KEIGHTLEY & KEIGHTLEY

[2011] FamCA 274

FAMILY COURT OF AUSTRALIA

KEIGHTLEY & KEIGHTLEY [2011] FamCA 274

FAMILY LAW - ORDERS – contravention – where the father has contravened an order for the payment of money in relation to the children without reasonable excuse – consideration of the appropriate sanction to be imposed – best interests of the children – where it was difficult to place the father on a bond in the circumstances – where it was held appropriate to vary the previous order to include interest to be backdated to the date of the original order.

FAMILY LAW - ORDERS – contravention – where the father has contravened an order for the payment of money to the mother without reasonable excuse – consideration of the appropriate sanction to be imposed – where the father asserts that there is money owing to him by the mother – where the mother alleges that the father is in arrears in child support payments – just and equitable – orders that the father pay the outstanding sum and that a fine be imposed with a possibility of reduction if the father is compliant with the orders.

FAMILY LAW - COSTS – no further order for costs having taken into account the orders providing the father pay the outstanding sums and the fine.

Family Law Act 1975 (Cth) ss 70NBA, 70NEB, 112AD & 117

Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341

APPLICANT: Ms Keightley

RESPONDENT: Mr Keightley

FILE NUMBER: ADC 4573 of 2008

DATE DELIVERED: 7 April 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 7 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. By 29 April 2011 the mother registers for the Child Focussed programme at Counselling Service 1 and undertake and complete that course by 30 October 2011 subject to Counselling Service 1’s availability.

1. Paragraph 29 of the Order of 7 December 2009 is varied such that it now provides on or before 6 May 2011 the father pays to the mother the sum of TWO THOUSAND FIVE HUNDRED DOLLARS [$2,500.00] together with interest in accordance with the prescribed rate from the 7 December 2009 until payment.

1. On or before 27 May 2011 the father must pay to the Registry Manager of the Adelaide Registry of the Family Court of Australia a fine of THREE THOUSAND DOLLARS [$3,000.00] provided that if by 27 May 2011 the father produces to the Registry Manager written proof of payment of the sum of THREE THOUSAND FIVE HUNDRED DOLLARS [$3,500.00] to the mother and written proof that he has complied with today’s order to pay the sum of TWO THOUSAND FIVE HUNDRED DOLLARS [$2,500.00] plus interest accrued in accordance with that order then the fine shall be reduced to the sum of ONE THOUSAND DOLLARS [$1,000.00].

IT IS NOTED that publication of this judgment under the pseudonym Keightley & Keightley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4573 of 2008

Ms Keightley

Applicant

And

Mr Keightley

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In relation to the contravention proceedings I am now considering the contraventions that were dealt with in the judgment I delivered on 20 December 2010 having heard the matters on 6 and 7 December 2010.  The two contraventions which were found to have occurred without reasonable excuse related to payment of monies by the father to the mother. 

2. Both parties are unrepresented.  I adjourned the matter on 20 December 2010 on the clear understanding that the parties would have an opportunity to consider the reasons that I gave and the law to which I have referred and to give them an opportunity to prepare submissions about the sanctions to be imposed. 

3. I specifically said in paragraph 114 and 115:

   “114.During the period of the – during the adjournment the father has the opportunity to pay $6,000 to the mother. 

   115.If the father paid 6,000 to the mother during the adjournment that would be a significant factor to be taken into account when considering the sanctions to be imposed.”

4. Proceedings in relation to other matters have continued before the Docket Judge Justice Burr and other material has been filed.  The only material which has been filed since then which is possibly relevant to the sanctions to be imposed for the contraventions is the affidavit of the mother filed on 1 April 2011 to which is annexed a document indicating the bond for the rental premises (which related to one of the contraventions) was the sum of $1,560.

5. The father appears this morning and attempts to put material before the Court by way of submissions as to his financial circumstances.  He has been involved in Court proceedings for years and I pointed out to him that such information is not before the Court simply because he comes to the Court, stands up and says this is by way of submissions. 

6. The evidence before the Court concerning the father’s financial circumstances is contained in what purports to be a financial statement filed by the father on 20 October 2010, document 97.  I pointed out to the father in submissions that the information contained therein is particularly lacking in that the so called expenses of the father are not completed properly even though the document is sworn.  At that time the father claimed to have an income of $500 as a self employed business operator. 

7. The mother puts submissions to the Court this morning seeking the imprisonment of the father and at least a suspended imprisonment sentence on the basis of the history of the proceedings.  In particular submissions which she puts to the Court she asserts that the father is using the financial constraints as a form of punishment towards her and that this should be considered as family violence. 

8. The information before the Court in the contraventions which I have found however does not indicate (nor was I asked to make findings in relation to the contraventions to find) that there was serious disregard of the orders of the Court.

9. However the orders on 7 December 2009 provided for the father to pay the mother the sum of $2,500 and for the father to pay the sum of $3,500.  The father admits that neither of those monies have been paid.  He again today refers to monies that he says are owing by the mother to him;  namely the bond which was paid by the mother in relation to the rental premises when she moved as a result of the order to return to the metropolitan area. 

10. The mother produces the evidence that bond was $1,560.  The mother also refers to the fact that the father is currently in arrears of child support of more than $6,000.  That evidence was before the Court in relation to the contravention which the father brought against the mother in relation to those matters and for which I found the mother had reasonable excuse.

11. I turn again to the question of the law to be applied in relation to the contravention of paragraph 29 of the order of 7 December 2009.  That was an order which I have determined was an order under the Family Law Act 1975 (“the Act) affecting children and that therefore the sanctions which are available are those set out in section 70NEB and section 70NBA including that the father attend a post parenting separation program or placing the father on a bond. 

12. A post separation parenting program was not appropriate in relation to the payment of the amount and the decision in the Full Court matter of Elspeth & Peter; Mark & Peter and John & Peter(2007) FLC 93-341 make placing the father on a bond difficult.

13. The Full Court decision by which I am bound makes it difficult to place the father on a bond in these circumstances.  The legislation being proposed to correct that difficulty is currently before Parliament.  Even if passed in the immediate future it would not necessarily be retrospective. 

14. Therefore, the option which the Court has in relation to the sanctions to be imposed for the contravention of paragraph 29 of the order of 7 December 2009 is to vary the order. 

15. That order would need to be obeyed.  Serious consequences would follow if the father once again contravened an order of this Court.  The sanctions would therefore come in at a higher level. 

16. In relation to the sanctions to be imposed for contravention of paragraph 29 I consider the provisions of sections 70NEB the consequences set out in Division 13A of Part VII.  I take into account those matters which are required to be considered including the best interests of the children.

17. The payment of monies under paragraph 29 were to assist the mother to comply with the other terms of the orders made in December 2009. 

18. When considering the variation of the order it is appropriate in my view to allow the father an opportunity to indicate to the Court that he will take steps to arrange to have the funds made available bearing in mind the access he has to other assets and capacity to seek funds from other sources in order to meet his obligations. 

19. Taking into account all of those factors therefore I vary the order of paragraph 29 of 7 December 2009 such that it now provides that on or before 6 May 2011 the father pay to the mother the sum of $2,500 together with interest in accordance with the prescribed rates from 7 December 2009 until payment.

20. In relation to the contravention of the order 26 of 7 December 2009 in accordance with my reasons delivered on 20 December 2010 that is a contravention which falls within the provisions of Part 13A of the Act. The provisions of section 112AD provide options for the penalty being a bond, a community service or work order, a fine or imprisonment. The mother asks the Court to make an order for imprisonment but in view of the material which is currently before me I am not satisfied that an order for imprisonment is on the occasion one that is within the provisions or appropriate. The question of a community service or work order is made difficult by the father asserting that he is now on Newstart allowance.

21. The question of a bond is also inappropriate to a certain extent when it relates to the payment of monies which were due to paid in December 2009. 

22. I take into account the father asserts that the mother owes him $1,560 pursuant to the orders of December 2009 being the return of the bond which he paid but balance off against that the child support arrears outstanding due to the mother by the father. 

23. Considering all of the factors in Part 13A and section 112AD I therefore consider that it is just and equitable that the father be given an opportunity to meet his obligations and thereby reduce the fine which should be imposed. 

24. In relation to the mother’s application for costs that she has incurred, the orders of the Court provide for costs to be paid.  They are usually limited to costs incurred by way of legal representation or other justifiable costs.  The small amount of disbursements the mother has referred to needs to be taken into account in the context of the orders which I have made for the father to pay the sums due and the fine.  I therefore taking into account the provisions of  section 117(1) and (2) and section 117(2A).  I make no further order for the payment of costs of and in relation to the contravention proceedings. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 7 April 2011.

Associate: 

Date:  19 April 2011