MALCHER & MALCHER - [2015] FamCA 281

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER

[2015] FamCA 281

FAMILY LAW – ENFORCEMENT OF ORDERS – Contravention of orders – Sanctions – Where the Court found that the father had breached a parenting order without reasonable excuse on three occasions – Where the Court declined a finding that the contraventions be dealt with under Subdivision F (more serious contravention) of Division 13A of Part VII and instead dealt with them under Subdivision E (less serious contravention)– Where the father submitted an adjournment would be appropriate for further parenting orders to be put in place – Where the parties’ have a poor relationship – Where the Court found that, in the best interests of the children, it was essential that orders not be departed from – Where the Court ordered the father to enter into a bond – Where the father did not agree to enter into a bond – Where the Court imposed a fine on the father.

FAMILY LAW – COSTS – Where the father was ordered to pay the mother’s costs of the contravention proceedings.

Family Law Act 1975 (Cth) – Division 13A, Part VII, s 70NEA, s 70NEB, s 70NFA, s 70NFB

Dobbs v Brayson (2007) FLC 93-346
Gravis & Major [2010] FamCAFC 239

APPLICANT:

Ms Malcher

RESPONDENT:

Mr Malcher

FILE NUMBER:

SYC

3808

2012

DATE DELIVERED:

27 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

27 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Morozov, solicitor of Barkus Doolan Family Lawyers

FOR THE RESPONDENT:

Mr Malcher, father in person

Orders

That the father forthwith enter into a bond on the conditions that he be of good behaviour for a period of eighteen (18) months, to comply with all current court orders and to acknowledge himself to owe to the Commonwealth of Australia the sum of $5000.00 to be made and levied on his several goods and chattels, land and tenements to the use of the said Commonwealth if he shall fail in these conditions.
That it is noted that the father has informed the Court that he is not prepared to enter into a bond and that in these circumstances it is proposed to impose a fine of $5100.00 on the father.
That a fine of $5100.00 is imposed on the father to be paid to the Registry Manager, Sydney within thirty (30) days.
That the father pay to the mother’s solicitors within 60 days her costs of the contravention proceedings as agreed or as assessed by the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher 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 SYDNEY

FILE NUMBER: SYC 3808 of 2012

Ms Malcher

Applicant

And

Mr Malcher

Respondent

REASONS FOR JUDGMENT

On 20 October 2014, I made a finding that the father breached order 2.2 of the orders of 16 July 2012 without reasonable excuse on three occasions, namely, 18 August 2014, 1 September 2014 and 8 September 2014. The father failed to return the children B, who was born in 2002 and D, who was born in 2006 to their mother after spending time with them on Monday afternoons pursuant to the court orders.
On 20 October 2014 I gave oral reasons for finding the contraventions and adjourned the further hearing to 2 December 2014. The matter was subsequently adjourned to 27 February 2015 at the request of the parties. I was informed that they were endeavouring to negotiate a settlement which they hoped would obviate the need for the adjourned hearing to consider imposition of sanctions.
Unfortunately, their hopes in this regard were not realised and I was requested to resume the hearing on 27 February 2015, which I did.
Division 13A of Part VII of the Family Law Act 1975 (“the Act”) makes provision for the consequences of failure to comply with orders that affect children. Sub-section 70NEA(1) provides that Subdivision E applies if a primary order, has been made and the Court is satisfied that a person has committed a contravention of the primary order and the person does not prove that he or she had a reasonable excuse for so doing. Sub-section 70NEA(1)(d) provides that either sub-section (2) or (3) applies.
Sub-section 70NEA(2) provides that sub-section (2) applies if no court has previously made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order. That is clearly the case here because notwithstanding a long history of litigation, no court has previously made an order imposing a sanction in respect of either of the parties in these proceedings and particularly the father in these proceedings. The powers of the Court in respect of such matters are set out at sub-section 70NEB(1) of the Act. That is contained in Subdivision E of Division 13A, which has as its heading, “Contravention without reasonable excuse (less serious contravention)”.
The Court is asked in these proceedings by the learned solicitor for the mother to make a finding that, in fact, the breaches do not fall within Subdivision E of the Act, but rather fall within Subdivision F of the Act. That is headed “Contravention without reasonable excuse (more serious contravention)”. Sub-section 70NFA(1) provides that subject to sub-section (2), the Subdivision applies if a primary order has been made and a court having jurisdiction under the Act is satisfied that a person has committed a contravention, and the person does not prove that he or she had a reasonable excuse. Sub-section 70NFA(1)(d) provides that either sub-section (2) or (3) applies.
It is submitted on behalf of the mother that sub-section 70NFA(2)(b) provides that the sub-section applies if the court is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order. It is submitted that the father showed such a serious disregard. It is submitted that imposition of a bond is appropriate. The provisions provide for a much more substantial fine than under Subdivision E.
It is necessary to consider whether the Court could be satisfied that the father has behaved in a way that showed a serious disregard of his obligations under the primary order. It is submitted by the mother’s solicitor that the three breaches fall into the more serious category on a number of bases. Firstly, it is submitted that the breaches occurred over a period of two months, the inference being that it was an extended period. It is submitted that on Monday 18 August 2014, the situation was serious because it was a situation where one of the children wanted to stay with the father and then the other children also indicated that they also did.
Learned solicitor also reminded me of the evidence in respect of not only that alleged breach, but also the breaches on 1 and 8 September 2014, on the Monday evenings when the father again retained the children. The solicitor reminded me that the father did not bother to inform the mother on two of those occasions and in all of the circumstances it was submitted that those breaches fall into the more serious category.
Learned solicitor helpfully drew my attention to a judgment of the Full Court in the matter of Gravis & Major [2010] FamCAFC 239 (1 December 2010). There, the Full Court also gave consideration to whether it was appropriate for the relevant matter to have been dealt with under the more serious Subdivision F or the less serious Subdivision E.
The Full Court referred to an earlier Full Court decision in Dobbs & Brayson (2007) FLC 93-346, where this issue was also considered. At page 26, the Full Court said:
… What amounts to a serious disregard will depend on the circumstances of the case but by way of example, could include the removal of a child to another place despite orders of the court or harassment despite repeated warnings and the terms of the parenting order.
Bringing such a test to the facts in this case, in my view, it would not be available to this Court to deal with the matter pursuant to Subdivision F. As I indicated to the father, however, my taking such a view in respect of the seriousness of his contraventions should not be interpreted as the Court not taking a serious view in respect of those matters, because clearly they are serious. But not such as to come within Subdivision F. In my view, in the circumstances in this case, the appropriate Subdivision for the Court to consider its powers in respect of these matters is Subdivision E.
Learned solicitor for the mother has sought that the father be placed on a bond to be of good behaviour for two years with a surety of $5000.
The father has submitted that in his view, that would not be appropriate. He carefully took me through the various powers which are available to the Court pursuant to sub-section 70NEB(1). He referred to sub-section 70NEB(1)(c) and submitted that in the circumstances of the totality of these proceedings and bearing in mind that the parties are proceeding towards a final hearing in respect of all parenting matters, it would be appropriate to adjourn the proceedings to enable all parties to apply for further parenting orders which, as I have indicated, are in the process of being heard by the Court. In any event, the father said his clear view is that the Monday night order is no longer appropriate. He is anxious to have that order changed.
He submitted that the Court should also consider the question of sanctions in the context of the fact that he has not had any time with one of the children now for a long time. The reasons for that can be seen from previous reasons for judgment which I have given in the proceedings between the parties. He said that for the purposes of the substantive proceedings there have been reports prepared by Dr A. A current report and possibly both reports, recommend that the father and the children should spend more time together. He said that he failed to see how placing him on a bond could be in the best interests of the children. He said that it would be preferable and in their interests for a make-up or compensatory order to be put in place.
The father submitted that a very substantial amount of this family’s funds have been spent on legal costs to date. He estimates that his own legal costs to date approach $500 000. He said the imposition of any surety would only exacerbate that situation.
The view that I have formed about this matter is that it is not in the interests of these children for either of their parents not to be complying strictly with court orders. The parents have demonstrated now, over a long time, that their level of communication is appalling, their relationship is dreadful and that it is essential for these children, in my view, unfortunately, that their parenting arrangements have to be regulated by this Court.
For the order, stability and regularity which is fundamental to the best interests of these children, in my view, it is essential that the arrangements under the court orders are not departed from by either of their parents. To achieve this important purpose, in my view, it is appropriate for this Court to address the father’s contravention of the orders by imposition of a sanction which will deter the father from any future possible contravention. For these reasons, in my view, an adjournment would not be appropriate and the matter is too serious simply to make an order for compensatory time. Such an order, in my view, would not be any deterrent.
The mother has asked for a bond and in my view, the seriousness of the contraventions calls for such a measure.
I explained to the father the purpose and effect of the proposed bond which would be to provide a serious sanction, a serious encouragement to comply with the court order and a serious deterrent from any transgression. I explained the consequences that might follow if he failed to enter into the bond or having entered into the bond, failed to act in accordance with the bond. I explained that if he entered into the bond and failed to act in accordance with the conditions of the bond that I had in mind, he would forfeit $5000 to Consolidated Revenue.
I explained that if the father failed to enter into the bond, he would leave me with no course but to impose a fine which, on my calculation, would be $5100. This would be on the basis of 10 penalty units for each of the three contraventions. I noted that under s 4AA of the Crimes Act 1914 (Cth) “penalty unit” means $170. I explained that that would be paid immediately, as distinct from if he entered into a bond, in which case he would not have to pay anything at all, unless at some point in the future he was to breach the bond.
I then made an order that the father forthwith enter into a bond to be of good behaviour for a period of 18 months, to comply with all current orders of the court and to acknowledge himself to owe to the Commonwealth of Australia the sum of $5000 to be made and levied on his several goods and chattels, lands and tenements to the use of the said Commonwealth if he shall fail in the conditions of the bond.
The father then informed me that he was not prepared to enter into a bond. In these circumstances, I then made an order imposing a fine of $5100 on the father.
The solicitor for the mother then sought an order that the father pay her costs of the contravention proceedings.
In relation to this application, the usual position is, as submitted, pursuant to sub-section 117(1) of the Act, that each party to proceedings under the Act shall pay his or her own costs. That is subject to sub-section 117(2) which provides that the court may make such costs order as the court considers just upon a consideration of the relevant matters in sub-section (2A).
The first relevant matter is the financial circumstances of each of the parties. I am not aware of their detailed financial circumstances. But I have been informed across the bar table that the mother is a health professional earning an amount in the vicinity of $400 000 per year. The father said his current income is significantly less than that. He said it is approximately $100 000. I accept for the purposes of this application that the father’s financial circumstances are less than those of the mother.
Neither party is in receipt of legal aid.
There is nothing about the conduct of the parties in the proceedings which is relevant.
As submitted by the learned solicitor for the mother, the proceedings were necessitated by the father’s failure to comply with current orders of the Court.
The mother has been wholly successful in the proceedings and the father has been wholly unsuccessful in the proceedings.
In all the circumstances, in my view, this is a matter where the Court should order costs bearing in mind that it is the father who has breached the court orders.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 27 February 2015.

Associate:

Date: 21 April 2015