Jablon and Sadberry (No.3)

[2014] FCCA 2549

FEDERAL CIRCUIT COURT OF AUSTRALIA

JABLON & SADBERRY (No.3) [2014] FCCA 2549

Catchwords:
FAMILY LAW – Proven more serious contravention – Sentence Hearing.

Legislation:

Family Law Act 1975, ss.70NFB, 65DA(2), 70NFE

Applicant: MR JABLON

Respondent: MS SADBERRY

File Number: DUC 300 of 2013

Judgment of: Judge Dunkley

Hearing date: 17 October 2014

Date of Last Submission: 17 October 2014

Delivered at: Parramatta

Delivered on: 17 October 2014

REPRESENTATION

Counsel for the Applicant: Ms Obradovic

Solicitors for the Applicant: Peacockes

The Respondent appeared in person:

ORDERS

THE COURT ORDERS BY WAY OF PENALTY AS FOLLOWS:

1. Count 1:

   Ms Sadberry is to sign and enter into a Bond for a period of twelve months pursuant to section 70NFB(2)(b) of the Family Law Act 1975 without surety, to be of good behaviour and to comply with all parenting orders.

THE COURT FURTHER ORDERS THAT:

1. By way of a compensatory time with order commencing 6 December 2014 X born (omitted) 2012 shall spend time with the Applicant father:

   (a)In the first two weeks:

   (i)For one hour on each Tuesday between 10am and 11am; and

   (ii)For one hour each Saturday and Sunday between 2pm and 3pm.

   (b)In the third and fourth weeks:

   (i)For one hour each Tuesday and Thursday between 10am and 11am; and

   (ii)For two hours each Saturday and Sunday between 2pm and 4pm.

2. Dismiss all outstanding allegations of contravention filed 4 August 2014.

3. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Jablon & Sadberry (No.3) 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

1. Today I have conducted a sentence hearing. 

2. Ms Sadberry was charged with contravening Order 2(a) made on 30 May 2014.  She entered a plea of not admitting the contravention. 

3. After a hearing on 15 September 2014 and 18 September 2014 I found that Ms Sadberry was without reasonable excuse and had therefore contravened Order 2(a) made on 30 May 2014.  I also found the contravention to have been proved beyond reasonable doubt. I found that the contravention was a more serious contravention.

4. Because Ms Sadberry was a self-represented litigant, the sentence hearing about the penalty to be imposed was adjourned so as to enable her to obtain legal advice and gather and put before the Court any material that she thought relevant to the imposition of that sentence and/or penalty. 

5. She remains today a self-represented litigant.  A number of documents have been tendered by her, including a bundle that became Exhibit ‘B’ and a Medical Certificate relating to the child X’s admission to (omitted) Hospital for a four-day period, between 19 September 2014 and 23 September 2014.

6. The remaining subjective facts relevant to be considered were teased out by me during the course of submissions made by Ms Sadberry. 

7. With respect to the sentence and/or penalty to be imposed the Court’s powers are found in section 70NFB of the Family Law Act 1975.

8. The child the subject of the substantive parenting proceedings is X.  X is aged just over two.  She was born on (omitted) 2012. 

9. A short history is appropriate.  On 20 March 2014, Ms Sadberry as a result of an Interim Hearing was ordered to return X to live in (omitted) in the Central West of New South Wales. (omitted) is near (omitted). Ms Sadberry had moved with X to (omitted), Queensland.

10. Ms Sadberry has not complied with the order or any variation of it. 

11. The mother and, more importantly, X, remain resident in (omitted), Queensland. I am satisfied that they will remain living there unless they are forced by some means to comply with the Orders that remain in place.

12. The mother is not in paid employment.  She receives Centrelink payments of $630.65 in week 1 and $656.30 in week 2.  She also receives some child support payments from Mr Jablon with respect to X. 

13. She owes the (omitted) Bank a sum of approximately $2,600 and is repaying this loan at the rate of $25 per week. 

14. She rents her home in Queensland.  Included within Exhibit ‘B’ is a Tenant Trust Ledger Report which indicates that her rent is $320 a week.

15. She pays school fees for her older three children.  Included within Exhibit ‘B’ are a number of invoices from (omitted) College, the school that they attend, which sets out those fees.  By way of example, in November last year, the fees for Z for the period 9 September to 19 November were $357.50.  The fees for Y for the same period were $457.50. 

16. The fees for W for the same period were $357.50. 

17. Those three older children are not the subject of the current parenting proceedings between Mr Jablon and Ms Sadberry, because they are not children of that relationship. Those children live with the mother.

18. Ms Sadberry has some mental health issues for which she is being treated. 

19. She is aged 40. 

20. Her three older children are school-aged teenagers.  The oldest of those, Y, is pregnant and recently returned to live with her mother. 

21. The mother has, I’m satisfied on the evidence, limited financial resources. 

22. If she were ordered to pay the legal costs of Mr Jablon, as was submitted by Counsel for the father, that payment is likely to be unable to be financially afforded by her, and, I am satisfied, would cause significant financial hardship for her, and, given her limited income, would create financial difficulties for X. 

23. That would not be in X’s best interest. 

24. For those reasons, the mother will not by way of a penalty be responsible for the Applicant’s costs.

25. Ms Sadberry has appealed the orders made on 20 March 2014.  Her appeal is listed for hearing in the Eastern Appeals Registry in Sydney at 2.15pm on 1 December 2014.  I am comfortably satisfied, given her actions to date and the submissions that she has made to me today, that she has no intention of moving to (omitted) or (omitted), as she has been ordered to do so, with X, or more importantly, changing X’s place of residence to those locations.

26. The father, by way of penalty, also seeks the imposition of a bond upon Ms Sadberry, and a variation of the interim parenting orders so that X would live with him or, in the alternative, a compensatory time-with order.

27. Dealing first with the submission that would cause a variation of the interim parenting order so that X would live with him, I was not satisfied in the Interim Hearing in March 2014 that such an order was in X’s best interests for the reasons then set out in that Judgment.  Today, for the same reasons, I find the change of residence not to be in X’s best interest.  That is not to say that if, in the future, Ms Sadberry were found to have contravened the bond upon which, for the reasons I will later set out, she is to be ordered to enter, that it might not at that point be a point in X’s interest to live with her father, rather than say for example to go into care because the mother was in jail.

28. Make-up time or the compensatory time order sought by Mr Jablon is incrementally insignificantly different to the time-with orders that are already in place.  Because those time-with orders were found at the time that they were made to be in X’s best interest, and nothing has intervened on the evidence to convince me that they do not remain in X’s best interest, the slight incremental variation to enable the compensatory time order, I am satisfied, for the same reasons as previously expressed when the time-with orders were made, is, I am satisfied, in X’s best interest and, for that reason, will be made.

29. The sentence of and penalty of a bond for 12 months subject to the conditions outlined to be of good behaviour and to comply with existing orders and has been explained to Ms Sadberry by me and represents the objective seriousness of the contravention and balances the subjective factors advanced by her, being her age, her health circumstances, her financial situation and her caring responsibilities for four other children, while re-enforcing the need for compliance and providing an incentive to do so. The bond is without surety because of her financial circumstances.

30. Ms Sadberry should be aware that, if the appeal that is to be heard on 1 December 2014 is dismissed, she will then at that point in time effectively have run out of options with respect to the orders that are already in existence as made by this Court. As I have explained to her, having regard to section 70NFE(5) of the Act, she may at that point in time, on a successful prosecution of a breach of the bond or successful prosecution of a contravention of the parenting orders that are in existence, render herself liable to significant and serious penalties. Such penalties could include a suspended jail sentence and/or a custodial sentence or other penalties.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Date: 6 November 2014