Kalant & Jordain (No. 3)
[2021] FamCA 191
•9 April 2021
FAMILY COURT OF AUSTRALIA
Kalant & Jordain (No. 3) [2021] FamCA 191
File number(s): PAC 2727 of 2015 Judgment of: GILL J Date of judgment: 9 April 2021 Catchwords: FAMILY LAW – CONTRAVENTION – where the mother had contravened parenting orders without reasonable excuse – proof beyond reasonable doubt on sanction – imprisonment only available where no other option effective for securing compliance – where mother was subject to concurrent 14 day terms of imprisonment which had been suspended – impact of imprisonment – order for suspension terminated - orders for mother to serve immediate term of imprisonment of 14 days – further suspended term of 14 days – no other actions required on contraventions or breaches of bond Legislation: Family Law Act 1975 (Cth) div 13A, ss 70NFF, 70NFG Cases cited: McClintock & Levier (2009) FLC 93-401
Oswin & Oswin [2019] FamCAFC 164
Number of paragraphs: 20 Date of hearing: 16 February 2021, 4 March 2021 and 12 March 2021 Submissions received: 26 March 2021 Place: Canberra Solicitor for the Applicant: Bainbridge Legal Counsel for the Respondent: Mr White, SC Solicitor for the Respondent: Legal Aid, ACT Solicitor for the Independent Children's Lawyer: Ms M Burgess ORDERS
PAC 2727 of 2015 BETWEEN: MR KALANT
Applicant
AND: MS JORDAIN
Respondent
MARY BURGESS
Independent Children’s Lawyer
ORDER MADE BY:
GILL J
DATE OF ORDER:
9 APRIL 2021
IT IS NOTED THAT
1.The effect of these orders is that Ms Jordain, born … 1985, will serve an immediate term of imprisonment of 14 days from 9 April 2021 until 23 April 2021 and will be subject to a further term of imprisonment of 14 days which will be fully suspended.
IT IS ORDERED THAT
1.Pursuant to s 70NFG(5) of the Family Law Act 1975 (Cth), Order 4 of the orders of 25 September 2020, being an order suspending the concurrent 14 day terms of imprisonment in relation to contraventions of 24 January 2020 and 21 February 2020, is terminated.
2.As a result of the termination of the order for suspension in Order 2 above, Ms Jordain is imprisoned for a period of 14 days from 9 April 2021 until 23 April 2021
IT IS FURTHER ORDERED THAT
3.In relation to the further contravention of 20 January 2021 of failing to allow X to spend time with her father, Ms Jordain shall:
(a)Serve a period of 14 days imprisonment; and
(b)Enter into the bond at Order 5.
4.On entry into the bond at Order 5, the term of imprisonment at Order 3 is suspended.
5.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 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 20 January 2021.
And further that I will be liable to have the order suspending the 14 days terms of imprisonment in relation to the contravention of 20 January 2021 terminated resulting in me being imprisoned for a period of 14 days.
6.It having been established without reasonable excuse that Ms Jordain failed to attend upon the appointed expert Dr Q on 25 January 2021 and secondly, failed to facilitate X attending upon the appointed expert Dr Q on 25 January 2021, no further action is taken in relation to the two contraventions of 25 January 2021 or the other breaches of bond.
IT IS NOTED THAT
7.The purpose and effect of the requirement to enter into the bond is to require you to comply with parenting orders for a period of 24 months.
8.Should you fail to enter into the bond, you will be imprisoned for a maximum 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.
9.Should you fail to act in accordance with the 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.
10.I note that I have explained with 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.
11.I direct that you enter into the bond now before me.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
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).
REASONS FOR JUDGMENT
GILL J:
On 12 March 2021, I found that the mother failed to provide X to the father on 20 January 2021, in contravention of orders of 8 December 2020. This was admitted by the mother. The mother asserted, but did not establish, that she had a reasonable excuse.
I further found that the mother contravened orders of 22 October 2020 on 25 January 2021 in two respects. The first count, by failing to attend upon the single expert for the preparation of her report, and the second count, by failing to provide X for assessment by the single expert. These were taken not to be admitted by the mother but were established. The mother failed to establish reasonable excuse.
Casting a long shadow across the proceedings for these contraventions was the mother's status as in respect of seven previous contraventions the mother was on a bond for a period of six months from 25 September 2020, and in respect of a further three previous contraventions was on a bond for a period of two years from 25 September 2020. Importantly, in respect of two of these contraventions, the mother was subject to concurrent 14 day terms of imprisonment which had been suspended on her entry into the bond.
The contraventions that the mother is now being dealt with constitute a breach of each of these bonds and also give reason for the termination of the order of suspension.
Senior Counsel, who appeared for the mother, impeccably identified in extracts from the Full Court decisions of McClintock & Levier (2009) FLC 93-401 and Oswin & Oswin [2019] FamCAFC 164 the purpose of contravention proceedings being directed to future compliance. It is not the purpose of contravention proceedings to punish, or to deter others, or to salve the irritation of the other parties to the litigation, or to denounce the non-compliant conduct. Senior Counsel for the mother was correct to identify these matters.
Before turning to the nature of sanction, if there should be any, it is necessary to identify where in div 13A of the Family Law Act 1975 (Cth) the current contraventions fall and the standard to which they are established as these two matters set boundaries around the nature of sanction that is available. In addressing the issue of sanction, Senior Counsel for the mother presumed the current contraventions would be dealt with under Subdivision F as more serious contraventions. There is good reason to characterise them so.
The first of the contraventions resulted in X not spending time with the father pursuant to a specific order that provided for X to spend time with him immediately prior to assessment by the single expert. In its context, it occurs not as an isolated instance or a first instance of such which might point to the contravention being less serious. Rather, it follows a long line of contraventions. Recognising this is not to re-sanction the mother for past contraventions, as it was emphasised by Senior Counsel should not be the case, but rather to give the contravention its proper context as forming another example within a history of non-compliance.
Further, the fact the contravention occurred whilst the mother was subject to a bond renders it again more serious in its proper context. The second and third contraventions further had the effect of derailing the assessment process to prepare the matter for trial, resulting in a delay of the trial. Again, in the context of a strong and recent history of non-compliance and in the context of occurring in the currency of a bond, it should be considered that these are more serious contraventions. I am satisfied in terms expressed by Oswin that the three counts are more serious beyond reasonable doubt. In any event, and appropriately, no argument was posed that they were not.
As to the degree of satisfaction of the contraventions, as I noted at [117] of the judgment between these parties on 25 September 2020, the issue of whether the higher standard of beyond reasonable doubt is established is a matter to be considered on consideration of sanction. On sanction, it is necessary to consider whether each matter that points to a sanction of imprisonment, fine or community service order is established beyond reasonable doubt. As was observed by the Full Court in Oswin at [20], before an order for imprisonment can be made under Division 13A of Part VII of the Act, the Court must be satisfied beyond reasonable doubt of firstly all of the factual matters that relate to the finding of contravention and secondly, that the contravention is a “more serious contravention” to which the more serious and more punitive powers contained in Subdivision F of Division 13A apply and thirdly, the Court must be satisfied beyond reasonable doubt of the inappropriateness of other available sanctions.
As to the contravention of 20 January 2021 (the first contravention), the contravention was admitted. Without more, that was sufficient to establish the matter beyond reasonable doubt. There were, however, further matters recited in the judgment sufficient to establish that that contravention was established beyond reasonable doubt.
Turning then to the second and third contraventions. These were taken not to be admitted on the basis that the mother asserted that she was ready to conduct and present X for interview but that the awaited call never came. I found the surrounding circumstances of a failure to do such things necessary to facilitate the preparation of the report sufficient to establish the contravention in the face of the mother's assertions as to impossibility, such assertions having their weight depleted by the mother's lack of credibility. However, examining those matters through a lens of beyond reasonable doubt does not lead to the same conclusion. Although established on the balance of probabilities, the second and third contraventions are not established beyond reasonable doubt. The mother's assertion as to impossibility on this occasion is sufficient, despite my concerns as to her credibility, to raise a reasonable doubt regarding her non-compliance. This then leads to the question of what, if any sanction.
I pause to observe that it is difficult to conceptualise the obligation cast by the Full Court on a judge dealing with imprisonment as a sanction being an obligation to find the inappropriateness of other sanctions beyond reasonable doubt. This conclusion appears to be a discretionary rather than a factual conclusion and not amenable to being described in terms of standard of proof, a matter that pertains to factual conclusions. I note that no such burden is cast on sentencing judge in crime. Rather, on determining guilt and aggravating factors beyond reasonable doubt, a sentencing judge then determines, as a matter of discretion, the appropriate sentence. Nevertheless, being clearly bound by Oswin, I will apply such a standard.
I propose to deal firstly with the effect of the first contravention on the suspended sentence. A number of options are available under s 70NFF and s 70NFG. As a breach of a condition of the bond, the Court could apply s 70NFF to impose a fine and leave the bond in place, or could revoke the bond and deal again with the mother for the original contravention. Alternatively, s 70NFG(5) makes available in the case of a suspended term, as here, the revocation of the suspension. This was a provision specifically identified to the mother on the imposition of the suspended term. In considering the appropriateness of imprisonment and the imposition of that as a sanction, I will not repeat the matters I identified in that previous judgment in coming to a conclusion that a 14 day term was the appropriate sanction, but I note the conclusion that I came to at [114] that the mother would not comply without the compulsion of imprisonment.
Senior Counsel for the mother identified a number of factors pointing away from the mother serving the 14 days. These included the concern raised by the mother regarding the COVID-19 crisis in respect of the first count and his observation that the breaches were by omission rather than commission in relation to the second and third accounts. He pointed to the chastening effect of the proceedings on the mother and the potential impact on Y, as well as X, of the mother being incarcerated. Even giving these matters their full weight, however, does not result in an answer other than that the 14 days incarceration by termination of the suspended term is the only appropriate sanction for those previous contraventions and is the necessary sanction to drive compliance with the orders. That is a conclusion reached beyond reasonable doubt.
The suspension of that previous term of imprisonment was the last hope of compliance without incarcerating the mother. It was a hope that was misplaced. I remain persuaded that it is only gaol time, albeit as short as possible a period, that will cause the mother to comply with orders to provide X, whereas previously, I was persuaded that having such a term hanging over the mother's head would be sufficient or sufficiently salutary. The subsequent non-compliance seen in count one establishes that on that occasion, I was wrong. It should also be observed that it is contrary to X's best interest for the mother to be non-compliant with the orders of the Court. Unfortunately, to achieve compliance, it is necessary that the mother serve the time that was previously suspended.
Accordingly, pursuant to s 70NFG(5)(2), the order for suspension will be terminated and the mother will serve 14 days imprisonment in respect of the 24 January 2020 and concurrent 21 February 2020 contraventions. On this outcome, no further action is required in relation to the other breaches of bond at this time, as this action is sufficient to address the purpose of the legislation in securing compliance. The balance of the bonds will remain in operation.
This leaves then the disposition of the current three contraventions. As to the first, the fact that this is in breach of a bond with a suspended term points to the conclusion that no disposition other than imprisonment is sufficient to meet the legislative objective of securing compliance in relation to more serious contraventions. No other order is appropriate given the seriousness of the contravention and the disregard for the authority of the orders exhibited in the commission of a serious contravention while subject to a bond. However, as the second and third contraventions are only established on the balance of probabilities, no such result is available. It is available in respect of count one. Noting that gaol is the option of last resort and the imperative that any commitment to gaol be for as short a time as possible while being consistent with the legislative objectives points to a term of 14 days in respect of count one for the reasons that I identified on the last occasion. Such a result is proportionate to the breach. This conclusion is reached in accordance with Oswin, beyond reasonable doubt.
However, it is appropriate that the term be again fully suspended and on identical terms to the previous bond as it may be hoped, noting [144] of the previous judgment, that the mother, who will now be incarcerated for a period, will find that having a suspended term hanging over her head will be sufficient to secure her compliance with the orders. Again, if this conclusion is unduly optimistic it is the mother who will bring the consequence upon herself.
Accordingly, the mother will be sentenced to 14 days imprisonment, suspended on entering into a bond for a period of two years in the same terms as the last occasion.
Having determined such a course, it is not necessary to take any further action regarding the second and third counts in order to secure compliance. Any further action will be superfluous to such a purpose.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 12 April 2021
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