McClintock & Levier

Case [2009] FamCAFC 62


FAMILY COURT OF AUSTRALIA

MCCLINTOCK & LEVIER [2009] FamCAFC 62

FAMILY LAW – APPEAL – SENTENCING – where the mother had admitted to contravening parenting orders of the court without reasonable excuse – where the Federal Magistrate sentenced the mother under Part VII Division 13A of the Family Law Act 1975 (Cth) to imprisonment for six months and the mother had served 16 days before the sentence was stayed – whether the Federal Magistrate erred in having regard to ‘general deterrence’ or ‘punishment’ when sentencing the mother – whether a suspended sentence should have been considered by the Federal Magistrate – whether the sentence of six months imprisonment was manifestly excessive – appeal allowed – court re-exercised discretion – 6 months sentence imposed to be suspended after 16 days (taking into account time already served) with a 2 year good behaviour bond

FAMILY LAW – APPEAL – COSTS – cost certificates granted

Crimes (Sentencing) Act 2005 (ACT) s 7
Explanatory Memorandum of the Family Law Amendments (Shared Parental Responsibility) Bill 2006
Family Law Act1975 (Cth) Part VII Division 13A, ss 70NAA, 70NAF, 70NEA, 70NFA, 70NFB, 70NFG, 60B(1)(a); s 112AP
Federal Proceedings (Costs) Act 1981 (Cth)

Abduramanoski v Abduramanoska (2005) FLC 93-215; (2005) 33 Fam LR 1
Dinsdale v R (2000) 202 CLR 321
Dobbs v Brayson (2007) FLC 93-346
Everett v R (1994) 181 CLR 295; 124 ALR 529
In the Marriage of Tate (No 3) (2003) FLC 93-215
Kendling & Kendling & Anor (2008) FLC 93-384
Pearce v The Queen (1998) 194 CLR 610
Re Colina and anor; ex parte Torney (1999) 200 CLR 386; (1999) 166 ALR 545

R v Wong (2001) 207 CLR 584
Tate v Tate (2003) FLC 93-138

Witham v Holloway (1995) 183 CLR 525; 131 ALR 401

APPELLANT: MS MCCLINTOCK
RESPONDENT: MR LEVIER
INDEPENDENT CHILDREN’S LAWYER: Joseph Tallarita
FILE NUMBER: CAM 1312 of 2006
APPEAL NUMBER: EA 114 of 2008
DATE DELIVERED:

24 April 2009

PLACE DELIVERED: Canberra
PLACE HEARD: Canberra
JUDGMENT OF: Finn, Coleman & Cronin JJ
HEARING DATE: Thursday 29 January 2009
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 24 September 2008
LOWER COURT MNC: [2008] FMCAfam 1107

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Gill
SOLICITOR FOR THE APPELLANT: Legal Aid Office (ACT)
COUNSEL FOR THE RESPONDENT: Ms Tonkin
SOLICITOR FOR THE RESPONDENT: Mazengarb Barralet
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Joseph Tallarita

Orders

  1. That the appeal against Order 2 of the orders of Federal Magistrate Brewster made on 24 September 2008 be allowed.

  2. That Order 2 of the orders of Federal Magistrate Brewster made on 24 September 2008 be set aside and in lieu thereof it be ordered:

    "That the appellant Ms McClintock be sentenced to a period of imprisonment for a period of six (6) months, with such sentence to be suspended after 16 days (taking into account time already served pursuant to the orders of Federal Magistrate Brewster made on 24 September 2008) and upon the condition that the appellant enter…

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AGLC
McClintock & Levier [2009] FamCAFC 62
Case
[2009] FamCAFC 62
Decision Date

CaseChat Overview and Summary

In this case, the mother, Ms McClintock, appealed against the sentence imposed on her by the Federal Magistrate, who had convicted her of contravening parenting orders without reasonable excuse. The Federal Magistrate had sentenced Ms McClintock to six months imprisonment, which was subsequently stayed after she had served 16 days. The court was tasked with determining whether the Federal Magistrate had erred in considering ‘general deterrence’ or ‘punishment’ when sentencing, whether a suspended sentence should have been considered, and whether the six-month sentence was manifestly excessive.

The appeal court examined the sentencing principles applicable to contravention of parenting orders and found that the Federal Magistrate had erred in focusing on punishment and general deterrence rather than the specific objectives of sentencing in family law matters. The court held that a suspended sentence should have been considered, and that the six-month sentence was manifestly excessive given the circumstances of the case. The appeal was allowed, and the court re-exercised its discretion, ordering that the six-month sentence be suspended after 16 days, with the condition that Ms McClintock enter into a bond for good behaviour for two years.

The court also granted costs certificates to both parties, recognising the costs incurred in relation to the appeal. The mother was granted a certificate under the Federal Proceedings (Costs) Act 1981, allowing the Attorney-General to authorise payment of her costs. Similarly, the father was granted a certificate, enabling the Attorney-General to authorise payment of his costs. This outcome reflects the court’s consideration of the principles of fairness and proportionality in the context of family law disputes.

Orders

Orders of the court

1.

That the appeal against Order 2 of the orders of Federal Magistrate Brewster made on 24 September 2008 be allowed.

2.

That Order 2 of the orders of Federal Magistrate Brewster made on 24 September 2008 be set aside and in lieu thereof it be ordered:

"That the appellant Ms McClintock be sentenced to a period of imprisonment for a period of six (6) months, with such sentence to be suspended after 16 days (taking into account time already served pursuant to the orders of Federal Magistrate Brewster made on 24 September 2008) and upon the condition that the appellant enter into a bond (without surety or security) that she will be of good behaviour for a period of two (2) years."

3.

That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant mother in relation to the appeal.

4.

That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent father in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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