Levier and McClintock - [2008] FMCAfam 1107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEVIER & McCLINTOCK

[2008] FMCAfam 1107

FAMILY LAW – Children – contravention by the mother of an order permitting the child to spend time with the father – mother absconds and is located by police 13 months later – sentencing principles – sentence of 6 months imprisonment.

Applicant:

MR LEVIER

Respondent:

MS McCLINTOCK

File Number:

CAM 1312 of 2006

Judgment of:

Brewster FM

Hearing date:

24 September 2008

Delivered at:

Canberra

Delivered on:

24 September 2008

REPRESENTATION

Counsel for the Applicant:

Ms Tonkin

Solicitors for the Applicant:

Mazengarb Barralet Family Lawyers

Counsel for the Respondent:

Ms Burgess

Solicitors for the Respondent:

Legal Aid Office (ACT)

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 1312 of 2006

MR LEVIER

Applicant

And

MS McCLINTOCK

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

In this matter the respondent Ms McClintock, has admitted that she, without reasonable excuse, breached orders of this court made on 2 April 2007 and outlined in the first six counts in the contravention application, filed on behalf of the applicant father on 8 September 2008. I will briefly outline the background to those contraventions.
The parties were in a relationship from 1995 to the end of 2001 and there is one child of the relationship, [X], who was born in 1997. On

2 April 2007
orders were made in this Court providing for the father to spend time with the child. I do not need to set out the details of these orders. The contact provided in those orders did not occur according to the terms of the orders and in particular, in late June 2007, the mother left her home on the South Coast where the parties had been living and travelled to Queensland.
She says that this was intended initially to be a holiday for a couple of months. Be that as it may, the sequelae was a serious breach of the orders of 2 April. The situation was compounded however when the mother moved to and settled in Western Australia She enrolled the child in school, but under the surname of her partner. She did not voluntarily return to the South Coast and her whereabouts were unknown for some considerable period of time.
A recovery order was issued by me and ultimately the police were able to ascertain her whereabouts. The child was recovered on 5 August 2008 by the police, about 13 months after the mother left the South Coast. But for the police ascertaining her whereabouts I think it likely that she would have remained in Western Australia, or at least would never have returned to comply with the orders of the court.
I interpose at this stage that I had considered whether I should take into account as an aggravating factor in her conduct the very large amount of taxpayers’ money that must have been expended in locating the mother and the child. I have decided that I should not. I believe it appropriate to more or less follow established principles in relation to criminal law sentencing, and in that area the costs of an investigation or location of an offender is not a factor. However I do express the court's appreciation of the dedication and efficiency of the Australian Federal Police and of the State Police Forces that have been involved in this matter under the coordination of Senior Constable Gibbs of the Australian Federal Police.
I now turn to the father's application. In addition to the contravention application the father seeks an order for costs. I have largely dealt with this in giving rulings throughout the case, but for completeness, I make the following findings. First of all, I am satisfied that this is what is termed in the legislation a more serious contravention. A more serious contravention involves a contravention where a person has behaved in a way that shows a serious disregard of that person's obligations under the orders that had been breached.
I am satisfied that the present case involves a more serious contravention. I am required, it would appear, to be satisfied of that beyond reasonable doubt. As I have discussed with counsel I find this a difficult conceptual exercise, but I am satisfied beyond reasonable doubt that this is a more serious contravention.
That being the case, s.70FB of the Family Law Act provides that I must make an order that the offender pay all of the costs of the other party unless I am satisfied that it would not be in the best interests of the child concerned to make that order.
The mother has filed a statement of financial circumstances. It is plain that she has not the means to meet a costs order, but on my reading of the Act this is irrelevant and I have already ruled that s.117 of the Act has no application in a case of this type. The only factor to be taken into account is the interests of the child. The child is presently living with the father. I am not satisfied that his best interests would be compromised if I were to make an order that the mother pay the father's costs and, as I have indicated, I propose to make such an order that I have already indicated the terms of such an order. The precise quantum has not been ascertained, but I am satisfied that the amount which will be assessed or agreed will be very substantial having regard to the mother's financial circumstances and will pose a significant and substantial debt, and this is a matter I take into account when fixing a penalty.
In sentencing the mother I have the following options: I could require her to enter a bond; I could make an order compensating the father for the time he has lost with [X], but that is academic now as [X] has been with him since the recovery order was executed; I could impose a fine; I could make a community service order; I could impose a suspended prison sentence, or I could impose a prison sentence of up to 12 months.
I must not impose a prison sentence unless I am satisfied, and I interpolate satisfied beyond reasonable doubt, that it would not be appropriate to deal with the mother in any other way.
As I have indicated I propose to approach this matter having regard to the criminal law principles of sentencing and I adopt as a useful guideline s.7 of the Crimes (Sentencing) Act2005 of the Australian Capital Territory. I am not certain if this section has actually commenced operation but that is not to the point. It provides that the court may impose a sentence on an offender for one or more of the following purposes: (a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; (b) to prevent crime by deterring the offender and other people from committing the same or similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; and (g) to recognise the harm done to the victim of the crime and the community.
If I were to reformulate those criteria to apply to a case such as the present, I think principle (a) is applicable ie to ensure that the offender is adequately punished for the breach of orders in a way that is just and appropriate. I regard paragraph (b) is appropriate and reformulate that. It is to prevent breaches of court orders by deterring the offender and other people from committing the same or similar breaches. That, in conventional terminology, would be called individual and general deterrence.
I reformulate (c) which is to protect the community from the offender as follows. It is to protect children from having a parent unilaterally decide what is in a child's best interests, and to unilaterally prevent that child from having a meaningful relationship with the other parent.
Paragraph (d) is a relevant factor, that is the rehabilitation of the offender. That could be done by way of a bond. However the situation that often occurs in criminal law of having the assistance of a parole officer, et cetera, is not possible in this case.
I do not find that paragraphs (e), (f) and (g) helpful in this particular case.
The following factors weigh in favour of my making an order short of an immediate custodial sentence. First the mother says she acted as she did because of concerns as to [X]'s welfare. I need not set those out. They are contained in an affidavit she has filed in support of an application that I reverse an earlier order that [X] live with the father and order that he live with her. I take that into account.
Secondly the mother has ultimately pleaded guilty to the counts in the contravention application. She acknowledges that what she did was wrong, although that acknowledgement is contained in para.28 of that affidavit, which reads as follows:
I realise that not complying with the orders has made a bad situation worse. I know that the whole experience (of being removed by the police and moved away from me)-I think that means "[X] being moved away from me" -would have been and still is very traumatic for [X]. By my actions I prevented him from speaking to me or seeing me for almost a month. I believe that [X] wants to speak to me and see me and I am absolutely devastated that I have put him in this situation where he is unable to contact me. He is staying with his father where his fear of him was our reason for running away in the first place.
There is nothing in the affidavit that indicated any remorse generally as to her conduct, only as to the effect it has had on her and on [X]. It is really only an acknowledgement that the conduct she engaged in was counter productive.
A sentence of imprisonment would unquestionably involve the mother in great hardship, and it unquestionably would not be in [X]'s best interests, indeed it would be quite traumatic for [X]. Through her counsel the mother has indicated that were she sent to prison she would not wish the child to visit, the reason for that being that she would not consider that seeing the child in a prison environment would be conducive to his best interests. I understand her reasons.
As I have said, I take into account the fact that I have already made an order for costs which involves or may involve hardship. I appreciate that, as she has said in her affidavit, she has already been punished by having the child removed from her care and placed with the father. It was also submitted that this, in effect, has provided compensatory contact which is one of the orders that I am able to make and that, as I understood the submission, I should treat that as being an appropriate sanction in the circumstances.
These are powerful considerations, but I turn again to the issue of general deterrence. To paraphrase the Sentencing Act that I have referred to to deter other people from committing the same or similar offences. Whilst it is manifestly clear that it is not in [X]'s best interests that his mother should be sentenced to a term of imprisonment, there are other children to consider. And in this particular case, I am satisfied this is in the interests of children in general that a punishment should be imposed which will act as a deterrent to parents acting in the way that the mother has done. It is wholly inappropriate for a parent to usurp the role of the court and to flout court orders and to unilaterally make a decision that a child should be denied a meaningful relationship with the other parent. It is completely inimical to the interests of children that these things occur.
In my opinion such conduct must be deterred and one would hope that the result of this case will serve as general deterrence. I am satisfied, and I am satisfied beyond reasonable doubt, that in this case none of the other sanctions short of imprisonment is appropriate. In my opinion general deterrence must prevail. In my opinion the appropriate sentence is six months imprisonment. I do not propose to order an earlier release.
I propose to order that the sentence apply concurrently to each of the counts in the contravention application. That is not to say that each count is of equal seriousness, they are not, but I take into account the total criminality, if I might use that word in a loose sense, of the conduct of the mother.
I will make orders in relation to costs as I have foreshadowed. I propose to adjourn the consideration of other matters to a date which will be notified shortly, in about a month's time. Obviously, the issues in relation to [X], whilst they may not arise in the short term, given what has fallen from the mother's counsel, they will, unquestionably arise in the longer term.
I propose to appoint an Independent Children's Lawyer and that may as well be done sooner rather than later. I shall take out in orders in Chambers shortly. I shall also take out a warrant of commitment. I direct the police officers in court to take the respondent into custody and hold her in the precincts of the Court and to await receipt of a warrant of commitment and a copy of my orders.
RECORDED : NOT TRANSCRIBED
My original sentence will stand.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: 9 October 2008