Pacillo and Seales (No 3)

[2014] FamCA 609

FAMILY COURT OF AUSTRALIA

PACILLO & SEALES (NO 3) [2014] FamCA 609

FAMILY LAW - CONTRAVENTION – Penalty – Where the mother has been found to have previously contravened Court Orders – Where the mother is to be dealt with under Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where the mother was found to have contravened Court Orders on balance of probabilities – Where the mother is placed on a good behaviour bond with security

Family Law Act 1975 (Cth) ss 70NFA(1)(d) & (3), 70NFB(2)

APPLICANT: Mr Pacillo

RESPONDENT: Ms Seales

FILE NUMBER: PAC 4189 of 2008

DATE DELIVERED: 22 July 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 22 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Self-represented Litigant

Orders

1. In respect of the contraventions found proved on 10 July 2014:

   (a)The Respondent enter into a bond pursuant to section 112AF of the Family Law Act 1975 (Cth) upon the following condition that she be of good behaviour for a period of eighteen (18) months from the date of this Order.

2. The bond is with security of $500.00.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pacillo & Seales (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4189 of 2008

Mr Pacillo

Applicant

And

Ms Seales

Respondent

REASONS FOR JUDGMENT

1. Ms Seales, the mother in these proceedings, is found to have committed a contravention of a primary Order relating to parenting on six occasions between June and September 2010. For various reasons, including that there have been a large number of contraventions alleged at various times, that the proceedings have been transferred from the Federal Circuit Court and other delays in the system, the contravention proceedings were not heard until last week, that is, July 2014, approximately two years after the contraventions were committed.

2. At the time of the events which formed the basis of the contraventions, the child the subject of these proceedings, L (the child), was 13. The relevant Orders related to the child spending time with his father and the child’s father being provided with information about the child. Since that time, the child’s personal circumstances have significantly changed and, in particular, I was satisfied in the course of the contravention proceedings and in proceedings relating to parenting orders that the child does not wish to spend time with or communicate with his father currently. The recommendation of the Family Consultant, to which I attached significant weight in the proceedings, was that no orders be made for the child to spend time with or communicate with his father.

3. Those parenting proceedings are currently adjourned with interim Orders having been made for therapeutic support to be provided to the child as well as an opportunity to initiate contact with his father in an environment independent from his mother with a view to maximising the opportunity for the child to rekindle his relationship with his father.

4. These are the background circumstances in which I am required to determine an appropriate order in respect of the mother’s contraventions.

5. The contraventions are potentially those which fall under Subdivision F of Part VII, Division 13A, being more serious contraventions. That is because pursuant to ss 70NFA(1)(d) and 70NFA(3), a Court has previously made an Order imposing a sanction or taking an action against the mother in relation to a contravention of the primary Order. In fact, the mother has previously been dealt with on six occasions for contraventions. The subdivision broadly gives the Court greater powers to sanction or take action against a person in these circumstances. However, it does not apply if the Court is satisfied that it is more appropriate for the contravention to be dealt with under Subdivision E, which essentially provides for less serious sanctions.

6. As indicated, the matter is one which does potentially fall within the subdivision for more serious contraventions. The legislation provides that if the subdivision applies, the Court must, in relation to the person who committed the current contravention, make an order that that person who committed the contravention, that is, the mother, pay all of the costs of the other parties, that is, the father. However, in this case, the father has at all relevant times been self-represented and no costs have been incurred, so to the extent to which the payment of costs forms part of the penalty under Subdivision F, this will not be applicable in this case.

7. If the matter is dealt with as a more serious contravention and the Court does not make a costs order, a Court is required to make at least one order under s 70NFB(2), which is the imposing of a sanction or taking action in respect of the contravention. As previously indicated, the orders available to the Court under this subdivision are the more serious orders, including a community service order, placing the person on a bond and imprisonment.

8. The penalties are, broadly speaking, more punitive in nature and, for this reason in relation to imposing some of the available sanctions, the Court is required to be satisfied to the higher standard of beyond reasonable doubt that the grounds for making the order exist.

9. In the course of considering whether to find the contravention proved, as I had not at that stage turned my mind to any possible penalty, I did not give consideration to determining the matter on the basis that I was required to be satisfied as to the contravention beyond reasonable doubt and instead found on the balance of probabilities that the contraventions were proved. On this basis, in my view, it would be inappropriate to regard the more serious fine, a community service order or a term of imprisonment as possible options in this matter.

10. In general, it is the position of the father and, in my view, also the tenor of the legislation, that the purpose of sanctions for contraventions is to have the contravening party comply with Court orders which were made in the best interests of the child. In this case, the Orders that were made in 2010 and contravened in 2012, although being Orders in the child’s best interests at the time, may very well not be orders which are currently in his best interests. Indeed, the interim Orders made at the end of the parenting hearing the week before last do not include orders providing for the child to communicate with or spend time with his father. To this extent, there is nothing to be achieved by imposing a sanction to ensure that the mother complies with Orders which are no longer in existence.

11. The damage done by the previous contraventions cannot now be undone. That is not to say that all of the events which have occurred at the time of and since the contraventions are a result of the contravention.

12. It is the father’s position, that he maintains today, that the contraventions in 2010 led to the destruction of his relationship with the child. He also contends that the deterioration in the child’s behaviour, some of which has been quite damaging to the child, is a direct result of the father no longer being present in the child’s life and the child being deprived of the relationship with his father and paternal family as well as the dysfunctional parenting of the mother.

13. While I made a number of findings that the mother’s parenting style has not assisted the child and I had considerable concerns about her capacity, I did not find that these matters, and the absence of the father in the child’s life, directly led to his current difficulties.

14. I also found that the contraventions of the mother did not necessarily directly lead to the destruction of the relationship between the child and his father.

15. It was revealed in the course of the hearing that after the mother ceased making the child available to the father, that the father took no other action other than commencing contravention proceedings. For example, he did not travel to the mother’s premises and collect the child for the purpose of them spending time together, which ought to have been something that the father could have considered, especially when on his evidence, which I accepted, the relationship between the child and the father prior to the mother not making him available was a good one. It is also not clear why the father was unable to collect the child at the end of his sports games for the commencement of their time together in accordance with the Orders. I found that the father seemed far more focused on proving that the mother was at fault and commencing contravention proceedings than taking the actions that he could have taken to salvage the relationship with the child.

16. To his credit, the father now appears to be saying, and I accept that he is genuine, that all he wishes to achieve in these contravention proceedings is that the mother will learn that she must obey Court Orders. It is important that the interim Orders which, as I have explained, are an attempt to rekindle the relationship between the child and his father are complied with, and by necessity, since the child is 15 and lives with mother, this will involve compliance on her part.

17. The mother has previously been dealt with a number of times for contraventions and clearly appears not to have understood the importance of complying with Court Orders.

18. Today, she has apologised to the Court and to the child’s father, but it is really the child to whom she owes an apology, as her failure to comply with Court Orders has played a significant role in damaging the child’s relationship with his father, which was an important one for the child’s benefit.

19. In all of the circumstances, I am satisfied that it is appropriate for the contraventions to be dealt with under the more serious provisions, that is, Subdivision F. As indicated, I am not making a costs order as no costs are claimed. I am required in these circumstances to make at least one of the orders under s 70NFB(2) that I consider to be the most appropriate in the circumstances. Having indicated that I do not propose, for the reasons given, to make a community service order, a larger fine or impose a sentence of imprisonment, I am of the view that the most appropriate order is to require the mother to enter into a bond, with a security of $500.00, that she be of good behaviour for a period of 18 months.

20. It must be completely clear that if the Court is satisfied in relation to any future contravention beyond reasonable doubt, there is a very real risk the mother will go to gaol. In other words, if the mother chooses to contravene Court orders, she is choosing to send herself to gaol.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 July 2014.

Legal Associate:       

Date:    5 August 2014