Jarrold and Ericsson (No.6)
[2018] FCCA 3462
•28 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JARROLD & ERICSSON (No.6) | [2018] FCCA 3462 |
| Catchwords: FAMILY LAW – Contravention – whether the father has contravened orders made on 18 December 2014 and 24 August 2016 – where these are the sixth proceedings issued since final orders were made on 18 December 2014 after a four day trial – if contraventions proven, what penalty would be appropriate. |
| Legislation: Family Law Act 1975, ss.70NEB(1)(a)(i), 70NFB(2), 70NBA, 70NAC, 70NAD, 65N, 70NAE, 70NEB, 70NEC, 70NECA, 70NFA, 60CA, 60CC Federal Circuit Court Rules 2001, r.25B.02 |
| Rice v Asplund (1979) FLC 90-725 Hugh & Sawer [2010] FamCA 290 Elspeth & Peter, Mark & Peter, and John & Peter [2007] FamCA 655 |
| Applicant: | MS JARROLD |
| Respondent: | MR ERICSSON |
| File Number: | DGC 1317 of 2013 |
| Judgment of: | Judge Small |
| Hearing date: | 12 November 2018 |
| Date of Last Submission: | 12 November 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 28 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Combes |
| Solicitors for the Applicant: | Rockman & Rockman |
| Counsel for the Respondent: | Mr Ericsson in person |
| Solicitors for the Respondent: | None |
ORDERS
UPON THE COURT FINDING THAT:
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 on 21 April 2017 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 7 May 2017 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 25 May 2017 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 4 June 2017 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 8 June 2017 without reasonable excuse.
THE COURT ORDERS THAT:
Pursuant to s.70NFB(2) of the Family Law Act 1975 (Cth), the respondent father shall enter into a bond of three months’ duration beginning at the expiry of the bond entered into on 12 September 2017, that is, commencing on 12 September 2019, with a surety of $1000.00 to be of good behaviour and to comply with all orders of this court.
The mother’s Applications for Contravention filed 24 April 2017, 8 August 2017 and 10 November 2017, are otherwise dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Small delivered this day will for all publication and reporting purposes be referred to as Jarrold & Ericsson (No.6).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1317 of 2013
| MS JARROLD |
Applicant
And
| MR ERICSSON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contravention proceedings issued by the mother, Ms Jarrold (formerly Beesley) (“Ms Jarrold” or “the mother”), against the father, Mr Ericsson (“Mr Ericsson” or “the father”) in Contravention Applications filed on 24 April 2017, on 8 August 2017, and on 10 November 2017 (“the Applications”).
In the Applications, Ms Jarrold alleges that Mr Ericsson has contravened either Final Orders made by Judge Phipps on 18 December 2014 (“the Final Orders”), or a variation to those orders made by Judge O’Sullivan on 24 August 2016 (“the August 2016 Orders”), or both, on no less than 18 occasions.
The orders alleged to have been contravened are parenting orders in relation to the parties’ children: [X] born 2003 (“[X]”); [Y] born 2006 (“[Y]”) and [Z] born 2008 (“[Z]”) (collectively “the children”).
As this is the third Contravention Application judgment delivered in these proceedings about the same orders, the background, procedural history and law sections of these Reasons will inevitably be very similar, so much so that in some sections of these Reasons I have quoted verbatim from a previous judgment of mine[1] without direct reference to it.
[1] Beesley & Ericsson (No.4) [2017] FCCA 2189
Background
The father was born 1963 and is 54 years old. He is a professional but has been unemployed for several years due to health reasons.
The wife was born 1974 and is 44 years old. She works full-time as a professional at B employer.
The parties were married on 1993 after living together since March of that year, and separated on 8 December 2012. They were divorced on 15 August 2015.
[X], [Y] and [Z] are the only children of the marriage.
The father lives in Location C with his current wife and her two children (who spend half their time with their father), and the mother lives in Location D with her current husband and the subject children.
The children currently spend time with the father pursuant to the Final Orders, the August 2016 Orders, and Orders made by me on 12 September 2017 as a result of contravention proceedings brought by the mother against the father in 2016 (“the September 2017 Orders”).
Both parties are Jewish, the father by birth and the mother by conversion, but their practices are different – the father’s being more Orthodox observant (for instance he does not drive or use technology on Shabbat), and the mother’s, while still Orthodox (for instance she keeps a Kosher kitchen), being less strictly observant. That difference has been in the background of a considerable amount of the conflict between the parties over the years, and that conflict has led to almost continuous litigation since 2013.
Procedural History
As already stated, Judge Phipps made Final Orders in the initial parenting proceedings between the parties on 18 December 2014 after a four day trial held in May 2014.
The father issued an Initiating Application on 14 August 2015 seeking orders different to those made by Judge Phipps on the ground that the mother had recently moved from Location C to Location D.
On 27 November 2015, Judge Phipps dismissed that Application on the basis of the decision of the Full Court of the Family Court of Australia in Rice v Asplund (1979) FLC 90-725, as the mother was continuing to comply with the Final Orders, and as the move to Location D was not affecting that compliance, there was no new circumstance to be considered.
On 21 December 2015 the father filed a Contravention Application alleging multiple contraventions of the Final Orders by the mother.
On 26 February 2016 the father filed a second Contravention Application alleging further contraventions of the Final Orders by the mother.
On 29 February 2016 Judge Phipps recused himself from hearing the father’s first Contravention Application and adjourned that Application to a date to be fixed.
Both the father’s Contravention Applications were then adjourned to 27 May 2016 before Judge O’Sullivan.
On 27 May, Judge O’Sullivan adjourned both Applications to a hearing before him on 21 July 2016, when both Applications were heard together.
In a judgment delivered on 24 August 2016, Judge O’Sullivan found that the mother had contravened the Final Orders on four occasions, on two of those without reasonable excuse, and ordered make-up time for the children and the father.
He also varied the Final Orders in the following terms:
5. Pursuant to s.70NBA the orders of 18 December 2014 be varied as follows:
a) The school holiday time in order 8 commences (and the school term time in order 4 concludes) on the last day of school in each school term.
b) Unless otherwise agreed or provided for in these orders, changeover where not otherwise at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.
The mother issued her first Contravention Application on 17 June 2016, alleging that Mr Ericsson had breached the Final Orders on two occasions.
The father issued further proceedings by way of an Initiating Application filed on 18 July 2016, in which he again sought to vary the Final Orders.
The trial of those proceedings, which ultimately related only to the children’s schooling, the remainder of the father’s application having been dismissed, again on the basis of the principle set out in Rice v Asplund after an interim hearing held on 17 February 2017, was held on 11 and 12 September 2017, with judgment being given on 19 January 2018. As a result of those proceedings, certain further variations were made to the Final Orders (“the January 2018 Orders”).
The mother filed her second Contravention Application on 2 November 2016. That application alleged twelve contraventions of the Final Orders and four contraventions of the August 2016 orders. Some of those allegations involve both the Final Orders and the August 2016 orders.
On 2 November 2016, the two Applications were consolidated and listed for hearing on 17 February 2017.
The matter was not reached on 17 February 2017 and was adjourned to 23 February 2017 for a one day hearing. On 14 February I ordered the mother to file an Affidavit setting out exactly which allegations she wished to pursue at hearing by 4:00 p.m. on 18 February 2017. She did so, citing seven of the twelve allegations in the second Application.
The trial of those applications was held on 23 February 2017. Judgment was reserved at the conclusion of the proceedings and was delivered on 12 September 2017.
On 24 April 2017, prior to the delivery of judgment on 12 September 2017, Ms Jarrold filed a further Contravention Application against Mr Ericsson, alleging further breaches of the Final Orders and of the August 2016 orders.
On 8 August 2017, Ms Jarrold filed yet another Contravention Application against Mr Ericsson in similar terms.
On 12 September 2017, in a judgment delivered in relation to the trial on 23 February 2017, the court found Mr Ericsson to have contravened the Final Orders and/or the August 2016 orders on five occasions. He was required to complete a post-separation parenting course, and to enter into a bond to be of good behaviour and to comply with all court orders for two years.
I also varied the Final Orders further to allow Mr Ericsson to return the children two hours after the end of synagogue prayers on Jewish Holidays.
On 10 November 2017, Ms Jarrold filed yet another Contravention Application against Mr Ericsson, alleging further breaches of the Final Orders and the August 2016 Orders.
On 15 November 2017, the Contravention Applications filed 24 April 2017, 8 August 2017, and 10 November 2017 were consolidated and listed for trial on 12 November 2018.
On 16 August 2018, Mr Ericsson filed an Application in a Case seeking orders that I recuse myself in all current and future proceedings between these parties, and that all future proceedings be heard in the Melbourne Registry of the Court. I heard that Application before proceeding with the trial on 12 November 2018, and dismissed it.
At the trial on 12 November 2018, Ms Jarrold was represented by Mr G. Combes of counsel, while Mr Ericsson was self-represented.
At the commencement of trial, I asked Mr Combes to choose five allegations to be tried, as the allegations in each application were very similar, and he did so. I will dismiss the remainder of the allegations.
Mr Ericsson gave evidence and was cross-examined and I reserved judgment at the conclusion of submissions by him and by counsel.
I note that there are still further proceedings filed in this matter: an Initiating Application filed by the father on 12 October 2018 in relation to parenting orders; and a Contravention Application also filed by the father on 12 October 2018. I have read neither that Initiating Application, nor that Contravention Application, and they have not informed my decision in these proceedings in any way.
The Law
The law in relation to contraventions is found in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Much of this section of this judgment is copied verbatim from my Reasons for Judgment in Beesley & Ericsson (No.4) [2017] FCCA 2189 as the allegations, and the law in relation to them, are either identical, with variations only as to dates, or very similar.
Section 70NAC and s.70NAD of the Act set out the meaning of what it is to contravene an order as follows:
70NAC Meaning of contravened an order
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; or
(b) otherwise – he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
(Note omitted)
70NAD Requirements taken to be included in certain orders
For the purposes of this Division:
(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b) a parenting order that deals with whom the child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
(c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and
(d) a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.
The orders alleged to have been contravened in this case are parenting orders which deal with “spend time” arrangements.
Therefore those orders are taken to include the requirements of s.65N of the Act.
Section 65N states as follows:
65N(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
65N(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child from benefiting from spending time with each other under the order .
In this case, the allegations relate to the father’s “interfering with a person and the child from benefiting from spending time” with the mother by not returning the children to her pursuant to court orders.
The legislation also provides for a court to be satisfied that a person has contravened an order, but to find that he or she had “a reasonable excuse” for doing so, that finding resulting in either exoneration of the person, or further orders being made.
That is, an Applicant in contravention proceedings must prove not only that an order has been contravened, but that the Respondent has contravened the order without a reasonable excuse.
The meaning of “reasonable excuse” is set out in s.70NAE of the Act as follows:
70NAE(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 include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
70NAE(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 to be excused in respect of the contravention.
70NAE(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 the person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the 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 or safety of the person referred to in paragraph (a).
70NAE(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 if:
(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 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).
Section 70NAE (6) and (7) are not relevant in these proceedings.
The onus of proving the facts of a contravention lies with the Applicant, that is, with Ms Jarrold.
However once the facts have been proven, the onus is on Mr Ericsson, as the Respondent, to show, on the balance of probabilities, that he had a reasonable excuse for the contravention.
When the allegations were put to him at trial, Mr Ericsson stated that he could not recall the facts of the first allegation, but that if they were as stated, he had a reasonable excuse.
In relation to the other allegations, he conceded the facts as alleged, but again stated that he had a reasonable excuse.
As a result, he must prove to the Court, on the balance of probabilities, that on the relevant days alleged, either he did not understand the obligations imposed on him by the Final Orders/the August 2016 Orders, or that the contraventions were necessary in order to protect the health or safety of the children and/or him.
The Evidence
I will deal with each allegation separately.
Allegation 1: That on 21 April 2017 at 3:00 p.m. the father without reasonable excuse collected [Y] and [Z] from school before the end of the school day in contravention of paragraph 4(a) of the Final Orders.
Paragraph 4 of the Final Orders reads:
4. That the children spend time and communicate with the husband during the school term as follows:
(a) Each alternate weekend from after school or like time on Friday to 5.00p.m. Sunday;
(b) Each alternate Thursday from after school or like time to 7.00 pm;
(c) As otherwise agreed in writing between the parties.
In her Affidavit affirmed on 6 August 2017 and filed 8 August 2017 (“the mother’s August Affidavit”), the mother states that on 21 April 2017, “[Mr Ericsson] picked up [Y] and [Z] from their school, E Primary School, before the end of school”.
She goes on to describe how her husband, Mr N, was contacted by the Acting Principal of E Primary School and informed that Mr Ericsson had attended the school at 3:00 p.m. on that day, and despite being informed that he was not permitted to remove the children, he had done so. Mr Jarrold’s sworn statement to the police in relation to that telephone call is annexed to the mother’s August Affidavit.
When he was asked at trial about that incident, Mr Ericsson said he could not remember the date and that Ms Jarrold would have to prove that it had happened.
I accept the mother’s evidence as to the events of 21 April 2017. She is precise as to the details and her husband’s statement, while not an Affidavit, supports her allegation.
I note that the mother’s August Affidavit states that the incident she describes as having occurred on 21 April 2017 was not unusual, and that Mr Ericsson often picked [Y] and [Z] up early from their school.
I am satisfied, on the balance of probabilities, and accepting the evidence of Ms Jarrold, as confirmed by the sworn statement of Mr Jarrold, that on 21 April 2017, Mr Ericsson did attend E Primary School at 3:00 p.m. and that he removed [Y] and [Z] from their classrooms before the conclusion of school.
I note in making that finding, that the phrase “or like time”, when included in orders relating to a parent collecting a child, usually refers to pick-ups that occur on non-school days, although there was no attempt to argue at trial that 3:00 p.m. was a “like time” to the conclusion of the school day and it is unnecessary for me to make a formal finding on that issue.
Mr Ericsson said at trial that in the event that I was satisfied as to the facts of this allegation, he had a reasonable excuse, that being that Shabbat begins at sunset, and in winter, that can be as early as 4:57 p.m. I note that Mr Ericsson does not drive once Shabbat has begun and must therefore transport the children to his home by sunset on Fridays.
He said that the travelling time between the children’s school and his home in Location C is such that if the traffic were heavy, it would be dangerous to try to drive that distance by sunset after the end of the school day in the winter.
I took him to be saying that his reasonable excuse was that he breached the Final Orders on 21 April 2017 because he believed that that breach was necessary to “protect the health or safety of a person (including the respondent or the child)”.
However, I note that the breach was committed on 21 April 2017, which is not in the season of winter, but less than a month after the conclusion of Daylight Saving Time. While no direct evidence was adduced at trial on that issue, it is unlikely that the sun would have set at or earlier than 5:00 p.m. on that day.
In any event, even if that were so, I find that the distance between Location E and Location C (about 44 kilometres or just under an hour’s drive) is not so far as to require a driver to speed or otherwise drive dangerously in order to cover that distance in one-and-a-half hours, especially as Mr Ericsson drives against the flow of the afternoon peak hour traffic on that journey.
In those circumstances, I do not accept that it was necessary for Mr Ericsson to pick the two younger children up from school before the end of the school day on 21 April 2017 in order to “protect (their) health and safety”, and therefore I find him to have breached Paragraph 4(a) of the Final Orders on that day without reasonable excuse.
Allegation 2: The respondent father contravened paragraph 4(a) of the Final Orders and paragraph 5(b) of the August 2016 Orders on 23 April 2017 without reasonable excuse.
I have set out paragraph 4(a) of the Final Orders and paragraph 5(b) of the August 2016 Orders in paragraphs 57 and 21 respectively above.
It was accepted by Mr Ericsson at trial on 12 November 2018 that he had not returned the children to their mother after his weekend time with them on 23 April 2017, and that she had been forced to drive to Location C to collect them.
He stated that he had a reasonable excuse for that contravention, and indicated that that “reasonable excuse” would apply to the remainder of the five counts of contravention against him. That excuse was the same one he had relied on in the previous contravention proceedings[2], where identical allegations were made (save for the dates of commission).
[2] Beesley & Ericsson (No.4) [2017] FCCA 2189
At the trial of the mother’s previous contravention application in February 2017, it was Mr Ericsson’s defence to almost identical allegations that the Final Orders and the August 2016 Orders were unclear, and that he held a genuine belief that he was not obliged to both collect and deliver the children when he spent time with him.
I did not accept that defence at that time, finding that he had contravened the Final Orders and the August 2016 Orders without reasonable excuse, because none of the requirements of s.70NAE(2) and (4) of the Act had been satisfied.
On 23 February 2017, during that trial, I told Mr Ericsson and his counsel that I disagreed with his interpretation of the Orders and that it was clear that under paragraph 5(b) of the August 2016 Orders, he was obliged to both collect the children after school and return them to Ms Jarrold’s home at the commencement and conclusion of his time with them.
In my judgment in those proceedings, delivered on 12 September 2017, I said, at paragraph 58:
When read together, I find, as a matter of law, that paragraph 4(b) of the Final Orders, and paragraph 5(b) of the Orders of August 2016 require Mr Ericsson to return the children to their mother at the conclusion of their time on each alternate Thursday.
For the reasons set out in that judgment, I now find that, when read together, paragraph 4(a) of the Final Orders, and paragraph 5(b) of the Orders of August 2016 require Mr Ericsson to return the children to their mother at the conclusion of their time on each alternate Sunday.
When he was asked at trial why he continued to interpret the Final Orders and the August 2016 Orders as not requiring him to do so, Mr Ericsson replied that I had not yet delivered final judgment on that issue, and he thought I might decide otherwise, despite my clear indications at trial on 23 February 2017.
This contravention took place on 23 April 2017, two months after I had stated my view about this issue very clearly to Mr Ericsson and his counsel.
In those circumstances, it is, at very least, disingenuous of Mr Ericsson to say that he continued to hold a genuine belief that he was not obliged to return the children to Ms Jarrold’s home on that day.
I therefore find that on 23 April 2017, Mr Ericsson contravened paragraph 4(a) of the Final Orders and 5(b) of the August 2016 Orders without reasonable excuse in that he did not return the children to Ms Jarrold’s home on 23 April 2017 at the conclusion of his time with them.
Allegation 3: The respondent father contravened paragraph 4(a) of the Final Orders and paragraph 5(b) of the August 2016 Orders on 25 May 2017 without reasonable excuse.
I have already set out the provisions of those paragraphs earlier in these Reasons.
Mr Ericsson accepts that he did not return the children to Ms Jarrold’s home after his weekend time with them on 25 May 2017, but claims the same “reasonable excuse” – that he held a genuine belief that the Final Orders and the August 2016 Orders were ambiguous and he was not obliged to do so.
I have found that Mr Ericsson’s belief about the meaning of paragraphs 4(a) of the Final Orders and 5(b) of the August 2016 orders is incorrect at law.
Again, none of the matters set out in s.70NAE have been proven in relation to this allegation.
I therefore find that on 25 May 2017, the father, without reasonable excuse, contravened paragraph 4(a) of the Final Orders and 5(b) of the August 2016 orders in that he failed to return the children to their mother at her home in Location D after his time with them.
Allegation 4: The respondent father contravened paragraph 4(a) of the Final Orders and paragraph 5(b) of the August 2016 Orders on 4 June 2017 without reasonable excuse.
Again, Mr Ericsson accepts that he did not return the children to their mother’s home in Location D after his weekend time with them on 4 June 2017, and claims the same “reasonable excuse”.
And again, for the reasons stated above, I find that on 4 June 2017 the father, without reasonable excuse, contravened paragraph 4(a) of the Final Orders and 5(b) of the August 2016 orders in that he failed to return the children to their mother at her home in Location D after his time with them.
Allegation 5: The respondent father contravened paragraph 4(a) of the Final Orders and paragraph 5(b) of the August 2016 Orders on 18 June 2017 without reasonable excuse.
Mr Ericsson also accepts the facts as alleged here and claims the same “reasonable excuse”.
For the reasons set out above, I find that his excuse was not “reasonable” and therefore that on 18 June 2017 the father, without reasonable excuse, contravened paragraph 4(a) of the Final Orders and 5(b) of the August 2016 orders in that he failed to return the children to their mother at her home in Location D after his time with them.
Summary of Findings
In summary then, my findings in relation to the five allegations of contravention put to the court for decision on 12 November 2018, are as follows:
Allegation 1: Proven
Allegation 2: Proven
Allegation 3: Proven
Allegation 4: Proven
Allegation 5: Proven
Penalty
Subdivisions E and F of Division 13A of the Act provide for penalties to be imposed when a Court makes a finding that a person has contravened a parenting order without reasonable excuse.
Subdivision E addresses contraventions that are said to be less serious.
Section 70NEB sets out the powers of the Court when the Court has made a finding of a less serious contravention as follows:
70NEB(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 or any 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 the person for a particular period); and
(iii) the person referred to in paragraph (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.
Section 70NEC deals with the bond a court may impose under s.70NEB(1)(b):
70NEC(2) A bond is to be for a specified period of up to 2 years.
70NEC(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
70NEC(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.
Section 70NECA states that, if the Court requires a person to enter into a bond, and a court finds that the person has, without reasonable excuse, failed to comply with the bond, the Court may impose a fine not exceeding ten penalty units on the person, or it may deal with that situation as though it were a new Contravention Application.
Subdivision F deals with those contraventions said to be “more serious”.
Section 70NFA states that the Court may deal more seriously with a person who it has found to have “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
Section 70NFB then sets out the powers of the Court in those circumstances:
70NFB(2) The orders that are available to be made by the court are:
(a) if the court is empowered under section70NFC to make a community service order – to make such an order; or
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c) if the current contravention is a contravention of a parenting order in relation to a child – to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d) to fine the person not more than 60 penalty units; or
(e) subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f) 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;
to make an order requiring the person who committed the current contravention to compensate the person referred to in sub paragraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
In my judgment in the previous contravention proceedings, I said, at paragraph 148 and following:
148. As can be seen, the powers of the court to make orders upon a finding that a person has contravened a parenting order without reasonable excuse are very wide indeed.
149. I have found that the father has contravened the final orders on five occasions.
150.In Hugh & Sawer [2010] FamCA 290, at paragraph 15, Bennett J set out the principles enunciated by the Full Court in the matter of Elspeth & Peter, Mark & Peter, and John & Peter [2007] FamCA 655 (‘Elspeth & Peter’) relating to what might constitute a “serious disregard” for orders under s.70NFA(2)(b).
Those principles are stated to be:
a) what amounts to a serious disregard will depend on the circumstances of the case and the terms of the order;
b) serious disregard is a description of a degree of intent that is something less than the intent required for a contumacious breach, but something more than the intent present in a finding of a contravention;
c) serious disregard has to be seen as a question of proportion and a question of degree, and [is taken] to require some examination of whether it was premeditated, impromptu or minor in its nature;
d) serious disregard may involve no intention on the part of the respondent to support the primary order and/or an intention to circumvent the provisions of the primary order.
151. Her Honour then goes on:
16. At paragraph 61 of Elspeth and Peter their Honours observed:
The theme that emerges from an examination of several decisions... is that “serious disregard” tends to be found in cases of deliberate, premeditated noncompliance with orders and continued and protracted breach.
17. At paragraph 66 the Full Court observed:
What seems to be a common thread is that the more serious sanction should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on the first breach does not appear to be sufficient to attract the more stringent sanctions set out under Subdivision F.
In those proceedings I found that Mr Ericsson’s decision not to return the children to their mother as provided in the Final Orders and the August 2016 Orders was “a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order”.
At that time, I ordered Mr Ericsson to complete a post-separation parenting course and required him to enter into a bond to be of good behaviour and to comply with court orders for two years, that bond including a surety of $1000.
It is the evidence of both parties that since I made that order on 12 September 2017, Mr Ericsson has not declined to return the children to Ms Jarrold in accordance with the Final Orders and the August 2016 Orders, and, at the time of writing, she has not filed any further Contravention Applications.
Mr Ericsson’s behaviour in persisting in his belief that the Final Orders and the August 2016 Orders did not require him to return the children to their mother after his time with them, especially in light of the view I expressed at the trial of previous proceedings, shows a serious disregard for the Orders.
In this case, the father is in receipt of Centrelink benefits, and the imposition of a fine in those circumstances is unlikely to be effective, as he will simply say that he cannot afford to pay it. I note in that regard that costs orders awarded against Mr Ericsson in previous proceedings remain unpaid.
The mother’s counsel sought an extension of Mr Ericsson’s good behaviour bond for a further two years.
However, in circumstances where the original bond essentially punished him for his misinterpretation of and lack of compliance with the orders, where all current contraventions occurred prior to the delivery of my judgment in the previous proceedings on 12 September 2017, and where he has apparently not contravened the Final Orders or the August 2016 Orders since that date, I will make an Order under s.70NFB(2)(b) extending Mr Ericsson’s good behaviour bond for a further three months.
Conclusion
These are particularly high conflict parties.
I have made pessimistic comments in previous judgments about the possibility that they will keep the court involved in their children’s lives until [Z] turns 18 in 2026.
There is nothing in the present case, and particularly in the knowledge that further proceedings are pending, to dissuade me from that view.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 28 November 2018
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