Nunnari and Ballard (No.2) - [2010] FMCAfam 925

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NUNNARI & BALLARD (No.2)

[2010] FMCAfam 925

FAMILY LAW – Contravention – refusal of the mother with orders for child to spend time with the paternal grandmother as per interim order – serious contravention – suspended jail sentence orders 2, 5 & 8 made on the 9 March 2010.

Family Law Act 1975, ss.70NAC, 70NDA ,70NAE ,70NFB,70NFF & 70NFG

Espelth & Peter; Mark & Peter; John & Peter (2007) FamCA 655
Dobbs & Brayson (2007) FamCA 1261

Applicant:

MS NUNNARI

Respondent:

MS BALLARD

File Number:

ADC 1380 of 2009

Judgment of:

Turner FM

Hearing dates:

18, 19 & 25 August 2010

Date of Last Submission:

25 August 2010

Delivered at:

Darwin

Delivered on:

25 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr Mitchell

Solicitors for the Applicant:

Matthew Mitchell

Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Reynolds

Independent Children’s Lawyer:

SRG Lawyers

ORDERS

That the respondent mother is found guilty of contravening the order of Mead FM made on 9 March 2010 with respect to three counts arising from both the contravention application filed 24 May 2010 and the further contraventions provided orally with leave during the contravention hearing, these Counts being as follows:
(i)Count 1: That the respondent mother has not facilitated time with the grandmother with the child [X] born in 2007 pursuant to Order 2;
(ii)Count 2: That the respondent mother has not served or filed a report from a psychiatrist as to her current mental state, as required in Order 5;
(iii)Count 3: That the respondent mother has not participated in the preparation of a family report, as required by Order 8.
And further, I have found that the Contraventions have occurred without reasonable cause.
That no further penalty be imposed in respect to Count 2 and Count 3.
That in respect of Count 1 and by way of penalty, the Respondent mother is sentenced to a term of imprisonment for a period of one month.
That the sentence of a term of imprisonment for one month be suspended conditionally upon the respondent mother, between today’s date and the hearing date of 13 October 2010, observing and complying with the following parenting orders:
(a)That the respondent mother make herself available and the child available for the Family Report interviews with Mr R on 2 September 2010, and further that the respondent mother follow any other directions provided by Mr R as required for the completion of the Family Report;
(b)That the respondent mother file and serve a psychiatric assessment as to her current mental health on or before 6 October 2010 and further that the respondent mother provide the full name, address and contact details of the psychiatrist to the Independent Children’s Lawyer by 3 September 2010.
(c)That the respondent mother make the child [X] available for time with the paternal grandmother in the mother’s presence outside [omitted] the [omitted] Shopping Centre [omitted] for a period of not less than two (2) hours, commencing at 10.00am on the following dates:
(i)     4 September 2010;
(ii)    18 September 2010;
(iii)     2 October 2010.
(d)That in the event that [X] is ill and cannot attend the visits at the time and place as set out in Order 4(c) then the paternal grandmother be permitted to visit [X] at his home for a period of thirty (30) minutes on the designated day.
That should the respondent mother fail to comply with the orders contained in order 4(a), order (4)(b) or order (4)(c), then the sentence of imprisonment of one month is to commence at the conclusion of the hearing on 13 October 2010.
That the matter remain listed for trial for 13 and 14 October 2010 before Mead FM.
That the mention date of 22 September 2010 before Mead FM remain in place. The purpose of this date is to enable Mead FM to provide trial directions.
That costs are awarded against the respondent mother in the fixed sum of $4400.00 dollars, to be paid by the mother to the paternal grandmother’s solicitors within forty two (42) days from the date hereof.
That costs are awarded against the respondent mother in the fixed sum of $1500.00 to be paid by the mother to the independent children’s lawyer within forty two (42) days from the date hereof.
That the Contravention application filed by the paternal grandmother on 24 May 2010 is otherwise dismissed.
That it is directed that the respondent mother be provided with a copy of the Reason for Judgment of Mead FM within seven (7) days in respect to the interim hearing on 9 March 2010.
That it is directed that all parties be provided within fourteen (14) days the Reasons for Judgment in respect to the contravention hearing.

IT IS NOTED IN that publication of this judgment under the pseudonym Nunnari & Ballard is approved pursuant to s.121(9)(g) of the Family Law Act 1975.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1380 of 2009

MS NUNNARI

Applicant

and

MS BALLARD

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

The proceedings

I have for determination before me today a Contravention application by the paternal grandmother in respect to interim orders made by Mead FM on 9 March 2010, such orders resulting from an interim hearing where parties gave oral evidence and were cross‑examined. The applicant paternal grandmother relied on her application for Contravention filed 24 May 2010, which details the alleged contravention of order 2, whereby the mother failed to facilitate time with the applicant paternal grandmother with the child, [X] at the Salisbury Child Contact Centre.
Mr Mitchell, further, from the bar table, included two further contraventions, firstly, in respect to order 5, whereby the mother has not filed and served a Psychiatric Report as to her current mental state and, thirdly, pertaining to order 8, where the mother failed to attend in respect to the preparation, or failed to participate in the preparation of a family report. Further, the paternal grandmother relied on her affidavit filed 24 May 2010.
The mother admitted to all contraventions, but states that she had a reasonable cause and relied on her affidavit filed on 25 June 2010.
The paternal grandmother did not give oral evidence and was not required to be cross‑examined.
The mother was for cross‑examination by the paternal grandmother and the Independent Children’s Lawyer.

Background

It is important in this case that I provide a brief history. The mother is aged nearly 31 and is currently employed part time as [an educative worker].
The mother met the father, Mr A, the son of the applicant paternal grandmother, in mid 2005 and the parties married in October 2006. The child, [X], was born in 2007. The parties shortly separated thereafter in January 2008. The father is not a party to these proceedings. The father, as a result of being attacked in 2001, has acquired a permanent brain injury.
Life for both the applicant paternal grandmother and the mother has been very, very difficult with Mr A, due to his violent and unpredictable behaviour.
After separation, the father saw the child only a couple of time, and this appears to have ceased in or around May 2008. The parties divorced

in February 2009.
In April 2009, the paternal grandmother filed proceedings in the Federal Magistrates Court in Adelaide seeking one day a month with [X], increasing to one weekend a month when the child turned three and then, in addition, a week’s holiday when the child reached school age.
In May 2009, the mother filed a response seeking only that the child live with her. The mother at the time was legally represented. The response contained no proposals for time with the paternal grandmother.
On 25 May 2009, Mead FM ordered a conference pursuant to s.11F, and that both parties take the necessary steps to enrol in the Salisbury Children’s Contact Service. On 13 July 2009, the Family Consultant met with the parties and, in his memorandum to the court, noted that the mother did not want the paternal grandmother to have a relationship between them, but was prepared to meet with the paternal grandmother in a public venue twice a year.
The matter came back before Mead FM on 26 April 2009 and was listed for an interim hearing with limited cross‑examination on 13 October 2009. It was further ordered that [X] spend time with the paternal grandmother between 11.00am and 1.00pm at the Freemont Park on 24 September 2009. Unfortunately, due to a variety of reasons, this time did not occur. The mother at this point continued to be legally represented.
At the date of the interim hearing, the paternal grandmother was successful in her application for an adjournment, and the interim hearing was adjourned to 30 November 2009. It was further ordered that the mother provide a photograph of the child to the paternal grandmother, and I understand that this took place, albeit the photograph was that of the child with the mother, and not of the child alone.
On 30 November 2009, an Independent Children’s Lawyer was appointed, and the interim hearing was adjourned to 9 March 2010. By this stage, the mother was now self‑represented, and her solicitors had filed a notice ceasing to act on 11 November 2009.
On 9 March 2010, the interim hearing proceeded with limited cross‑examination. Reasons were provided by Mead FM. It is the orders of 9 March 2010 which are the subject of the present contravention proceedings.
The Contravention filed on 24 May 2010 was listed for 28 June 2010. The mother did not attend, having contacted the court on that day stating that she had a migraine and, further, that the migraine precluded her from appearing by telephone.
The matter was then listed for hearing on 16 August 2010 and, at that event, a Court order was issued, resulting in a warrant for the arrest of the mother as she failed to attend. As a consequence of the mother failing to attend Court on 16 August 2010, the warrant was issued and, on 19 August 2010, the Australian Federal Police brought the mother to the Court pursuant to the warrant and the Contravention application proceeded to a hearing. The mother remains unrepresented.

Application of the Law

I now am briefly going to touch on the law before applying the law to these circumstances. Contraventions are provided for in Division 13A of the Family Law Act 1975, which sets out comprehensively the consequences of failure to comply with orders that affect children. As to what is a contravention, it is defined in s.70NAC of the Family Law Act1975 which states that a person is taken to have contravened an order affecting children if, and only if, where the person is bound by the order, they have intentionally failed to comply with the order, or made no reasonable attempt to comply with the order.
If the contravention is proven or admitted, as is in this matter, then the contravening party can put forward that they had a reasonable excuse for the current contravention, and this is provided for in s.70NDA.
The meaning of “reasonable excuse for contravening an order” is set out in s.70NAE. In summary, reasonable excuse may be established if a respondent did not understand the obligations imposed by the order, or the contravention was necessary to protect the health and safety of the person, including the respondent or the child.
It is the mother’s position that there was reasonable excuse for contravening the order as it would not be in the best interests of the child, [X], to have anything to do with the paternal grandmother. This was detailed in her affidavit, albeit scantily, and was also reinforced in her evidence in court.
The concerns as to the safety of the child to spend time with the paternal grandmother were canvassed, albeit in the limited capacity of an interim hearing by Mead FM on 9 March 2010. In her Honour’s reasons at paragraph 6, Mead FM states:
“I accept the evidence of the paternal grandmother that she would be prepared and abide by an order of the court that the child not be brought into the presence of his father during any period of time that the child is in the care of the paternal grandmother. Making these findings satisfies me that [X] would not be at the risk of being subjected to or exposed to abuse, neglect or family violence because of these issues, as it is clear from the evidence of the mother, at least, intent of abuse and family violence relates to the father”.
Further, at paragraph 20:
“I am satisfied that [X] would not be at risk from or subjected to or exposed to abuse, neglect or family violence in the care of the paternal grandmother, particularly in the early stages where there is no suggestion that at any time that it would be other than supervised”.
There was nothing put forward in the affidavit of the mother or in her oral evidence presented at the hearing that would not have been before Mead FM on 9 March 2010 or, further, that raises any issues as to any risk to the health or safety of the child if the child was to spend time with the paternal grandmother.
When the mother raised concerns as to how frightening it would be for the child to be at a contact centre, even if she was in a neighbouring room, proposals were quickly offered by Mr Mitchell that there be an alternate supervisor, such as the mother’s brother or other family member, but this was quickly rejected by the mother. It was also offered by the paternal grandmother that she meet with the mother to supervise the visits on a regular basis, and this was also rejected outright.
I find that a reasonable excuse for contravening the order has not been established in accordance with s.70NAE and, therefore, that the mother has committed the contraventions.
I must now consider the law in determining what penalties and other orders I should make. The turning point here is whether in committing the contravention the mother showed a serious disregard of her obligations under the primary order. If so, then the powers of the court and orders that can be made are contained in subsection (F) of Division 13A. If not, then I must be guided and refer to subdivision E in Division 13A.
“Serious disregard” is not defined in the Act, nor does the Act provide guidance as to what considerations the Court may have in finding circumstances of serious disregard. As pointed out by the Full Court in the 2000 decision of Espelth & Peter; Mark & Peter; John & Peter (2007) FamCA 655 at paragraph 47:
“This –
(that is, referring to what is meant by “serious disregard”) –
“is further confused by the provisions of section 70NAF, which provides that the standard of proof in proceedings is proof on the balance of probabilities, but then goes on to provide than an order can only be made for community service, fine or imprisonment if the Court is satisfied beyond reasonable doubt that the grounds for making the order exist”.
The Full Court decision sets out in detail numerous Federal Magistrates Court decisions as to what amounts to serious disregard, and at paragraph 61 it is observed that:
“The theme that emerges from an examination of several decisions made by Federal Magistrates is that serious disregard tends to be found in cases of deliberate, premeditated non-compliance with the orders, and continued and protracted breach”.
As to the penalties to be imposed in that respect, the Full Court states at paragraph 66:
“What seems to be a common thread is that the more serious sanctions should only be invoked if there is persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order”.
The mother, in her evidence, was clear: “the mother does not want the paternal grandmother to be anywhere near her son”. At this point in time, the mother clearly stated in her cross-examination that she would not facilitate an ongoing relationship with the child with the paternal grandmother.
When questioned when she would facilitate time, her answer was vague, based on when the child was old enough and she could explain the circumstances.
When questioned from the bench as to whether the mother would comply with the existing interim order, the answer was clear: the answer was “no”.
When questioned from the bench as to whether the mother would comply with a final order allowing time with the child with the paternal grandmother on a regular basis, the mother’s answer was clear: the answer was “no”.
When it was explained to the mother on more than one occasion that a possible penalty that could be imposed was gaol, the mother again was clear in her response: “she would not facilitate time on a regular basis with the paternal grandmother with the child. She would go to jail. She had family members that would look after the child”.
In the circumstances, and taking into account the protracted and consistent nature of the proceedings and the mother’s firm, strong view that the child will not be made available to facilitate time with the paternal grandmother, I therefore find that there has been serious disregard by the mother, and therefore that the penalties and orders to be imposed are those set out in s.70NFB.
Pursuant to s.70NFB, I must consider making also a cost order. I must also consider whether I make a community service order, I impose a fine, or I impose a jail term. Further, the order under the section may be expressed to take effect immediately, or at the end of a specified period, or on the occurrence of a specified event.
As expressed by the Full Court in the Espelth & Peter decision at paragraph 69, the imposition of a term of imprisonment is really a course of last resort.
In s.70NFG(2), the legislation provides that a Court must not sentence a person to imprisonment 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 other paragraphs of s.70NFB(2).
In this matter, where the mother is relentless in her view, I do not find that it would be appropriate to deal with the contravention by way of a community service or by way of a fine. I do not believe that by imposing such penalties it would change the mother’s view. The only available order I consider is that of one of imprisonment.
While I am aware the issues raised in the Full Court decision of Dobbs & Brayson (2007) FamCA 1261, at paragraph 31 it is identified that there are four categories of fact to which the question of the application of standard of proof relates:
i)whether the alleged contravention occurred. In this matter, the mother admits to the contraventions;
ii)whether a reasonable excuse for the contravention existed. In this matter, I have made a finding that no reasonable excuse was offered by the mother;
iii)whether a contravention was less or more serious. I find that there was serious disregard and it was a more serious disregard;
iv)what orders should be made, including an order under s.70NFB(2)(a), (d), (e), or s.70NFF(3)(a).
At paragraph 51, the Full Court states:
“Before an order of this type is made, the Court must be satisfied beyond reasonable doubt of all the factual matters that relate to the findings of the contravention, to the treatment of contravention as to when which subsection (f) of division 13A applies, and if imprisonment is imposed, the inappropriateness of other orders”.
The findings of fact that I have made in this matter are findings beyond reasonable doubt, and I find that the mother has behaved in a manner which has shown a most serious disregard of her obligations under the primary order.
Every opportunity has been provided to the mother to rectify the situation and to make good the difficulties caused by her in respect of facilitating time with [X] with the paternal grandmother.

Since the hearing of the contravention application, the mother agreed, after much discussion, to make the child available to meet with the paternal grandmother last Saturday. Whilst the paternal grandmother reports that the meeting went as well as could be expected and that [X] presented as a happy boy, the mother states that it was a distressing event for her and the child, although no particulars were provided as to why it was so distressing. Mr Mitchell stated from the Bar Table that no further arrangements were put in place at the conclusion of the meeting for the grandmother to see [X] on an ongoing basis, and further, that the mother was insistent on the paternal grandmother discontinuing the Court proceedings, otherwise, as informed by the mother to the paternal grandmother at the meeting, she would never see the child again.
The mother states that, whilst she would agree to attend interviews for a Family Report and obtain a Psychiatric Report, she proposes that time with [X] not be in accordance with the interim orders as made by Mead FM in March 2010, but every six weeks in her presence.
The mother further and again sought an adjournment to obtain legal advice. The mother has had more than ample opportunity to seek legal advice at the hearing of the Contravention application, the day before the hearing of the Contravention application, and leading up to the mention today, the mother had more than ample opportunity.
Unfortunately, I have no confidence that the mother will follow through on any Court order given her blatant disregard of the existing orders.
I have no choice, then, to impose the heaviest penalty of them all, and that is a sentence of imprisonment. I am, however, going to suspend the sentence in the hope that the mother comes to her senses, complies with the order, obtains the legal advice that she needs and should obtain, and hopefully we can then progress this matter to a hearing.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:

Date: 27 August 2010