NARRA & FARLEY
[2015] FCCA 3335
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NARRA & FARLEY | [2015] FCCA 3335 |
| Catchwords: FAMILY LAW – Contravention – sanctions for failure to comply with orders – imprisonment – whether contravention was intentional or fraudulent – whether in all the circumstances it would not be appropriate to deal with the contravention pursuant to any other paragraph of Family Law Act 1975 (Cth) s.112AD(2). FAMILY LAW – Contravention – addiction to methamphetamine held not a reasonable excuse for contravening court orders. PRACTICE AND PROCEDURE – Delay – discretion to refuse relief – unwarrantable and poorly explained delay. |
| Legislation: Child Support (Registration and Collection) Act 1988 (Cth) Evidence Act 1995 (Cth), s.128 |
| Cases cited: Binns & Binns [2011] FMCAfam 92 Child Support Registrar & Balzano (No.2) [2011] FMCAfam 578 Child Support Registrar & Cook [2008] FMCAfam 599 Hayes & Stapleton [2015] FCCA 1948 |
| Applicant: | MS NARRA |
| Respondent: | MR FARLEY |
| File Number: | SYC 3355 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 8 & 15 December 2015 |
| Date of Last Submission: | 15 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr McCulloch |
| Solicitors for the Applicant: | Legal Aid NSW |
| Respondent: | In person on 15 December 2015 |
ORDERS
The Respondent did on 15 October 2013 without reasonable excuse contravene Order 2 made on 13 August 2013 in that he failed to produce the documents required in compliance with a Notice to Produce attached to an Application in a Case filed on 18 June 2013.
The Respondent did on 7 October 2014 without reasonable excuse contravene Order 2 made on 13 August 2013 in that he failed to file and serve a Financial Statement within 28 days or at all.
The Respondent did on 5 November 2014 and subsequent dates to 28 January 2015 without reasonable excuse contravene Order 2 made on 21 October 2014 in that he failed to pay to the Applicant the sum of $8,464.46 at a rate of $500.00 per week commencing on 5 November 2014 or at all.
The Court makes no order in respect of the contravention found in Order (1) above.
In respect of the contraventions found in Orders (2) and (3) above the Respondent is required within seven (7) days of the date of this Order to enter into a bond without surety or security in accordance with section 112AF of the Family Law Act 1975 for a period of twelve (12) months upon the following conditions:
(a)to be of good behaviour;
(b)to pay on a timely basis and in full the sum of $8,464.46 to the Applicant at the rate of $250.00 per week payable to the Applicant by way of internet banking to her (omitted) Bank on-line saver account number (omitted) until the said sum of $8,464.46 until the said sum has been paid in full together with any interest accrued on any amount outstanding at the rate prescribed by Rule 22.01, the first of such payments to be made on Friday 1 January 2016 and weekly thereafter; and
(c)to notify the Department of Human Services: Child Support and the Applicant in writing within seven (7) days of commencing employment with any new employer the name address and telephone number of that employer.
The Applicant is at liberty to apply on seven (7) days’ notice by way of an Application in a Case and an affidavit in support to restore the matter to the List in the event of any default of payment by the Respondent or the Respondent notifying the applicant of any change of employment.
IT IS NOTED that publication of this judgment under the pseudonym Narra & Farley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3355 of 2013
| MS NARRA |
Applicant
And
| MR FARLEY |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application to deal with the Respondent for contravention of Orders made by this Court on 13 August 2013, 10 December 2013 and 21 October 2014. The orders were made as part of an ongoing process to enforce payment of outstanding amount of child support by the Respondent. The enforcement proceedings have been on foot since the original application was filed on 18 June 2013.
The Respondent has been a most reluctant participant and there is a history of failures to appear, leading to a warrant for the arrest of the Respondent being issued on two separate occasions.
The Respondent has not filed any documents until at the last moment on 15 December 2015 and has not made any payments.
An Application –Contravention was filed on 10 February 2013 seeking that the Respondent should be dealt with for three separate contraventions of Orders made on:
a)13 August 2013;
b)10 December 2013; and
c)21 October 2014.
The Application is supported by an affidavit of the Applicant and two affidavits of her solicitor, Mr McCulloch, the more recent of which was sworn on 7 December 2015.
The Respondent did not attend Court on the hearing on 8 December, even though he telephoned to advise that he had been apprehended on a warrant and subsequently released. The Applicant gave oral evidence.
The Respondent did attend Court on 15 December, when the decision was due to be handed down, and brought with him an affidavit. He was given leave to file the affidavit in Court. He gave oral evidence and was cross-examined by the Applicant’s solicitor.
The Alleged Contraventions
There are three Counts in the Application.
Count 1 alleges a contravention of Order 2 made by this Court on 13 August 2013. Order 2 states:
The Respondent is to comply with the Notice to Produce attached to the Application in a Case filed on 18 June 2013.
The allegation is that on 15 October 2013 the Respondent without reasonable excuse failed to produce the documents required in compliance with the Notice to Produce attached to the Application in a Case filed on 18 June 2013. He failed to produce the documents required either on the date of next return (15/10/2013) nor subsequently in the course of the proceedings.
Count 2 alleges a contravention of Order 2 made on 10 December 2013. Order 2 states:
The Respondent is to file and serve a Response, an affidavit and a financial Statement within 28 days.
The allegation is that on 7 January 2014 at Sydney the Respondent failed to file and serve a Financial Statement within 28 days (or to do so subsequently in the course of the proceedings).
Count 3 alleges a contravention of Order 2 made on 21 October 2014, which states:
That the Respondent pay to the applicant mother the sum of $8,464.46 at a rate of $500.00 per week commencing on 5 November 2014 and payable by internet banking transfer to an account to be nominated by the applicant mother.
The allegation is that between 5 November 2014 and 28 January 2015 the Respondent without reasonable excuse failed to make weekly payments of $500 as required under order 2 of the court orders made 21 October 2014.
The Respondent’s Evidence
On 15 December, when the Respondent appeared, he asked if the proceedings could be conducted in a closed court. He said that he would have great difficulty in conducting his own case, which involved re-opening the proceedings, if he were required to speak in open court. Mr McCulloch indicated his consent to this unusual request and I agreed that the proceedings could be held in a closed court.
It is the Respondent’s evidence that he is on the verge of a nervous breakdown. Whilst he appeared distressed and agitated, he did not provide any medical evidence in support of this assertion.
The Respondent also said that he had been working on a casual basis driving heavy trucks but had been dismissed from his employment the previous Friday. He blamed the Applicant for interfering and causing his employer to dismiss him. He was initially reluctant to disclose the name of his former employer, until directed to by the Court, as he was hoping to get his job back.
Disturbingly, the Respondent also stated that he had an addiction to methamphetamine, commonly known as “ice”. He said that he had been paying up to $1,200.00 per week to support his addiction. He declined to reveal how he was able to make that sort of an income to pay $1,200.00 per week to support his drug habit, and I decided not to apply the provisions of s.128 of the Evidence Act 1995 (Cth).
The Respondent was warned from the Bench about the consequences of driving a motor vehicle, particularly a heavy transport vehicle, whilst under the influence of an illicit drug.
Contraventions
I am satisfied on the evidence that all three contraventions have been made out to the requisite evidentiary standard, namely the balance of probabilities. In each case he has either intentionally failed to comply with the order or made no reasonable attempt to comply with the order (Family Law Act 1975 (Cth), s.112AB).
The Respondent has not made out a reasonable excuse in respect of any of the three contraventions (Family Law Act 1975, s.112AC). It need hardly be stated that a claim of addiction to an illicit drug will not be regarded as a reasonable excuse for contravening a court order.
Sanctions for failure to comply with orders
The Act provides, at s.112AD(2), the following sanctions that may be imposed by the Court:
a)requiring the person to enter into a bond in accordance with s.112AF of the Act;
b)imposing a sentence by order in accordance with s.112AG;
c)fining the person not more than 60 penalty units; or
d)imposing a sentence of imprisonment in accordance with s.112AE.
A bond is to be for a specified period of up to 2 years and may be with or without surety or security and may include conditions including requiring a person to be of good behaviour.
An order under s.112AG is an additional sentencing alternative and provides for community service orders, work orders or periodic detention in those States or Territory where they apply.
A sentence of imprisonment is to be for a specified period of 12 months or less.
The Applicant’s Submissions
It is submitted on behalf of the Applicant that the Court should impose a sentence for a period of imprisonment of 6 months, to commence forthwith unless the Respondent agrees to enter into a bond to be of good behaviour on the conditions that:
a)the Respondent pay an amount of $500.00 per week to the Applicant until the debt of $8,464.46 has been paid in full, plus interest, payable by way of internet banking commencing on Friday 16 December 2015[1]; and
b)that the amount payable be reduced to $200.00 per week at any time when the Department of Human Services is collecting the full amount by way of deductions from the Respondent’s wages; and
c)the Respondent must notify the Applicant and the Department of Human Services within 7 days of his obtaining employment with a new employer.
[1] 16 December 2015 is a Wednesday
Whether a Sanction should be applied at all
I had occasion in a recent decision of Hayes & Stapleton[2] at [82] to [90] to comment on the question of delay in seeking relief and the power of the Court to exercise its discretion to refuse relief if there is an unwarrantable and unexplained or poorly explained delay in seeking relief.
[2] [2015] FCCA 1948
In this case, Count 1 complains of a contravention that occurred on 15 October 2013 and subsequently. The Application-Contravention was not filed until 10 February 2015, well over a year later. There is no explanation for the delay of approximately 16 months in seeking relief and, in my view, the Court should in the exercise of its discretion decline to grant relief at all. No order will be made in respect of this contravention.
Orders to be made
There is no unwarrantable delay in respect of the contraventions in Counts 2 and 3, which occurred on 7 January 2014 and continuing and 5 November 2014 and continuing to 28 January 2015, only weeks prior to the Application being filed.
The Application seeks the imposition of a prison sentence for a period of 6 months, to be suspended if the Respondent agrees to enter into a bond.
However, it is made quite clear by s.112AE(2) that the court should not sentence a person to imprisonment pursuant to paragraph 112AD(2)(d) 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 pursuant to any of the other paragraphs of subsection 112AD(2).
I considered this situation in Child Support Registrar & Balzano (No.2)[3], where I held at [9] that “a sentence of imprisonment is a last resort” and declined to impose a prison sentence.
[3] [2011] FMCAfam 578
I have been referred to the decisions of my colleagues Altobelli FM and Harman FM[4] in Child Support Registrar & Cook[5]and Binns & Binns[6]. In the former case, Altobelli FM imposed a sentence of imprisonment of two months, which was immediately suspended on the Respondent paying the total debt of $37,369.43 within six months. In Binns & Binns, Harman FM imposed a sentence of imprisonment of six months, suspended on the Respondent entering into a bond for a period of 12 months.
[4] As their Honours then were
[5] [2008] FMCAfam 599
[6] [2011] FMCAfam 92
In this case, no previous sanctions have been imposed on the Respondent as a result of any contravention finding. The circumstances of the contravention in Count 3, however, are the more serious of the two counts 2 and 3, involving a complete failure by the Respondent to make any payments whatsoever.
I am satisfied that the Respondent should be required to enter into a bond for a period of 12 months, to be of good behaviour and to make payments in the way sought by the Applicant. If he fails to enter into the bond, then a warrant will be issued for his arrest. If he breaches the bond, he may well find that he has run out of non-custodial options.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 18 December 2015
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