Malcher & Malcher (No. 2)
[2017] FamCA 989
•4 December 2017
FAMILY COURT OF AUSTRALIA
| MALCHER & MALCHER (NO. 2) | [2017] FamCA 989 |
| FAMILY LAW – CONTRAVENTION – proceedings remitted from the Full Court of the Family Court – characterisation of contraventions as more serious or less serious – where contraventions are less serious – significance of multiple contraventions – assessment of sanctions for each contravention – assessment of total sanction in the light of combined contraventions – entry into a bond where a person is currently overseas FAMILY LAW – COSTS – significance of late application for an adjournment on costs order |
Crimes Act 1914 (Cth) s 4AA
| Family Law Act 1975 (Cth) ss 70NEA, 70NEB, 70NEC, 70NFA, 112AP, 117 Family Law Rules 2004 r 24.04 |
| Dobbs v Brayson (2007) FLC 93-346 Gravis v Major [2010] FamCAFC 239 Kohan, In the Marriage of, Re (1993) FLC 92-340 Lenova v Lenova (Costs) [2011] FamCAFC 141 McClintock & Levier (2009) 41 Fam LR 245 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 |
| APPLICANT: | Ms Malcher |
| RESPONDENT: | Mr Malcher |
| FILE NUMBER: | SYC | 3808 | of | 2012 |
| DATE DELIVERED: | 4 December 2017 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 30 October 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-representing |
| SOLICITOR FOR THE RESPONDENT: | Self-representing |
Orders
Noting that the purpose of the proposed requirement to cause the respondent to enter into a bond is to cause the respondent to comply with the terms of the child-related orders in force.
Noting that the effect of the proposed requirement to enter into a bond would be that the respondent will be subject to additional obligations to comply with the orders governing the time that he spends with the children.
Noting that the consequences that may follow if the respondent fails to enter into the bond, namely that a fine may be imposed not exceeding 10 penalty units (a penalty unit at the time of making of the orders being in the sum of $210).[1]
[1] Crimes Act 1914 (Cth) s 4AA.
Noting that a consequence of failure to comply with the terms of the bond may result in the imposition of a fine not exceeding 10 penalty units, or the revocation of the bond, the forfeiture of the sum of the bond being $1,000 and the dealing with the respondent again for the second and third contraventions.
Noting that these matters have been identified to the respondent prior to the making of this order it is ordered that:
In relation to the contravention of 18 August 2014, being the first contravention, no further action will be taken.
In relation to the contravention of 1 September 2014, being the second contravention, it is ordered that Mr Malcher enter into the bond in respect of the third contravention, in the manner set out in order 4 below.
In relation to the contravention of 18 September 2014, being the third contravention, it is ordered that Mr Malcher enter into a bond in accordance with s 70NEC in the manner set out in order 4 below, in the following terms:
(a)I, Mr Malcher acknowledge that I owe the Commonwealth of Australia the sum of $1,000 to be made and levied upon my property (real or personal) to the use of the Commonwealth if I fail to meet the condition that:
(i)For a period of 18 months from the entry into this bond I will not refuse or fail to deliver or fail to return the children, B, born … 2002, D, born … 2006, or C, born … 2003, to Ms Malcher other than in accordance with the orders regarding the children made by Justice Le Poer Trench on 9 December 2016.
The bond referred to above must be entered into by Mr Malcher at a Registry of the Family Court of Australia within seven days of his next entry into the Commonwealth of Australia after the making of these orders.
The respondent is to pay to the wife in respect of costs thrown away on 28 July 2017 the sum of $3,000 within 28 days of the making of this order.
It is requested that the Australian Federal Police notify the Marshal of the Family Court of Australia forthwith on the re-entry of Mr Malcher into Australia.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: SYC 3808 of 2012
| Ms Malcher |
Applicant
And
| Mr Malcher |
Respondent
REASONS FOR JUDGMENT
Background
This matter comes before me having been remitted for re-hearing by the Full Court of the Family Court of Australia on 26 October 2016.
The parties to this matter are the husband Mr Malcher, and the wife Ms Malcher. This matter is a re-hearing of contravention proceedings brought against the husband by the wife in relation to two of the parties’ children, B, and D. The contraventions in question relate to three occasions where the husband retained the two children without reasonable excuse, in contravention of parenting orders.
The contravention proceedings
As noted above, the matter comes before me as result of an order of the Full Court. The orders relevantly provide as follows:
2.The appeal against the orders of Johnston J made on 27 February 2015 is allowed.
3.The rehearing of the consideration of any sanction to be imposed in relation to the admitted contraventions is remitted to a Judge of the Family Court of Australia other than Johnston J.
On 20 October 2014 Johnston J dealt with contravention proceedings arising from contravention applications filed by the wife on 9 September 2014 and 7 October 2014. Of the matters contained in those contravention applications, three proceeded before Johnston J. The allegation in relation to each of the three contraventions was the same, albeit for different dates. Each related to orders made on 16 July 2012 that, insofar as is relevant, provided for the children to be returned to the wife at 7pm on a Monday.
On each occasion the contravention involved the withholding of the children overnight on the Monday night from the wife. Justice Johnston found, and the husband conceded, that he had not complied with the orders. The husband asserted, however, that he had a reasonable excuse for doing so. Justice Johnston found that each of the breaches was without reasonable excuse and made factual findings as follows in support of that conclusion:
20.Turning to the first alleged breach which was 18 August 2014, the father’s evidence is that he collected D from school that day and he took her to his home which was then at Suburb E. The father said that at approximately 4.55 pm he left home to collect B from L Oval. The father said that he, his partner Ms G, B and D sat down for dinner at approximately 6.00 pm and he said both children then asked could they stay the night. At approximately 7.10 pm the father sent an SMS text message to the mother to inform her that the children had asked to stay with him that night and that he would be accommodating their wishes and the mother sent a text message in reply asking the father to return the children. That request by the mother was not met with the father taking the children back to the mother’s home.
21.…
22.On 1 September 2014, the father collected D from school, again at approximately 3.15 pm. Again they drove to his Suburb E home. The father was starting to pack up for a move of residence by him and his partner to Suburb K as distinct from Suburb E. On 1 September 2014 they were packing up to move. D made herself a cubby house out of cardboard boxes. As with the earlier occasion, at approximately 4.55 pm the father left the home to collect B from L Oval.
23.The father said that at approximately 6.30 pm the children had showers and put on their pyjamas. When the father went upstairs he saw that the children had prepared themselves to stay the night. He then asked B, “Do you want to stay the night?” and B said he did and that he always wanted to stay on Mondays. The father said that he then asked D if that was what she wanted to do and that she said, “Yes, please”. When the children were not returned to their mother’s home, and there were no messages to her as I understand it on this occasion from the father, the mother was concerned to the point that she took it upon herself to come around the block to the father’s home where the children were staying.
24.She says she knocked on the front window. The father said that she banged on the window. And then she knocked or banged on the front door. The mother said that she wanted to speak to the children. The father said that she was shouting about that. He was concerned about the state that she was in. The father said, “No” and he shut the door. The father said that the mother was yelling out, “D”.
25.What then happened would not have helped the situation. The father said that the lights were turned out. Initially he said that somebody else turned out the lights but then he conceded that, in fact, he had also turned out some of the lights.
26.Then the father, his partner and the children went down to the back of the house. The father said that he made the judgment that it would not have been in the children’s interests for there to be further confrontation with their mother. It was an upsetting occasion. He thought the best approach to it was to try and remove the children from that situation and take them down to the back of the home. So the lights were turned out. The children, the father, his partner and presumably her mother all then moved down to the back of the home leaving an extremely worried mother of the children outside the home.
27.No doubt the mother would have been extremely frustrated and probably quite worried that firstly she had not received the children in accordance with the Court orders and secondly, that when she asked to speak to the children and when she made it very clear that she wanted to speak with D, there was no assistance provided to her in that regard.
28.The father appears to have had a lack of insight into what the mother must have been going through at the time. He made it clear, at least on my interpretation of his evidence, that the mother was to blame and despite learned counsel giving him an opportunity to reflect on the manner in which he dealt with the situation himself, he could not see that he had any responsibility at all for what had occurred and that it was all the fault of the mother who was behaving in what the father appears to have regarded as a somewhat hysterical way. In any event, the upshot of all of that was that the children did not go to their mother on that occasion, neither in accordance with the Court orders, nor at all.
29.The next occasion was 8 September 2014. On this occasion, again the father collected D from school at approximately 3.15 pm. Instead of collecting B from L Oval he collected B from school. They drove to his Suburb K home. There was a need that night for somebody in the father’s residence to deliver Ms M, whom I understand is the mother of the father’s partner, to the airport. The father said that the children were sad about Ms M’s leaving and that they asked whether they could go to the airport then stay at the Suburb K home, to which the father agreed.
30.They left for the airport at approximately 5.30 pm. They had dinner near the airport and then they left the airport, apparently having dropped off Ms M there at approximately 7.45 pm. As with the earlier occasion, there was no notice given to the mother that the children were not going to be returned in accordance with the orders. It seems pretty clear that at the time when the father left with the children for the airport, that is approximately 5.30pm, he had made a decision that the children either would be staying with him that evening or he would not be delivering the children to their mother at the time required by the Court orders. This is because he would not have been able to deliver them to their mother at Suburb E on time, having left for the airport at approximately 5.30 pm.
…
39.This is not a case where it was important, from a health point of view, or other general welfare point of view, that the children be withheld from returning to their mother’s care. The highest it rises for the father is the submission that he held a genuine belief that it was in the children’s interest to withhold them.
40.I do not accept the father’s subjective belief that it was in the children’s interests for them to spend the Monday evenings in his care, rather than in their mother’s care as required by the orders of this Court, as constituting a reasonable excuse.
41.Shortly after the first alleged breach, the mother instructed her solicitors to send a letter to the solicitors for the father, which made it very clear to the father that the mother was not going to countenance any departures from the obligations on the father to make the children available on the Monday evenings, and made it very clear that she expected the orders to be complied with.
…
43.And then Fogarty J said as follows:
It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.
44.In the present case, it is of course not the “custodian” who is at fault but rather the father. But these observations remain relevant to point out what the Court’s expectations of the parties are concerning compliance with court orders.
45.Learned counsel for the mother brought out, quite effectively, that the father had done little, if anything, to encourage the children to return to their mother’s care, in accordance with the orders. The best he could offer by way of encouragement was a suggestion that they would know what their mother thought if they were not to return home. Effective parenting requires a lot more than simply leaving it to children to comply with court orders.
46.It is not a matter for the father or the children to choose whether to comply with court orders. The orders were put in place to bring what I would describe as order, predictability and regularity to the parenting arrangements for these children.
47.In this case, in my view, this ingredient is all the more fundamental to the best interests of these children. The parents have been separated for more than four years. Much of the time subsequently has been characterised by litigation about parenting matters. There has been a multiplicity of applications about various issues relating to the children.
48.It is clear that the children did not go to their mother in accordance with the requirements of the orders of 16 July 2012, and, in my view, the father has not established a reasonable excuse in respect of any of the breaches.
Having made the determination that the contraventions were without reasonable excuse, and having determined the factual matters above, Johnston J adjourned the matter to 27 February 2015 to deal with sanction. In that judgment he made the following further factual findings:
a)That the husband did not bother to inform the wife on two of those occasions;
b)The context of the contraventions in the contravention proceedings was that the parties were heading towards a final hearing in respect of all parenting matters;
c)That the father has “not had any time with one of the children now for a long time” on the basis that that child had left the father’s home and determined that he would stay with the wife;
d)That reports had been prepared by [Dr A] for the proceedings and that “a current report and possibly both reports recommend that the father and the children should spend more time together”; and
e)That the father’s estimate of his legal costs to that point was $500,000 approximately.
His Honour further expressed the following conclusions that
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... [2]
[2]Malcher & Malcher [2015] FamCA 281 [17], [18].
His Honour concluded that the appropriate provision for dealing with the contraventions was otherwise governed by s 70NEA(2). His Honour found that provision applied subdivision E as, notwithstanding a long history of litigation, no court had previously made an order imposing a sanction in respect of the husband in the proceedings.
His Honour also came to a view that each of the contraventions should be dealt with in accordance with subdivision E as they should not be characterised as more serious contraventions. In doing so he considered and extracted the following passage from the Full Court decision in Dobbs v Brayson,[3] which is as follows
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.
[3] (2007) FLC 93-346.
The Remittal Order
The orders of the Full Court require the rehearing of the consideration of any sanction to be imposed in relation to the contraventions. The terms are not such as to allow any reconsideration of whether or not the contraventions occurred, or whether there was a reasonable excuse for the contraventions. The orders do not allow for a reconsideration of the factual matters found to constitute those contraventions. They are restricted in their terms to dealing with the question of sanctions to be imposed consequent upon those findings made by Johnston J. They require the Court on remittal to hear again the case in respect of contravention sanctions.
That rehearing of sanction has boundaries set by the factual determinations that led to a finding of contravention without reasonable excuse. The rehearing itself involves, within those parameters, the determination of the question of the characterisation of the contraventions, including whether they fall into the more or less serious categories, along with the determination of other circumstances as may be relevant for the determination of sanction.
Characterisation
A number of issues as to the characterisation of these contraventions as more or less serious arise on the rehearing. The first of those matters arises as a result of the construction of s 70NEA which deals with the application of subdivision E, being the subdivision which deals with less serious contraventions. Section 70NEA is as follows:
(1) Subject to subsection (4), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies;
and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
(2)For the purposes of paragraph (1)(d), this subsection applies if no court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(3)For the purposes of paragraph (1)(d), this subsection applies if:
(a)a court has previously:
(i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
(4)This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.
Justice Johnston found that s 70NEA, at face value, governed the contraventions in this case as no court had previously imposed sanctions in respect of contraventions by the husband. However, a question arises as to the proper construction of s 70NEA(2)(a). It may be accepted that no sanctions have been imposed prior to the current consideration of the three contraventions, meaning that at face value on the consideration of the first of these contraventions, the husband is entitled to the benefit of s 70NEA. However, if a sanction is imposed in respect of the first of the contraventions or an action is taken or proceedings are adjourned pursuant to s 70NEB(1)(c), then s 70NEA does not have application to the following consideration of sanctions.
The terms of s 70NEA(2)(a) relate to the imposing of a sanction or taking an action in respect of ‘a’ contravention. That is, the focus of the paragraph is on the singular contravention of a parenting order. Once action is taken in respect of such a singular contravention, then s 70NEA(2)(a) no longer has operation to cause the consideration of subsequent sanctions imposed for further contraventions to be dealt with as less serious contraventions.
For those further contraventions s 70NFA enlivens, at face value, the more serious contravention provisions by virtue of the operation of s 70NFA(3), which states as follows:
(3)For the purposes of paragraph (1)(d), this subsection applies if a court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
That, however, does not have the result that further contraventions will necessarily be dealt with as more serious contraventions rather than less serious contraventions pursuant to the powers contained in s 70NEB. The default application of the more serious contravention subdivision is displaced if the court considers that the contravention falls within the description set out in s 70NFA(4) which states as follows:
(4)This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
That is, the court is obliged to give consideration to the nature of the contravention such that, if the substance of the contravention is more appropriately dealt with as a less serious contravention, then it is to be dealt with in accordance with Subdivision E.
In his determination of the characterisation of the contraventions as more serious or less serious, Johnston J, in response to submissions by counsel for the wife that the matter should be dealt with as a more serious contravention given the features of the contravention, found that it should not as it did not meet such a characterisation.
On the question of characterisation in the rehearing, the husband asserted that I am bound by that determination by Johnston J on the basis that there has been no appeal from that determination by Johnston J. This assertion was made in response to my query of the husband as to whether or not the breaches should be characterised as more or less serious contraventions, given the above construction that I have given to s 70NEA.
The determination of contravention without reasonable excuse and the determination of sanction or other action are distinct steps in the exercise of jurisdiction pursuant to Division 13A. The determination of the contravention does not involve the characterisation of the contravention as more or less serious. Rather, characterisation of the contraventions forms an essential part of the determination of sanction or other action. Necessarily, the facts found to establish the contravention will be relevant to characterisation, but may not constitute all of the facts to be considered in characterising the contravention.
While I am bound by Johnston J’s factual findings as establishing the contraventions, given that the terms of the remission requires rehearing on the question of sanction, the determinations made by Johnston J as to whether or not the contraventions are more or less serious are not matters by which I am bound. I am obliged to rehear the question of sanction, as bounded by Johnston J’s factual findings as to what constituted the contraventions, and characterised by the facts otherwise established by the parties in the proceedings before me.
Although the husband asserted that there was insufficient evidence before me to deal with the matter if revisiting characterisation, he identified no further evidence that should be called beyond what he has called in the proceedings, nor did he seek an adjournment of the proceedings.
Despite the fact that I am not bound by the determination made by Johnston J, there is good reason to be circumspect about departing from such a characterisation in the context of a remittal of the proceedings in relation to sanction. In the criminal jurisdiction an aspect of fairness on appeals that deal with sentence requires that the appeal court give warning to an appellant if it is considering increasing the sentence. This, as a matter of fairness, enables an appellant to consider abandoning the appeal. In this case it was raised with the husband that a potential result is a re-characterisation of the contraventions as more rather than less serious. The different nature of the jurisdiction gave no option for abandonment given that the matter has reached the stage of a remitted hearing. The seminal New South Wales case dealing with this aspect of procedural fairness is Parker v Director of Public Prosecutions[4] where Kirby P with the endorsement of Handley JA and Sheller JA approved what was said in general about the significance of a jurisdiction where a sentence may be increased on appeal in Reischauer v Knoblanche[5]:
... the power of the District Court, in disposing of the hearing of the appeal, to exercise its powers in re-sentencing the appellant [extends to a power] effectively to increase the sentence imposed in the Local Court.
In Neal v The Queen (1982) 149 CLR 305, this last-mentioned power was described as 'incongruous' by Murphy J (see ibid at 311) and 'redundant' by Brennan J (see ibid at 322). However, the power was not doubted by either of those judges and was specifically affirmed by Gibbs CJ (see ibid at 308). Its exercise has traditionally been circumspect. Usually it has been made after a warning by the Court of the risk run by the appellant if the appeal is proceeded with. This convention is ordinarily followed in order to enliven an application for leave to withdraw the appeal.... If there is an appeal, and a hearing of it is conducted as a fresh proceeding (although using to some extent the depositions of the evidence below) it is difficult, in the nature of such a rehearing, to exclude the possibility that the new tribunal might sometimes consider, in the exercise of its own discretion, that a higher penalty is called for. Conventionally such increases have been rare, doubtless out of respect for a variety of 'double jeopardy' principle....
But they have occurred.
[4] (1992) 28 NSWLR 282.
[5](1987) 10 NSWLR 40 at 45.
Accepting that the jurisdiction being exercised at present is not criminal, that in particular, as will be discussed later, the statute has markedly different objectives to the criminal law and that, given the characterisation of the contraventions given below, meaning that they will be dealt with as less serious contraventions which means that no gaol time is available as an outcome, the above observations do not have direct applicability. They do, however, sound a caution before imposing a stronger sanction. That is, there is a need for some circumspection that recognises, at least, the fact that the appellant is twice being put at risk of sanction.
Like Johnston J, I also conclude that it is appropriate that these matters be dealt with as less serious contraventions. In coming to such a conclusion I draw upon the authorities relied upon by the legal representative appearing before Johnston J, that is, reference to the cases of Gravis v Major[6] and Dobbs v Brayson.[7]
[6] [2010] FamCAFC 239.
[7] (2007) FLC 93-346.
In Gravis v Major the Full Court dealt with what is meant by “more serious contravention”. It adopted the description by Finn J in McClintock & Levier[8] that the distinction between less serious and more serious turns upon the description in the Act “that the person who contravened the primary order ‘has behaved in a way that showed a serious disregard of his or her obligations under the primary order’”. The Full Court then went on to note that “more serious” lacks a definition in the Act, but that the Explanatory Memorandum described that
[w]hat 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.
The Explanatory Memorandum went on to further describe that
where there have been repeated breaches the matter would ordinarily be dealt with as a more serious contravention under Subdivision F.
[8] (2009) 41 Fam LR 245.
There are matters that tend either way in determining whether the contraventions in this case should be characterised as either more serious or less serious. The repetition of contravention after the first in time, the fact that the husband was placed on notice during these contraventions that the wife would take contravention action against him, and that she considered that he was in breach of the orders, are matters increasing the seriousness of the conduct. So too does the conduct of the husband in respect of the second contravention as found by Johnston J, for example moving the children to the back of the house and switching off lights while the wife was at the door calling out for one of the children.
Against that, a number of factors reduce the seriousness of the contraventions. Firstly, the relatively confined period of the contraventions, occurring in an approximate three week period. Secondly, each of the contraventions related to an extension of the time that the children were spending with the husband in a context where they were already spending substantial and significant time with him. While the orders provided that the children lived with the wife, and this term was to a degree trespassed upon, the general scheme of living with the wife was not. It also appears to be the case that the parties had accepted a degree of non-compliance with the orders in that one of the children, C, was allowed to remain with the wife rather than move between the two households in compliance with the orders. Further, the contraventions occurred in a context where neither of the parties had already been dealt with for any contravention, that is, the contraventions were not in the face of previous contravention proceedings.
Characterisation depends upon whether the particular contravention in its context can be seen to exhibit a serious disregard for the obligations imposed by the order. The conduct here exhibits a disregard for the obligations, but the degree of variance with the orders is not such as to bring it into the serious disregard category.
But for this characterisation, if a sanction is to be imposed on the first contravention, the second and third contraventions would stand to be dealt with under Subdivision F as more serious contraventions pursuant to s 70NFA. The characterisation that the contraventions are less serious leads to the conclusion that it is more appropriate for the contraventions to be dealt with in accordance with Subdivision E, pursuant to s 70NFA(4). Given this determination they will each be dealt with in terms of the sanction provision contained at s 70NEB.
The purpose of imposing sanctions or taking action
The seminal case that sets out the jurisprudence governing Division 13A regarding the consequences of failure to comply with orders and other obligations that affect children is the Full Court case of McClintock v Levier[9]. In that case the Full Court grappled with the statutory rationale for the use of the Court’s coercive powers, in contrast with the use of coercive powers by a Court exercising criminal jurisdiction. In that case the Court was dealing with an appeal from a decision of the Federal Magistrates Court (as it then was) to impose six terms of imprisonment of six months, one on each contravention with each term to be served concurrently. In particular the Court grappled with whether notions of general deterrence, as understood in the criminal sentencing context, were applicable to the exercise of the coercive powers of the Court. Justice Cronin found that
The focus of a court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.[10]
For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.[11]
[9] (2009) 41 Fam LR 245.
[10] (2009) 41 Fam LR 245 [233].
[11] (2009) 41 Fam LR 245 [234].
While he accepted that the Court may have regard to “any number of considerations” in determining a sanction, this was with the proviso that “those considerations are set out clearly and the Court’s focus is on the individual party rather than on general deterrence or policy”. Further
The very concept of tailoring an order to ensure compliance by that party may have the effect of dissuading other like-minded persons from behaving in similar ways but that cannot be the deliberate purpose of the court dealing with the application. The provision is intended to have that party comply with their particular orders relating to their children not to orders generally.[12]
[12] (2009) 41 Fam LR 245 [236].
Justice Coleman drew a sharp distinction with the powers conferred by s 112AP, which he noted have a “duality of purpose” in that such “proceedings are both coercive insofar as they are directed to enforcement of court orders, and punitive, in that they punish for breaches of court orders”. He saw the powers under Division 13A as distinct from the powers conferred under s 112AP. The different statutory expressions involving each he saw:
…cannot have eventuated through inadvertence. I thus perceive there to be two kinds of proceedings with respect to breaches of parenting orders.
While s 112AP may have a dual purpose he found that:
…the purpose of proceedings under Division 13A is to enforce compliance with orders.
He found that the distinction between the two types of powers is “significant” and stated as follows
In my view, given the coercive nature of proceedings under Division 13A, it cannot be assumed, in the absence of a clear basis for doing so, that broader considerations such as ensuring that an offender was “adequately punished for the offence in a way that is just and appropriate”, preventing crime by deterring the offender and other people from committing the same or similar offences, and protecting the community from the offender, are relevant to the exercise of such discretion.[13]
…
Whilst I accept that the learned Federal Magistrate was entitled to have regard to relevant sentencing principles or guidelines, I am unable to accept that his Honour was entitled to have regard to ensuring that the mother was “adequately punished” (our emphasis) in a way that was “just and appropriate”, to prevent “other people from committing the same or similar” breaches, to “protect the community” from the mother, or, other than for the purposes of procuring compliance of the court’s orders, “to denounce the conduct” of the mother.[14]
[13] (2009) 41 Fam LR 245 [156].
[14] (2009) 41 Fam LR 245 [158].
In short, Division 13A of Part VII is in place to allow the court to make orders with the objective of causing a party to comply with orders affecting children. This is the permissible purpose of sanctions or actions under the Division.
Consideration of sanctions/actions in respect of the contraventions in this case
In this case the sanctions or actions are governed by s 70NEB.
The wife sought that the husband be found to have little insight and no remorse for the contraventions. Neither has been shown by the husband. She asked that orders be made to “send a clear message” that orders need to be upheld. Given the purpose of the Division, this clear message can only be directed to the husband.
Since the contraventions, the wife asked for findings that the husband has continued to disregard orders concerning the children. The parties’ affidavit material about this matter, which focused upon a period of time in July 2017 when the parties and the children were both in Perth and in Sydney, was not the subject of any challenge by cross-examination by either party.
The husband asserted that the wife was non-compliant with the orders. He asserted that D was withheld the first two days, and C the whole of the time he was present. Under circumstances where he did not challenge the asserted lack of communication by him to the wife setting out the details regarding the time he was to spend in Australia, and where he did not challenge the wife’s assertion that he made no request to spend time with C, it is difficult to accept his assertions of non-compliance at face value.
The wife asserted the husband was non-compliant with the orders. The wife, in her affidavit material, annexed emails that firstly appeared to accept that the husband may have extra time with the children and later that, given a lack of communication regarding the continuing time the children were spending with him, asserted he was in contravention of the orders. Her unchallenged assertion is that whatever communication occurred was through the children.
Wherever the truth may lie as to the wife’s conduct, the issue in these proceedings is not non-compliance by the wife in 2017. There is no requirement to resolve those assertions made by the husband.
To the extent that it may be said that the husband was non-compliant at this time, such non-compliance is not the subject of a contravention application. At best it may go to establish that the husband does not, at present, hold a view that orders must be complied with. However, the uncertainty surrounding the communications between the parties, including through their children, does not give sufficient clarity to draw such an inference at this stage.
The wife emphasised that the contraventions the subject of the proceedings were repeated and that the later contraventions followed correspondence from the wife where she indicated that she would take action in respect of the contraventions.
The wife sought that a separate sanction be imposed for each of the contraventions in reliance upon the case of Pearce v The Queen.[15]
[15]Pearce v The Queen (1998) 194 CLR 610.
The husband sought that a single sanction be imposed. He emphasised the limited nature of the contraventions and the short period over which they occurred, asserting that they occurred during changing family circumstances. He noted that since the contravening conduct the orders for the time that he is to spend with the children have progressively increased. He further notes that, particularly as a result of the orders by Johnston J to suspend the Monday evening time, he has missed out on a significant amount of time. This, he says, should be seen effectively as a portion of the sanction. It should however be recognised that the Full Court determined that the suspension order was not a component of the sanction. However, this does not prevent acknowledgement of this circumstance arising from the contraventions and noting the potential impact it may have on discouraging further contraventions.
The husband further noted the limited time that he has spent with the children in the last two years as he has lived primarily overseas, meaning that the wife has received, in practical terms, significant compensatory time.
It is, however, difficult to understand how the husband’s failure to exercise time with the children is a factor pointing to his compliance with orders when he does in future spend time with the children.
The husband pointed to the fact that the parties had the same result, practically, as if the matter had been adjourned for the purpose of allowing further orders to be made regarding the children. Since the contravention the matter has undergone both interim and final determinations changing the arrangements for the time to be spent with the children. However, this step was not taken as part of the contravention proceedings. It is also unclear how the further hearing of the matter renders it less important to ensure future compliance.
The husband noted the significant passage of time since the contraventions. This impacts upon what outcomes may remain appropriate.
In submissions the husband observed that due to the fact that he is no longer in the country and that the children are soon of age, that the orders would become superfluous. This, he thought, was a factor against sanction. The view that the orders have a looming irrelevancy does little to undermine the submission by the wife that there is little insight into the past contraventions, although, as a submission made by a self-represented litigant in the heat of proceedings I will not place weight upon it.
In dealing with the same three contraventions, albeit in different circumstances to those now faced by the parties, Johnston J imposed a single bond upon the husband. On appeal the Full Court did not disapprove of this approach, but noted the desirability, given the statute referring to “contravention” in the singular when determining sanction or action, that sanction or action be taken in respect of each contravention individually rather than globally. Support for this approach was also taken from the approach regarding sentencing under the criminal law as set out in Pearce. There the plurality of McHugh, Hayne and Callinan JJ stated:
To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality…. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
Accepting the entitlement of the Court, as identified by Coleman J in McClintock,[16] to “have regard to relevant sentencing principles”, this regard must take place within the understanding that the purpose of the sanction or action is compliance with child-related orders, rather than the multitude of considerations faced by a criminal court sentencing an offender, where those considerations often point in different directions.
[16] (2009) 41 Fam LR 245.
The corresponding application of Pearce is that, for each contravention, the sanction or action must be no more than proportionate to the contravention and adapted to the objective of securing compliance. Then, in total, the sanctions or actions must be no more than proportionate to the aggregate of the contraventions, and no more than what is required to secure compliance.
In terms of the powers set out in s 70NEB, neither party sought an order regarding participation in a post-separation parenting program, nor was such an order identified as appropriate. The passage of time in circumstances where the husband spends almost no time with the children, in part it seems as he lives overseas, and the making of final orders since the contravention render compensatory time meaningless in the context of this case. Likewise, considering the mandatory matters to have regard to at s 70NEB(6) concerning adjournment for the making of further orders, such an outcome is inappropriate given the making of final parenting orders since the contravention (a matter available for consideration pursuant to s 70NEB(6)(d)).
No expenses flowing from the with-holding of the children have been identified to enable the making of an order pursuant to s 70NEB(1)(e).
The remaining provisions deal with the imposition of a bond and the making of orders for costs. The availability of these powers, having ruled out the applicability of the other powers, does not automatically equate to those powers being appropriate to use.
Considering the first contravention, the following matters are relevant. There was no prior dealing with the husband for a contravention. The withholding, in isolation, was relatively minor in the context where the two children spent substantial and significant time with the husband and their living with their mother was not displaced, although it was interfered with. The appropriate response proximate to the time of the contravention may have been an order pursuant to s 70NEB(1)(a) that the husband attend a post separation parenting program, or potentially an order for compensatory time. For the reasons outlined above, neither of those is appropriate any longer. The imposition of a bond in relation to this, the first breach, would be disproportionate to the contravention.
For the second contravention, the following matters are relevant. Firstly, and importantly, it was a repetition of the earlier contravening behaviour. The repetition renders the contravention more serious as it constitutes a more significant erosion of the arrangements set out by the orders. It cannot be considered in isolation in the sense that its effect is heightened in the context of the earlier contravention. Secondly, the contravention placed the children in a difficult position, removed to the back part of the house while the wife was seeking, at the front door, to have the children returned in accordance with the orders.
Even though significant time has passed since the contraventions, that passage of time does not, where the regime with the children is not at present effective due at least to geographical considerations, lead to the conclusion that the husband will simply comply with the orders should the occasion arise for their exercise.
This contravention is most appropriately dealt with by bond. Such an outcome is proportionate to the seriousness of the breach, and is called for as a response to a repeated contravention in order to enforce compliance with the orders. A bond carrying the condition that the husband complies with the orders in respect of the children for a period of six months is called for.
For the third contravention, the following matters are relevant. Most importantly, this contravention is a repetition of the behaviour of the first and second contraventions. Its significance as undermining the operation of the orders is heightened again because it follows two similar contraventions. While similar in appearance to the first and second, its seriousness is greater because it represents an even further departure from the scheme of the orders. Further, on the facts as described by Johnston J, the husband exhibited a casual disregard for the scheme of orders governing the arrangements for the children. This most serious of the contraventions calls for the imposition of a bond, with a self-surety, for a period of eighteen months with a condition that the husband comply with the child-related orders.
As a last step, considering an overall outcome in the context of the three contraventions, a proportionate and appropriate response aimed at enforcing compliance with the orders will be met by causing the husband to enter into the single bond on the third contravention. That is, no sanction or action in respect of the first contravention and no further action on the second, on condition that the bond in relation to the third is entered into.
A bond carries with it significant consequences for its breach. These include fines that may be imposed for the breach of the bond, and the potential loss of surety, along with being dealt with again for the original contravention. Where the bond carries conditions relating to compliance with the orders, it carries with it the strong incentive to comply with the orders. At the same time, a bond directed to compliance with orders imposes no new duty upon the husband other than those already a consequence of the orders being in place. This means that in this instance the imposition of a bond is not disproportionate to the contraventions as found by Johnston J.
Accordingly the following sanction will be applied for the purpose of ensuring future compliance with child related orders:
a)In relation to the contravention of 18 August 2014, being the first contravention, no further action will be taken;
b)In relation to the contravention of 1 September 2014, being the second contravention it is ordered that Mr Malcher enter into the bond in respect of the third contravention;
c)In relation to the contravention of 8 September 2014, being the third contravention it is ordered that Mr Malcher enter into a bond in accordance with s 70NEC that provides that for a period of 18 months, with a self-surety without security in the sum of $1,000, that he not refuse or fail to deliver or fail to return the children B, born in 2002, D, born in 2006, and C, born in 2003, to Ms Malcher other than in accordance with the orders regarding the children made by Justice Le Poer Trench on 9 December 2016.
Machinery provisions
At the hearing of this matter the husband was overseas. No present indication is given as to when he might re-enter Australia. Machinery orders will be required to allow him to enter into the bond the subject of these orders.
No particular mechanism is set out for the manner in which a person is to enter a bond pursuant to s 70NEB and s 70NEC, other than the requirement to explain the purpose, effect and consequences of failure to enter, or to comply with the bond. The practice for entry into a bond is that it occur before a Registrar or Registry Clerk. The relevant form stipulates these two classes as witnesses for the entry into the bond. However, r 24.04 requires only substantial compliance with a form. The relevant Federal Circuit Court form stipulates that the bond is to be entered into before a judicial officer.
I have been unable to identify any precedent setting out whether such a bond may be entered into in another manner, being other than before a judicial officer, registrar or registry clerk.
Given the quality of the bond as being an acknowledgement of forfeiture should particular conditions not be met, the closest analogy appears to be that of the giving of an undertaking as to damages following the successful obtaining of an injunction. In Golf Lynx v Golf Scene Pty Ltd (t/a Custom Golf Club Co) (1984) 59 ALR 343 Legoe J dealt with the circumstance where a person was unable to give the undertaking, specifically because the person was overseas
... when you have not a party capable of giving an undertaking, then the undertaking must be given by somebody else, by signing the Registrar's book, to submit to the jurisdiction of the court if his undertaking is given in court. One of the exceptions to the general rule, that is to say, where the court does not consider a plaintiff capable of giving an undertaking in damages, is where he is a foreigner. " This exception clearly arose in this case. In Seton's Forms of Judgments and Orders, 6th ed (1901), it is stated: "If the plaintiff is out of the jurisdiction, an undertaking must be given by his London agents or some responsible person: Hamilton v Board 1 NR 379 ; Solignac v Durdin MR 29 October 1859, B2698 ."
In Myring & Anor v Beal & Anor (1899) 15 WN (NSW) 243 at 244 Simpson CJ in equity said that after discussing the matter with Walker J, "this court ought not to be satisfied with an undertaking which may possibly prove to be illusory. The Court of Equity imposes this undertaking on a plaintiff as a condition of his injunction, as it would be in cases where the plaintiff is out of the jurisdiction, especially where there is no evidence that the plaintiffs have any property in the jurisdiction". His Honour referred to Hamilton v Board, supra, and to Seton on Decrees including the unreported decision before the Master of the Rolls in 1859 of Solignac v Durdin, supra. Simpson CJ in equity granted the injunction upon the condition that the plaintiffs give satisfactory security for the costs within 21 days "or obtain the undertaking of some responsible person within the jurisdiction to the satisfaction of the Master
That is, the undertaking was required to be given, on the undertaker’s behalf, by a person within the jurisdiction. While, given the prevalence of electronic appearances from overseas and the giving of evidence on oath or affirmation from overseas, it would seem possible to now receive an undertaking in a court appearance despite the person being overseas at the time, the nature of the bond appears to be that it be given in writing. It is unclear that it is permissible to enter into the bond other than before a registrar, registry clerk or a judicial officer. It is inappropriate that it be entered by someone on the respondent’s behalf.
Accordingly, the order as to entry into the bond will be predicated upon the respondent’s return to Australia. He will be required to enter into the bond within seven days of re-entering Australia.
The costs of 28 July 2017
The wife sought costs on an indemnity basis for the vacated hearing of this matter of 28 July 2017. She also sought the costs of this hearing of the contravention proceedings following remittal.
The relevant provisions regarding costs in these proceedings are found at s 70NEB(1)(f) and (g) and s 117 of the Act.
As s 70NEB(1)(g) has operation in circumstances where no order is made in respect of a contravention, the lack of order on the first contravention may bring this into play. However, this will depend upon whether a costs order is made in favour of the wife. In this case, even if no costs order is made in favour of the wife, a number of reasons tell against making an order under this provision. The first is that the husband has not sought costs. The second is that the result was in part caused by the staleness of the proceedings, a matter for which neither party is responsible. Further, in considering costs it is important to note that it was not a matter prosecuted in isolation, but as part of a series of contraventions. The results in the following two contraventions would tell against a costs order being made against the wife in relation to the first count, and so such an order will not be made, whether or not an order for costs in favour of the wife is to be made.
It is unclear whether the inclusion of s 70NEB(1)(f) within the section means that a costs award may form part of the sanction for a contravention. Such an outcome differs from the general position that a costs award is not given to punish the unsuccessful party. However, it is not necessary to resolve this matter in this case as a sanction has been arrived at that does not include the imposition of costs, that is, by means of a bond. If s 70NEB(1)(f) is directed to sanction, it has no further work to do in this case. If not, it adds no more to the general costs power at s 117 in dealing with the wife’s applications, other than requiring that consideration be given.
The circumstances of the adjournment were set out by me in the judgment granting the adjournment delivered 28 July 2017. Despite a remittal order being made on 6 October 2016, the husband was not advised of the listing until approximately one month before the hearing date. He immediately sought an adjournment, but made no application for an adjournment. He was advised by Court staff that it was necessary for him to support his seeking of an adjournment with an affidavit. He provided none. He was travelling at the time of the scheduled hearing and was given permission to attend by telephone (as he did for the final hearing of the contravention applications).
On the hearing date he was given leave to make an oral application for an adjournment, supported by oral evidence. His evidence was that he was unable to prepare for the hearing due to difficulties accessing his materials. He sought an adjournment of one week. It was determined that it was in the interests of justice to allow the adjournment, despite the adverse impact this may have on the wife. For her part, she asserted that she may not be able to secure legal representation for the adjourned date. She was legally represented at the 28 July 2017 hearing date. Her costs application was reserved to the subsequently scheduled hearing. She was self-represented at the hearing on 30 October 2017.
Section 117 of the Act provides the general rule that each party should bear their own costs. However, where the Court determines that, taking into consideration the matters set out at s 117(2A), there “are circumstances that justify it doing so”, the Court may make an order for costs.
In relation to this application the following matters require consideration. Firstly, the financial circumstances of the parties. Each provided affidavit material setting out their financial circumstances.
The husband is currently unemployed. He says that he has “not received any personal exertion income of any sort since January 2015”. He has offered no convincing explanation of why this is so. His evidence is that his debts significantly outweigh the money that he received from the finalisation of the property proceedings which he puts at approximately $270,000. Of that sum he attests to expenditure of approximately $165,000, and asserts that he otherwise holds approximately $66,000 in two accounts. Of that he has earmarked $25,000 for transcript to prosecute his appeal from the substantive proceedings. His evidence does not disclose the expenditure of the balance of this amount. His evidence is that he has significant debts outstanding that dwarf the amount he received from the proceedings. He says that he is on the brink of bankruptcy, being pursued for approximately $90,000 of debt by American Express and Citibank.
The wife is a surgeon. On her evidence, her taxable income for the 2016 financial year was approximately $530,000. She says that she believes that her taxable income for the 2017 financial year is about $450,000. The wife provided documentation to support this contention. The husband asserts that her income is over $540,000 per annum.
The wife received the former matrimonial home (Suburb N), asserted to be worth $3,550,000. She asserts debts of approximately $3,470,000. She was challenged as to her finances by the husband. She accepted that the indebtedness of the Suburb N property had increased by $850,000 since early 2017. She asserted that this amount was used in relation to a number of debts, business expenses and usual expenses such as school fees. She was fairly criticised by the husband in relation to her assertions about part of the use of these funds, being for payments to the Australian Taxation Office, on the basis that she was unable to say whether the amount paid to them, earlier this year, was $100,000 or $150,000. She says that in the last six months her expenses outweigh her earnings by about $40,000. This was not apparent in her affidavit. She says that the reason for this was that the credit card balance became due after the preparation of the affidavit. She also states that she currently owes her solicitors, Barkus Doolan, approximately $270,000.
Only general conclusions are available at present regarding the financial position of each of the parties. The deficit in the wife’s testimony regarding her tax payments leads me to have reservations about her assertions of her financial position. The failure of the husband to explain either why he has not obtained personal exertion income, or what has happened to the balance of the money he received in property settlement, cause me to have reservations about his general assertion as to his financial position. However, each party can be concluded to be under significant financial strain. The husband, unlike the wife, has debts outweighing his assets. He also, unlike the wife, appears to have approximately $65,000 in various accounts.
The other matter of significance arising from s 117(2A) relates to the conduct of the parties in relation to the proceedings. The failure of the husband to file an application for an adjournment or to provide evidence in support of such until the hearing date itself is a matter that tells strongly in favour of a costs award in circumstances where the wife attended the hearing ready to proceed.
In Lenova v Lenova (Costs)[17] Murphy J observed the general scheme for costs under the Act, saying:
In this jurisdiction, costs do not "follow the event"; the Act prescribes, relevantly, that "subject to subsection (2) ... each party to proceedings under this Act shall bear his or her own costs" (s 117(1)).
[17] [2011] FamCAFC 141.
In that case the application for costs was supported by the tender of a letter of offer. In this case there was no letter of offer but, in giving consideration pursuant to s 117(2A)(c), the failure to make an application despite being advised of the need to do so carries similar weight. In Lenova, the party from whom costs were sought could be described as impecunious, the whole of her receipt under the settlement had been spent on legal fees and living expenses, she then being in receipt of a nominal income which she applies in its entirety to her living expenses.
This meant that the factor telling in favour of an order being made needed to be weighed against her financial circumstances. Justice Murphy went on to say:
That consideration must, of course, be balanced against a litigant having a limited capacity to meet a costs order, as well as any other relevant considerations. But, a limited financial capacity to meet an order cannot be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a costs order in circumstances where pursuit of the litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs.
In that case, the resolution of that tension was the setting of a limited and fixed sum for the costs. Taking into account the financial position of both parties, the same result is appropriate here.
While the wife sought indemnity costs, the requirement as set out in In the Marriage of Kohan[18] is that “the circumstances justifying the departure should be of an exceptional kind.” Although the application did not come until the day of the hearing, the correspondence between the husband and the wife’s solicitors indicated that it was inevitable. The circumstances in this case are not so exceptional so as to justify an indemnity order. Rather, the approach followed by Murphy J in Lenova, in recognition of the difficult financial circumstances of the payer, will be to set a fixed sum.
[18]Kohan, In the Marriage of, Re (1993) FLC 92-340.
Noting the costs of the wife for that day, as disclosed in the affidavit of Ms IM filed on 29 September 2017, as totalling $4,615, in respect of attending for the hearing, an order for the payment of costs fixed in the sum of $3,000 will be made.
The costs of the hearing of 30 October 2017
The same financial considerations apply as outlined above. The parties are not in receipt of legal aid. Nothing of significance is identified in the conduct of the parties in the litigation. The proceedings were necessitated, originally, by the husband’s failure to comply with orders of the Court. The repetition of the proceedings by remittal was not caused by the failure to comply with previous orders, other than in the sense set out above. It cannot be said that either party was wholly unsuccessful in the proceedings. No offers in writing were identified.
In respect of this application, the parlous financial position of the husband tells against the making of a costs order, despite the genesis of the proceedings arising in the original non-compliance. Without the strong factor of the failure to make an application as identified in the application concerning costs for 28 July 2017 I decline to make a costs order in respect of this part of the proceedings.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 December 2017.
Associate:
Date: 4 December 2017
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