M and G (No.5)
[2004] FMCAfam 387
•1 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & G (No.5) | [2004] FMCAfam 387 |
| FAMILY LAW – Contravention – whether the respondent demonstrated a serious disregard of orders – consideration of whether a stage 2 or stage 3 matter– respondent on a twelve months bond – s.70NN(8) provides that the court may revoke a bond and deal with a respondent as though before the court pursuant to s.70NJ – bond revoked – s.70NK jurisdiction for ordering community service order discussed – respondent ordered to complete community service. |
Family Law Act 1975
Sahari (1976) FLC 90-086
Schwarzkopff (1992) FLC 92-303
| Applicant: | U T M |
| Respondent: | L M G |
| File No: | PAM 1855 of 2001 |
| Delivered on: | 1 July 2004 |
| Delivered at: | Parramatta |
| Hearing dates: | 3 June & 1 July 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor advocate for the Applicant: | Mr M. Bellantonio |
| Solicitors for the Applicant: | Bellantonio & Rees |
| Solicitor advocate for the Respondent: | Mr T. Fitzgerald |
| Solicitors for the Respondent: | Tony Fitzgerald & Co. |
ORDERS:
In relation to the contravention application filed 30 October 2002 pursuant to s 70 NJ(3)(a) of the Family Law Act, the respondent, L M G, is ordered to complete 40 hours community service and to observe the following conditions:
(a)Report within one clear working day to a probation officer at
27 Liverpool Street, Hobart.(b)Satisfactorily perform the community service order as directed by a probation officer or supervisor for the number of hours specified in this order.
(c)Comply with reasonable and lawful directions given by a probation officer or supervisor.
(d)Give notification to a probation officer of any change of address or employment before or within two working days after the change.
In relation to the contravention application filed 22 April 2004 pursuant to s 70 NJ(3)(a), the respondent, L M G, is ordered to complete 60 hours community service and to observe the following conditions:
(a)Report within one clear working day to a probation officer at
27 Liverpool Street, Hobart.(b)Satisfactorily perform the community service order as directed by a probation officer or supervisor for the number of hours specified in this order.
(c)Comply with reasonable and lawful directions given by a probation officer or supervisor.
(d)Give notification to a probation officer of any change of address or employment before or within two working days after the change.
Orders 1 and 2 operate for 2 years.
The bond that the respondent entered into on 12 December 2004 is discharged.
The matter be listed for mention before me at 10.30am on 15 October 2004.
The question of costs of the applicant husband be reserved.
Solicitor for the applicant to notify the Child’s Representative of the orders made today.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1855 of 2001
| U T M |
Applicant
And
| L M G |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
On 21 June 2004 the court published its reasons for decision in relation to an application brought by the father, U T M, alleging that the respondent mother had contravened parenting orders. In summary the court found that on two counts the respondent failed to comply with its contact orders without reasonable excuse. On 12 December 2003 the court ordered that the respondent enter into a bond because she had contravened parenting orders. This will be called the first contravention. The parties agree that upon the court finding that the respondent has committed a further breach of the contact orders, she has, without reasonable excuse failed to comply with the bond. As a consequence of failing to comply with the bond, the court must also consider the effect of non-compliance pursuant to s.70NN(8).
Is the second breach a stage 2 or stage 3 contravention?
The first matter that must be addressed is whether the application filed on 22 April 2004, which will be called the second contravention application, should be dealt with as a stage 2 or stage 3 contravention. It is common ground that the respondent has already contravened the primary order, that is the order that she gives contact. A considerable part of the submissions addressed whether the respondent’s breach could be categorised as being a serious disregard of an order. The applicant's solicitor submitted that it should be and emphasised that this was a second contravention in only a few months.
The respondent's solicitor submitted that notwithstanding the court having recently found the respondent to have committed a stage 3 contravention, the court would be satisfied that this matter should be dealt with under stage 2. He highlighted that his client had made a real attempt to comply with the orders, particularly by herself completing the contact centre’s intake procedures. The substance of the submission appeared to be that the contact centre delayed making an appointment for supervised contact and that its delay played against the respondent because she was in Tasmania with the children and because of her pregnancy unable to fly. The respondent does not cavil with the court's findings. However this submission does not address the respondent’s failure to take all reasonable and necessary steps to ensure that if she was unable to take the children for contact because of her pregnancy that somebody else met her responsibility. By hiding in Tasmania the respondent created a set of circumstances which made compliance difficult. She has not made any reasonable attempt to deal with the situation that she herself has created.
At first blush it might be thought that failing to give supervised contact and failing to have children complete an orientation scheme at a supervised contact centre is a relatively trivial matter. But all cases turn on their own facts. It has been a long time since these children have seen their father. A long time has passed since the applicant started proceedings to re-establish contact by having the respondent abide by the orders. He has had the benefit of orders but has not had contact. If this were a case where the respondent had failed to facilitate contact against a background where at least some contact had occurred, then there is much force in the respondent’s submission concerning the comparative seriousness of the breach. However, there are three factors that lead to the court’s comfortable satisfaction that this matter should be dealt with as a stage 3 rather than a stage 2 matter. Firstly, only recently the respondent was found to have contravened the orders which breach was dealt with as a stage 3 matter. Secondly, there has been no contact between these children and their father, notwithstanding longstanding orders for contact. Thirdly, the respondent having created the circumstances which causes her difficulty made a manifestly inadequate attempt to address those difficulties. The cumulative effect of these factors results in the court’s comfortable satisfaction that the respondent showed a serious disregard of her obligations under the primary order. The objective seriousness of this breach warrants a stage 3 finding.
Stage three sanctions discussed
The court must determine the most appropriate stage 3 sanction for both contraventions. Section 70NJ(2A) provides that the court must make the order or orders available under Division 13A subdivision C that it considers to be the most appropriate in the circumstances. Section 70NJ(3) lists the available orders as a community service order, a bond, an order varying the order contravened, a fine of no more than 60 penalty units, a sentence of imprisonment. Although not explicitly referred to in the subsection, the power to order imprisonment must include the power to order a suspended sentence either for part or for all of a term of imprisonment. The alternatives set out in s.70NJ(3) are not listed in a hierarchy of escalating severity. Section 70NO provides that the sentence of imprisonment imposed pursuant to s.70NJ(3)(e) is for a specified period of 12 months or less, or for a period ending when the person complies with the order concerned or has been imprisoned for 12 months or such lesser period specified by the court whichever happens first. Pursuant to s.70NO(2) a court must not sentence a person to imprisonment unless satisfied that in all the circumstances of the case it would not be appropriate to deal with the contravention under any other subparagraph of s.70NJ(3).
A sanction imposed for contravention of an order must be proportionate to the contravention. That is, the sanction must be of a severity that is appropriate in all the circumstances. A court should not impose a sentence that is more severe than that which is necessary to achieve the purpose for which it is imposed. See Sahari (1976) FLC 90-086. Even-handedness in outcomes for comparable contraventions is important. Variations of the order contravened could involve anything from a minor change to a significant variation. Notwithstanding that, the most severe sanction is clearly a sentence of imprisonment.
Other sentencing principles need to be considered when determining the appropriate sanction, including the circumstances of the contravention and factors subjective to the person found to have contravened the orders. The court can consider factors such as character, age, means and physical or mental condition and conduct since the contravention has occurred. For example, contrition: Schwarzkopff (1992) FLC 92-303.
What is the appropriate sanction on the first contravention?
Turning to the first contravention. It is this matter which resulted in the respondent entering a bond in December 2003. Section 70NN(8) provides that without prejudice to the continuance of the bond the court may impose a fine not exceeding 10 penalty points. As well as the sanctions referred to in s.70 NJ, the court may also revoke the bond and deal with the respondent for the contravention in any manner as though she was before the court pursuant to s 70NJ. Section 70NN(9) requires that the court also take into account that the respondent has already entered a bond.
The first contravention, as is the case with the second contravention, concerns the respondent’s failure to facilitate supervised contact at a contact centre. Having consented to the orders the respondent left New South Wales with the children not long after. Before she left the respondent had partially completed the intake procedures at the relevant contact centre. However, she stopped when a job opportunity became available in Tasmania. Without notice to the applicant she removed the children from NSW. It took about nine months, requiring significant effort by the court, the applicant and his solicitor and the Australian Federal Police to find the children.
In relation to the first contravention the respondent admitted that she had contravened the order. Thus the focus of the earlier hearing concerned the appropriate sanction. Having been invited to enter into a bond the respondent did so. It must be understood that a court cannot order a person to enter into a bond. Unless they willingly do so the option is unavailable to the court. A bond is in effect no penalty at all. This is because it does no more than require good behaviour and compliance with the order. This bond imposed a series of conditions, including compliance with the orders. It was ordered in the sum of $1000 without surety or security. A bond is usually offered to a person who expresses contrition and who indicates that in the future they will abide the orders. In this case the respondent indicates that she understood her obligations to give contact. The respondent discussed her difficulty associated with compliance now that she was living in Tasmania and indicated that she and the children would return to reside in NSW by the end of the Christmas 2003/2004 school holidays. Hence the court offered the bond, providing an added incentive to comply while simultaneously confident that the respondent would be true to her word. The applicant had submitted in favour of a bond on the first occasion. Because the respondent has breached the bond so soon after it was ordered the court is satisfied that pursuant to s.70NN(8)(b) the bond should be revoked. This means that the first matter will be finalised pursuant to s.70NN(8).
The respondent is a 42 years old mother of five. She lives with her
53-year-old husband in Tasmania, where they apparently intend to continue to reside. A qualified nursing sister by occupation, the respondent recently gave up work in anticipation of the birth of her fifth child. This child was born in mid 2004. It is her intention to be a full time parent before returning to work either full or part time when the baby is about one year old. The respondent’s husband does limited part time work. Because he has prostate cancer he is entitled to a disability benefit. His health demands that he not work full time. The respondent's husband is the father of her elder two children and also her youngest child. The family's income is provided by social security and $200 per week child support paid by the applicant. The families’ total income is $716 per week. The respondent rents her home. She has a personal loan of approximately $21,000 and an orthodontic bill of approximately $2900. Her expenses average about $725 per week. In addition to this, the respondent had recently been ordered to pay the applicant's costs of former enforcement proceedings in the sum of $5900 within six months. The effect of this is that the respondent has no obvious capacity to pay a fine. Ordering a fine is only likely to put the respondent into further conflict with orders. She is already in a vulnerable position in terms of her non-compliance with orders. In contravention proceedings a court should not make orders where it is highly likely the orders will be breached. In this case a fine is unlikely to promote compliance, basically because an appropriate fiscal penalty will be impossible to meet. If complied with at all, it is only likely to punish the children who have been denied contact with their father. The probability is that a fine would not have the deterrent effect that must form an important part of the outcome of this contravention hearing.
The respondent's solicitor submitted that the respondent would willingly enter into a further bond. This it was said would moderate her behaviour in the sense that she would be required to comply with the orders. With respect to the submission, the bond that was ordered on
12 December 2003 did not achieve its intended purpose of ensuring compliance with the orders. The probability is that a bond would have no deterrent effect. Irrespective of whether the respondent is on a bond, her obligation is to comply with the orders. Having failed to comply with the bond ordered in December 2003, the court is not persuaded that it would be appropriate to continue the bond or give the respondent the opportunity to enter into a further bond, either with security or surety. A bond would not have the deterrent effect that is necessary in the circumstances of this case.
During submissions the court made it plain that a sentence of imprisonment, even if by way of periodic detention or as a suspended sentence, would be inappropriate.
Presently the respondent has an application to vary the contact orders awaiting determination. This application was commenced before the respondent disappeared. The contact orders which are the subject of these contravention applications were made in order to re-establish contact pending determination of the variation application. Until the Australian Federal Police located her, the respondent allowed her application to languish. In doing so she demonstrated a complete disinterest in having her application determined on its merits. Because of the respondent’s behaviour the court has previously decided against ordering that she attend a post separation parenting program. Neither party submits that the court has sufficient information upon which it could properly base a decision to vary the parenting orders. Nonetheless the court considered whether the current orders should be suspended now that the variation application has been reactivated. Clearly the previously ordered family report must now be completed. Because re-establishing contact has been delayed the family reporter is likely to gain a better understanding of the children’s relationship with their father and their wishes if the current orders are complied with. Otherwise the first contact the children have with their father for about two years will be in the family report process, an outcome than may skew the report. The court is satisfied that compliance with the existing orders will enhance the integrity of the variation proceedings and that currently there is no sound basis for varying the orders.
Is a community service order an available option?
Provided it is available the appropriate sanction is a community service order. If the court was exercising jurisdiction solely in NSW a community service order is not an available option. That is because unlike every other state and territory, NSW has not agreed to provide its facilities to the Commonwealth for the purposes of community service orders. Therefore s.70NQ does not apply. However the respondent resides in Tasmania and says she intends to continue to do so. The hearing has been conducted by video link between Parramatta and Hobart. At all times throughout this phase of the proceedings the respondent has resisted attendance in NSW and remained in Tasmania. While the court could have issued a warrant to have the respondent personally attend in NSW, the court allowed the respondent to appear in Hobart. Thus the court is exercising jurisdiction both in NSW and Tasmania. The parties' lawyers all agree that Tasmania is a participating state within the meaning of s.70NK. The Family Law Act 1975 is a federal law. The court is empowered by virtue of s.70NJA(3)(a) to order community service provided the provisions of s.70NK(1) apply. All that is required is that the order is made by a court exercising jurisdiction under the Family Law Act in a participating state or territory where the order will be implemented.
A community service order will require that the respondent perform some form of voluntary work supervised by the Department of Community Corrections, Probation and Parole Office, Hobart. The suite of community work that is available is amenable to people of different ages and circumstances. Some work may be physically onerous, some of it not. For example it can involve gardening for pensioners, reading in libraries, voluntary work in schools or picking up rubbish. Community service is inconvenient and for this respondent who has not come into conflict with the law in the past, it will probably be embarrassing. But there must be a deterrent element if the court is satisfied that a breach is serious. The effect of this breach has been a denial of contact over a significant period of time. The respondent has brought any embarrassment and inconvenience upon herself and her family. The court has taken into account the effect on the respondent's family of her absences because she would be completing community service. Although the respondent's husband is in receipt of a disability benefit and not able to work full time, he is sufficiently well to work at least up to one day a week. This suggests that if the respondent is attending community service there is a responsible adult able to care for the children for the short periods that she would be absent.
The respondent admitted the first contravention at the first available opportunity after she was apprehended and the proceedings were returned to Parramatta. The court accepts that the respondent regrets the situation she finds herself in. She is contrite about the situation that she has brought about.
During closing addresses the court invited the respondent's solicitor to make submissions about the duration of a community service order. Section 70NK(2) provides that the duration must not exceed the maximum period in relation to which the state or territory in which the order is made. An order ceases to have effect two years after it is made or after such lesser period as is specified in the order. The court had postulated that the respondent should complete 80 hours community service on the first contravention. However, the respondent’s solicitor persuaded the court that that number of hours was disproportionate to the gravity of the matter. The hours that he contended for, ten and twenty hours respectively, however do not reflect the objective seriousness of the matter. While the court’s was probably too high, his was too low. On balance, the court is satisfied that the respondent should complete 40 hours community service on the first contravention application. She must complete this order within two years. This number of hours should bring home to the respondent the court’s concern at her failure to give contact and compel a higher regard for her obligations under the orders.
What is the appropriate sanction on the second contravention?
On the second matter the respondent unsuccessfully defended the contravention application. It has only been after the application has been proved that she has expressed contrition. She says that she is sorry for the effect of her actions. Her contrition would have been more compelling had it been expressed at the outset. Although late, her contrition weighs in favour of the respondent.
The court had postulated that the respondent should complete 100 hours on the second contravention. The higher number of hours reflected that the respondent breached orders so shortly after the court had found the first application proved and also the continuing effect of her failure to give contact. However, her solicitor persuaded the court that that number of hours was too high. The respondent will be ordered to complete 60 hours community service on the second count.
Thus the respondent must complete 100 hours in total. The Family LawAct provides that a community service order will cease to have effect in two years, unless the court orders a shorter period. One hundred hours is significant. Because she has just had a baby and has family obligations, the respondent will have the maximum period within which to complete her community service. The respondent will deal directly with a supervisor appointed to manage her case in Hobart as to the number of hours that she will complete at any one time. It may be that because she has recently had her baby that she will initially perform a smaller number of hours per week or fortnight, but that the number of hours will build. On average at 100 hours over two years period is approximately one hour every week.
The respondent must report to a probation officer at 27A Liverpool Street, Hobart within 24 hours. She must then perform the community service order as directed by a probation officer or supervisor for the ordered number of hours. The respondent must comply with the reasonable and lawful directions given to her by the officer in relation to the community service order. The orders will require that she notify the supervisor of any change of address two days prior to making any change.
The court must explain to the respondent the consequences if she fails to comply with the community services order. Put simply, not only is the respondent potentially liable for committing a further breach pursuant to s.70NN (8) there is the possibility that the respondent may also commit an offence under Tasmanian law. This law would if breached potentially make her liable for a term of imprisonment of up to 3 months or a fine not exceeding $1000.
This has been a most regrettable outcome. When it ordered the bond in December 2003 the court hoped that the orders would be complied with and that neither party would be before the court for a considerable period of time. Certainly not until after the supervised contact had been completed and a family report prepared for the variation application. U T M, the court regret’s that you have had to go through so much in order to secure contact with your children. L M G, the court profoundly regrets that for you and your family you are in this position. The court had hoped this would never happen. You must understand that if there are further breaches proved you slowly and inexorably move up the sentencing scale. During submissions this morning the court discussed a recent decision in this court where a parent was gaoled for failing to give contact. That in my opinion is the worst outcome for families and the court. This is not a criticism of the federal magistrate. The point is that people must realise that although courts exercising jurisdiction under the Family Law Act 1975 attempt to resolve matters without recourse to criminal sanctions, regrettably there are occasions when these are appropriate. L M G the court hopes for your sake, the children's sake, and the applicant father’s sake there are no further breaches.
For these reasons the court makes the orders identified at the start of this judgment.
I certify that the twenty-six (26) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 16 August 2004
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