laid and charged.  The mother bears the onus of proof on the above standard with respect to the reasonable excuse she advances.

8. It was an agreed fact that X was for the duration of the hearing, being still resident in (omitted) Queensland, and had not been resident in (omitted), New South Wales, nor in (omitted), New South Wales, at any time from the making of the interim orders until the hearing of the contravention proceedings.

9. The reasonable excuse sought to be advanced by the mother was that the father would not commit to pay her reasonable relocation costs, which she said was about $24,000.  Included within that reasonable excuse was that until the father did so commit to that payment and make it, she could not return X to live in (omitted) or (omitted).

10. With respect to the reasonable excuse proffered by the mother, I have to decide whether $24,000 is a reasonable figure for her relocation expenses. The $24,000 is particularised in a letter from her then solicitor to the father’s solicitors. The letter is dated 24 June 2014, and is Annexure ‘D’ to the father’s Affidavit sworn 1 August 2014.

11. The amount of $24,000 is made up of a number of subsets and there are two types of alternative, one headed “Transportation By Road”, the other “Transportation By Air”.  The figure at the end of each is not dissimilar and is about approximately $24,000 for each.

12. I am not persuaded that the amount of approximately $24,000 as sought is a reasonable sum for the following reasons:

    a)Ms Sadberry has only sourced online removalist quotes.  Removalists have not been arranged by her to view the actual items in her home to be removed.  I cannot be satisfied that the online quotes relied on, therefore, have any basis in reality, having regard to what needs to be transported by the removalists.  There is a minimal description provided by the mother to the online removalist quote site.

    b)She lives in a three-bedroom home, but sought online quotes with respect to furniture for a five-bedroom home. 

    c)The fuel estimate in that part of the estimation headed “Transportation By Road” is likely to be wildly excessive in the amount sought.  I say that because there is no evidence that relates to the actual cost of fuel when compared with the actual distance from (omitted) to the (omitted) area.

    On face value, it would seem that the amount claimed would, even if a fuel cost of $2 per litre be applied, be significantly in excess of the actual distance between (omitted) and (omitted).  Such a submission was made on behalf of the father using an even more conservative amount for the fuel of approximately $1.60 per litre.  And using that calculation, Counsel for the father submitted that the amount of kilometres that could be covered would by many thousands of kilometres exceed the distance that needed to be travelled. No evidence to the actual price per litre for fuel was provided.

    d)The pet transport claimed is not a reasonable cost.  The pets to which it relates are a puppy and a kitten.  Each of the puppy and kitten were pets that were obtained after the mother became aware of the orders that would require her to relocate X’s residence.

    e)The accommodation component sought in each of the amounts is unlikely to be required as there is no evidence that tenancy in either (omitted) or (omitted) is not available, noting that the father is required to make a contribution towards the weekly costs of that lease.  The mother has done nothing other than make some minimal observations of online listings with respect to tenancy.

    f)The costs of the airfares claimed as part of the amount in that part of the estimation that relates to “Travel By Air” relates to a cost of three adults and one child.  The mother in her evidence has said that her two older children won’t be accompanying her. Additionally the amount in the letter is not supported by the actual quotation which is annexed to the mother’s Affidavit sworn 25 August 2014 as Annexure ‘E’ and is an amount that significantly exceeds that quotation.

    g)The mother’s lease on her premises in (omitted) Queensland has expired.  It can be ended without penalty.  She has taken no steps to do so.  She has taken no steps to recover any bond that is owed to her as a result of the end of the tenancy.  She says in her evidence that her house is always clean and tidy and as such there would be no issue that a bond would therefore be refunded to her.  Indeed, she gives evidence that she has, in the period of time that she’s been in occupation, significantly repainted, with the landlord’s permission, most of the house and only a small amount of the repainting work has not been completed.

13. The mother is firm in her evidence that her older child Y is not returning with her to New South Wales and she does not expect her son to return with her either. 

14. The mother has another son who lives with his partner in (omitted), New South Wales.  That son has previously been the carer for the mother and paid a benefit for so doing. 

15. Her parents, at least at the time of the Interim Hearing in 2014, owned a home in (omitted) that the mother and X had lived in before she relocated herself and X.

16. These last two factors, though not relevant to the determination of the contravention hearing, were factors that were considered when the orders were made on 20 March 2014 and those factors remained relevant when the orders were made on 30 May 2014. 

17. An objective assessment of the mother’s estimated costs as set out above shows that estimate of $24,000 to be excessive and therefore unreasonable. 

18. She does not therefore prove her reasonable excuse. 

19. She is therefore without excuse and the contravention as charged is proved. 

20. I am satisfied it is proved beyond reasonable doubt, given that it is an agreed fact that X remains and has always remained resident in (omitted), Queensland, since 20 March 2014.

21. I consider, having heard submissions as to whether or not this is a less serious or more serious contravention, that this contravention is a more serious contravention. 

22. It is a more serious contravention because X is, by the mother’s actions, being denied the possibility of a relationship with her father.  X is a young child.  It is a more serious contravention because the mother’s delay in compliance has been longstanding.  Her delay in compliance has been in place since the time permitted pursuant to the Orders made on 20 March 2014 as subsequently varied.

23. The mother in that period has demonstrated no intention to comply with the orders.  Her attempt at nominating a figure for her relocation costs was, for the reasons already discussed, excessive. 

24. It causes me to conclude that she is flagrantly disregarding the orders.

25. She has known about the orders to change X’s residence for a long period of time.  She has known of her obligations, pursuant to the order of 30 May 2014, for a long period of time.

26. As a consequence of all the above I determine that Subdivision F of Division 13A of Part VII applies with respect to penalty.

27. Section 70NFB of the Act sets out the powers of the Court. 

28. The possible penalties are serious, including but not being limited to fines, bonds, suspended jail sentences and jail sentences. 

29. Given that the mother is an unrepresented litigant, she should, in my opinion, be given time to seek legal advice as to the possible consequences that she faces as a result of the findings that have been made today and be given opportunity to put before the Court before it considers the appropriate imposition of a sentence any material that she considers relevant to the consideration of that sentence. 

30. As a consequence, she will be granted an adjournment to obtain that advice so as to be prepared to provide any material that she wishes to have the Court consider in respect of the sentence hearing.

31. That Sentence Hearing will be listed to occur on 17 October 2014. The mother has leave to appear by Audio Visual Link.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Date: 7 November 2014