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 of 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

1. 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.

2. 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.

3. 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.

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

5. 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.

6. 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
   (c)       21 February 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.

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 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.
   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 facilitate telephone time between X and her Father on:

   (a)       10 December 2019
   (b)       12 December 2019
   (c)       4 February 2020
   (d)       6 February 2020
   (e)       11 February 2020
   (f)        13 February 2020
   (g)       18 February 2020

8. 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

9. 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;
    (c)       Being dealt with again for the contraventions.

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;

    (c)The consequences that may follow if having entered into the bond she fails to act in accordance with the bond.

Order

1. There is no order as to costs.

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

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

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

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

6. 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;

   (c)From 4 pm on Friday 23 October 2020 until 4 pm on Sunday 25 October 2020.

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

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

9. 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

10. 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.

11. 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

1. 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.

2. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kalant & Jordain 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 CANBERRA

FILE NUMBER: PAC 2727 of 2015

Mr Kalant

Applicant

And

Ms Jordain

Respondent

REASONS FOR JUDGMENT

1. Following a determination of what is in X’s best interests at a contested trial, parenting orders were made by Judge Tonkin on 5 October 2018.  They were unsuccessfully challenged on appeal to the Full Court.[1]  They provide for X to spend regular weekend, school holiday and telephone time with the Father.

   [1]Kalant & Jordain [2019] FamCAFC 222

2. These proceedings concern the contravention of those parenting orders by the Mother.

3. As well as providing powers and principles to ensure that parenting orders are made with the best interests of a child being the paramount consideration, the Family Law Act 1975 (Cth) provides powers for imposing consequences for failing to comply with those orders. Those powers, as set out at Division 13A of Part VII of the Act, are directed to causing compliance with parenting orders. Their purpose is not to inflict punishment on a non-compliant parent, but rather to ensure that the parenting orders (which are made with the best interests of a child as the paramount consideration) are complied with.

4. It is these powers that the Father seeks be used to cause the Mother to comply with the orders made that provide for X to spend time with, and have a relationship with him.

5. During the general conduct of the contravention proceedings, the Mother has indicated that she will not comply with the orders for X to be provided to the Father.

6. In pursuing these remedies, it should be noted that the proceedings have not followed a straightforward path.  Although the progress of the court proceedings is set out below, it is helpful to understand some of the features of these proceedings.

7. The first is that the proceedings involve multiple applications by the Father in relation to contravention of the orders.  Not all of the Father’s applications for contravention have been dealt with in the hearing of these matters, and the hearing of the matters has taken place in the context of the Mother’s continuing refusal to provide X in accordance with Judge Tonkin’s orders.  X has not seen her Father since January this year.

8. While the Mother is not being dealt with for contraventions flowing from such withholding, other than those set out specifically, it is against this factual background that the sanctions in relation to the individual contraventions fall to be determined.

9. The hearing of the proceedings has involved multiple adjournments, often, but not always, at the request of the Mother.  On one occasion, I fell ill necessitating an adjournment.  The COVID-19 precautions also limited available court time on one occasion.  On occasion, the Mother either did not attend, or departed from the hearing of the matter prematurely, including on one occasion calling an ambulance from the courtroom and departing with the ambulance.  As explained below, this particular incident should not be construed as a genuine incapacity on the part of the Mother to take part in the proceedings on that occasion.  The proceedings then continued in her absence.

10. It should also be noted that the contraventions that related to not providing X for face to face time were admitted by the Mother, although she has asserted that she has a reasonable excuse for not complying, based on her belief that X is at risk with the Father.  For reasons set out in more detail below, the Mother’s excuse for non-compliance was not based on reasonable grounds.

11. The proceedings have been protracted, in large part for the reasons explained in the judgment that sets out the findings in respect of the contraventions.  Further, since finding the contraventions the Mother has, on multiple occasions, failed to attend Court when directed to do so, seeking and obtaining adjournments on the basis of medical certificates for herself or for her children, until finally attending in person on 14 September 2020.  The proceedings then continued over the following days with the Mother present.

Approach

1. In determining the appropriate sanctions, it is of first importance to recall that the purpose of the contravention proceedings is not to effect punishment for the contraventions, but rather the purpose is to cause future compliance with the parenting orders.[2]

   [2]McClintock & Levier (2009) FLC 93-401

2. That purpose is to be effected within the statutory framework set out at Division 13A of Part VII of the Family Law Act 1975 (Cth).  The presence of that Division within Part VII means that the evidentiary provisions contained at Division 12A have application to contravention proceedings.

3. That statutory framework provides for differing responses being available to the Court dependent upon whether the contravention is more serious or less serious, and dependent upon whether a reasonable excuse for the contravention is established on the balance of probabilities.  While, in general, it is only necessary to establish that a contravention has occurred on the balance of probabilities, some forms of sanction being fines, community service and imprisonment are only available where the grounds for the order have been proven beyond reasonable doubt.

4. In this case, each of the contraventions has been determined to fall into the more serious category and none of the contraventions has been established to be subject to a reasonable excuse for the contravention. 

5. As explained further below, during the hearing, to establish whether the contraventions had taken place, and whether they were the subject of a reasonable excuse, the Mother departed part way through, having called an ambulance for herself.  The proceedings continued in her absence, as set out in the judgment of 17 July 2020 and the contraventions were found to be established.  Having departed the proceedings, the Mother failed to prove that she had a reasonable excuse for the contraventions.

6. It is highly undesirable that proceedings be conducted in the absence of a party.  It is important that parties are given the opportunity to be heard and to present their case.  For reasons set out below, I concluded that the Mother had such an opportunity despite her departure in an ambulance.  Just as it is important that each party has the opportunity to be heard, so too is it important that a party is not allowed to obstruct, derail and delay proceedings by failing to participate.  Allowing a party alleged to be in contravention to dictate whether proceedings continue undermines the enforcement of orders designed to support the best interests of a child.

7. Despite this, when the proceedings moved to the sanction phase, following the finding that the contraventions were established and were without reasonable excuse, the Mother was still permitted to give evidence to set out why she said that she had a reasonable excuse for her contraventions.  The Mother’s basis for this assertion is set out later in the judgment, but fell short of establishing that she had reasonable grounds for preventing X from spending time with the Father.

8. The findings that the contraventions were established, were without reasonable excuse, and were of a more serious category attracts the discretion as set out at Subdivision F (commencing at s 70NFA).  The powers of the Court and reasoning process to deal with the contraventions are then set out at s 70NFB and following.  Section 70NFB is in the following terms:

   Powers of court

   (1)If this Subdivision applies, the court must, in relation to the person who committed the current contravention:

   (a)make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and

   (b)if the court makes an order under paragraph (2)(g)--consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and

   (c)if the court does not make an order under paragraph (2)(g)--make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.

   (2)The orders that are available to be made by the court are:

   (a)if the court is empowered under section 70NFC 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 subparagraph (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.

   Note:         The court may also vary the primary order under Subdivision B.

   (3)If a court varies or discharges under section 70NFD a community service order made under paragraph (2)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate.

   (4)The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent.

   (5)The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of:

   (a)a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989; or

   (b)       a breach of a child support agreement made under that Act; or

   (c)a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).

   (6)An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.

   (7)When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.

1. The Section compels the Court to make an order for all of another party’s costs, unless it is satisfied that it would not be in the child’s best interests for this to occur.  Accordingly, the costs regime at this point sits apart from the general regime at s 117 of the Act.  If the Court does make such a costs order, then the Court is to consider making another order pursuant to s 70NFB(2), or if it does not make a costs order, must make at least one other order under s 70NFB(2).

2. The range of orders available spans community service orders, bonds, compensatory orders for time with a child, fines, imprisonment, the payment of expenses incurred as a result of the contravention and the payment of full or partial costs.

3. Further, the orders may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.

4. Pursuant to s 70NFB(7) the Court may make any other order to secure compliance with the order that was contravened.

5. Further provisions condition the capacity of the Court to make a community service order (s 70NFC), or a Bond (s 70NFE), or a sentence of imprisonment (s 70NFG).  In particular, an order for community service, a fine, or a term of imprisonment cannot be imposed unless the grounds for the making of such an order are established beyond reasonable doubt (s 70NAF).

6. It should also be recognised that where contravention proceedings are brought, regardless of whether the contravention is established, pursuant to s 70NBA the Court is empowered to vary the primary orders.  The Court is also empowered to order compensatory time.

7. It is necessary to recognise that where the contraventions are established the Court is called upon to exercise discretion in relation to each of the proven allegations.  However, in doing so the Court is required, where there are multiple contraventions, to, as a final step, examine the total outcome imposed by the individual consideration of the contraventions and to adjust the overall outcome to ensure that it is not disproportionate to the totality of the contraventions and is not disproportionate to the objective of securing future compliance with the orders.

Procedural and Litigation History

1. The Mother has been previously dealt with for contraventions of the orders made by Judge Tonkin for the provision of X.  On 12 April 2018, Judge Dunkley found four contraventions proven and, on 7 May 2018, directed that the Mother enter into bonds to be of good behaviour and to comply with court orders, for a cumulative duration of 12 months.  The Mother was also to attend a post separation parenting programme.

2. Those bonds expired by 9 May 2019.  None of the contraventions dealt with here were in breach of those bonds.

3. The primary thrust of the Mother’s case appeared to revolve about two contentions.  One was that she was being subjected to family violence by the Father.  The other concerned issues of risk of abuse (including sexual abuse) to X, allegedly posed by the Father.

4. As to the first of these matters, while the Mother asserted the use of family violence toward her, and drew upon the broad definition of family violence set out at s 4AB of the Act, the Mother did not take the matter substantively further by adducing evidence.  The matter was left at little more than mere assertion.  It was left quite unclear what it was that the Father had done (even as a mere allegation) that constituted family violence, or what its interplay was with the orders that were made by Judge Tonkin.

5. The second matter was pursued in a much more troubling manner that called into question the bona fides of the Mother.  In order to understand why this is so, it is necessary to examine the evolution of the issue as it arose in respect of the contraventions.  This requires a recital of the progress of the contravention proceedings across 2020.

6. Two sets of contravention proceedings were listed for hearing, along with a Rice v Asplund issue, for 23 January 2020.[3]  On that occasion, the Rice v Asplund issue was resolved and it was determined that the proceedings should be reopened.  The contraventions were not ready to proceed, and the matter was adjourned to 26 February 2020.

   [3]Rice v Asplund (1979) FLC 90-725

7. On 26 February 2020, the proceedings were again adjourned, to 16 April 2020, with directions being made to allow the Mother to make an adjournment application in advance of that date should an adjournment be required.

8. On 10 March 2020, a further set of contravention applications were consolidated with the sets listed for 16 April 2020.  The Mother claimed that it was necessary for the Court to have before it material to be derived from a then pending investigation in relation to abuse of X by the Father.  A s 69ZW order was made directed to Child and Youth Protection Services (CYPS) with the request that it not be complied with prior to 1 April 2020, in order to capture as much of the investigation as possible before the matter returned to the Court.

9. On 16 April 2020, the Mother continued her assertion as to there being an ongoing assessment by CYPS that the Court would need before it to deal with the contravention proceedings.  Despite not having made her application for adjournment in advance as provided by the previous directions, the Mother sought and was granted an adjournment, as CYPS advised at this stage that they could not comply with the s 69ZW order until 30 April 2020.  The proceedings were adjourned to 8 May 2020 as it was at this stage anticipated that the material to be produced by CYPS would establish whether a further adjournment would be required, or whether a hearing date could then be allocated.  The parties were directed to liaise with the Registry to allow inspection of the material to be produced.  The Registry caused the material to be printed to assist the Mother to access the material should she choose to do so.  Despite her insistence as to the importance of the CYPS investigation to these proceedings, she did not.

10. On 8 May 2020, the Mother asserted that she was unwell, sent an email to the Court to that effect, and made no appearance.  The proceedings were set for hearing with the Mother to appear in person for 22 May 2020, with direction being made to allow the Mother to file an application should her position be that the matter would not be ready to proceed on that day.  The Mother was to file such application by 15 May 2020.  She did not do so.  Orders were made establishing that the Mother was entitled to inspect the s 69ZW material.

11. On 21 May 2020, the Mother filed an application in a case to adjourn the proceedings.

12. The application was refused on 22 May 2020 and the hearing commenced with the Mother in attendance, although only for a short period given the COVID-19 arrangements then in place.  The proceedings were then adjourned to 28 May 2020.

13. On 28 May 2020, I was unwell and the hearing was unable to continue.  It was administratively adjourned to 5 June 2020.

14. On 5 June 2020, the Mother did not appear and the proceedings were adjourned to 10 July 2020, with directions to allow the Mother to apply for an adjournment by 3 July 2020.

15. On 10 July 2020, the Mother attended the proceedings and took part for a period before calling an ambulance from the courtroom and departing by ambulance.

16. The Mother asserted that she was unfit to proceed due to heart related issues, attending with a number of apparent monitoring wires attached to her.  Despite her presentation the Mother did not produce cogent evidence to establish a lack of fitness either then or since.  A lack of fitness was not demonstrated in her conduct of the proceedings.  The proceedings then continued in her absence. 

17. The circumstances of her departure from that hearing are outlined in the contravention judgment.  Although at the sanction component of the contravention proceedings the Mother subsequently complained as to the proceedings continuing in her absence after her departure by ambulance, she produced no material capable of establishing her incapacity on that occasion.  Despite her departure by ambulance (called by her) and her presumed subsequent attendance at hospital, she has produced no medical record or opinion to confirm that she was too unwell to participate on that occasion.  The height of the material that she produced was at Exhibit M3, which comprised a letter from her general practitioner dated 29 March 2017, asserting a need (at that stage) for a two month adjournment due to bereavement, anxiety, depression and elements of PTSD, and a further document being a certification, by another general practitioner, for Centrelink, dated 3 October 2019, asserting WPW syndrome and PTSD, palpitations, angina, dyspnoea, anxiety, panic attacks and flashbacks.  Neither document spoke to the Mother’s condition on leaving the hearing of the matter.

18. On 17 July 2020, judgment was handed down establishing that the Mother was in contravention as asserted by the three applications for contravention, and that no reasonable excuse had been established (given the Mother’s non-participation).

19. The proceedings were adjourned to 24 August 2020, in order to deal with sanction, on which occasion the proceedings were adjourned on a medical certificate being produced to the Court in relation to X.

20. On 27 August 2020, the proceedings were further adjourned due to X’s purported illness.

21. On 28 August 2020, the proceedings were adjourned to 1 September 2020, on which day, after the production of medical certificates the proceedings were adjourned for further hearing on 14 September 2020.  The hearing continued on 14 September 2020 and the following days, with the Mother producing various documents and giving oral evidence.

22. The Mother, as noted above, emphasised the issue of risk of abuse to X allegedly posed by the Father.  She asserted some complaints made by X, but stridently complained as to the need to await an investigation from the welfare agencies to safeguard X from such abuse.

23. There was however, a matter that undermined the Mother’s claims as to the importance of the welfare investigation.

24. That is, as noted previously, despite the Mother’s assertions as to the importance of the welfare investigation and its potential to reveal the risk (or perhaps lack thereof) posed by the Father, it became apparent that the Mother has not even inspected the CYPS material in order to identify material to make good her assertion.  The Mother accepted that she had not done so, relying on extracts produced, for example by the ICL who she accused of not fulfilling her obligations as the ICL.  The Mother sought to explain her failure to examine the material on the basis that it would be too traumatic and impact adversely on her mental health.

25. Where, however, the Mother has repeatedly asserted that the Court should delay the proceedings to await the outcome of the CYPS investigation, in the context that it is the Mother who alleges abuse, it is difficult to accept this explanation for not even examining the material that was essential to establish the need for such a delay that she asserts.

26. If the intervention of welfare agencies, and the status of ongoing investigations was as important as asserted by the Mother, and in the context of the s 69ZW order being made on the basis of her assertions, it is difficult to conceive of how the Mother failed to even inspect the material to identify such issues.  Her failure to do so calls into question her bona fides in her assertions as to risk of abuse being a proper consideration in determining the contravention proceedings.

The contraventions and their circumstances

1. The contraventions commenced on 10 December 2019.  However, X was provided to the Father for a block of school holiday time at the end of December 2019 start of January 2020.

2. As noted above, the Mother has withheld X since January 2020.  This is not a matter the subject of the contravention proceedings except to the extent that the specific contraventions being dealt with occurred during this period.  It, however, is uncontroversial and provides the factual background to orders that will be made.  The significance of that factual background is that it provides no basis to consider that, absent intervention by the Court, the Mother will comply with the orders to provide X to the Father.

3. That position was made more certain when the Mother was cross-examined.  The Mother was asked whether she would provide X to the Father in compliance with the orders made by Judge Tonkin.  The Mother explained that in a “perfect world” she would hand X over, but until she has a Family Report or a report from a child protection agency to prove X’s safety, she would not do so.  She asserted that this was a matter that, while it caused her a high level of guilt, was not a matter of choice, but that she was precluded from handing X over.

4. While asserting that she had never said that she would refuse to hand X over, she conditioned her compliance upon it being established that X would be safe, even if she were to be subject to a bond.  Despite some prevarication, the effect of the Mother’s evidence is that X will not be provided to the Father unless there is an intervening event that persuades her that X is safe with the Father, even if the Mother is subjected to a bond.

5. The Mother sought, and was permitted to, put into evidence a number of recordings of X, two being from 24 December 2019, one from 17 January 2020.  Each of the recordings appeared to relate to occasions when the Father has called to speak with X in accordance with orders that allow him electronic communication with X.  The recordings from December appear to show X not responding to the Father on the telephone.  X was apparently in the Mother’s direct presence at this time and between the two calls was recorded to say “I don’t want…” to which the Mother responded “tell him that…”  The recording from January shows X running out of the room when the phone rang, then the Mother asserting that X was hiding in the toilet.

6. The recordings, at best, established a reluctance on X’s part to speak to the Father by telephone.  The evidence did not demonstrate that it was more widespread than those occasions, nor why it was that X may have been reluctant on those occasions.  They do not assist in the Mother establishing her case that X is in danger from the Father.

7. As to the risk asserted by the Mother, the ICL, in questioning the Mother, gave the Mother the opportunity to set out the basis of her assertion of risk to X.  The Mother expressed strong resistance to answering the ICL’s questions in relation to what it was that she alleged was said by X to establish risk.

8. The ICL focussed her questioning in relation to the Mother’s assertion of risk to two periods.  The first period predated the contraventions, being the period March-April 2019.  The importance of this period is twofold.  Firstly, it fell in the period at the end of the bond imposed by Judge Dunkley.  During the period of the bond it appears that the Mother was largely compliant with the obligations imposed by Judge Tonkin’s orders.  The Mother said that she had complied with the orders to the best of her ability.  Secondly, it was at this time that the Mother took X to NSW police and an interim AVO was obtained that had the effect of suspending the orders made by Judge Tonkin for the Father and X to spend time together.  Those orders remained suspended until 12 December 2019.  Hence, the lead up to the AVO must be considered significant to the Mother’s claims of risk of harm to X.  The significance of this period then, is that, if there was a justification for withholding X, it must have become apparent either here, or in the period following X spending school holiday time with the Father in December 2019 – January 2020.

9. The Mother said that during this period of compliance with the orders and bond she did not think that X was safe with the Father, believing that the Father had sexually abused X.  She said that she complied despite this because:

   it is been told me numerous times by my family and stuff that it would have to get to a certain point of abuse before I should withhold her because it would be worse for her to be with him permanently as you were threatening if I didn’t send her so her being abused on the weekends was something that you guys said was okay if it didn’t happen all the time so that is what I had to do, but as she got older, she became lots more vocal and able to explain what was happening in Mr K.’s home and his very inappropriate conversations and her exposure to him having sex with his partner and all sorts of other thing that I had to draw the line somewhere

10. The Mother explained that she then had to breach the bond because of what X had “come home and said” and her bruises, black eyes and exposure to sex and the idea of sex abuse.  The Mother provides no clarity as to the injuries, or the exposure to sex abuse, nor how they indicated that the Father was harming X.

11. The ICL asked the Mother what exactly it was that X had told the Mother had happened.  The Mother declined to answer, until being directed to.

12. When directed to answer the question, the Mother explained that X had described the following:

    a)That X had said that she was sharing a room with the Father and his girlfriend, they had a conversation about sex, and that X had a rash on her face;

    b)That the Father tells X that he will put the Mother into gaol, and that X will have to live with him forever;

    c)That the Father had not adequately supervised X in a swimming pool;

    d)That the Father had not supervised X in his workplace, or had caused her to be supervised by men that she did not know;

    e)That X had made “lots” of complaints of “touching” and had redness and bruising (unspecified);

    f)That X had complained that her ‘privates’ were hurting;

    g)That X had been exposed to sexual conversations between the Father and his girlfriend and had seen them having “the sex”.

13. These matters were then reported to NSW police, who obtained an AVO on behalf of X directed to the Father.  It appears that X was interviewed by the police, but the Mother said she was not told what X had said.

14. To the extent that the Father was questioned about harm to X, he did not accept that he had harmed her.  Considering the nature of the allegations and his responses, I have, as yet, no reason to doubt him.

15. The interim AVO that had suspended the operation of Judge Tonkin’s orders became final orders in December 2019 in a manner that allowed the operation of Judge Tonkin’s orders to resume.  X spent a period of about two weeks with the Father over the Christmas period.  Following this the Mother has withheld X.

16. The ICL asked the Mother whether X had made any new statements following her time with the Father that ended on 12 January 2020.  The Mother explained:

    Yes, that is why she hasn’t gone since. She specifically said that her Father constantly berated her about speaking to the police and that he constantly threatened that she was never going to see myself or her brother or her family ever again. That he was going to get mummy put in gaol and she better not open her mouth again. She also had friends tell her this. All X could tell me is that it was Mr M that was telling her this as well. She is a kid so, she just said Mr M daddy’s friend.”

17. The ICL put to the Mother that X had made no allegation to the police by the time of this visit to the Father, and neither that the Father had been charged with anything by the police.  The Mother responded that X had been to the N Town police station and they had seen her reaction to the Father when he called on the telephone.  However, this visit to the police did not occur until after this time, on 13 February 2020.

18. The ICL identified that X had subsequently spoken to a CYPS caseworker on 19 February 2020, and had spoken about the Father and attending the police.

19. At exhibit ICL2 (152 of part 4 of the CYPS bundle) it states:

    ‘(12noon) She disclosed that she was meant to go to the police station on the weekend but didn’t go.

    Grandma was picking her up to take her but she decided that she didn’t want to go.

    She then said that because she didn’t go her dad grounded her – when I asked what that meant she said dad smacked me.

    There were no visible injuries.

    X then disclosed that mum has to go to court with dad.’

1. The ICL put to the Mother that it was not possible that the Father had smacked X for not going to the police station on that day.  The Mother replied:

   ‘She is a child, you cannot take the context of time, they asked her a question and she answered it, like that’s, you very definitely do not understand anything about children do you?’

2. It was, in fact, not possible that the Father had done anything in relation to X and her non-attendance with the police as X had not spent time with the Father since 12 January 2020.  X’s statement to the caseworker also renders it odd that X was saying to her that she got in trouble from her Father for not going to the police, yet the Mother was reporting that X claimed that she was berated by the Father and his friend for going to the police.

3. Despite the Mother’s ongoing assertions that the outstanding CYPS investigation was both reason to defer the contravention proceedings and, implicitly, reason not to provide X, she accepted that at no stage has CYPS suggested that she should not provide X to the Father.

4. The Mother was given further opportunity to explain why it was that she had a reasonable excuse to contravene the orders.  The Mother explained:

   I have seen my daughter regress, well firstly she has made statements, but I have also seen it come out in her behaviour, my daughter poos herself nearly every day since she has come back from restarting contact with her Father, she stops when there is nothing happening and then like around Father’s day, she would poo herself again.

5. The Mother was asked when this had happened, and explained:

   On the weekend of Father’s day and the lead up of Father’s day, she did not want to go to school.. she chose to make presents for her brother again, but she was refusing to go to school because she is embarrassed by her dad I think.

6. By this stage, X had not spent time with the Father since January.  With Father’s day occurring in September, it was difficult to attribute the responsibility to the Father, particularly when the Mother further amended her explanation, to indicate that X has a medical issue:

   What happens with X is that she doesn’t actually poo herself, but she holds in her poos and just and she has a faecal leak that I have had treated by..

7. The Mother added that X has wanted to be breast fed (without explaining when or how this may have been expressed, nor its connection to the Father) and that X became “beyond distressed” at simple things not going her way.  Again, this was without any identification of how this might be connected to the Father.

8. The Mother asserted that X suffered from night terrors for approximately two weeks after spending time with the Father, and that during the night terrors she would hold onto her “privates.”

9. The Mother asserted that X brings up a sexual issue once a week, although the Mother did not identify either what the content of the sexual issue might be or how it might be thought to be connected with the Father.

10. The Mother says that, at some stage, X has told her that the Father spoke to X about sex with aunty (an apparent reference to the Father’s girlfriend).

11. The Mother also alleged that on maybe one or two occasions in 2020, and in mid-2019, X has attempted to kiss the Mother with her tongue and asserted that was what “daddy does.”  Again, no context was provided by the Mother.

12. In further support of her claim that X is at sexual risk, the Mother says that X has told Ms P, X’s caseworker, from CYPS, “everything.”  The Mother accepted that X has not told the Mother what this might be, and nor has Ms P.

13. The Mother also asserted that the Father has breached the AVO regarding X (presumably in allegedly threatening X about the police).

14. The Mother further asserted that X had told the NSW police something in 2019.  She accepted that whatever this was, it has not been communicated to the Mother.

15. In summary, the Mother’s position is that she says that she believes that X is unsafe with the Father and she does not intend to comply with the orders while she believes X is unsafe, unless it is proven otherwise, that is, that X is not unsafe.

16. The onus lies on the Mother to establish reasonable excuse.  The content of her evidence did not give confidence as to her reliability in reporting what X had said, or how X had presented.

17. The Mother’s claims about what X had said to her are, at least vague, lacking in context and generalised.  At times where third parties are involved, the Mother’s position about what X had said is speculative.  It is unclear what X has said or when she has said it, even if there could be confidence otherwise as to the Mother’s reporting.

18. Even when, at their worst, the claims against the Father may constitute poor parenting by the Father, they do not form a reasonable grounds to form a belief that withholding X was necessary to protect her health or safety.

19. Although the issue of a lack of reasonable excuse was determined in her absence, on being given a full opportunity to explain why she withheld X, the Mother’s evidence fell short of establishing reasonable grounds  to believe that withholding X was necessary to protect her.

20. The Mother was asked whether there was any reason to doubt her admissions in relation to failing to provide X for face to face time as set out below, in the context of imprisonment, community service and fines not being available responses to contravention unless the Court is satisfied beyond reasonable doubt as to the contravention.  The Mother identified no reason for doubt as to her admissions.

21. On the issue of sanctions, the Mother said that the imposition of a community service order would be “fine” and may assist her to find employment.

22. The Mother said that she had neither the capacity to pay a fine, nor to pay costs, and that the requirement to do so would mean that she was unable to feed the children.

23. The Mother said that if she was sentenced to imprisonment, it would be “beyond traumatic” for her children, would do irreparable damage to the children, and that X’s relationship with the Father could never be repaired if the Mother was imprisoned.

24. The ICL questioned the Mother as to the availability of the Mother’s relatives to care for the children if she was unable to, establishing that relatives would be available should such a situation arise.

25. The Mother opposed the orders for compensatory time sought by the Father, for consecutive weekends and the whole of the school holiday period, due to her concerns for X’s safety, and COVID-19 related concerns.  She also noted that X has a life in Canberra, with planned activities that deserve to be respected.

26. The Mother asserted that X would be traumatised at spending time with the Father, asserting that X responds negatively to a particular Disney movie, that all other children like, but that X does not because of its association with her Father having acquired paraphernalia from the movie.

Submissions

1. The Father relied upon his written submissions.  In brief, he submitted that the Mother’s withholding of X demonstrates a serious and ongoing disregard of her obligations under the parenting orders.  He submits that anything less than a term of imprisonment is likely to be met with the same disregard, and urges the imposition of a partially suspended 3 months sentence of imprisonment, to be suspended after 14 days on the Mother entering into a further bond for a period of two years.  He submits that a fully suspended sentence “may not be sufficient to ensure the Mother’s ongoing compliance with the court’s orders.”

2. He seeks makeup time in relation to time that X has missed out on with him between 13-15 December 2019, 24 January to 1 February 2020 and 21 to 23 February 2020, a total of 15 days.  He seeks that be made up by providing for an additional week during the approaching school holidays.  He is due to have X stay with him for one week of those holidays and seeks that he also have the second week.

3. He also sought two additional weekends, the time for which has now passed, but which could be provided for next term.

4. The Father also seeks costs.  However, in his submissions in relation to whether a fine would be appropriate, he submits that the Mother lacks the means to pay a fine, and that placing her under financial stress “would be contrary to the child’s best interests.”  Although this submission was directed to a fine, it is relevant to the issue of costs.

5. The ICL expressed concern that if the Mother is imprisoned, X will be informed why, leading to irreparable damage to the relationship with her Father, and heavy impact on both of the Mother’s children.  She observed that if the Mother was imprisoned, there would be no need for foster care for the children given that the Mother’s relatives would be available to look after the children.

6. The ICL urged that there not be an immediate term of imprisonment, submitting that a fully suspended term could be imposed.

7. In relation to compensatory time, the ICL raised no objection to the Father having block time with X, although she doubted weekend time would occur pursuant to such orders without machinery in place to force it to happen.

8. In her submissions, the Mother reiterated her fears for X, and alleged that during their relationship the Father had promised to kill the children.  I note that this is a matter that predates the final orders made by Judge Tonkin.

9. The ICL noted that there was no objective basis given by the Mother for her contraventions, in particular noting a lack of material following the two week period over Christmas 2019.

Discussion

1. As identified previously, the purpose of contravention proceedings is to ensure compliance with orders that have been made in relation to children.  Orders in relation to children are made with the child’s best interests as the paramount consideration.  In this case, those orders were made following a contested hearing, where it was determined that it is in X’s best interests to spend regular weekend and school holiday time with her Father.

2. In McClintock & Levier, Coleman J observed that Division 13A is coercive in nature, rather than punitive, and that “the purpose of proceedings under Div 13A is to "enforce compliance with orders."” His Honour identified that the purpose of orders imposing sanction under the division is to “procure compliance” with the parenting orders of the Court.

3. In the same case, Cronin J stated that:

   [233] The focus of a court therefore in dealing with a contravention application under Div 13A must be in making orders which will enforce future compliance with its orders.

   [234]  For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law. 

   …

   The provision is intended to have that party comply with their particular orders relating to their children not to orders generally. Section 70NAA refers to "the powers that a court ... has to make orders to enforce compliance with orders under this Act affecting children". In my view that should not be read generally but rather, specifically to the particular parties because if Subdiv F applies and a court determines to vary the existing parenting orders under s 70NBA(1), regard must be had to the best interests of the child as the paramount consideration: see s 70NBA(2). Section 70NFB(1) relating to the making of an order for costs against a party has similar directions about the consideration of the welfare of the child. 

   [237] All of the provisions of Div 13A therefore focus on the parties and the court's obligation to endeavour to make its orders work if they have been contravened.

4. The appropriateness of any sanction is to be considered in the light of the objective of the sanction being compliance.  That is, sanction is applied in relation to previous contraventions for the purpose of securing future compliance with the orders.

5. The non-compliance with the orders in this case is, in part, uncontroversial.  The Mother admits that she has not provided X to the Father on 13 December 2019, 24 January 2020 and on 21 February 2020.

6. The Mother further admitted that she failed to facilitate telephone communication between the Father and X on 10 December 2019.

7. The Mother did not admit failing to facilitate telephone contact on 12 December 2019, or on 4, 6, 11, 13 or 18 February 2020, although she was found to have so failed.

8. The statutory scheme provides at s 70NAF that the standard of proof is, subject to s 70NAF(3), on the balance of probabilities.  Accordingly that was the standard on which the contraventions were determined on 17 July 2020. 

9. The necessary standard of proof changes to proof beyond a reasonable doubt where an order for imprisonment, community service or for a fine is to be made.  In those cases, the grounds for making such an order, that is the facts that lead to the making of such an order, are to be determined beyond reasonable doubt.

10. It should be observed, even when considering imprisonment, community service or a fine, the burden of proof remains on the contravener to establish reasonable excuse, and to do so on the balance of probabilities.  The Mother has not established reasonable excuse.

11. The requirement for proof at the higher standard is a matter that arises on consideration of sanction, rather than on consideration of contravention, although where the relevant sanctions are identified prior to proof of the contraventions, findings to the higher standard may be made prior to the issue of sanction being considered.  Accordingly, where imprisonment, community service or a fine are considered, it is necessary, as a part of the sanction considerations to determine whether the grounds for making such an order are proven beyond reasonable doubt.

12. If the Court is required to consider whether the grounds have been established to the higher standard at the sanction phase of contravention proceedings, then the Court is required to accord procedural fairness to the contravener before coming to the conclusion that it is established beyond reasonable doubt.

13. In this case, the contraventions that may justify imprisonment are those admitted by the Mother.  During the sanction phase, the Mother was specifically taken to those contraventions admitted by her in relation to providing X for face to face time, and given the opportunity to raise any doubt about her admissions.

14. It should be observed that the grounds spoken of at s 70NAF(3) are those factual matters necessary to be established to justify such a sanction.  They are not restricted to the fact of contravention, but extend to the essential factual conclusions that underpin, or form the grounds for such a sanction.

15. This includes the factual matters that bring the matter within the definition of “more serious contravention” as set out at s 70NFA, which are here established by the orders previously made by Judge Dunkley finding the Mother to have contravened the orders.

16. In the case of imprisonment, the obligation to find the grounds for the making of the order beyond reasonable doubt also includes the facts necessary for the conclusion to be reached, pursuant to s 70NFG(2), that it would not be appropriate to deal with the contravention other than by imprisonment.

17. In this case, that fact is the Mother’s expressed and settled intention not to comply with the orders in the absence of a supervening persuasion that X is not at risk with the Father, identified by her as being potentially able to be supplied by a report from CYPS or a Family Report.  Neither of those is currently available.  This settled intention is also confirmed by the uncontroversial context that the Mother has withheld X since January.  Although she is not being dealt with for that as a matter of contravention, it is uncontroversial and sets the factual background for consideration of whether the Mother will provide X in the future absent sanction.

18. These matters lead to a conclusion beyond reasonable doubt that the Mother will not comply with the orders to provide X absent the compulsion to do so afforded by imprisonment. 

19. Further, the Mother has no capacity to pay a fine, nor is it the case that the imposition of a fine would promote her compliance in the above circumstances.  It is unclear whether a community service order would be available as it is presently unclear whether there is a relevant agreement between the Australian Capital Territory and the Commonwealth.  The Mother expressed some enthusiasm in relation to such an order, but again, such would not promote the Mother’s compliance with the orders, given the Mother’s settled position. 

20. It should be concluded that imprisonment is the only option available to enforce compliance with orders to provide X.  However, such a conclusion on its own does not mechanistically result in a sentence of imprisonment.  As was observed by Coleman J in McClintock at [158] it is permissible to have regard to “relevant sentencing principles” and at [125] to matters “which have historically been recognised as relevant to the exercise of the sentencing discretion” provided, as was identified by Cronin J “those considerations are set out clearly and the court's focus is on the individual party rather than on general deterrence or policy.”

21. This calls for further consideration of proportionality before imposing imprisonment, being a consideration of whether the nature of the contravention is, despite being in the “more serious” category, sufficiently serious to warrant imprisonment.

22. Even in the event that it is concluded that imprisonment is warranted, that conclusion, however, does not resolve whether imprisonment should be immediately served, partly served, or wholly suspended on entry into a bond.

23. In McClintock, Coleman J identified at [164] both that consideration of a suspended term of imprisonment cannot occur until it has been determined that no other sanction than imprisonment is appropriate, and further that once it is so determined, suspension should be considered.  Justice Finn, in the same case also identified that it is necessary to consider suspension of a term of imprisonment.

24. It is then necessary to consider each contravention, before taking a final look at whether the total end result is disproportionate to the contraventions, or otherwise excessive to the objective of securing compliance.

25. Prior to doing so it is necessary to consider the operation of s 70NFB, which provides for different processes of consideration dependent upon whether an order for costs is made pursuant to s 70NFB(2)(g).  If such an order is made, then the Court is to consider the making of the most appropriate of the other orders under s 70NFB(2).  If not, then the Court must make at least one order under s 70NFB(2) as the Court considers the most appropriate.

26. It should be observed that the drafting of the provision does not require that the order be appropriate, merely that it be the most appropriate.  The mandatory nature of s 70NFB(1)(c) compels the Court to make an inappropriate order if an order is not made per s 70NFB(2)(g) and none of the remaining orders is appropriate.  The provision is at best clumsy, and at worst a cause of unjust orders.

27. It is necessary then, in considering the approach to what orders to make to firstly consider whether an order is to be made pursuant to s 70NFB(2)(g) for the Mother to pay all of the costs of the Father.  In short, no such order should be made.  Section 70NFB(1) renders an order to pay all of a parties’ costs mandatory unless it would not be in X’s best interests to do so.  The Father’s submissions in relation to the imposition of a fine indicate that it would be contrary to X’s best interests to impose such a financial burden on the Mother.  For the same reason, an order to pay some of the Father’s costs pursuant to s 70NFB(2)(h) should also not be made.  This means that, in relation to each of the remaining contraventions it is necessary to make the most appropriate order remaining under s 70NFB(2). 

1. It is convenient to deal firstly with the instances of failing to provide X for face to face time.

13 December 2019

1. On 13 December 2019, Ms Jordain contravened Order 6(g) of the orders of Judge Tonkin of 5 October 2018 in that she failed to allow X to spend time with the Father.

2. This contravention occurred shortly following the end of the orders that suspended the operation of Judge Tonkin’s orders, and constituted a serious contravention by virtue of the interference with X’s time with the Father.  On its own, despite its seriousness, it is not sufficient to justify imprisonment, despite the conclusions reached above as to the inefficacy of any other order to secure compliance.  The disposition in relation to this contravention will be entry into the bond referred to below in relation to the next two contraventions.

3. The failure to provide X, however, renders it appropriate to make an order providing for compensatory time pursuant to s 70NFB(2)(c).  Such an order may be made unless it would not be in X’s best interests.  It has not been shown that such an order would not be in X’s best interests, and, under circumstances where there has been a break in X’s time with her Father, allows for a higher frequency of time for a short period in order to promote X receiving the benefits of meaningful relationship with the Father, as provided for in the orders of Judge Tonkin.

24 January 2020

1. On 24 January 2020, Ms Jordain contravened Order 6(j) of the orders of Judge Tonkin of 5 October 2018 in that she failed to allow X to spend time with the Father.

2. This contravention occurred shortly after X had spent school holiday time with the Father, and constituted a serious disruption to X’s time with the Father, resulting in X missing out on a 9 day block of time with her Father.  This is qualitatively more serious than the previous contravention, both because it follows the previous contravention, and because of the degree of interference with X’s time.

3. Unlike the previous contravention, the seriousness of this contravention is sufficient to sustain an order for imprisonment when seen in the context of the discussion about no other order being sufficient to achieve compliance.

4. The first issue that arises is as to the length of such an order for imprisonment.  Imprisonment is a serious sanction that is the gravest able to be imposed by law in this country.  Imprisonment would have the effect of separating the Mother from not just X, but also Y.  Imprisonment is a frightening, isolating, dehumanising experience, in which people are notoriously exposed to dangers they might not face outside of such an environment.  It must be anticipated that even a short period of imprisonment would have a heavy impact on the Mother and provide a salutary warning against future non-compliance.  It can be anticipated that a relatively short period of fourteen days would be sufficient to meet the purpose of enforcing compliance, without imposing a sanction greater than necessary to achieve that purpose, and without imposing a sanction disproportionate to the gravity of the contravention.

5. The second issue is as to whether such a sanction should be fully or partially suspended.  Section 70NFG(5) permits suspension on terms, which permit the release on entry into a bond for a period of 2 years, condition of which can include compliance with orders.  Where the Bond is connected to a suspended term of imprisonment, no issue of surety or security is required for compliance.

6. Section 70NFG(5) also permits the termination of such suspension, which could occur promptly on non-compliance with the orders to provide X.

7. Having such a term hanging over the Mother’s head, subject to actually being served on non-compliance appears to sufficiently compel the Mother to comply under threat of imprisonment, without, at this stage, requiring that the Mother actually serve the period of imprisonment.

8. If this turns out to be an unduly favourable assessment of the Mother, then it will be the Mother who brings the service of the period of imprisonment upon herself.

9. On this assessment, the term of fourteen days will be suspended on the Mother entering into a bond, the condition of which is to comply with the parenting orders in relation to X.  Should the Mother decline to enter the bond, then the condition of suspension will not be met and the Mother will serve the fourteen days, unless of course she enters the bond otherwise during that period.

10. It is also appropriate to make an order providing for compensatory time pursuant to s 70NFB(2)(c).  It has not been shown that such an order would not be in X’s best interests, and, under circumstances where there has been a break in X’s time with her Father, allows for X to have a full school holiday block of time with her Father in the coming school holidays (where she is already scheduled to spend half of the holidays with him) in order to be reacquainted with him following the hiatus in her time with him, and in a manner reasonably protected from the Mother’s potential interference by non-compliance.

21 February 2020

1. On 21 February 2020, Ms Jordain contravened Order 6(k) of the orders of Judge Tonkin of 5 October 2018 in that she failed to allow X to spend time with the Father.

2. The context of this interference with X’s time with her Father, being the previous contraventions, again renders this contravention sufficiently serious to sustain an order for imprisonment when seen in the context of the discussion about no other order being sufficient to achieve compliance.

3. Given the assessment set out above regarding the fourteen day period, it is appropriate that the same period be applied.  Although this contravention was shorter in terms of the days X was deprived of, its context of following that contravention justifies the same fourteen day period.

4. Given the discussion in relation to suspension above, again it is a period to be suspended on entry into the same bond as the previous count.  Further, for clarity, it is a term that, should it be served, should be served concurrently with the previous term as its purpose in causing compliance is met by the service of a total period of fourteen days.

5. The failure to provide X, however, renders it appropriate to make an order providing for compensatory time pursuant to s 70NFB(2)(c).  Such an order may be made unless it would not be in X’s best interests.  It has not been shown that such an order would not be in X’s best interests.  Compensatory time allows a short period of higher frequency time with the Father, to assist in counteracting the effects of X not having spent time with him since January.

6. The balance of the contraventions concern telephone time.  While telephone time is an important aspect of maintaining a relationship between a child and a parent, neither individually, nor when seen as part of an extended course of conduct, do any warrant a term of imprisonment.  In any event, the bulk have not been determined to have occurred beyond reasonable doubt, precluding such a course.

10 December 2019

1. On 10 December 2019, Ms Jordain contravened Order 8(b) of the orders of Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father.

2. Noting that this contravention occurred in the context of previous contraventions dealt with by Judge Dunkley, the contravention should be regarded more seriously, hence its categorisation as a more serious contravention under s 70NFA. 

3. This level of seriousness means that it is appropriate that the Mother be caused to enter into a bond for a period of 6 months.  Although the Mother indicates her continued intention in respect of non-compliance, entry into this bond occurs within the context of entry into the 2 year bond associated with the suspended term for the contraventions relating to providing X, and allows revisiting this approach in the event that the Mother breaches this bond.

4. No order should be made for compensatory telephone time, as it cannot be predicted that additional telephone contact with the Mother’s household is likely to have a corresponding benefit to X.

12 December 2019

1. On 12 December 2019 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father.

2. Noting the observations in respect of the 10 December contravention, this contravention has added seriousness as it occurs in the context of the previous contravention.  Again it warrants entry into the same 6 month bond.

4 February 2020

1. On 4 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father.

2. Noting the observations in respect of the previous two contraventions, this contravention has added seriousness as it occurs in the context of the previous contravention.  Again it warrants entry into the same 6 month bond.

6 February 2020

1. On 6 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father.

2. Noting the observations in respect of the previous three contraventions, this contravention has added seriousness as it occurs in the context of the previous contravention.  Again it warrants entry into the same 6 month bond.

11 February 2020

1. On 11 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father.

2. Noting the observations in respect of the previous four contraventions, this contravention has added seriousness as it occurs in the context of the previous contravention.  Again it warrants entry into the same 6 month bond.

13 February 2020

1. On 13 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father.

2. Noting the observations in respect of the previous five contraventions, this contravention has added seriousness as it occurs in the context of the previous contravention.  Again it warrants entry into the same 6 month bond.

18 February 2020

1. On 18 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father.

2. Noting the observations in respect of the previous six contraventions, this contravention has added seriousness as it occurs in the context of the previous contravention.  Again it warrants entry into the same 6 month bond.

Overall consideration

1. It is necessary as a last step to consider the overall impact of the sanctions imposed in relation to each of the contraventions.  This last step constitutes a check to ensure that the overall sanctions are neither disproportionate to the legislative objective of securing compliance, nor excessive in their totality in relation to the nature of the contraventions.

2. The overall sanction applied to the Mother is imprisonment for fourteen days, fully suspended on entry into a bond to comply with parenting orders to a period of 2 years, accompanied by a second bond in the same terms, albeit for a period of six months.  They are not excessive in either sense or disproportionate in either sense.

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 25 September 2020.

Associate:

Date:  25 September 2020