Kalant and Jordain (No 5) - [2020] FamCA 812

FAMILY COURT OF AUSTRALIA

KALANT & JORDAIN (NO. 5)

[2020] FamCA 812

FAMILY LAW – contravention – purpose of contravention proceedings is coercive rather than punitive – reasonable excuse – onus – where Mother’s allegations were vague and lacked evidentiary basis – bona fides of Mother – changing standard of proof – proof beyond reasonable doubt on sanction – necessity for proportionality – consideration of imprisonment – imprisonment only available where no other option effective for securing compliance – where contravener indicates an intention of ongoing noncompliance – imprisonment not to be imposed where disproportionate – necessity to consider suspension if considering imprisonment – impact of imprisonment – compensatory time.

Family Law Act 1975 (Cth) – ss 4AB; 13A; 69ZW; 70NAF; 70NAF(3); 70NBA; 70NFA; 70NFB; 70NFB(1); 70NFB(1)(c); 70NFB(2); 70NFB(2)(c); 70NFB(2)(g); 70NFB(2)(h); 70NFB(7); 70NFC; 70NFE; 70NFG(2); 70NFG(5); Division 12A; Division 13A

McClintock & Levier (2009) FLC 93-401
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Mr Kalant

RESPONDENT:

Ms Jordain

INDEPENDENT CHILDREN’S LAWYER:

Mary Burgess

FILE NUMBER:

PAC

2727

2015

DATE DELIVERED:

25 September 2020

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

22 May 2020; 10 July 2020; 14-16 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Bainbridge Legal

SOLICITOR FOR THE RESPONDENT:

Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mary Burgess

ORDERS

IT IS ORDERED THAT

In relation to the contravention of 13 December 2019 of failing to allow X to spend time with her Father, Ms Jordain shall enter into the bond at Order 6.
In relation to the contravention of 24 January 2020 of failing to allow X to spend time with her Father, Ms Jordain shall:
(a) Serve a period of 14 days imprisonment;
(b) Enter into the bond at Order 6.
In relation to the contravention of 21 February 2020 of failing to allow X to spend time with her Father, Ms Jordain shall:
(a)Serve a period of 14 days imprisonment concurrent with the term in Order 2a. above;
(b) Enter into the bond at Order 6.
On entry into the bond at Order 6 the terms of imprisonment at Orders 2 and 3 are suspended.
In relation to the contraventions of 10 December 2019, 12 December 2019, 4 February 2020, 6 February 2020, 11 February 2020, 13 February 2020 and 18 February 2020 of failing to facilitate X having telephone time with her Father, Ms Jordain shall enter into the bond at Order 7.
Ms Jordain is directed to enter into a bond pursuant to s 70NFB(2)(6) of the Family Law Act 1975 without surety or security in the following terms:
The first bond
I, Ms Jordain, undertake to the Court that for a period of 24 months from the giving of this undertaking I will comply with the terms of any parenting order in force from time to time in relation to X, born on … 2013.
I acknowledge that should it be proven that I have not complied with the condition of this bond that I may be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kalant and Jordain (No 5)

Details

AGLC: Kalant and Jordain (No 5) [2020] FamCA 812
Case: [2020] FamCA 812
Decision Date: 25 September 2020

CaseChat Overview and Summary

In this matter before Gill J, the court considered contraventions of parenting orders by Ms Jordain, the mother, concerning her child, X. The contraventions related to failing to allow X to spend time with her father, Mr Kalant, on several occasions in late 2019 and early 2020, and failing to facilitate telephone contact between X and her father on other dates during the same period.

The primary legal issues before the court were to determine the appropriate consequences for Ms Jordain's contraventions of the parenting orders and to make orders for compensatory time for Mr Kalant. The court was required to consider the severity of the contraventions and the need to ensure future compliance with the parenting orders.

Gill J reasoned that Ms Jordain's contraventions warranted significant consequences, including periods of imprisonment. However, the court also provided an opportunity for these terms of imprisonment to be suspended upon Ms Jordain entering into two bonds. The first bond, for 24 months, was to ensure compliance with parenting orders regarding X spending time with her father, with specific reference to the contraventions of 13 December 2019, 24 January 2020, and 21 February 2020. The second bond, for six months, was to ensure compliance with orders facilitating telephone contact, referencing the contraventions of 10 December 2019, 12 December 2019, 4 February 2020, 6 February 2020, 11 February 2020, 13 February 2020, and 18 February 2020. The court also ordered compensatory time for Mr Kalant, detailing specific periods for X to spend with him in late September and October 2020, and issued a Recovery Order to be held in Chambers pending notification that X had not been provided to Mr Kalant as ordered. Ms Jordain was also prohibited from removing X contrary to parenting orders.

Orders

Orders of the court

IT IS ORDERED THAT

In relation to the contravention of 13 December 2019 of failing to allow X to spend time with her Father, Ms Jordain shall enter into the bond at Order 6.

In relation to the contravention of 24 January 2020 of failing to allow X to spend time with her Father, Ms Jordain shall:

(a) Serve a period of 14 days imprisonment;

(b) Enter into the bond at Order 6.

In relation to the contravention of 21 February 2020 of failing to allow X to spend time with her Father, Ms Jordain shall:

(a) Serve a period of 14 days imprisonment concurrent with the term in Order 2a. above;

(b) Enter into the bond at Order 6.

On entry into the bond at Order 6 the terms of imprisonment at Orders 2 and 3 are suspended.

In relation to the contraventions of 10 December 2019, 12 December 2019, 4 February 2020, 6 February 2020, 11 February 2020, 13 February 2020 and 18 February 2020 of failing to facilitate X having telephone time with her Father, Ms Jordain shall enter into the bond at Order 7.

Ms Jordain is directed to enter into a bond pursuant to s 70NFB(2)(6) of the Family Law Act 1975 without surety or security in the following terms:

The first bond

I, Ms Jordain, undertake to the Court that for a period of 24 months from the giving of this undertaking I will comply with the terms of any parenting order in force from time to time in relation to X, born on … 2013.

I acknowledge that should it be proven that I have not complied with the condition of this bond that I may be required to pay a fine not exceeding 10 penalty units (a penalty unit is currently $222) and I will be liable to be dealt with again for contravening orders that required me to provide X to her Father on:

(a) 13 December 2019

(b) 24 January 2020

And further that I will be liable to have the order suspending the 14 days terms of imprisonment in relation to the contraventions of 24 January 2020 and 21 February 2020 terminated resulting in me being imprisoned for a period of 14 days.

Ms Jordain is directed to enter into a bond pursuant to s 70NFB(2)(6) of the Family Law Act 1975 without surety or security in the following terms:

The second bond

I, Ms Jordain, undertake to the Court that for a period of 6 months from the giving of this undertaking I will comply with the terms of any parenting order in force from time to time in relation to X, born on … 2013.

(a) 10 December 2019

(b) 12 December 2019

(d) 6 February 2020

(e) 11 February 2020

(f) 13 February 2020

(g) 18 February 2020

I direct that the bonds may be entered into before the Registrar, or a member of staff of the Canberra Registry of the Family Court of Australia, or a member of staff of the ACT Magistrates Court or the Officer in Charge of the J Centre.

NOTATION

The purpose and effect of the requirement to enter into the two bonds is to require you to comply with parenting orders for a period of 24 months and 6 months respectively.

10.

Should you fail to enter into the first bond you will be imprisoned for a maximum period of 14 days, you will be subject to being dealt with again for those contraventions to which the bond relates and or be dealt with for contempt of the Court.

11.

Should you fail to enter into the second bond you will be subject to being dealt with again for those contraventions to which the bond relates and or being dealt with for contempt of the Court.

12.

Should you fail to act in accordance with the first bond you will be subject to:

(a) Having the order for suspension of the term of imprisonment terminated and being required to serve 14 days imprisonment;

(b) The imposition of a fine of up to 10 penalty units;

13.

Should you fail to act in accordance with the second bond you will be subject to:

(a) The imposition of a fine of up to 10 penalty units;

(b) Being dealt with again for the contraventions.

14.

I note that I have explained to Ms Jordain, in accordance with s 70NFE(5), in language likely to be readily understood by her:

(a) The purpose and effect of the requirements to enter into the bond;

(b) The consequences that may follow if she fails to enter into the bond;

Order

15.

There is no order as to costs.

16.

The substantive proceedings are listed to 11:30 am on 19 October 2020.

17.

The Contravention Applications filed on 20 December 2019, 5 February 2020 and 2 March 2020 are finalised.

18.

The Application in a Case filed 17 August 2020 is finalised.

19.

The Amended Contravention Application filed 5 February 2020 remains in the pending cases list.

20.

It is ordered, by way of compensatory time pursuant to s 70NFB(2)(c), that X, born … 2013, spend additional time with the Father as follows:

(a) Forthwith on Friday 25 September 2020 until 4 pm on Sunday 11 October 2020;

(b) From 4 pm on Friday 16 October 2020 until 4 pm on Sunday 18 October 2020;

21.

Should X be in attendance at school on 25 September 2020 the Father is entitled to collect X from school.

22.

The Father is to return X to the Mother at 4 pm on 11 October 2020 at Suburb K McDonald’s.

23.

In relation to Order 20(b) and Order 20(c) the Mother shall deliver X to the Father at the McDonalds at L Centre and the Father shall deliver X to the Mother at Suburb K McDonald’s at the cessation of time.

NOTATION

24.

The Orders for X to spend time with the Father made on 5 October 2018 as amended on 1 September 2020 remain in force and are relevantly in the following terms:

(a) During school terms in the third, sixth and ninth weekends in each school term;

(b) During the mid - term school holidays for the first half of the school holiday period in even numbered years and the second half of the school holiday period in odd numbered years;

(c) During the Christmas, summer school holiday period for the first half of the school holiday period in even numbered years and the second half of the school holiday period in odd numbered years;

(d) X will spend all other times with the Mother subject to these Orders;

(e) Weekend time is suspended during the school holidays; and

(f) The Mother or her agent shall ensure that X is delivered to Suburb K McDonald's at the commencement of time, being 6 pm, and the Father shall return X to the McDonalds at L Centre at the conclusion of time, being 6 pm.

25.

The time that X shall communicate with her parents remain in force in accordance with Order 8 of the Orders made on 5 October 2018:

(a) X shall communicate with her parents, unless otherwise agreed in writing, as follows:

(i) commencing 2019 and thereafter during school terms X shall communicate with her Father each Tuesday and Thursday between 6.30 pm and 7.00 pm (or such other time as may be agreed between the parties) with the Father to contact X on the mobile phone provided to her by the Father and the Mother to facilitate the call;

(ii) with the parent with whom X is not spending time, on X’s birthday between 6.30 pm and 7.00 pm with that parent to contact X on the mobile phone provided to her by the Father and the other parent to facilitate the call;

(iii) with the parent with whom X is not spending time, on Christmas Day, between 9.00 pm and 9.30 pm with that parent to contact X on the mobile phone provided to her by the Father and the other parent to facilitate the call;

(iv) commencing 2020 and thereafter with the parent with whom X is not spending school holiday time between 6.30 pm and 7.00 pm on Tuesday and Friday with that parent to contact X on the mobile phone provided to her by the Father and the other parent to facilitate the call;

(v) with a parent at any other time upon X’s request with the parent who receives the request to facilitate X contacting the other parent on the mobile phone provided to her by the Father and the other parent to facilitate the call;

(vi) at such other times as may be agreed between the parties.

Order

26.

Pursuant to s 67U of the Family Law Act 1975 (Cth) a Recovery Order is issued to the Marshal, all Officers of the Australian Federal Police and all Officers of the State and Territory Police Forces of Australia in the terms set out below, but will lie in Chambers pending notification in writing to the Registrar by the solicitors for the Father that X has not been provided to the Father in accordance with the compensatory time orders as set out above, at which point the recovery order shall cease to lie:

You are authorised/directed with such assistance as you require, and if necessary by force, to find and recover the child X (born … 2013, female).

You are required to return/deliver the child to the Father Mr Kalant (born … 1986, male) at an address to be agreed between Mr Kalant and the person effecting such recovery.

For the purpose of finding and recovering the child you are authorised/directed, with such assistance as you require, and if necessary by force to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found.

The Mother, Ms Jordain (born … 1985, female), is prohibited from again removing or taking possession of the child contrary to the parenting orders in force.

If the Mother again removes or takes possession of the child contrary to the parenting orders in force, she may be arrested, without a warrant.

This Order remains in force until 25 October 2020.

27.

The Mother is directed by herself or by her agent to deliver X to the Father at 3.30pm today at the McDonalds at L Centre.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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