MCDONALD & MINCHIN (No.3)
[2011] FMCAfam 700
•1 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCDONALD & MINCHIN (No.3) | [2011] FMCAfam 700 |
| FAMILY LAW – Children – parenting orders. FAMILY LAW – Children – contravention – powers of Court. FAMILY LAW – Children – recovery order. |
| Family Law Act 1975, ss.67Q, 70NEB, 70NEC |
| L v T (1999) 25 Fam LR 590; FLC 92-875 |
| Applicant: | MR MCDONALD |
| Respondent: | MS MINCHIN |
| File Number: | WOC 675 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 July 2011 |
| Date of Last Submission: | 1 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2011 |
REPRESENTATION
| Applicant: | In Person |
| Respondent: | In Person |
ORDERS
The Respondent Mother did on 14 April 2011 without reasonable excuse contravene order 5 made on 30 October 2009.
The Respondent Mother did on 14 March 2011 without reasonable excuse contravene order 5 made on 30 October 2009.
Orders 18, 19 and 20 made on 29 June 2011 are suspended until 9:00am on Monday 4 July 2011.
The Applicant Father is to return the child [Z] born [in] 2003 to the care of the Respondent Mother by delivering him to the Mother’s residence by 9:00am on Monday 4 July 2011.
A recovery order under the provisions of section 67Q of the Family Law Act is to issue for the return of the child [Z], born [in] 2003, and is to lie in office until further order of the Court.
The application in a case filed on 27 April 2011 is dismissed.
The Application filed on 30 June 2011 seeking to deal with the Respondent for contravention of orders of the Court made on
30 October 2009 is dismissed.
The parties are to pay their own costs of this application.
IT IS NOTED that publication of this judgment under the pseudonym McDonald & Minchin (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 675 of 2009
| MR MCDONALD |
Applicant
And
| MS MINCHIN |
Respondent
REASONS FOR JUDGMENT
There are four applications before the Court, all of which are ancillary to final orders made in substantive proceedings between the parties on 29th June 2011. Three of the applications were made prior to those final orders being handed down. One of the applications was filed yesterday.
The applications are:
a)A contravention application by the Father against the Mother relating to contravention of interim orders made by the Court on 30th October 2009.
b)An application in a case by the Father relating to what orders should be made in the event of the contraventions being established and also in respect of matters arising out of the substantive proceedings between the parties and also seeking other more general orders.
c)An application in a case brought by the Mother seeking a recovery order in respect of the child [Z] who is currently residing in the home of the Father; the Mother says he should have been residing in the Mother’s home on the basis of the previous interim orders which provided that the child live with each parent on a week about basis.
Of course, since the final orders were made on 29th June, the child would be living with the Mother on a full-time basis with somewhat more circumscribed orders for the Father to spend time with him over a graduated period of time.
d)The final application is an application filed by the Father electronically yesterday seeking to deal with the Mother for contravention of orders of the Court made on 30th April 2009, being further contraventions alleged and separate from the contraventions in the earlier application.
The difference about this latter contravention application is that it was not commenced until 30th June 2011 at which stage final orders had been made on 29th June 2011 discharging the orders of 30th October 2009. As a result, the application sought to enforce parenting orders which had been discharged and consequently, that application is not competent as it is seeking an order for which there is no jurisdiction. Quite clearly that application must be dismissed.
In respect of the contravention proceedings, the Court has found that the Mother without reasonable excuse contravened two orders of the Court. Once it has been established that a person has contravened an order without reasonable excuse and a Court has not previously found that the person has contravened that particular order then the Court may exercise all or any of the power set out in section 70NEB of the Act. These powers are:
a)Directing the Respondent and another party to attend the post-separation parenting program.
b)Making a further parenting order compensating the Applicant for time not spent with the child.
c)Adjourning the proceedings to allow one or other of the parties to apply to the Court to discharge, vary or suspend the primary order or revive some or all of the previous parenting order.
d)Ordering the Respondent to enter into a bond in accordance with section 70NEC.
e)If the Applicant missed out on spending time with the child as a result of the contravention and reasonably incurred expenses as a result, make an order for monetary compensation.
f)Make an order for costs against the Respondent.
g)If the Court makes no other order against the Respondent, make an order for costs against the Applicant.
It can be seen that the Court’s powers under Stage 2 of the contravention regime are as much designed to educate the contravening party as to impose a punitive sanction. In this case, the Father in his application in the case has sought orders for further parenting orders compensating him for time not spent with the child. He has sought a period of 12 weeks which is opposed by the Mother. He has also sought an order for costs. These proceedings must be considered in the light of the orders made by this Court on 29th June which set out a substantial graduated parenting arrangement.
Those orders would see the child concerned, [Z], living with the Mother and spending, certainly in the early period of time, the bulk of his time with the Mother. That regime was scheduled to take place after a period of some six weeks in which there would not be time spent with the Father and there would be further steps taken from then on.
The Mother has complained in her Application in a Case that the Father has retained the child since early June and has held that child in contravention of the orders and has in fact removed him from school.
The Court needs to balance dealing with the result of the contravention and making appropriate orders on the one hand and acting in such a way as not to cut across the substantive orders representing a parenting regime worked out after a considerable period of time which took, in fact, for one reason or another, some nine days of the Court’s time.
I am of the view that there should be some compensatory time so that the Court makes a point that the orders must be followed and I do so on the basis that this matter has seen a history of considerable acrimony between the parties over a length of time with numerous allegations of failures by each party to comply with court orders.
I am not however persuaded that 12 weeks continuous compensation time is at all appropriate. The Father seeks orders that the Mother, her family members and associates be banned from visiting or interfering with the child at his current public school, [L] School. This is sought on the basis of aggravation and harassment of the child and also of interfering the Father.
Order 4 sought by the Father seeks that the interim parenting orders of 30th October 2009 be strictly enforced.
Order 5 is a self-enforcing order seeking that in the event that the Mother again breaches such orders that the child reside permanently with the Father until further order.
Order 6 seeks an order for costs against the Mother.
Order 7 seeks that the Father be appointed trustee for the sale of the former matrimonial home in [suburb omitted].
Orders 8 and 9 seek orders for the Father to have full access to the property and for the Father to act as agent for the purpose of selling the property and that any financial loss occurred as a result of the Mother’s actions be compensated from the Mother’s share of the proceeds.
Order 10 seeks that the Mother attend upon a properly qualified psychiatrist for psychiatric assessment. I previously indicated during the course of argument that I would not be making such an order because I had serious concerns about the jurisdiction of the Court to do so.
Order 11 brought by the Father sought that a recovery order be immediately issued for the recovery of the child [Z] and that the child be returned to the Father’s care. The present situation is that the child is currently with the Father so that that order is of no effect.
Order 12 seeks injunctive orders restraining the Mother and others from removing any of the children from Australia and requesting their names be placed on the Airport Watch List.
Order 13 seeks injunctive orders against the Mother and her immediate family members from removing the child from the State of New South Wales without the written consent of the Father.
Order 14 seeks that the child [Z] be removed from the [L] School and enrolled at [W] School.
The Mother’s application in the case seeks a recovery order that the child [Z] be returned to her care. In my view, the child [Z] should, in line with the substantive orders made by the Court, be returned to the care of the Mother. I propose to delay that action until Monday morning and I will make an order that the Father return the child to the child’s school on the Monday morning.
Dealing with the other orders, I am not of the view that Order 3 is appropriate in that the Mother or her family members be barred from the child’s school so I am not satisfied that that should be made out.
Order 4 seeks strict enforcement of the parenting orders of 30th October 2009. Those orders have been discharged.
Order 5, the self-enforcing order, would have the result that the Court would be bound in the respective contravention proceedings to make a parenting order changing the child’s resident albeit until further order.
I am not satisfied that under section 60CA of the Family Law Act that that would necessarily be in the child’s best interests. It is perhaps comparable to mandatory sentencing and in my view any parenting order relating to the child requires the Court to be satisfied that such an order is in the best interest of the child.
Section 60CA makes that quite clear and the Court considers what is in the best interest of the child by considering the matters set out in section 60CC.
As for an order for costs, neither party is represented in these proceedings.
The Mother has sought an order for costs orally today in respect of the certain matters that occurred during the substantive application.
In my view, that should be a specific written application. The Mother has within 28 days from last Wednesday when the Orders are handed down to make that specific costs application but it is inappropriate to tack it on to some orders which arose out of contravention proceedings. It should be a separate application.
As for Orders 7, 8 and 9 relating to the sale of the matrimonial home, that situation has now been covered by Orders made by this Court on 29th June 2011 and there is a procedure set out there.
Order 10 is the order seeking that the Mother attend upon a psychiatrist for psychiatric assessment It is well-established by the Full Court of the Family Court in such decisions as L v T [1] that the Court has no power to make a freestanding order. It can do so conditional upon a parenting order but I’m not satisfied that there is any parenting order which is appropriate to make which would require the Mother to attend for psychiatric assessment.
[1] (1999) 25 Fam LR 590; FLC 92-875
The Father’s further orders sought relating to the recovery order, as I said that does not apply because the child is currently in his care.
As to the order relating to an injunction restraining the children from being taken out of Australia and having their names on the Airport Watch List, the Family Law Act makes it quite clear that where a child is subject to parenting orders, he or she must not be taken out of Australia except with either the written consent of the other parent or by order of the Court. There is no evidence to show that the Mother has any intention of removing the children or any of the children from Australia permanently and I’m not of the view that such an order is necessary.
There is no justification to my mind in making an order forbidding a relocation by the Mother, either permanently or temporarily, of the children’s residence from the State of New South Wales. It may well be that either party when the children are in their care wish to take a holiday in another state, such an order, as the Independent Children’s Lawyer pointed out, would forbid that but there is no evidence before the Court that would cause any concern that the Mother seeks to relocate the children’s residence out of the state permanently.
As to an order to change the child’s school, in my view that is a matter which should have been raised in the substantive proceedings which have only recently been concluded. If at some stage in the future either party seeks an order relating to the school of the child [Z] then there should be a separate application made to the Court accompanied by appropriate evidence. There is not to my mind appropriate evidence. Accordingly, I make the following declarations and orders.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 July 2011
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