McClintock & Levier
[2009] FamCAFC 62
•24 April 2009
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 Abduramanoski v Abduramanoska (2005) FLC 93-215; (2005) 33 Fam LR 1 R v Wong (2001) 207 CLR 584 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
That the appeal against Order 2 of the orders of Federal Magistrate Brewster made on 24 September 2008 be allowed.
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."
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.
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.
IT IS NOTED that publication of this judgment under the pseudonym McClintock & Levier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 114 of 2008
File Number: CAM 1312 of 2006
| MS MCCLINTOCK |
Appellant
And
| MR LEVIER |
Respondent
REASONS FOR JUDGMENT
Finn J
This is an appeal by the mother against an order made by Brewster FM on 24 September 2008 sentencing her to “a period of imprisonment for a period of 6 months”.
This sentence represented six terms of imprisonment each of six months which were to be served concurrently, and which were imposed in respect of six contraventions of parenting orders made on 2 April 2007. Those orders provided for the eleven-year old child of the mother’s relationship with the father to spend time with the father.
The mother had admitted before his Honour that she had without reasonable excuse contravened the orders of 2 April 2007 on six of the seven occasions on which contraventions were alleged in an application entitled “Application – Contravention” filed on behalf of the father on 8 September 2008. A count which related to the seventh alleged contravention was permanently stayed by his Honour during the course of the hearing of the contravention application.
The admitted contraventions
The six occasions (as specified in the father’s application) on which the mother admitted to having contravened the order of 2 April 2007, without reasonable excuse, by failing to allow the child to spend time with the father were:
1)from 9am 28 April 2007 to 5pm 29 April 2007;
2)from 9am 26 May 2007 to 5pm 27 May 2007;
3)from 9am 9 June 2007 to 5pm 10 June 2007;
4)from 9am Saturday to 5pm Sunday on alternate weekends commencing 23 June 2007 and concluding 1 November 2007 (excluding school holidays);
5)for 5 days and 4 overnights between 30 June and 15 July 2007; and
6)for 5 days and 4 overnights between 29 September and 14 October 2007.
It will be apparent that the first three contraventions involved one weekend in each of April, May and June 2007; that the fourth breach involved alternate weekends over a period of approximately four months (excluding two school holiday periods); and that the fifth and sixth each involved a school holiday period of five days and four overnights.
In his reasons for his orders of 24 September 2008, Brewster FM provided what can be described as further background to the circumstances of these contraventions:
2.…[I]n late June 2007, the mother left her home [in New South Wales] where the parties had been living and travelled to Queensland.
3.She says that this was intended initially to be a holiday for a couple of months. Be that as it may, the sequelae was a serious breach of the orders of 2 April. The situation was compounded however when the mother moved to and settled in Western Australia. She enrolled the child in school, but under the surname of her partner. She did not voluntarily return to [New South Wales] and her whereabouts were unknown for some considerable period of time.
4.A recovery order was issued by me and ultimately the police were able to ascertain her whereabouts. The child was recovered on 5 August 2008 by the police, about 13 months after the mother left [New South Wales]. But for the police ascertaining her whereabouts I think it likely that she would have remained in Western Australia, or at least would never have returned to comply with the orders of the court.
Before considering his Honour’s reasons for imposing the sentences which he did, it will be useful to provide an overview of the provisions of the Family Law Act 1975 (Cth) (“the Act”) which are directed to contraventions of parenting orders and which are to be found in Division 13A of Part VII of the Act.
It should be noted that the contempt of court provisions contained in s 112AP, which constitutes Part XIIIB of the Act, have application where a contravention of an order affecting children involves a “flagrant challenge to the authority of the Court”. Reference will be made later in the reasons to the contempt provisions.
Relevant provisions of Division 13A of Part VII
The first section of Division 13A, being s 70NAA, which is in Subdivision A, explains that the division:
… deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children (s 70NAA(1)) (emphasis added).
Subsections 70NAA(2) and (3) then provide an outline of the remaining Subdivisions of the Division, being:
·Subdivision B which is concerned with the variation of parenting orders;
·Subdivision C which is concerned with contraventions alleged to have occurred but not established;
·Subdivision D which is concerned with contraventions which have occurred but for which there is a reasonable excuse;
·Subdivision E which is concerned with less serious contraventions for which there is no reasonable excuse; and
·Subdivision F which is concerned with more serious contraventions for which there is no reasonable excuse.
Given that in the present case the mother admitted the six counts of contraventions without reasonable excuse, it will only be necessary in this overview to refer to Subdivisions E and F, and it will not be necessary to refer to the remaining provisions of Subdivision A, which are concerned with the meaning of the expressions “contravened” and “reasonable excuse for contravening”.
The only remaining section in Subdivision A which does require mention for present purposes is s 70NAF. This section is concerned with the standard of proof to be applied in determining matters in proceedings under Division 13A (and its peculiarities were discussed by the Full Court in Dobbs & Brayson (2007) FLC 93-346; [2007] FamCA 1261). Section 70NAF is in the following terms:
(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The court may only make an order under:
(a) paragraph 70NFB(2)(a), (d) or (e); or
(b) paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.
The circumstances in which each of Subdivision E – Contravention without reasonable excuse (less serious contravention) – and Subdivision F – Contravention without reasonable excuse (more serious contravention) – apply are explained in the first sections of each of those Subdivisions, being respectively s 70NEA and s 70NFA:
70NEA(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 (original emphasis).
(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 (emphasis added).
70NFA(1) Subject to subsection (2), 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 (original emphasis).
Note:For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2)For the purposes of paragraph (1)(d), this subsection applies if:
(a)no 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 dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order (emphasis added).
(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.
(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.
(5)This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
It appears from s 70NEA(4) and s 70NFA(2)(b) that the essential difference between the circumstances in which Subdivision E or Subdivision F will apply is that in the latter case the court must be satisfied 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 expression “primary order” is defined in s 4 to mean “an order under this Act affecting children and includes such order as varied”).
It appears from paragraph 6 of Brewster FM’s reasons for his order of 24 September 2008, that he was also of the view that the test for a more serious contravention (and thus for the application of Subdivision F) was that the contravention in question involved, in his Honour’s words, “a contravention where a person has behaved in a way that shows a serious disregard of that person’s obligations under the orders that had been breached”.
It should be noted that his Honour twice expressed himself satisfied that the present case involved a more serious contravention, saying:
6.…First of all, I am satisfied that this is what is termed in the legislation a more serious contravention…
7.I am satisfied that the present case involves a more serious contravention…
The difficulty with these two statements by his Honour is that he refers to “contravention” in the singular and does not advert to the fact that he was dealing with six “contraventions” which occurred at different times and, in some instances, extended over different periods of time.
But ultimately little could turn on his Honour’s apparent treatment of all six contraventions as a more serious contravention (or more serious contraventions) in view of the concessions which were made by the mother’s solicitor, Ms Burgess, in the following exchanges with his Honour:
MS BURGESS: Well, there is one thing I wanted to draw to your attention to prior to directly commenting on NFB(2)(g), and that is although this is a serious breach there is still provision under section 70NFA(4) for the matter to be dealt with under subdivision E rather than subdivision F.
FEDERAL MAGISTRATE: All right. Well, perhaps you should approach it that way.
MS BURGESS: So we would say in the first instance that despite the fact that this is a serious breach, and we don’t back away from that, a serious breach can still be dealt with under subdivision E if the Court thinks it’s appropriate.
…
FEDERAL MAGISTRATE: Why is this not conduct showing a serious disregard of your client’s obligations?
MS BURGESS: I’m not submitting that it is not a disregard. I am submitting that NFA(4) allows the Court to deal with it under subdivision E in any case.
…
Returning then to the overview of Subdivisions E and F, the second section in Subdivision E, being s 70NEB, sets out (in its first subsection) the orders which can be made in circumstances where the Subdivision applies. Such orders are:
a)an order directing the person who committed the contravention or that person and another person to attend a post-separation parenting program;
b)a further parenting order compensating a person for time not spent with the child as a result of the contravention;
c)an adjournment (order) to allow parties to the primary order to apply for a further parenting order;
d)an order for a bond “in accordance with s 70NEC”;
e)an order requiring the person who has committed the contravention to pay expenses incurred by another person as a result of the contravention;
f)an order that the person who committed the contravention pay some or all of the costs of another party or parties to the proceedings; and
g)if no orders are made in relation to the contravention, an order that the person who brought the proceedings in relation to the contravention, pay some or all of the costs of the person who committed the contravention.
The remaining subsections of s 70NEB contain further provisions in relation to various of the orders set out in s 70NEB(1). It is unnecessary for present purposes to refer to those further provisions.
Section 70NEC then sets out the terms and conditions which may be attached to bonds (provided for in s 70NEB(1)(d)).
Sections 70NED, 70NEF and 70NEG are all concerned with post-separation parenting programs (provided for in s 70NEC(1)(a)) and are not presently relevant.
The second section in Subdivision F, being s 70NFB, then sets out (in subsection 70NFB(2)) the orders which can be made in circumstances where Subdivision F applies. Such orders are:
a)a community service order if “empowered [to do so] under s 70NFC”;
b)an order for a bond “in accordance with section 70NFE”;
c)a further parenting order compensating a person for time not spent with the child as a result of the contravention;
d)a fine;
e)a sentence of imprisonment “in accordance with section 70NFG” (included in s 70NFG(5) is a provision for a suspended sentence);
f)an order requiring the person who committed the contravention to pay expenses incurred by another person as a result of the contravention;
g)an order (which under s 70NFB(1) the court may in certain circumstances be required to make) that the party who has committed the contravention pay all the costs of another party or parties to the proceedings; and
h)an order that the person who committed the contravention pay some of the costs of another party or parties to the proceedings.
It should be remembered in connection with orders for community service, fines and sentences of imprisonment, that s 70NAF(3) provides that such orders can only be made “if the court is satisfied beyond reasonable doubt that the grounds for making the orders exist”.
Section 70NFC then sets out the circumstances in which a court is empowered to make a community service order, and s 70NFD provides for the variation and discharge of such an order.
Section 70NFE then prescribes the terms and conditions which may be attached to bonds, with s 70NFF(3) providing a procedure for enforcing bonds and community service orders.
Importantly for present purposes, s 70NFG then contains the following provisions in relation to the imposition of sentences of imprisonment:
70NFG(1) A sentence of imprisonment imposed on a person under paragraph 70NFB(2)(e) is to be expressed to be:
(a)for a specified period of 12 months or less; or
(b)for a period ending when the person:
(i) complies with the order concerned; or
(ii) has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court;
whichever happens first.
(2)A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).
(3)If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:
(a)state the reasons why it is satisfied as mentioned in subsection (2); and
(b)cause those reasons to be entered in the records of the court.
(4)The failure of a court to comply with subsection (3) does not invalidate a sentence.
(5)A court that sentences a person to imprisonment under paragraph 70NFB(2)(e) may:
(a)suspend the sentence upon the terms and conditions determined by the court; and
(b)terminate a suspension made under paragraph (a).
(6)A court, when sentencing a person to imprisonment under paragraph 70NFB(2)(e), may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (7) after he or she has served a specified part of the term of imprisonment.
(7)A bond for the purposes of subsection (6) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.
(8)A court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.
(9)To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 70NFB(2)(e) for failure to make a payment under a child maintenance order does not affect the person’s liability to make the payment.
It will thus be seen that the maximum term of imprisonment that can be imposed under Subdivision F is 12 months, and that a sentence of imprisonment must not be imposed unless the court is satisfied that in all the circumstances of the case, it would not be appropriate to deal with the contravention by means of any of the other orders provided for in s 70NFB(2), and states its reasons as to why it is so satisfied.
It will also be seen that s 70NFG(5) permits the court to suspend a term of imprisonment imposed under s 70NFB(2)(e) on terms and conditions determined by the court.
The remaining sections in Subdivision F are s 70NFH (which deals with cases where the contravention is an offence and subject to prosecution under other laws); s 70NFI (which is concerned with arrangements with the States and Territories for carrying out sentences and orders); and s 70NFJ (which preserves the operation of s 105 of the Act in relation to the enforcement of decrees).
Against the background of these legislative provisions, I now turn to consider Brewster FM’s reasons for imposing a sentence of imprisonment in this case.
The Federal Magistrate’s reasons for judgment
Having outlined the background to the contravention proceedings then before him (which I have already largely explained), and having expressed himself satisfied that the case involved a more serious contravention, his Honour considered the requirements of s 70NFB(1), being that the person who has committed a more serious contravention should be ordered to pay the other party’s costs unless it would not be in the best interests of the child concerned to make that order. His Honour determined that he should make such an order, noting that this would be “a significant and substantial debt for the mother” and would be a matter he would “take into account when fixing a penalty”. The mother has not appealed against his Honour’s order for costs.
His Honour next identified (in paragraph 10 of his reasons) the following options as being available to him in sentencing the mother:
·a bond;
·an order compensating the father for time with the child, but his Honour observed “that it is academic now as [the child] has been with him since the recovery order was executed”;
·a suspended prison sentence or a prison sentence of up to 12 months.
His Honour then observed (having regard, no doubt, to the provisions of s 70NFG(2)):
11.I must not impose a prison sentence unless I am satisfied, and I interpolate satisfied beyond reasonable doubt, that it would not be appropriate to deal with the mother in any other way.
His Honour then said that he proposed “to approach this matter having regard to the criminal law principles of sentencing” and that he would “adopt as a useful guideline” s 7 of the Crimes (Sentencing) Act 2005 of the Australian Capital Territory. His Honour then described the seven purposes for which a sentence may be imposed under that legislative provision, and he went on to “reformulate” the first four of those purposes or principles for application in a case such as the present.
His Honour’s reformulated principles were as follows (emphasis added):
·“… to ensure that the offender is adequately punished for the breach of orders in a way that is just and appropriate…”
·“…to prevent breaches of court orders by deterring the offender and other people from committing the same or similar breaches… (t)hat would be called individual and general deterrence.”
·“…to protect children from having a parent unilaterally decide what is in a child’s best interests, and to unilaterally prevent that child from having a meaningful relationship with the other parent.”
·“…the rehabilitation of the offender.”
His Honour then set out the factors which weighed in favour of his “making an order short of an immediate custodial sentence”. First, there was the mother’s claim that she acted as she did because of concerns for the child’s welfare. His Honour said he would take that into account.
Second, there was the mother’s ultimate plea of guilty to the counts in the contravention application – although his Honour was not prepared to find that the mother was remorseful, but only that she acknowledged her conduct had been counter-productive.
The following further considerations which would weigh against a term of imprisonment were also identified by his Honour:
20.A sentence of imprisonment would unquestionably involve the mother in great hardship, and it unquestionably would not be in [the child’s] best interests, indeed it would be quite traumatic for [the child]…
21.… I take into account the fact that I have already made an order for costs which involves or may involve hardship. I appreciate that, as she has said in her affidavit, she has already been punished by having the child removed from her care and placed with the father. It was also submitted that this, in effect, has provided compensatory contact which is one of the orders that I am able to make and that, as I understood the submission, I should treat that as being an appropriate sanction in the circumstances.
Having observed that “(t)hese are powerful considerations”, his Honour turned to the issue of general deterrence, saying:
22.…To paraphrase the Sentencing Act that I have referred to to deter other people from committing the same or similar offences. Whilst it is manifestly clear that it is not in [the child’s] best interests that his mother should be sentenced to a term of imprisonment, there are other children to consider. And in this particular case, I am satisfied this is in the interests of children in general that a punishment should be imposed which will act as a deterrent to parents acting in the way that the mother has done. It is wholly inappropriate for a parent to usurp the role of the court and to flout court orders and to unilaterally make a decision that a child should be denied a meaningful relationship with the other parent. It is completely inimical to the interests of children that these things occur.
23.In my opinion such conduct must be deterred and one would hope that the result of this case will serve as general deterrence. I am satisfied, and I am satisfied beyond reasonable doubt, that in this case none of the other sanctions short of imprisonment is appropriate. In my opinion general deterrence must prevail. In my opinion the appropriate sentence is six months imprisonment. I do not propose to order an earlier release.
24.I propose to order that the sentence apply concurrently to each of the counts in the contravention application. That is not to say that each count is of equal seriousness, they are not, but I take into account the total criminality, if I might use that word in a loose sense, of the conduct of the mother.
It will thus be seen that “general deterrence” became the most important consideration for his Honour and was the reason why he determined that no other sanction other than imprisonment would be appropriate.
Is it permissible to have regard to “General Deterrence” in imposing sanctions under Division 13A?
Extensive and detailed submissions were addressed to us, particularly by counsel for the appellant mother, as to whether or not Division 13A constitutes a self-contained code. If the Division does constitute a code, it was, according to the appellant’s case, an error on his Honour’s part to have had regard when determining what sentence to impose on the mother, to principles contained in the ACT sentencing legislation, including the principle of general deterrence, which as has been seen, became the lynchpin of his Honour’s decision.
Having reflected upon this matter, I have concluded that there is little utility, at least in this case, in endeavouring to determine either whether or not Division 13A constitutes a code, or the practical consequences of such a determination. I take this view because even accepting, for the sake of argument, that his Honour was not permitted to consider any matter other than the matters referred to in Division 13A, he would still, in my view, have been entitled to take into account, and place weight on, the consideration of general deterrence.
I consider that his Honour was able to have regard to the consideration of general deterrence even within the parameters of Division 13A, because of the reference in the first section of the Division, being s 70NAA, to “the powers that a court … has to make orders to enforce compliance with orders under this Act affecting children”.
These words in s 70NAA were the subject of some emphasis in the submissions to us by counsel for the appellant mother, with counsel endeavouring to persuade us that his Honour’s focus should have been limited to attempting to force the mother to comply with the order for the child to spend time with the father.
There can be no doubt given the words of s 70NAA that an important, indeed probably the principal consideration to which his Honour should have had regard, was the matter of enforcing compliance by the mother with the parenting orders which bound her. But that is not to say that his Honour was not also entitled to have regard to the issue of general deterrence. I take this view because the words in question in s 70NAA, being “…to make orders to enforce compliance with orders under the Act affecting children” can be read as having a general application to all parenting orders, not just the orders in the case at hand.
The question in this appeal concerning the issue of general deterrence therefore becomes whether his Honour placed too much weight on that issue and the consequent need for a prison sentence in order to provide general deterrence, particularly in circumstances where he had earlier found what he described as “powerful considerations” against the imposition of a sentence of imprisonment. I will return to this question.
Does “punishment” have a role in imposing sanctions under Division 13A?
In endeavouring to establish that his Honour had erred by placing reliance on ACT sentencing principles, counsel for the appellant mother also directed his submissions to his Honour’s identification of the principle or purpose of “punishment”. In this context, counsel drew our attention to the fact that the words “punish” or “punishment” do not appear in Division 13A, and that this is in stark contrast to the language used later in s 112AP (the contempt provision) which is concerned with the contravention of orders, including orders affecting children, which involve a “flagrant challenge to the authority of the court”.
Section 112AP(2) provides that “(i)n spite of any other law, a court having jurisdiction under the Act may punish a person for contempt of that court” (emphasis added). Sub-section 112AP(4) then empowers the Court where it is a natural person who is in contempt, to “punish the contempt by committal to prison or fine or both” (emphasis added). Sub-section 112AP(6) provides further that the court may make an order for “(a) punishment on terms; (b) suspension of punishment; or (c) the giving of security for good behaviour” (emphasis added).
The words “punish” or “punishment” are not found in Division 13A other than in s 70NFH, which is concerned with the operation of other laws which may apply to the act or omission which constitutes a contravention for the purposes of Division 13A, and in particular with ensuring that a person is not “punished” twice in respect of the same act or omission.
I accept that the use of the concept of “punishment” in s 112AP and the virtual absence of that concept from Division 13A is a sufficiently important distinction between the two sets of provisions such that it must have some significance.
However, in the present case and while acknowledging that his Honour clearly identified “punishment” (in paragraph 13 of his reasons) as a principle or purpose for sentencing in a case such as the present, and also that he again used the word “punishment” (in paragraph 22) when discussing the issue of general deterrence and the importance which he placed on that consideration, I do not consider that these references to the concept of “punishment” would, at least on their own, justify appellate interference with his Honour’s decision. I take this view because although, as I have said, his Honour identified “punishment” as a principle or purpose of sentencing in this case, he did not, as I read his reasons, rely on “punishment”, at least expressly, as a reason for imposing a sentence of imprisonment on the mother.
Should a suspended sentence have been considered?
A further aspect of the mother’s appeal was that his Honour had erred in failing to consider the imposition of a suspended sentence of imprisonment as is available under s 70NFG(5) (see paragraph 27 above).
As earlier mentioned, his Honour did identify relatively early in his reasons (at paragraph 10) that one of the options which he had available to him was a suspended prison sentence. However, nowhere later in his reasons did he return to reject, or indeed, even discuss, that option.
It will be recalled that s 70NFG(2) provides that a court must not sentence a person to imprisonment (under s 70NFB(2)(e)) unless it is satisfied that in all the circumstances of the case, it would not be appropriate to deal with the contravention by means of any of the other orders provided in s 70NFB(2). His Honour expressly recognised this requirement in paragraph 11 of his reasons.
It has to be acknowledged that in the list of orders provided in s 70NFB(2), there is no express reference to a suspended sentence of imprisonment, although that option could well be said to have been incorporated by the reference in s 70NFB(2)(e) to a sentence of imprisonment “in accordance with section 70NFG”. It is in s 70NFG(5) that the discretion is conferred to suspend a prison sentence. It would then follow that the obligation in s 70NFG(2) for the court to be satisfied, before sentencing a person to a term of imprisonment, that there is no other course available, would extend to a consideration of a suspended sentence.
Alternatively, as suggested by Coleman J, if the options provided in s 70NFB(2) are not intended to cover suspended sentences of imprisonment, s 70NFG(5) might be read as requiring consideration of a suspended sentence after a decision is made by the court that no option other than a term of imprisonment is appropriate. As his Honour observes, there is little difference in substance between the two approaches.
On either approach his Honour was required to consider the option of a suspended sentence; this was particularly so given the potential for a suspended sentence to coerce or encourage ongoing compliance with parenting orders.
Accordingly, I agree with Coleman J and with Cronin J that the appeal must be allowed on the basis of his Honour’s apparent failure to consider imposing a suspended sentence of imprisonment on the mother.
It would seem useful in this context to draw particular attention to the requirement in s 70NFG(3) for the court to state its reasons why it is satisfied under s 70NFG(2) that in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention by any of the other means provided in s 70NFB(2) before imposing a sentence of imprisonment. While his Honour referred to the obligation in s 70NFG(2) to be satisfied that no option other than imprisonment is appropriate, he did not refer to the obligation in s 70NFG(3) to give reasons for such satisfaction.
His Honour’s reasons contain some indication as to why he considered certain of the s 70NFB(2) options (other than imprisonment) would not be appropriate. But not all options, and importantly not the suspended sentence option, were discussed and found to be inappropriate by his Honour. I am extremely reluctant to increase the burden on Judges and Federal Magistrates who have to apply the extremely complex provisions of Division 13A, often in the context of busy duty lists. But this case illustrates the need for at least brief reasons (as required under s 70NFG(3)) to be given explaining why the various options in s 70NFB(2), including, or as well as, a suspended term of imprisonment, were considered inappropriate, with the result that a term of imprisonment is the only option.
Were the sentences of imprisonment manifestly excessive?
The first complaint in the mother’s grounds of appeal was that the sentence imposed on her was manifestly excessive.
Although it may well be unnecessary for this Court to express a concluded view in relation to this complaint given that the appeal is to be allowed for other reasons, there may well be some value in the members of this Court indicating their views.
Accordingly, I record my agreement with the conclusions of both Coleman J and Cronin J that the sentences imposed were manifestly excessive.
Notwithstanding the concessions made on behalf of the mother that the contravention or contraventions amounted to “a serious breach” and showed “a serious disregard” of the relevant parenting orders (see paragraph 18 above), it is very difficult to see how any of the first three contraventions, which each involved one weekend and which all occurred prior to the mother disappearing from New South Wales, could possibly have warranted a term of six months’ imprisonment, even if the three were heard and dealt with together, let alone if heard and dealt with separately. In this regard it must be remembered that the maximum term of imprisonment that can be imposed under Subdivision F is for a period of 12 months.
It seems likely that the “global” fashion in which the proceedings were conducted, with the apparent concurrence of all concerned, ultimately led his Honour into error, at least with regard to the first three contraventions. (See in this regard Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at [45] and Abduramanoski & Abduramanoska (2005) FLC 93-215 at [60] to [86].)
Against the background of a maximum possible term of 12 months imprisonment, and notwithstanding the undoubtedly aggravating factor of the disappearance of the mother and the child in relation to the last three contraventions, the sentence for those last three contraventions, and indeed the ultimate single sentence of six months, appears excessive when regard is had to the matters which his Honour identified in paragraphs 17 to 21 of his reasons as “powerful considerations” against the imposition of a prison sentence. Included in those considerations, it is important to remember, was his Honour’s finding that a sentence of imprisonment for the mother “unquestionably would not be in [the child’s] best interest’s, indeed it would be quite traumatic for [him]”. Against the background of these “powerful considerations”, it might well be concluded that his Honour gave excessive weight to the consideration of general deterrence.
The re-exercise of the discretion
It was the submission of counsel for the appellant mother that in the event that this Court found substance in the appeal, we should re-exercise the discretion in relation to sentence on the basis of his Honour’s findings and of the further evidence that the mother had already spent 16 days in prison on account of the contraventions. The submission of counsel for the respondent father was also that this Court should re-exercise the discretion, and I did not understand her to suggest that the basis of the re-exercise should be otherwise than as proposed by counsel for the mother.
Importantly for purposes of the re-exercise of the discretion, counsel for the mother did not wish to be heard in opposition to a suspended sentence. Again I understood a similar position to be taken by counsel for the father.
Further, counsel for the mother did not renew the submission made on her behalf to his Honour, being to the effect that although the contravention was serious, it should be dealt with under Subdivision E (see paragraph 18 above). Nevertheless, I consider that on a re-exercise of the discretion, the first three contraventions which related to two days and one night on each of the following occasions: 28-29 April 2007; 26-27 March 2007; and 9-10 June 2007, should each be dealt with under Subdivision E (that is, as a less serious contravention for which there was no reasonable excuse).
Had the first contravention been dealt with close to the time of its occurrence, an order that the mother attend a post-separation parenting program and/or an order compensating the father for time not spent with the child would seem to have been the most appropriate of the orders provided for such a contravention in s 70NEB (see paragraph 19 above).
However, given subsequent events, neither of those options would seem appropriate, either now or when the matter was before Brewster FM. Rather I consider that in all the circumstances, a bond imposed under s 70NEB(1)(d) to be of good behaviour for two years in accordance with s 70NEC(2) and (4), would be appropriate. Similarly, such a bond would, in my view, have been the appropriate sanction in relation to the second and third contraventions.
In relation to the fourth contravention, involving alternate weekends over a period of approximately four months (excluding two school holiday periods), and the fifth and sixth contraventions, involving the two school holiday periods, there could be no question that these were all serious contraventions, particularly when viewed against the background of the disappearance of the mother and the child, and also the three earlier contraventions. Accordingly, such contraventions should be dealt with under Subdivision F. Subject to the court being satisfied (as required by s 70NFG(2)) that in the circumstances of the case, it was not appropriate to deal with those contraventions in any of the other ways provided in s 70NFB(2), a sentence of imprisonment with some time being actually served, and with the balance, and probably greater part, being suspended would, in my view, seem appropriate.
A court could well be satisfied (as required under s 70NFG(2)) that in the circumstances of the case, no order other than one for a term of imprisonment or at least a suspended term of imprisonment was appropriate. This would be because bonds would have already been imposed (if only notionally) on account of the three earlier contraventions; the child had already apparently spent time with the father which could be regarded as compensatory time; the mother’s apparently poor financial position would be likely to make any penalty of a financial type unenforceable or largely ineffective; and there is an apparent dearth of evidence concerning the availability of the necessary facilities for community service orders.
As earlier discussed, a suspended sentence of imprisonment must also be considered. Again as earlier discussed, a suspended sentence of imprisonment would seem to have particular attraction in a case which is being determined under legislative provisions (Division 13A) which confer powers on courts to enforce compliance with orders under the Act affecting children. Moreover, in this case, where Brewster FM found that imprisonment of the mother would not be in the child’s best interests and indeed would be “quite traumatic” for him, the arguments in favour of the suspension of all or the greater part of the sentence are almost overwhelming.
For these reasons then I would be satisfied (“beyond reasonable doubt”, if that is in fact necessary under s 70NAF(3)(a)) and having regard to the fact that the mother has already spent 16 days in prison, that for each of the fourth, fifth and sixth contraventions, the mother should be sentenced to six months in prison for each of the contraventions (with such term to commence on the handing down of this Court’s orders), with such sentences to be served concurrently, and to be suspended after 16 days taking into account time already served prior to the hearing of the appeal and upon the mother entering into a bond (without surety or security) to be of good behaviour for two years, as provided for in s 70NFG(6) and (7).
Such a bond would also constitute the penalty for the first three contraventions as earlier discussed. The term “good behaviour” would of course encompass compliance with all orders of the Family Court of Australia and the Federal Magistrates Court.
Costs of the appeal
In my opinion no order should be made in relation to the costs of the appeal but both parties should receive certificates under the Federal Proceedings (Costs) Act 1981 (Cth).
Coleman J
By Notice of Appeal filed 3 October 2008 Ms McClintock (“the mother”) appealed against orders made by Federal Magistrate Brewster on 24 September 2008 in proceedings brought against the mother by Mr Levier (“the father”) alleging breaches of parenting orders relating to a child of the parties.
The orders of the Federal Magistrate provided that the mother be sentenced to a term of imprisonment for a period of 6 months in relation to six contraventions of parenting orders. The learned Federal Magistrate also ordered that the mother pay the father’s costs of the contravention proceedings which resulted in the mother’s sentence of imprisonment on an indemnity basis.
The mother sought that such orders be “set aside” and that this Court “substitute such Orders as it sees fit”. It is apparent from the written submissions filed on behalf of the mother, and confirmed by her learned Counsel on the hearing of the appeal, that the mother challenges only the order made by the learned Federal Magistrate sentencing her to a term of imprisonment.
The father resisted the mother’s appeal and sought to maintain the orders of the learned Federal Magistrate.
Background
The mother and father are the natural parents of a child born July l997.
The parents were in a relationship from 1995 to 2001.
On 2 April 2007 orders were made in the Federal Magistrates Court providing that the child spend time with the father. The mother failed to comply with those orders during 2007 resulting in a recovery order issuing and, after approximately 13 months, the child being recovered on 5 August 2008.
The mother admitted that she had contravened the parenting orders of 2 April 2007 on six of the occasions complained of in the application by which the father sought that the mother be dealt with by the Court.
The learned Federal Magistrate ordered that the mother be sentenced to imprisonment for terms of 6 months with respect to each of the mother’s breaches of the parenting orders, such terms to be served concurrently.
The Reasons for Judgment of the Federal Magistrate
The learned Federal Magistrate identified the “six counts” in the application filed by the father on 8 September 2008, the substance of which the mother admitted.
It is helpful to digress at this point to identify those occasions by reference to the father’s application. In his contravention application filed 8 September 2008 (AB 93), the father alleged that the mother failed to facilitate the child spending time with him from 9:00am 28 April 2007 until 5:00pm 29 April 2007, from 9:00am 26 May 2007 until 5:00pm 27 May 2007, from 9:00am 9 June 2007 to 5:00pm 10 June 2007, from 9:00am Saturday to 5:00pm Sunday on alternate weekends commencing 23 June 2007 and concluding 1 November 2007 (but excluding school holiday periods), for 5 days and 4 overnights between 30 June 2007 and 15 July 2007 and for 5 days and 4 overnights between 29 September 2007 and 14 October 2007.
His Honour recorded, accurately there is no doubt, that the mother admitted that by failing to facilitate the child spending time with the father on those occasions, she had, without reasonable excuse, breached the orders of the Court of 2 April 2007.
Having recorded the historical matters to which reference has earlier been made, the learned Federal Magistrate recorded that the mother had “left her home [in New South Wales] where the parties had been living and travelled to Queensland” with the child in “late June 2007”. [Appeal Book Vol 1 page 25, par 2].
The learned Federal Magistrate referred to the mother’s subsequent movement to and settling in the state of Western Australia where she enrolled the child in school “but under the surname of her partner”. [Appeal Book Vol 1 page 25, par 3]. The mother’s whereabouts were then “unknown for some considerable period of time”. [Appeal Book Vol 1, page 26, par 3].
His Honour referred to the recovery order which he issued on 23 November 2007 [Appeal Book Vol 1, page 36] and to the child’s subsequent recovery on 5 August 2008, “about 13 months after the mother left [New South Wales]”. [Appeal Book Vol 1, page 26, par 4]. He concluded that “[b]ut for the police ascertaining her whereabouts I think it likely that she would have remained in Western Australia, or at least would never have returned to comply with the orders of the court”. [Appeal Book Vol 1, page 26, par 4].
Against that background, the learned Federal Magistrate considered the penalty appropriate to be imposed upon the mother. His Honour indicated an intention to follow “the established principles in relation to criminal law sentencing”. [Appeal Book Vol 1, page 26, par 5].
The learned Federal Magistrate found that the mother’s breaches of the parenting orders of 8 September 2007 constituted “more serious” contraventions. He observed that a more serious contravention involved “a contravention where a person has behaved in a way that shows a serious disregard of that person’s obligations under the orders that had been breached”. [Appeal Book Vol 1, page 26, par 6]. The finding that the mother’s breaches of the Court’s orders constituted “more serious” contraventions was recorded as having been made beyond reasonable doubt. [Appeal Book Vol 1, page 27, par 7].
Reference was then made to section 70NFB of the Family Law Act1975 (Cth) (“the Act”) with respect to the making of an order for costs. As the mother has, sensibly in my view, not challenged the making of a costs order it is unnecessary to refer to the learned Federal Magistrate’s reasons for doing so. Of potential relevance to the mother’s appeal against the imposition of a custodial sentence however was his Honour’s finding that “the amount which will be assessed or agreed (by way of costs paid by the mother) will be very substantial having regard to the mother’s financial circumstances and will impose a significant and substantial debt”. [Appeal Book Vol 1, page 27, par 3]. His Honour recorded his intention to take that matter into account when determining the appropriate sentence for the mother.
Having referred to the sentencing options made available by the legislation [Appeal Book Vol 1, page 27, par 10], his Honour re-iterated that he could not “impose a prison sentence unless I am satisfied, and I interpolate satisfied beyond reasonable doubt, that it would not be appropriate to deal with the mother in any other way.” [Appeal Book Vol 1, page 27, par 11].
The learned Federal Magistrate referred to the sentencing guidelines provided by section 7 of the Crimes (Sentencing) Act 2005 (ACT), which he observed provided a “useful guideline” for the case before him. [Appeal Book Vol 1, page 27, par 12].
His Honour recorded that the legislation provided that a sentence could be imposed on an offender for a variety of “purposes”. Those purposes were identified by the learned Federal Magistrate 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; protecting the community from the offender; promoting the rehabilitation of the offender; making the offender accountable for his or her actions; denouncing the conduct of the offender; and recognising the harm done to the victim of the crime and the community. [Appeal Book Vol 1, page 28, par 12]
The learned Federal Magistrate concluded that the most relevant considerations in the case before him were ensuring that the offender was adequately punished for the offence in a way that is just and appropriate, and preventing crime by deterring the offender and other people from committing the same or similar breaches. His Honour described these matters as “individual and general deterrence”. [Appeal Book Vol 1, page 28, par 13].
Reference was then made to the protection of the community from the offender. His Honour considered that in the case before him that involved protecting the child from “having a parent unilaterally decide what is in a child’s best interests, and to unilaterally prevent that child from having a meaningful relationship with the other parent.” [Appeal Book Vol 1, page 28, par 14].
The rehabilitation of the offender was considered relevant, his Honour noting that “[t]hat could be done by way of a bond” but that it could not be achieved by having the assistance of a parole officer in the case before him, as would occur in a criminal law situation. [Appeal Book Vol 1, page 28, par 15].
The learned Federal Magistrate did not consider “helpful” making the offender accountable for his or her actions, denouncing the conduct of the offender, or recognising the harm done to the victim of the crime in the community. [Appeal Book Vol 1, page 28, par 16].
The learned Federal Magistrate identified as a factor weighing in favour of not imposing “an immediate custodial sentence” the mother’s evidence that she “acted as she did because of concerns for [the child’s] welfare”. [Appeal Book Vol 1, page 28, para 17]. His Honour also found in the mother’s favour that she had “ultimately pleaded guilty to the counts in the contravention application”. [Appeal Book Vol 1, page 28, par 18].
Having referred to the mother’s affidavit evidence in relation to that topic, his Honour observed that there was “nothing in the affidavit that indicated any remorse generally as to her conduct, only as to the effect it has had on her and [the child]”. [Appeal Book Vol 1, page 29, par 19].
The learned Federal Magistrate further concluded that:
20.A sentence of imprisonment would unquestionably involve the mother in great hardship, and it unquestionably would not be in [the child’s] best interests, indeed it would be quite traumatic for [the child]. Through her counsel the mother has indicated that were she sent to prison she would not wish the child to visit, the reason for that being that she would not consider that seeing the child in a prison environment would be conducive to his best interests. I understand her reasons. [Appeal Book Vol 1, page 29, par 20].
Regard was also had by his Honour to the fact that a costs order would be made against the mother which involved, or may involve “hardship”. [Appeal Book Vol 1, page 29, par 21].
The learned Federal Magistrate also had regard to the reality that the mother had “already been punished by having the child removed from her care and placed with the father”. [Appeal Book Vol 1, page 29, par 21].
Against that background his Honour observed:
22.These are powerful considerations, but I turn again to the issue of general deterrence. To paraphrase the Sentencing Act that I have referred to deter other people from committing the same or similar offences. Whilst it is manifestly clear that it is not in [the child’s] best interests that his mother should be sentenced to a term of imprisonment, there are other children to consider. And in this particular case, I am satisfied this is in the interests of children in general that a punishment should be imposed which will act as a deterrent to parents acting in the way that the mother has done. It is wholly inappropriate for a parent to usurp the role of the court and to flout court orders and to unilaterally make a decision that a child should be denied a meaningful relationship with the other parent. It is completely inimical to the interests of children that these things occur. [Appeal Book Vol 1, page 29, para 22].
His Honour thus concluded:
23.In my opinion such conduct must be deterred and one would hope that the result of this case will serve as a general deterrence. I am satisfied, and I am satisfied beyond reasonable doubt, that in this case none of the other sanctions short of imprisonment is appropriate. In my opinion general deterrence must prevail. In my opinion the appropriate sentence is six months imprisonment. I do not propose to order an earlier release. [Appeal Book Vol 1, page 30, par 23].
The sentences imposed by the learned Federal Magistrate were ordered to be served concurrently.
Grounds of Appeal
Introduction
As is apparent from the transcript of the proceedings before him, the learned Federal Magistrate dealt with the matters which give rise to this appeal in difficult circumstances. The matter was not argued as extensively or probingly before the learned Federal Magistrate as it was before this Court. The legislative provisions with which his Honour was concerned were recent. There had been, and have remained, few or no directly relevant decisions from which his Honour could gain assistance. Notwithstanding being sympathetic to the position in which the learned Federal Magistrate was placed when dealing with these proceedings, the clear duty of this Court is to apply the law with respect to the challenges to his Honour’s decision.
Although not necessarily clearly or readily referrable to the Grounds of Appeal appearing in the mother’s Amended Notice of Appeal, as the transcript of the hearing of the appeal would confirm, the Grounds of Appeal articulated in the mother’s Amended Notice of Appeal can conveniently be considered by reference to three broad headings, namely:
(a)Whether the provisions of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) constitutes a “code” which precluded the learned Federal Magistrate from having regard in the exercise of his sentencing discretion to matters not finding expression within the code.
(b)Whether the exercise of the learned Federal Magistrate’s sentencing discretion miscarried in that he;
(i)Erroneously had regard to irrelevant circumstances being matters relevant to sentencing in “punitive” proceedings in proceedings which were “coercive”; and
(ii)Failed to have regard to the appropriateness of imposing a suspended sentence of imprisonment upon the mother.
(c)Whether the sentences imposed by the learned Federal Magistrate were manifestly excessive.
Whether the provisions of Part VII, Division 13A of the Act constitutes a “code” which precludes reliance upon matters not finding expression within Part VII, Division 13A of the Act
As is not in doubt, the learned Federal Magistrate relied by way of “a useful guideline” on “the Criminal Law principles of sentencing”, adopting for that purpose section 7 of the Crimes (Sentencing) Act 2005 (ACT).
It was submitted on behalf of the mother that his Honour erred by so doing.
Counsel for the mother submitted that there “appears to be no feature of the structure or content of Division 13A that would justify a finding that it did not form a self-contained code.” [Appellant’s Summary of Argument, page 6]. Reference to other statutory provisions was thus asserted to be impermissible.
Counsel for the mother relied in support of his contention upon the terms of section 70NAA(1) of the Act which provides:
(1)This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
It was submitted to be significant that the Court had powers to “make orders to enforce compliance with orders” rather than, as was the case with Commonwealth, State or Territory criminal courts, the powers to punish persons found to have offended Commonwealth, State or Territory laws.
Counsel for the mother submitted, accurately there is no doubt, that breaches of orders of this Court which may give rise to proceedings pursuant to Part VII Division 13A did not involve the commission of any offence against any Commonwealth, State or Territory law. It was submitted that the High Court decision in Re Colina and anor; ex parte Torney (1999) 200 CLR 386; (1999) 166 ALR 545, in which the majority held that contempt provision, s 112AP, was not a law of the Commonwealth, was supportive of this conclusion.
Counsel for the mother further submitted that nothing contained in Part VII Division 13A, expressly or by necessary implication, authorised the learned Federal Magistrate to have regard to the sentencing guidelines enacted for or observed by courts exercising criminal jurisdiction, or to common law sentencing provisions.
On behalf of the father it was submitted that the learned Federal Magistrate was not constrained in the manner asserted on behalf of the mother. That contention was supported by the fact that Part VII Division 13A does not expressly or by necessary implication preclude reference to or reliance upon provisions or principles not finding expression in Part VII or elsewhere in the Act.
As is apparent from the terms of Part VII Division 13A, whilst the exercise of discretion requires consideration of particular matters in certain circumstances, and the provision of reasons concluding that a particular sentence or penalty is appropriate, the division does not otherwise expressly or by implication require the Court to have regard to particular matters in the exercise of its discretion. To that extent, it might be thought that the “code” is deficient.
Other than by making an arbitrary decision, given his ultimate conclusion that sentences of imprisonment were appropriate, the learned Federal Magistrate was obliged to have regard to the provisions of section 70NFG(2) of the Act which provided:
(2) A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).
What are relevant or irrelevant “circumstances of the case” is not defined or clarified by the section. Nor is it clarified elsewhere within Part VII Division 13A. In my view, in the absence of any statutory provision to the contrary, reference to “all the circumstances of the case” must encompass matters relevant to determining whether any sanctions other than imprisonment were “appropriate”, and circumstances rendering imprisonment appropriate.
In my view the learned Federal Magistrate was not precluded from relying upon matters not referred to in the “code” which have historically been recognised as relevant to the exercise of the sentencing discretion. The more difficult question is the extent to which the learned Federal Magistrate was permitted to have regard to the guidelines or principles applied by courts sentencing “offenders” in Commonwealth, State and Territory courts.
Whether the exercise of the learned Federal Magistrate’s sentencing discretion miscarried in that he; (i) Erroneously had regard to irrelevant circumstances being matters relevant to sentencing in “punitive” proceedings in proceedings which were “coercive”; and (ii) Failed to have regard to the appropriateness of imposing a suspended sentence of imprisonment upon the mother
Counsel for the mother referred to the terms of section 70NAA(1) of the Act, which I have set out above, and submitted that the empowering of the Court to make orders “to enforce compliance” with its orders enabled its “overtly stated purpose” to be “readily differentiated from the purposes of the criminal law”.
Counsel for the mother submitted that Division 13A was “specifically tailored to enforce compliance”, its stated purposes not including “punishment, protection of the community, general deterrence, recognition of harm, denunciation or even accountability”. [Appellant’s Summary of Argument, page 7]
It was submitted that the learned Federal Magistrate’s “superimposition of the purposes and role of criminal sentencing onto these [sic] provision grafts onto the provision a role for which it was not designed”. [Appellant’s Summary of Argument, page 7].
Counsel for the mother referred to sections 60A and 60B of the Act in support of this contention. Counsel particularly relied upon Section 60B(1)(a) of the Act which provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child …
It was thus submitted that the concepts of “ensuring” and “enforcing compliance” were interrelated in the sense that “enforcing compliance within s 70NAA is a part of the Court’s role in pursuing the objective of ensuring that such benefits flow o [sic] particular children”. [Appellant’s Summary of Argument, page 7].
Counsel for the mother submitted that the provisions of section 112AP of the Act provided further support for the mother’s challenge.
Section 112AP relevantly provides:
Contempt
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
(1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
…
(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
…
(6)The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person's liability to make the payment.
(9)In this section:
"order under this Act" means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
By reference to the decision of the Full Court of this Court Abduramanoski v Abduramanoska (2005) FLC 93-215; (2005) 33 Fam LR 1 it was submitted that contempt proceedings had a “duality of purpose” which proceedings under Part VII Division 13A lacked. [Appellant’s Summary of Argument, page 8]. In reliance upon Abduramanoski (supra), it was submitted that the “duality of purpose” of the contempt proceedings was both to coerce compliance with court orders and to punish for breaches of such orders, whilst the power conferred by Division 13A was purely coercive. It was thus submitted that, whilst adopting the principles applicable to sentencing in criminal proceedings was appropriate in contempt proceedings, a number of those principles could not be imposed pursuant to Division 13A.
In Abduramanoski, the Full Court set out with approval the following paragraph from In the Marriage of Tate (No 3) (2003) FLC 93-215:
57.Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, it is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.
It was thus submitted that “[p]unishment or preservation of the Court’s position” are not the purposes of Division 13A. The “sole purpose”, as the terms of s 70NAA make clear, was thus asserted to be “to enforce compliance”. [Appellant’s Summary of Argument, page 8].
In this regard it was submitted on behalf of the mother that:
The placement of an enforcement provision within Part VII does not carry with it provision for meeting the objectives of the criminal law. Its purposes are not those of the criminal law. Accordingly, unlike the criminal law, the Part VII provision is not designed to meet aims of denunciation, punishment, protection of the community and providing for general deterrence. It is aimed solely at enforcement. [Appellant’s Summary of Argument, page 8, para 1].
On behalf of the father it was submitted that section 70NAA of the Act was “descriptive rather than proscriptive of Division 13A providing a short description of the contents of the Division”. [Respondent’s Summary of Argument, page 2].
Counsel for the father relied upon the Explanatory Memorandum of the Family Law Amendments (Shares Parental Responsibility) Bill 2006 (“the Explanatory Memorandum”) which provided:
[248]…Section 70NAA provides a simplified outline of the Division, designed to make the Division easier for readers, particularly self-represented litigants, to understand and use.
It was further submitted on behalf of the father that the 2006 amendments to the Family Law Act “were both intended to strengthen the existing enforcement regime in the Act and continue to impose significant consequences for failing to comply with orders” [Respondent’s Summary of Argument, page 2].
In support of that contention, reliance was again placed upon the explanatory memorandum which stated:
“Schedule 2, Part I repeals and places the existing Division 13A of Part VII of the Act dealing with consequences of failure to comply with orders, and other obligations, that affect children. The new Division 13A contains a range of amendments to strengthen the existing enforcement regime in the Act”. [Respondent’ Summary of Argument, page 2, par 4].
It was submitted that further support “for an interpretation consistent with considerations of deterrence and punishment is to be found in section 70NAF, and in particular subsection 70NAF(3) which imports the criminal standard of proof.” [Respondent’s Summary of Argument, page 3, par 6]. Section 70NAF(3) clearly imposes the criminal standard of proof in proceedings with respect to “more serious” breaches of parenting orders.
Counsel for the father further relied upon the following statements from the explanatory memorandum in support of her contention:
[260] … 70NAF(3)… provides that a stricter standard applies to orders being considered under the more serious contravention applications that may incur a criminal penalty under provisions in Subdivision F.
[262]New subsection 70NAF(3) provides that a stricter standard of proof, requiring the court to be satisfied beyond reasonable doubt, applies to matters to which Subdivision F applies when a court is considering a criminal consequence for the contravention of an order (for example, imposing a bond, a fine or a sentence of imprisonment). This is appropriate given the consequences for the individual of orders that impose criminal sanctions. [Paragrahs [260] and [262] of the Explantory Memorandum, as set out in Respondent’s Summary of Argument, page 4, par 7].
It was thus submitted that “the fact that more serious contraventions without reasonable excuse must be proved beyond reasonable doubt supports the punitive nature of the sanctions”. [Respondent’s Summary of Argument, page 4, par 7].
Counsel for the father submitted that the decision of the Full Court in Dobbs v Brayson (2007) FLC 93-346 did not support the proposition that “‘enforcing compliance’ excludes consideration of other relevant matters (other than compliance) when imposing a gaol sentence” (counsel’s emphasis). [Respondent’s Summary of Argument, page 4, par 8]. I accept that nothing emerging from Dobbs v Brayson (supra) precludes reliance upon “other relevant matters”. The decision is not however of great assistance for present purposes.
Reliance was also placed upon the statement by the Full Court in Tate v Tate (2003) FLC 93-138 which was set out above but which, for convenience, I repeat here:
… The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed.
It was thus submitted that:
11.There is nothing in Division 13A to indicate that a Court in considering a sentence of imprisonment must confine itself to matters of compliance exclusively and disregard matters such as punishment, retribution and deterrence. Further there is nothing in Division 13A to indicate an intention by the legislature to confine the reasons for imposing a sentence of imprisonment to matters personal to the appellant such as her attitude toward future contraventions, the protection of the child and specific deterrence. [Respondent’s Summary of Argument, page 5, par 11].
On behalf of the father it was further submitted that:
12.The Explanatory Memorandum makes specific reference to “deterrence” at [292] in setting out the purpose of section 70NEB(1) enabling the Court to make orders for the payment of the costs of legal expenses of the other party and at [299] in reference to subsection 70NEB(7). Implicit is recognition of the imposition of criminal sanctions and the consideration of punishment and deterrence justifying particular sanctions. [Respondent’s Summary of Argument, page 5, par 12].
Sensibly, it was not submitted on behalf of the mother in this appeal that the issue of deterrence was not a matter to which the learned Federal Magistrate could have regard. The issue is whether, as Counsel for the father asserted, regard to general deterrence was relevant to the exercise of discretion or whether, as Counsel for the mother submitted, regard could only be had to deterring the mother from future potential breaches of the court’s orders (specific deterrence).
In support of her contention that the absence of reference in Division 13A to “punishment” precluded “considerations of retribution and deterrence” in the exercise of the sentencing discretion, Counsel for the father relied upon the judgment of the High Court in Witham v Holloway (1995) 183 CLR 525; 131 ALR 401 in which it was said:
Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment.
As is not in dispute, when exercising the powers conferred by s 112AP of the Act, the Court can, and does, have regard to the sentencing principles adopted by courts exercising Commonwealth, State or Territory criminal jurisdiction.
It is also not in doubt that such proceedings have a “duality of purpose”. Such proceedings are both coercive in so far as they are directed to enforcement of court orders, and punitive, in that they punish for breaches of court orders.
In those circumstances, to the extent that there is any significant difference between them, whether they be pursuant to the common law, or sentencing guidelines such as those to which the learned Federal Magistrate had regard in this case, there is little doubt that courts can have regard to relevant criminal sentencing principles.
In my view it is not without significance that the legislation does not exclude from the operation of s 112AP breaches of parenting orders. Nor does Division 13A of the Act purport to exclude any breaches of parenting orders from the operation of s 112AP. That state of affairs cannot have eventuated through inadvertence. I thus perceive there to be two kinds of proceedings with respect to breaches of parenting orders.
In my view there is force in the submission of Counsel for the mother, that, whereas proceedings pursuant to s 112AP of the Act have a dual purpose, the purpose of proceedings under Division 13A is to “enforce compliance with orders”. In my view the distinction is significant.
It is unsurprising that when sentencing in s 112AP proceedings broader considerations including general deterrence may be significant. As the terms of s 112AP make clear, to succeed with an application under the section, in addition to contravention of an order of the court, a “flagrant challenge to the authority of the court” must be proved beyond reasonable doubt. It would be surprising if the objectives of the criminal law were not relevant to the exercise of sentencing discretion given that requirement.
Unlike sentences able to be imposed pursuant to section 112AP, which are not limited in time, the legislature provided that the maximum sentence of imprisonment able to be imposed pursuant to Division 13A is a period of 12 months. The legislative intention can be inferred as being that the most serious case would invoke a sentence of that duration.
Albeit the breaches of parenting orders which the mother admitted, viewed in isolation, represented only a matter of weeks for a period of 8 months, during which the parties’ child was denied the opportunity to spend time with his father, as the learned Federal Magistrate’s findings of fact make clear, the child was kept away from the father for some 13 months. That separation was only terminated by the efforts of police officers pursuant to a recovery order issued by the Federal Magistrate’s Court 9 months earlier.
On the other hand, as his Honour accepted, the mother had already been significantly adversely impacted by the consequences of her wrongful act. As a result of her actions, the parties’ child had been removed from the mother’s care and placed with the father. [Appeal Book Vol 1, page 29, par 21]. The imposition of the very substantial costs order which the learned Federal Magistrate made, and which would “pose a significant and substantial debt”, was another matter taken into account on sentence. [Appeal Book Vol 1, page 27, para 9].
Moreover, albeit not without qualification, the mother’s contrition in pleading guilty to each of the six breaches in respect of which she was sentenced was a matter which his Honour took into account. His Honour took into account that it was not in the best interests of the child that his mother should be sentenced to a term of imprisonment.
I am conscious of the words of caution emerging from the judgment of Kirby J in Dinsdale (supra), and other authorities in not dissimilar terms, urging restraint.
Whilst it is perhaps unnecessary for me to do so having accepted that, in the way earlier identified, the learned Federal Magistrate’s exercise of the sentencing discretion miscarried, and notwithstanding the difficulties to which I referred at the outset of my consideration of the grounds of appeal, I am persuaded that the sentences imposed by the learned Federal Magistrate, making due allowance for the manner in which the proceedings were conducted before him, were manifestly excessive.
The consequences of allowing the appeal
Counsel for the mother conceded that the imposition of a suspended sentence of imprisonment would be reasonable in the circumstances of this case. Learned Counsel for the father made a similar concession.
In my view, for a variety of reasons, including the agreement of the parties, I conclude that I would re-exercise the learned Federal Magistrate’s discretion to impose a suspended sentence of imprisonment of 6 months with respect to the sixth breach alleged by the father in his application and admitted by the mother.
Whilst I do not criticise either the parties or the learned Federal Magistrate for the manner in which the case was conducted in the lower court, I am anxious not to perpetuate an error by imposing disproportionate sentences with respect to the first five of the mother’s admitted breaches of parenting orders. Those five breaches are however, and should be, taken into account in determining the sentence appropriately imposed upon the mother.
I also have regard to the fact that the mother spent 16 days in custody as a consequence of her breaches of the court’s parenting orders. The mother having apparently not previously experienced incarceration, that must have been a daunting experience.
I am also mindful of the fact that there is no evidence in this case that anything short of a custodial sentence would procure the mother’s compliance with the Court’s orders. To the extent that the mother might misguidedly be inclined in the future to again breach the parenting orders of the court, the knowledge that she has hanging over her a suspended term of imprisonment of 6 months could reasonably be expected to dissuade her from such ill-advised acts.
In those circumstances I would propose imposing no sentences in respect of the first five of the mother’s admitted breaches of parenting orders and imposing a suspended sentence of 6 months in respect to the sixth of her admitted breaches of parenting orders.
I have had the benefit of reading Finn J's draft judgment, and the orders she suggests that this Court make in the re-exercise of the discretion of the learned Federal Magistrate.
It could be argued that a separate order should be made imposing, or not imposing, punishment or a penalty with respect to each of the six breaches which the mother admitted. In many cases, doing so would be desirable, and may even be necessary. I do not think that this such a case however given, as any punishments imposed would be concurrent rather than cumulative, and any breach of the bond Finn J proposes would have the same consequences, whether the Court imposed one sentence as I propose, or multiple cumulative sentences as proposed by Finn J.
The interests of clarity are better served by an order in the terms adopted by the learned Federal Magistrate and varied in the manner which Finn J suggests. I perceive no legal impediment to the making of orders in those terms. In practical terms, the distinction between my reasons and those of Finn J is one without a difference. I would thus make orders in the terms her Honour proposes.
Costs
It is common ground that if the appeal be allowed and no order for costs against the unsuccessful father considered to be justified, each party should receive a costs certificate.
The appeal having succeeded through no fault of the father, I am not satisfied that an order for costs be made against him. In my view both parties should have the benefit of costs certificates and I will so order.
CRONIN J
Ms McClintock (“the mother”) appealed against orders made by Federal Magistrate Brewster on 24 September 2008. In those proceedings, his Honour dealt with seven contraventions by the mother against orders made on 2 April 2007. Pursuant to those orders, Mr Levier (“the father”) was to spend time with the child of the relationship born July 1997.
This appeal only related to the sentences that arose out of six of the contraventions, the seventh being permanently stayed. In respect of each of the six contraventions, the mother was sentenced to six months imprisonment to be served concurrently.
The mother only challenged the order of Brewster FM relating to her imprisonment but it must be noted that there were other orders also made by his Honour including that the mother pay the father’s costs. That order is not the subject of this appeal.
Another order but also not the subject of this appeal, was the removal of the child from the mother to live with the father.
In the appeal, the mother sought to have the imprisonment orders of Brewster FM set aside and for this Court to substitute such orders as it saw fit.
The father opposed this Court disturbing the orders of his Honour.
Background
The child is aged 11 years.
Orders were made on 2 April 2007 by the Federal Magistrates Court of Australia for the child to live with the mother and for the father to spend time with the father. Although it was not a matter raised in the appeal, the orders were of an interim nature pending a final trial to take place in November 2007. They were made by consent of both parties. The orders seem to have only provided for school holiday periods until the November hearing but otherwise ordered an indefinite alternate weekend arrangement. Having said that, it was also agreed between the parties that any time that the father spent with the child was to be when his partner and/or her children were present. It is evident then that these orders were not final.
The contraventions were not disputed by the mother and they were stated to be for the following periods:
(a)from 9.00am on 28 April 2007 to 5.00pm on 29 April 2007;
(b)from 9.00am on 26 May 2007 to 5.00pm on 27 May 2007;
(c)from 9.00am on 9 June 2007 to 5.00pm on 10 June 2007;
(d)from 9.00am on Saturday to 5.00pm on Sunday on alternate weekends commencing 23 June 2007 and concluding on 1 November 2007 (excluding school holidays);
(e)for five days and four overnights between 30 June 2007 and 15 July 2007 (the first school holiday period); and
(f)for five days and four overnights between 29 September 2007 and 14 October 2007 (the second holiday period).
The chronology of events provided to us showed that an application for a recovery order was filed by the father on 27 June 2007. Brewster FM issued a recovery order at that time and a further recovery order on 23 November 2007 along, at that time, with a warrant for the arrest of the mother but it was not until the following August that the child was recovered. Upon recovery, his Honour placed the child with the father.
The father did not allege contraventions beyond the second holiday period notwithstanding he had no time with the child thereafter for approximately a further 10 months until the mother was intercepted by the police in August 2008. Thus, he did not spend time with the child under the orders for at least 13 months.
It is not clear from the judgment of Brewster FM whether his Honour took the view that the mother began a course of defiance of the orders from the first alleged contravention or not and to some extent, that makes a difference. Chronologically, it would appear in June 2007, the contraventions were consecutive alternate weekends. On the face of the record of the contraventions, it could be inferred that the mother denied the father any time, including school holiday time with the child from the moment that the orders were made save for perhaps 2 weekends. That was the course of conduct that gave rise to the six contraventions.
The hearing before Brewster fm
In his reasons for making orders, Brewster FM provided the uncontroversial background as follows:
2.…[I]n late June 2007, the mother left her home [in New South Wales] where the parties had been living and travelled to Queensland.
3.She says that this was intended initially to be a holiday for a couple of months. Be that as it may, the sequelae was a serious breach of the orders of 2 April. The situation was compounded however when the mother moved to and settled in Western Australia. She enrolled the child in school, but under the surname of her partner. She did not voluntarily return to [New South Wales] and her whereabouts were unknown for some considerable period of time.
4.A recovery order was issued by me and ultimately the police were able to ascertain her whereabouts. The child was recovered on 5 August 2008 by the police, about 13 months after the mother left [New South Wales]. But for the police ascertaining her whereabouts I think it likely that she would have remained in Western Australia, or at least would never have returned to comply with the orders of the court.
His Honour noted the mother’s admissions of failing to comply with the orders and in particular that she had no reasonable excuse. The mother was represented by a solicitor and there was no apparent dispute on the facts but in respect of the appropriate orders, there was discussion between his Honour and the legal representative of the mother. In that discussion, the solicitor for the mother said:
MS BURGESS: Well, there is one thing I wanted to draw to your attention to prior to directly commenting on NFB(2)(g), and that is although this is a serious breach there is still provision under section 70NFA(4) for the matter to be dealt with under subdivision E rather than subdivision F.
FEDERAL MAGISTRATE: All right. Well, perhaps you should approach it that way.
MS BURGESS: So we would say in the first instance that despite the fact that this is a serious breach, and we don’t back away from that, a serious breach can still be dealt with under subdivision E if the Court thinks it’s appropriate.
…
FEDERAL MAGISTRATE: Why is this not conduct showing a serious disregard of your client’s obligations?
MS BURGESS: I’m not submitting that it is not a disregard. I am submitting that NFA(4) allows the Court to deal with it under subdivision E in any case.
…
There can be no doubt that the mother was not only conceding that her conduct was a serious breach of the court’s orders but also that she was making admissions that that conduct fell within the serious category as described in sub-division F of Division 13A. In my view, however, the mother’s legal representative was entitled to put to his Honour that notwithstanding the concession about “serious breaches”, the court still had to consider the less serious category set out in Division E.
The statutory outline of division 13a
In Division 13A of Part VII of the Act, the outline or intention of the Division is as follows:
(1)This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
(2)The court always has the power to vary the order under Subdivision B. In doing so, the court will have regard to any parenting plan that has been entered into since the order was made (see section 70NBB).
(3) The other orders that the court can make depend on whether:
(a)a contravention is alleged to have occurred but is not established (Subdivision C); or
(b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or
(c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
The starting point is that the Division deals with the power to make orders enforcing compliance and those orders depend on which of the 3 stated categories the mother fell into. In this case, his Honour dealt with the mother as if she fell into Division F and made orders accordingly. It is to be noted however that whilst the practitioner for the mother did not endeavour to argue the case should not be in the third category, she was urging a consideration by his Honour of Division E. The distinction is important because Division E does not provide any imprisonment as an outcome for the breach.
The argument on appeal
In the appeal before us, Counsel for the mother argued that s 70NAA(1) of the Act empowered the court to make orders to enforce compliance and that that was different from the approach taken by the criminal law. He argued that Division 13A was about enforcing compliance not about punishment or other matters such as general deterrence.
Counsel for the father argued that s 70NAA of the Act was “descriptive rather than proscriptive of Division 13A providing a short description of the contents of the Division”. Counsel for the father said that the amendments in 2006 to the Family Law Act 1975 (Cth) were “both intended to strengthen the existing enforcement regime in the Act and continue to impose significant consequences for failing to comply with orders”.
Counsel for the father argued that considerations of deterrence and punishment were both to be found in s 70NAF generally and in particular sub-s 70NAF(3). The latter imports the criminal law standard of proof.
The reasons for judgment of the Federal Magistrate
I do not intend to recite many aspects of his Honour’s reasons for judgment as they have been comprehensively covered by Coleman J. What I intend to examine are the matters that are relevant for what I set out below.
In his reasons for judgment, his Honour observed that but for the police ascertaining the mother’s whereabouts, he thought it likely she would have remained in Western Australia or at least would never have returned to comply with the orders of the court.
The learned Federal Magistrate noted that there was nothing in the mother’s affidavit material which could be construed as indicating remorse.
In considering what penalty to impose upon the mother, his Honour indicated his intention to follow principles which would apply in sentencing in a criminal law matter.
His Honour found the breaches of the orders constituted “more serious” breaches observing that a contravention of that type involved:
a contravention where a person has behaved in a way that shows a serious disregard of that persons obligations under the orders that had been breached.
His Honour recorded his findings about the more serious contraventions as having been made beyond reasonable doubt.
His Honour observed that he could not impose a prison sentence unless he was satisfied beyond reasonable doubt that it was not appropriate to deal with the mother in any other way.
His Honour had no “sentencing principles” in Division 13A to guide him and turned to s 7 of the Crimes (Sentencing) Act 2005 (ACT). His Honour observed that that legislation provided a useful guide. His Honour traversed the various provisions of that sentencing legislation in so far as they could be applied as he saw them to the mother.
His Honour concluded that he had to ensure that the offender was adequately punished and referred to both individual and general deterrents.
In addition to noting that there was no evidence of remorse generally other than as to the effect of her behaviour on herself and the child, Brewster FM said:
20.A sentence of imprisonment would unquestionably involve the mother in great hardship, and it unquestionably would not be in [the child’s] best interests, indeed it would be quite traumatic for [the child]. Through her counsel the mother has indicated that were she sent to prison she would not wish the child to visit, the reason for that being that she would not consider that seeing the child in a prison environment would be conducive to his best interests. I understand her reasons.
His Honour also noted that the cost order which he intended to make would involve the mother in hardship and that she had been “punished” by the removal of the child from her care placing him with the father.
Finally, his Honour returned to what he saw as the nub of the sentencing consideration namely general deterrence. His Honour said:
22.These are powerful considerations, but I turn again to the issue of general deterrence. To paraphrase the Sentencing Act that I have referred to deter other people from committing the same or similar offences. Whilst it is manifestly clear that it is not in [the child’s] best interests that his mother should be sentenced to a term of imprisonment, there are other children to consider. And in this particular case, I am satisfied this is in the interests of children in general that a punishment should be imposed which will act as a deterrent to parents acting in the way that the mother has done. It is wholly inappropriate for a parent to usurp the role of the court and to flout court orders and to unilaterally make a decision that a child should be denied a meaningful relationship with the other parent. It is completely inimical to the interests of children that these things occur.
23.In my opinion such conduct must be deterred and one would hope that the result of this case will serve as a general deterrence. I am satisfied, and I am satisfied beyond reasonable doubt, that in this case none of the other sanctions short of imprisonment is appropriate. In my opinion general deterrence must prevail. In my opinion the appropriate sentence is six months imprisonment. I do not propose to order an earlier release.
The grounds of appeal
The mother argued three grounds which were:
(a)Whether the provisions of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) constitutes a “code” which precluded the learned Federal Magistrate from having regard in the exercise of his sentencing discretion to matters not finding expression within the code.
(b)Whether the exercise of the learned Federal Magistrate’s sentencing discretion miscarried in that he;
(i)Erroneously had regard to irrelevant circumstances being matters relevant to sentencing in “punitive” proceedings in proceedings which were “coercive”; and
(ii)Failed to have regard to the appropriateness of imposing a suspended sentence of imprisonment upon the mother.
(c)Whether the sentences imposed by the learned Federal Magistrate were manifestly excessive.
The first ground: sentencing and general deterrence?
Counsel for the mother submitted that there was nothing in Part VII Division 13A that authorised the court to have regard to sentencing guidelines that were to be used in courts exercising criminal law jurisdiction. However, it was not suggested that the Learned Federal Magistrate could not have regard to those guidelines providing the reference was to making orders to ensure future compliance.
Conversely, counsel for the father submitted that there was no such constraint on the court and that there was nothing in Part VII Division 13A to preclude reliance on such principles. As such, it was submitted, general deterrence was a relevant consideration in the exercise of discretion as to the order to made.
In my view, there is a distinction between the coercive and punitive provisions of the Act.
It is helpful to compare Division 13A of Part VII to Part XIIIA and Part XIIIB. Section 70NAA(1) deals with the power of a court to make orders to enforce compliance with orders affecting children. Part XIIIA specifically refers to “sanctions” and importantly, empowers a court in exercising its “additional sentencing alternative” to apply State or Territory laws with respect to certain sentences. Whilst there are certain similarities of language between s 70NFC and s 112AG(5), the distinction is clear between the coercive nature of the orders in Division 13A and the punitive orders in Part XIIIA.
Similarly, the language of Part XIIIB relating to contempt of court could not be a more stark way of contrasting the intention of the Legislature. Section 112AP(2) empowers a court to punish a person for contempt. There is no reference to punishment in Division 13A.
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.
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.
Counsel for the mother was critical of Brewster FM for his reference to the ACT sentencing legislation but it will be seen from his Honour’s reasons that he was simply seeking some guidance as to what relevant factors should be applied to determine what is an appropriate way to encourage compliance with court orders. Without any other legislative guide in Division 13A, I see no reason why a court cannot inform itself by any number of considerations in the exercise of its discretion providing those considerations are set out clearly and the court’s focus is on the individual party rather than on general deterrence or policy.
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. Section 70NAA refers to “the powers that a court…has to make orders to enforce compliance with orders under this Act affecting children”. In my view that should not be read generally but rather, specifically to the particular parties because if sub-division F applies and a court determines to vary the existing parenting orders under s 70NBA(1), regard must be had to the best interests of the child as the paramount consideration (see s 70NBA(2)). Section 70NFB(1) relating to the making of an order for costs against a party has similar directions about the consideration of the welfare of the child.
All of the provisions of Division 13A therefore focus on the parties and the court’s obligation to endeavour to make its orders work if they have been contravened.
In respect of the first ground of appeal and the first part of the second ground as I have summarised them above, I see no error on the part of the Learned Federal Magistrate.
The second ground: did the learned federal magistrate’s discretion otherwise miscarry?
The next part of the second ground of appeal was that the learned Federal Magistrate failed to consider making an order that any sentence of imprisonment so imposed should be suspended. At paragraph 10 of his reasons, his Honour did indicate that it was available as an option but thereafter, he did not mention it again. Importantly, in the critical part of his Honour’s reasons in which he explains his thinking, he does not mention it as an option.
In addition to varying a parenting order, s 70NFB(2) provides the limited options available to a court. They are:
(a)if the court is empowered under section 70NFC to make a community service order--to make such an order; or
(b)to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c)if the current contravention is a contravention of a parenting order in relation to a child--to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d)to fine the person not more than 60 penalty units; or
(e)subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f)if:
i.the current contravention is a contravention of a parenting order in relation to a child; and
ii.the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
iii.the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g)to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h)to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
S 70NFG(2) provides in respect of a sentence of imprisonment that:
A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).
S 70NFG(5) provides an extra step which could create confusion. It reads:
A court that sentences a person to imprisonment under paragraph 70NFB(2)(e) may:
(a) suspend the sentence upon the terms and conditions determined by the court; and
(b) terminate a suspension made under paragraph (a).
A suspension of a sentence of imprisonment is not one of the options “available” to a court in s 70NFB(2).
The suspended sentence in s 70NFG(5) appears on its face, as something open for consideration.
However, if the mandatory consideration of imprisonment as a last resort in s 70NFG(2) is to be read literally as I do, it must mean that in every case in which imprisonment is ordered, a court must consider whether or not to suspend the serving of the custodial sentence. Further, having regard to my view that Division 13A is intended as coercive rather than punitive, it makes sense to consider a suspended sentence and the other provisions in s 70NFG(7) and (8). It is curious that a suspended sentence is not in s 70NFB(2) as an available order if the purpose of the Division is to ensure parties comply with orders.
The suspension of the serving of the prison sentence does not arise until the court is satisfied that the other available orders in s 70NFB(2) are not appropriate and that a sentence of imprisonment is all that is open.
There may be an argument which is certainly raised in the criminal law that there is no distinction between a sentence of imprisonment and one which is suspended as each is deemed to be a prison sentence. However, as Division 13A is coercive rather than punitive and involves the best interests of children, I think the argument is not relevant here.
It may be that the legislature needs to consider whether the suspended sentence should be part of the armoury of available orders in s 70 NFB(2).
I have considerable sympathy for the Learned Federal Magistrate who had nothing of significance to guide him and these matters were not argued comprehensively before him as they were before us. Having said that, the Learned Federal Magistrate should have considered the suspension of the sentence of imprisonment having determined that nothing else was available to him. On that basis, the appeal should be allowed.
The third ground: was the sentence imposed manifestly excessive?
Having found that the appeal should be allowed on the second ground, it is not necessary to consider the third ground in any detail. However, having been asked to re-exercise that discretion, I think it is important to look at the approach that the Learned Federal Magistrate took and explain why I disagree with that approach.
The dilemma for me in endeavouring to re-exercise his Honour’s powers is that I am not entirely clear whether the mother’s conduct altered from separate breaches to a single course of defiant action. In the end, for reasons to which I shall return, I do not think it matters in this case but it would normally be of some considerable significance particularly if a court found that having consented to the orders, there was never any endeavour to comply with them.
What was the appropriate approach to determining the order?
The first concern arises because here there were 6 contraventions alleged and admitted.
Had the learned Federal Magistrate dealt with each breach sequentially, he may very well have imposed the same sentence as he did but in my view, to take that course of action would have led him into error. On the face of it, his Honour had found the mother guilty of six serious breaches each carrying the same penalty.
Where, as here, a court is faced with multiple breaches, much depends on whether, in finding each contravention proved, a court is satisfied that each breach can be treated separately or that there is a consistent course of conduct under which the defiance of the court’s orders becomes what the criminal law might term a continuing offence.
Nothing in the reasons of the learned Federal Magistrate assist me other than I think it is clear on the dates of the respective contraventions that I can conclude that the first two breaches can be isolated from those numbered 3 to 6. The latter have a distinct appearance of a course of uninterrupted conduct.
The mother admitted all of the breaches but had not had any previous breach proved against her. As such, it was incumbent upon the court to make a finding as the learned Federal Magistrate did as required by s 70NFA(2). His Honour did not say whether each of the contraventions fell into the serious category. He may have taken the continuing conduct approach but if he did without saying so, that would have been wrong.
Because of s 70NFA(2)(b) which refers to “the current contravention”, the court must determine which category each contravention fits into even to the extent that a finding could be made that all contraventions are serious because they form a continuing course of conduct.
Having been asked to exercise my discretion on this material, despite my earlier reservation about whether this was a course of conduct right from the start of the orders, I would find that the first two contraventions were not in the serious category because there was no evidence of any continuing pattern at that point in time. For example, the first two alternate weekends on their face, were not consecutive but those numbered 3 to 6 were because the latter form a pattern of misconduct which amounts to a deliberate flouting of the orders of the court.
The mother had no previous findings of a court against her for having breached a parenting order but through her legal practitioner, she admitted these were all serious breaches. However, regardless of what her practitioner meant by the admission that the breaches were “serious”, the court was, and is, still required by s 70NFA(4) to consider whether the matter should be more appropriately dealt with under sub-division E. Sub-division E has no similar imprisonment provision to sub-division F.
Contraventions 3 to 6
Breaches 3 to 6 inclusive were a course of serious conduct. The learned Federal Magistrate made clear and with respect, I agree, the mother would not have complied with the court’s order unless she had been found by the police in the long run. In other words, the conduct would have been ongoing. On that basis, the coercive threat of the most serious kind was appropriate and necessary to ensure future compliance. As such, imprisonment was the only available and appropriate order thereby making sub-division E inappropriate. Thus, for the purposes of s 70NFG(2), no other option in s 70NFB(2) was appropriate.
Despite the lengthy course of conduct, this was the first time the mother had been before the court. She had lost the responsibility for the full-time care of the child and the learned Federal Magistrate found the child would be distressed by the mother being imprisoned. The mother made a clear statement to the Learned Federal Magistrate which was repeated before us that if she was imprisoned, she would not see the child because of the distress upon him. On that basis, it would be most likely that she would comply with an order in the future if she knew the consequence would be having no time with the child at all. In addition, she had already spent 16 days in prison before being released.
When I consider s 70NFG(5), I would accept that the most appropriate way to ensure future compliance in this case would be to suspend the serving of the sentence of imprisonment. That means that the sentence is hanging over the mother’s head. Where, as in this case, 16 days have already been spent in prison, in the event of a further breach during the period of the suspended sentence, that 16 days should not be served again. The appropriate sentence therefore would be that the mother be sentenced to 6 months imprisonment suspended for 2 years but to be released after 16 days and as that 16 days has already been served, she be released immediately upon signing a bond that she will comply with all orders of the Court during the next 2 years.
Contraventions 1 and 2
In respect of breaches numbered 1 and 2 however, having found them not in the serious category as defined by the division, the available orders were limited to those set out in s 70NEB(1). As I have indicated, these were serious but not part of a course of conduct, nor in the category contemplated by Division F. They fell into sub-division E. Had these stood alone and without breaches 3 to 6, I would have considered option (b) as the appropriate one. That is:
70NEB(1) (b) if the current contravention is a contravention of a parenting order in relation to a child—make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
Here, that has already occurred with the removal of the child from the mother and to that extent, I see no reason why the order cannot be made retrospectively.
One order or individual orders
Because the purpose of Division 13A is coercive, providing a court follows the path of the Act and explains in its reasons what it has done, I see no reason why one order cannot and should not be made in most cases. Unlike the criminal law which requires individual sentences to avoid double jeopardy caused by the same elements of various charges overlapping (see Pearce v The Queen (1998) 194 CLR 610), the whole purpose of the Division 13A order is to ensure ongoing compliance. It is important that each contravention be found proved or otherwise and that each then be categorised because of the relevant sub-divisions. However, in the final analysis, if the order which contains various options from those available will suffice, I see no reason why it cannot be so encapsulated.
The appropriate sentence
I have had the advantage of reading the draft reasons of Finn and Coleman JJ. Their Honours agree that the appropriate orders are a suspended sentence and a bond. The suspended sentence should commence after 16 days of imprisonment which have already been served. Thus, upon the mother signing the appropriate bond, she should be released immediately and the unexpired portion of the suspended sentence would be 6 months less 16 days. Having regard to my distinctions between the appropriate orders in respect of contraventions 1 to 2 and 3 to 6, and allowing for a variety of subjective opinions on what is appropriate, I will not disagree that the orders proposed by their Honours. In my view, they are appropriate.
Accordingly I agree with the orders proposed.
I certify that the preceding two hundred and sixty-seven (267) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 24 April 2009
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