Labeck & Calandros (No 3)

[2020] FCCA 3651

FEDERAL CIRCUIT COURT OF AUSTRALIA

Labeck & Calandros (No 3) [2020] FCCA 3651

File number:

DNC 115 of 2020

Judgment of:

JUDGE YOUNG

Date of judgment:

30 September 2020

Catchwords:

FAMILY LAW – contravention application – whether the mother failed to make the children available to spend time with the father pursuant to interim parenting orders – where the mother admitted the breach of the orders – Court not satisfied the mother has a reasonable excuse for contravention – good behaviour bond imposed.

COSTS – application by father for costs in relation to contravention proceedings – where the mother has failed to comply with interim parenting orders – where the father has failed to comply with a Child Support Assessment – costs application dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 70NFA, 70NFE

Number of paragraphs:

11

Date of hearing:

30 September 2020

Place:

Darwin

Solicitor for the Applicant:

Ms Farmer of Withnalls Lawyers

The Respondent:

Appearing on her own behalf

Solicitor for the Independent Children's Lawyer:

Ms Tregear of Arafura Legal

ORDERS

DNC 115 of 2020

BETWEEN:

MR LABECK

Applicant

AND:

MS CALANDROS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	30 SEPTEMBER 2020

THE COURT ORDERS THAT:

1.The Contravention Application filed on 20 August 2020 by the Applicant is proved in regard to the Respondent’s admission of contravention of Order 15(d) of the Orders dated 12 March 2020.

2.By way of penalty, the Respondent MS CALANDROS do enter into a Bond to operate for a period of two (2) years and that it be a condition of that Bond that she observe and comply with the requirements of all parenting orders of this Court and of the Family Court of Australia in relation to the children X born in 2016 and Y born in 2017.

3.The Contravention Application filed on 20 August 2020 by the Applicant do otherwise stand dismissed.

4.The respondent is to attend physically at the Federal Circuit Court Registry, Darwin, within 7 days to sign the Bond.

5.The application for costs is dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Labeck & Calandros (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a contravention application against the mother for failing to make the children available to spend time with the father.  There were a multiplicity of counts in the application.  They were, for the most part, subject to technical deficiencies and a number of the counts failed to include the date of the alleged breach. In the circumstances I did not permit the applicant to amend his application at the commencement of the hearing to include the dates of the alleged breaches. I struck those complaints out.

2. There was another count where it was alleged that on 2 July 2020 the mother refused to make the children available to spend time with the father which was said to be in breach of order 1(a) of the orders of 12 May 2020. Those orders envisaged that there would be a period of six weeks when the children would spend time with the father on Thursday and Saturday. I was not satisfied this constituted a breach of the orders. On my calculation, the alleged breach which was said to have occurred on 2 July 2020 was outside the six-week period and I was therefore not satisfied that that constituted a breach. 

3. Nevertheless, the mother admitted a breach on 7 June 2020. Despite orders requiring her to do so, the mother had not filed any material which would have provided any basis for a submission that there was a reasonable excuse for her breach.

4. In this matter I have heard evidence today and I also heard evidence more generally on 12 May 2020. I delivered some ex tempore Reasons for Judgment on 12 May 2020. 

5. I am satisfied that the mother has decided to flout the Court orders. I am satisfied that her failure to comply with the order to facilitate the children spending time with their father on 7 June 2020 was a deliberate non-compliance with orders. 

6. I am satisfied, for the purposes of section 70NFA(2)(b) of the Family Law Act 1975 (Cth) (the Act), that the mother has behaved in a way that shows a serious disregard for her obligations under the primary order dated 12 March 2021.

7. I am satisfied that the appropriate penalty is a good behaviour bond without security or surety. I am satisfied, given what I consider to be a tendency of the mother to deliberately fail to comply with orders of this Court, that the bond should be a period for two years. I require the mother to enter into a good behaviour bond for a period of two years pursuant to section 70NFE of the Act.

8. There will be two conditions to the bond.  The first condition will be that the mother is to attend appointments with a Family Consultant, as required, including but not limited to appointments necessary for the preparation of a Family Report. I note that there is a Family Report being ordered.  If the mother fails to cooperate fully with that Family Report process then that will constitute a breach of the bond. There will also be a condition for the mother to be otherwise of good behaviour.

9. I will order that the mother is to attend the Darwin Registry to sign the bond within the next seven days.

10. In relation to the question of costs, the applicant father seeks an order for costs in the sum of $4,716. Ordinarily, I would be sympathetic to that application as it is apparent from the reasons I have given that the father has incurred legal costs unnecessarily in an effort to ensure compliance with Court orders.  That would usually result in a costs order. 

11. However, in this case the mother has given evidence that the father has not complied with a Child Support Assessment which runs from 9 May 2019 and has not paid any money pursuant to that Child Support Assessment.  Her income is from some rents, but that appears to have been absorbed by the mortgage, and otherwise from welfare payments and Family Tax Benefits.  Having regard particularly to those factors, I decline to make an order for costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       12 May 2021