LOWE & MALLORY

[2014] FamCA 1236

FAMILY COURT OF AUSTRALIA

LOWE & MALLORY [2014] FamCA 1236

FAMILY LAW – CONTRAVENTION

APPLICANT: Ms Lowe

RESPONDENT:	Mr Mallory
FILE NUMBER:	CAC	1845	of		2010

DATE DELIVERED: 29 July 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 29 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. Jones

SOLICITOR FOR THE APPLICANT: Jones Law Co

COUNSEL FOR THE RESPONDENT: Mr Lawton

SOLICITOR FOR THE RESPONDENT: Bird & Co

Orders

1. I find that the respondent has contravened Orders 1, 2, 3 and 4 of the Orders made on 24 May 2011 and Order 12 without reasonable excuse.  I find that the contravention of Order 4 was a more serious breach of the Orders.

2. I impose the following penalties:

   a.   The respondent attend a course agreed to between the parties as to post parenting which may include the “Three Ps” course or its equivalent and he will continue to attend that course until he has completed it.  (I note that the respondent agreed that he would attend such a course upon my pronouncement as to the findings as to the allegations made.) 

   b.   The respondent will enter into a Bond which may be entered into before a Registrar of this Court upon notification to the respondent that the Bond is ready to be completed.  It will be a condition of the Bond that the respondent will comply with the Orders of this Court about parenting and in particular his obligations as a parent, for a period of twelve months from this date.  The Bond will be in the sum of $500 to be paid if there should be a finding that he has been in breach of the conditions of the Bond.  It is a condition of the Bond that he attend upon the parenting course referred to above.

3. The respondent will pay in respect of the applicant’s costs in relation to these proceedings in the sum of $15,000.  Such sum will be paid on or before the expiration of six months from this date.

4. The matter is re-transferred to the Federal Circuit Court for completion of the other matters. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lowe & Mallory has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1845 of 2010

Ms Lowe

Applicant

And

Mr Mallory

Respondent

REASONS FOR JUDGMENT

1. This matter, the proceedings before the court, related to alleged breaches of orders that had been made by consent in 2011.  I have indicated during the course of the proceedings my reasons for coming to the conclusions that I did.  However if at some point someone wishes to appeal the decision then I will provide further reasons if required.  However, I note that the effect of my determinations during the course of proceedings as being that Mr Mallory, the respondent in these proceedings, has contravened Orders 1, 2, 3 and 4 and Order 12 of the orders entered into by consent without reasonable excuse.

2. In relation to penalty, it has been submitted to me that at least one of the matters, being that referred to in Order 4, is a breach which should fall into the more serious category and I am prepared to accept that it is in that category.  The others are perhaps not quite so – well, perhaps time was on the side of the respondent in that he did not have a chance to carry out some of the things that he might otherwise have done.

3. In relation to the more serious breach, it was suggested by Mr Lawton on behalf of the applicant that I should impose a penalty requiring Mr Mallory to attend a parenting course and I shall comply with that suggestion.  He also suggested that I should cause Mr Mallory to enter into a bond to comply with orders made about parenting for a period of 12 months and to impose a condition of that bond that he should attend the parenting course referred to in the previous order.

4. The effect of imposing a bond, Mr Mallory, is that it is a promise that you will pay a sum of money to the Commonwealth if you are in breach of the bond.  It does not require you to pay the money immediately but if you were found to be in breach of the bond subsequently then the penalty would be imposed.  So that, putting it bluntly, if you enter into the bond and you are subsequently found to have contravened an order in addition to whatever penalty may be imposed in relation to the contravention you may be called upon to make the payment to the Commonwealth.  That is the effect of it.  But it does not require any immediate payment from you.  So it is not a question of your suddenly having to find another amount of money.

5. In relation to the question of costs, given that I made a finding that one of the allegations has been made out as a more serious allegation I am bound by the provisions of s 117 and, as a result of that, s 79NFB(1) that I must make an order under paragraph 2(G) of that section unless the Court is satisfied it would not be in the best interests of the child concerned to make that order.

6. Subsection 2(G) provides that the Court may make an order that the person who committed the current contravention pay all the costs of the other party or other parties to the proceedings under the division.  So unless I determine it is not in the best interests of the child to make the order, that is the order I am obliged to make.  In this matter there are a number of matters which, I think, bear upon my determination on the question of costs.

7. The first is I have serious doubts about the efficacy of these proceedings in the light of the fact that there is an interim hearing in relation to matters before the court scheduled for a very short time hereafter and a hearing now scheduled for March of next year.  The parties entered into orders by consent some time ago and they have been successfully pursued, after a fashion at least, until relatively recently.

8. It seems to me that there is not a lot of benefit to B in the pursuit of these proceedings.  However there is no doubt that the proceedings are available under the Act and the proceedings have been pursued and, moreover, they have been successfully pursued in relation to most of the allegations made.  In those circumstances I am, at least in part, obliged to comply with the terms of the Act and I have to give consideration to why it would not be in B’s best interests if I were to not make an order for costs in the sum sought.

9. The sum sought is, in fact, a significant penalty and would constitute a major imposition on the respondent.  It may be correctly said on behalf of the applicant, that his actions imposed a major detriment to the applicant in any event and that it was not in B’s benefit, as my judgment has found, for the breaches to have occurred in any event.  Both of those propositions are true.

10. However it is the case that the payment of - or the incurring of costs of some $23,000 (and I am not suggesting that there is anything wrong with the sum in itself) in circumstances where the major question on the part of both parties is what is going to be best for B, seems to me to be a misapplication of funds.  That having been said, it seems to me there should be an order for costs and I am obliged to make an order in any event, it seems at least subject to the question of B’s benefit – which is not immediately apparent.

11. However I believe the imposition of the sum should be reduced from that claim to the sum of $15,000 and that sum will be my order.  I might add that under s 117 I am not obliged to make an order for the whole of the costs but an order as to costs.  My order as to costs is in the sum of $15,000.

12. The matter is re‑transferred to the Federal Circuit Court for completion of the other matters.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 29 July 2014.

Date: 18 May 2015

Signed: