Pescatore and Pescatore
[2018] FamCA 461
•20 June 2018
FAMILY COURT OF AUSTRALIA
| PESCATORE & PESCATORE | [2018] FamCA 461 |
| FAMILY LAW – CONTRAVENTION – Whether the mother without reasonable excuse contravened parenting orders – Where the mother did not establish that she had reasonable grounds to believe that the contraventions were necessary to protect the child’s health and safety – Where the mother did not otherwise have a reasonable excuse for contravening the orders – Order made requiring the mother to enter a bond |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Pescatore |
| RESPONDENT: | Ms Pescatore |
| FILE NUMBER: | SYC | 3433 | of | 2016 |
| DATE DELIVERED: | 20 June 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 12 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | Greg Alfonzetti Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Stapleton |
| SOLICITOR FOR THE RESPONDENT: | Armstrong Legal |
Orders
Finding (made 12.6.18)
I find that the mother did on 8 March 2018, 16 March 2018 and 30 March 2018, without reasonable excuse, contravene the orders of 28 March 2017.
Orders & Notation
I intend to require the mother to enter into a bond. The explanation of its purpose, effect and the likely consequences that may follow if the mother fails to enter the bond or having entered into the bond, fails to act in accordance with the bond, are set out at [68] – [71] of the written Reasons for Judgment published this day.
The mother must, within 14 days, enter a bond for a period of 1 year without security and without surety to be of good behaviour and to comply with orders made by this court on 28 March 2017 and any variation of those orders from time to time during the time this bond is in force.
The mother pay the father’s costs of his contravention application filed 9 April 2018 on a party/party basis to be agreed or assessed, with payment to be deferred until the mother receives funds from the sale of the former matrimonial home.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pescatore & Pescatore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3433 of 2016
| Mr Pescatore |
Applicant
And
| Ms Pescatore |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The father filed an Application for Contravention on 9 April 2018 which alleged that the mother had breached the 28 March 2017 court orders by:
1.1.Refusing to allow or facilitate Y to spend time with the father, on 8 March 2018 between 3pm and 4pm, without reasonable excuse, in breach of order 2(d);
1.2.Refusing to allow or facilitate Y to spend time with the father, on 16 March 2018 between 3pm and 4pm, without reasonable excuse, in breach of order 2(e); and
1.3.Failing to deliver Y to the father and refusing to allow or facilitate Y to spend time with the father, on 30 March 2018 at 3:15pm, without reasonable excuse, in breach of orders 2(e) and 5.
It was agreed that on all three charges the father had established a prima facie case. The mother denies that she had contravened the orders on all three occasions either because she made a reasonable attempt to comply with the order or, alternatively, there was a reasonable excuse for the contravention.
On 12 June 2018, I found that the all three contraventions had been proven. I reserved my reasons which I now provide.
BACKGROUND
There are two children of the marriage, X, born in 2004, currently aged 14 and Y, born in 2008, currently aged 10 (“the children”). The parties commenced cohabitation in or about 1993 and were married in 2000. The parties separated on 10 February 2016.
Senior Registrar Campbell made interim parenting orders on 28 March 2017. The orders provided that the children live with the mother and spend time with the father in progressively increasing stages as follows:
(a) in school term, commencing on the first weekend after school commencing each term, for a period of eight (8) weeks (or four occasions) from 9.00am Saturday until 6.00pm Sunday;
(b) On the second Thursday in each school term from after school to 7.30pm and each alternate Thursday thereafter for sixteen (16) weeks – eight occasions;
(c) following the four occasions in Order 2(a), for a period of eight (8) weeks (or four further occasions) during school term from after school Friday to 6.00pm Sunday;
(d) following the eight occasions in Order 2(b), thereafter during school term from after school Thursday to before school Friday each alternate week (being the Thursday following the father’s weekend time);
(e) Following the four occasions in Order 2(c) from after school Friday until before school Monday each alternate week during school term;
(f) In school holidays:
(i)9.00am 8 April 2017 to 6.00pm 9 April 2017;
(ii)9.00am 15 April 2017 to 6.00pm 17 April 2017;
(iii)For four nights in the June/July holidays by agreement and failing agreement, from 9.00am on the first Saturday to 6.00pm on the fifth day;
(iv)for five nights in the September/October holidays by agreement and failing agreement, from 9.00am on the first Saturday to 6.00pm on the sixth day; and
(v)thereafter for half of each holiday by agreement or failing agreement, for seven days commencing on the first Saturday of the holidays at 9.00am and each alternate week thereafter, concluding on the eighth day at 9.00am.
At the time the contraventions allegedly took place the final stage of the orders, namely 2(d), 2(e), and 2(f)(v), were in effect. The orders also provided that the mother be responsible for delivering the children at the commencement of time unless it was from school (Order 5).
X has not spent time with the father since 4 March 2018 and Y has not spent time with his father since 24 May 2018. Because the father recognises X’s current difficulties with her mental health, the father is only pursuing his contravention application in respect to Y.
THE LAW
Relevant statutory provisions include s 70NAC and s 70NAE of the Family Law Act 1975 (Cth) (“the Act”).
Section 70NAC of the Act provides:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order
Section 70NAE of the Act provides:
Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections…(5).
…..
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
THE FIRST CHARGE
On Thursday 8 March 2018, pursuant to order 2(d), the father attended Y’s school to collect him for his scheduled overnight time. At the conclusion of school at 3pm the father waited for Y, and when he did not appear, sent a text to the wife at 3:23pm in the following terms:
Do you know where Y is? I’ve walked around school and keep ringing his phone and I can’t find him.
The mother replied with a screenshot of the party’s text conversation which showed two messages that she had sent with a time stamp of 2:35pm. The father denies ever receiving the two messages.
The mother says in her 10 April 2018 affidavit at [30] that on that day Y had stayed home from school as he was sick with an upset stomach and she had taken him with her to a doctor’s appointment she had already made for herself. She says that she sent the messages immediately after leaving the doctor’s appointment and believes that the father did not receive them because he had blocked her number. The messages are in the following terms:
We are leaving the drs shortly. [Y] is unwell. You will need to pick him up from our home. Please confirm you have received this text.
[Y] is crying insisting he’s not going with you today. he [sic] cannot text you as he has no credit
Upon receipt of the mother’s screenshot, the father replied that he would attend the mother’s home to pick up Y. The following text message exchange subsequently occurred:
MOTHER: He is outright refusing to come outside. I cannot drag him.
FATHER: you cannot control him? No reason for him to suddenly not want to come. I’m waiting out front. Are you bringing him down?
This is not good as you have ceased communication over this matter and you are showing that you are not competent to direct a 10 year old to come down to my car. I’m leaving in a few minutes.
MOTHER: If you didn’t block my number & would co parent amicably with me you would receive communication from me & you would know & care how he feels. You would have also discussed you kicking [X] out of [Suburb T] home at 10:30pm Sunday night?? Every single visit I cop it as they don’t want to go. I have no issues with [Y] listening to me regarding anything else & discipline accordingly. My understanding from [Y] this is a build up with [Y] & your skitzing out was the last straw.
Counsel for the father questioned the mother as to why, after Y had spent the entire day home from school, had she waited until (at best) 2:35pm to inform the father of the child’s whereabouts. Her response was that Y often would, when becoming ill in the morning, improve during the course of the day, and in those circumstances she would take him to school.
The Laptop incident
The mother’s message of “you kicking [X] out” in the above text is referring to an event that occurred four days prior on Sunday, 4 March 2018. The mother says, at [20] of her affidavit of 10 April 2018, that X had appeared on her doorstep crying at 10:40 pm, when she and Y were to spend the night at the father’s home. An argument had arisen between X and the father over whether she could bring her laptop upstairs to her room. According to the mother, X told her the following:
[The father] got really angry and told me to get the fuck out of the house and that he didn’t give a fuck where I went. I asked him to take me to you. When he got here he just threw my bags out of the car on the footpath and said you can fucking whinge to your mother.
The mother and X drove back to the father’s residence as the mother said she was worried about Y being left alone. She did not approach the father’s home and returned when she found the home undisturbed. She says that when she had collected Y the next day at school he had said to her the following:
I don’t want to go back to dad’s. I heard everything and I am scared to go back. I was looking out of the blinds and wanted to call you but I was scared.
It was agreed by the father that there had been an argument over whether X could take her laptop upstairs and that he had dropped her off at her mother’s house as a result. He disagreed with what the mother says X had said to her about the conversation and gave oral evidence that:
At the end of the conversation I put it to [X] that if she wasn’t going to comply I would take her back to her mother’s place. She said that she didn’t want to go back to her mother’s place and I said that if she is not going to put the laptop down then she would have to go. And then she said fine, take me to my mother’s.
The father said that the parties’ residences are approximately eight minutes from each other. He denied that Y had been scared saying that Y had been asleep, but he had woken him to tell him where he was going and had left him with a mobile phone. The father added that Y was also old enough to walk home from school alone, that the mother leaves him by himself in the house and there was no reason for him to feel unsafe.
Since this event, apart from when Y went with his father on 24 May 2018 (discussed below), neither of the children have spent time with their father. The mother says that the reason for this, broadly speaking, is that the children refuse to spend time with the father and she is unable, despite her best attempts, to make them attend. I will discuss below whether the mother made a reasonable attempt to comply with the order or whether she had a reasonable excuse for not doing so.
THE SECOND CHARGE
On Friday 16 March 2018, pursuant to order 2(e), the father attended Y’s school to collect him for the commencement of weekend time. Before the conclusion of school at 3pm, the father received a text at 2:56 pm from the mother stating:
[Y] has just got home from an appointment and is at home. He is again refusing to come to yours.
The father says he was given no prior notice that Y had been at an appointment or not at school that day. He says that despite numerous text messages Y did not spend any time with him on that weekend.
The mothers says that on Thursday 15 March 2018, a day before the Friday he was to begin weekend time with his father, Y was presenting as stressed. The following day the mother took Y to a doctor’s appointment. She says that she could only get an appointment later in the day and this was why the text message was sent at 2:56pm.
Again, the mother says that she was unable to make Y attend his father’s home to spend time over the weekend and “could not coerce” Y to be collected by his father. She says that throughout that weekend she continued to attempt to facilitate Y’s time with the father, but was still unable to get him to leave the house. The mother says that the father did not notify her during this time that he was at her home to collect Y, but I am unable to see how that is a relevant consideration given that order 5 places the responsibility for delivering Y upon the mother. Again I will discuss the issues of reasonable attempt and reasonable excuse below.
THE THIRD CHARGE
On Friday 30 March 2018, pursuant to order 2(e) and 5, the mother was to drop Y at the father’s residence at 3:15pm for the commencement of weekend time (this was a public holiday). The father received a text message at 3:01 pm from the mother stating:
The kids know they are scheduled to be spending today from 3:15pm till Monday morning with you. I’ve discussed this repeatedly in detail with them over the past week & again today. They are still refusing to come & refusing my request to even call or talk to you.
The subsequent message exchange was as follows:
FATHER: Thank you for the update. Can you please try your best to make them come. It’s ridiculous that all of a sudden Y is not coming and X deciding not to come over being disciplined. I’m appealing to you as a parent and understanding that it is important for them to spend time with me. It also is a decision of the court that they spend time with me, you understand it cannot be up to you or the children to decide where they will be from this time forward until Monday. Please advise if you are not going to bring them. Thank you.
MOTHER: I can assure you I always do my utmost to get them to spend time with you. I go through hell each & every time beforehand. This is not all of a sudden & is certainly not over being disciplined. They get disciplined with me when necessary. This has been going on for a long time. You have chosen to deal with the children & treat them the way you have. I always follow the court orders & will continue to. I absolutely know & understand that I cannot choose to alter these & I am not. There is something seriously wrong for these kids to not listen to my requests. I will continue to talk to them about this.
The mother did not deliver Y to the father on the Friday, nor did the father spend any time with the children on that weekend.
RELEVANT EVENTS
Family therapy
Dr C, in her expert report of 27 March 2017, recommended that the father’s time with the children increase alongside family therapy. Upon the making of Senior Register Campbell’s orders on 28 March 2017, the parties and the children attended three sessions of family therapy with an experienced therapist in the first half of 2017. That therapy had concluded.
The mother’s attendance on police
The mother says that on 7 April 2017, Y had told her that in January 2016, whilst the parties were still living together, the father had asked Y, “who is your favourite parent?”, and when Y replied that his mum was, the father put his hands around Y’s throat, squeezed and asked, “you better think about that one more time.”
Counsel for the father asked the mother whether she had observed Y upset around the time of the alleged incident or whether she noticed any marks on his neck. She had not.
On 11 April 2017, the mother says she attended Suburb F Police Station with the children to report the incident. Subpoenaed material from Suburb F Police contains notes by the police about the mother’s attendance, including:
31.1.The mother was not happy with the 28 March 2017 orders;
31.2.The mother had told them the quantum of her legal bills;
31.3.At the time of the alleged incident there were no witnesses, no injuries and no bruising noticed by any person;
31.4.The mother said she was there on the advice of her lawyers who told her to make a “paper trail”;
31.5.The police had spoken to Y in the mother’s presence as requested, and Y could not give a clear version to Police without the prompting and interruption of the mother;
31.6.Both children explained to police that there had never been any other incidents of assault;
31.7.The mother was openly criticising and belittling the father when talking to police in the children’s presence; and
31.8.There is a 15 month gap between when the incident allegedly occurred and the disclosure is at the same time the father has been given “partial custody”.
When questioned over the report, the mother either disagreed with what the police had recorded, questioned how the police had formed a particular view or was unsure or could not remember whether aspects of the report were mentioned to police on the day.
I formed the view that it was likely that the contemporaneous police record as to how the mother presented and what she said is more reliable than the mother’s oral evidence.
Subsequent to this police visit, the mother still facilitated the father’s time with the children, and when counsel for the father put to her that this was because she did not believe there to be a risk to Y, the mother denied that and said she had court orders to go by.
The mother’s animosity
There are a number of examples of text messages sent by the mother that are indicative of an animosity that the mother continues to hold for the father.
The mother agreed that in February 2018 she sent the following text messages to the father:
You are nothing to me but a narcissistic selfish self absorbed pig & you are a horrible role model for our children.
I suggest as you choose to not financially support & are not prepared to emotionally support our children you stop trying to get “women” pregnant & most definitely stop having more kids as you refuse to even look after our children together. Ps… your plans to adopt future children are completely insane!!!
The father says at [17] of his affidavit of 07 June 2018, that the mother sent him a picture of G, a five year old daughter of one of his friends, which was altered to depict the child wearing devil horns. The mother agreed that she had sent the edited picture to the father. She says that X had edited the picture and sent it to her, as X believed that G was the father’s child and her half sibling. The father denies that G is his child. Counsel for the father put to the mother that X’s belief is a reflection of her own concern. The mother denied that and says it is her belief that the father’s friend is in fact his girlfriend (who the mother believes is a woman with whom the father had an affair for eight years) and explained that the reason she had sent the photo was because the girlfriend had previously offered to lend the parties some money to help pay their mortgage repayments, but later rescinded the offer explaining that it was needed for IVF. The mother says that the father had cropped the previous messages which depicted this exchange.
Counsel for the father questioned the mother (even accepting what she described) as to how the response of transmitting the image of a young child with devils horns was warranted. The mother said that she did it because the father, in mentioning IVF, was trying to “cut her”. She denied that she was fixated on the father having a relationship with someone else.
Subpoenaed records from X’s counselling sessions report that X has told her psychologist that “any time she misbehaves, mum tells her she will turn out like her dad”. The mother is of the belief that the father is bipolar, and this is reflective of the above text message reference to him as “skitzing out”. The mother denies saying that to X and suggests that she is referencing conversations she had with her about arguments X had with her father and the mother has said, “if you don’t like that behaviour, don’t do that yourself”. I am unable to accept that explanation by the mother and find that on balance the mother has said the words which X reported to her psychologist.
Counsel for the father submitted that the above evidence, and the level of animosity illustrated by the mother towards the father, has resulted in the children being highly involved in the dispute between the parties. I accept this is so.
The father’s alleged assault on Y
Counsel for the mother questioned the father over an incident that occurred on 24 May 2018 where the father was allegedly violent towards Y. Y had spent the night with his father, and the next day the mother says Y had told her that in order to get him into the car, the father had grabbed him by the neck and arm and dragged him. The mother says that upon hearing about this incident she caused her solicitors to write to the father’s solicitors suspending time.
Counsel for the mother put to the father that, by telling him that he did not wish to go with him, Y was expressing his own free will without the presence or influence of the mother. The father agreed that he had to persuade Y to come with him, but denied using physical force. The father gave oral evidence that he did not accept that it is the children’s wishes not to see him and that he believes that the mother is not telling the truth.
Whilst what the father has admitted gives some colour to the difficulties the mother might be experiencing with Y, it also highlights that after a short time during which the father spoke to Y, the father was able to have Y go with him and stay overnight.
The father’s alleged neglect
The mother has noted a number of occasions where she believes the father has not cared for the children appropriately. The mother says that the children have told her that whilst the father was in hospital in January he left the children without an adult present. This appeared to be an emergency surgery. I am unable on the information that I have to make a finding that appropriate arrangements were not made for the children during this period.
The mother also says that X had told her that the father had given her nothing for her birthday. She did, however, acknowledge the father had gone to the trouble of obtaining 30 helium balloons for X’s birthday.
The parties acknowledged that X has historically had a difficulty with lying. The mother, however, did not accept that statements made to her by X about the father’s behaviour might be unreliable saying she knew when X was lying and that she can be a very honest child in some circumstances.
REASONABLE EXCUSE
The mother’s submissions
The mother contends in respect of all three contravention charges that she cannot make her son spend time with the father. At [17] of her 6 June 2018 affidavit, the mother states that “I would have had to physically drag the children out of my residence and into the car in order to take them.”
Counsel for the mother submitted that the mother was honest about the situation she faced and how difficult it is to persuade Y to spend time with his father in circumstances where he feels unsafe.
Counsel for the mother presented a “medical certificate” from Dr J, dated 6 April 2018, which was said to be evidence that the mother is holding an honest belief that Y would not be safe with the father. The certificate is in the following terms:
Mast [Y] suffers from anxiety and panic attacks he is finding it very difficult coping with the present domestic situation. He has reported night mares and bad dreams prior to going to his father’s place. He would require specialist child psychologist counselling given the deteriorating situation.
Subpoena records (which I looked at during the hearing and which I now mark Exhibit 6) reference Y’s attendance on Dr J on that day.
Counsel for the mother also highlighted a number of text messages that go to the mother’s communication with the father, which she says, demonstrates her “doing her best” to facilitate the children spending time with him.
Finally, counsel for the mother submitted that the father, by not reading the mother’s affidavits supporting her application to vary the orders, has come to court without any intention to solve the problem this family faces and the father’s recent reluctance to attend family therapy is also illustrative of this.
The father’s submissions
Counsel for the father submitted that the mother did not have a reasonable excuse for contravening the orders. She submitted that pursuant to s 70NAE(5) the mother had to, on reasonable grounds, prove that she believed that the father not spending time with Y was necessary to protect his health and safety, or that she made a reasonable attempt to comply with the order, or alternatively, that there was a reasonable excuse for the contravention.
CONCLUSION
The mother gave evidence that in all other aspects of Y’s behaviour she had the capacity to ensure that he comply with her direction. The mother said however that she would not give him a direction that might put him in harm’s way.
I find that the mother has not established that she has a reasonable excuse for contravening the order because she believed on reasonable grounds that not allowing Y to spend time with his father was necessary to protect Y’s health or safety.
I find the mother hasn’t satisfied the court that, on the balance of probabilities, she couldn’t make Y spend time with his father pursuant to court orders. The mother’s willingness to impose her will on Y, who was then aged 10, is compromised by the mother’s own feelings about the father of which both children are aware. Accordingly, the mother did not otherwise have a reasonable excuse for contravening the orders.
Accordingly, I find that the mother did on 8 March 2018, 16 March 2018 and 30 March 2018, without reasonable excuse, contravene the orders of 28 March 2017.
SENTENCING
This is the first occasion the mother has been found to have contravened the March 2017 orders. The mother has not behaved in a way that showed a serious disregard for her obligations under the primary order. Consequently, Subdivision E of Division 13A of Part VII of the Act, which deals with less serious contraventions without a reasonable excuse, is applicable.
Section 70NEB(1) of the Act provides the court the following powers:
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post‑separation parenting program;
(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;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)—impose a fine not exceeding 10 penalty units on the person;
(e) 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;
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);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders in relation to the current contravention—order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Counsel for the father and the Independent Children’s Lawyer submitted that the mother should enter into a bond. It was argued that the bond would act as a further incentive for the mother to comply with the court’s order which would be to the advantage of Y.
Counsel for the mother submitted that a bond is not necessary as the mother, after having gone through this court event, is now more than familiar with her obligations under the court orders and is now unlikely to not comply with them in the future. In all the circumstances, I do not agree that this is a sufficient incentive to encourage future compliance.
In the alternative, counsel for the mother added that in the event a bond was ordered, it should include the attendance of family therapy or family dispute resolution. It was submitted that this would mean the bond was facilitative and constructive, rather than merely punitive.
I accept that a bond is an appropriate outcome. I will deal with any application for family therapy in the context of the mother’s application in a case to vary the current parenting orders.
Bond
Section 70NEC of the Act provides:
(1) This section provides for bonds that a court may require a person to enter into under paragraph 70NEB(1)(d).
(2) A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
(5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond—fails to act in accordance with the bond.
The mother is to enter into a 1 year bond that requires her to be of good behaviour. The bond is to be without surety and without security.
Under s 70NECA(3), if the court is satisfied that the mother has without reasonable excuse failed to comply with the bond, the court may:
(a) without prejudice to the continuance of the bond entered into in accordance with section 70NEC, impose a fine not exceeding 10 penalty units [$2,100] on the person; or
(b) revoke the bond entered into in accordance with section 70NEC and, subject to subsection (4), deal with the person, for the contravention in respect of which the bond was entered into, in any manner in which the person could have been dealt with for the contravention if:
(i)the bond had not been entered into; and
(ii)the person was before the court under section 70NEB in respect of the contravention
[the effect of s 70NECA(3)(b)(ii) is that the court can reconsider the penalty which is imposed for these contraventions].
Section 70NECA(4) of the Act provides:
(4) In dealing with the person as mentioned in paragraph (3)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account:
(a)the fact that the bond was entered into; and
(b)anything done pursuant to the bond; and
(c)any fine imposed, and any other order made, for or in respect of the contravention.
As the legislation makes clear, I am required under s 70NEC(5) of the Act if I propose to require the mother to enter a bond to, before making that requirement, explain to the mother in language that she would readily understand the purpose and effect of the proposed requirement and the consequences that may flow if she fails to enter into the bond or having entered into the bond, if she fails to act in accordance with the bond. I am not going to require the mother to provide security in relation to the bond. She will be required to enter into a bond at the Sydney Registry of the Family Court of Australia within 14 days.
The conditions of this one year bond are that it will commence on the day she signs the bond and continue in force for a period of one year. The conditions of the bond will be that the mother comply with orders made by this court on 28 March 2017 and any variation of those orders from time to time and to be of good behaviour during the time this bond is in force.
The purpose of the bond is to ensure compliance with the orders made on 28 March 2017. The possible consequences that may follow, having entered into the bond, and failing without reasonable excuse to act in accordance with the bond, are set out in s 70NECA(3) of the Act. The court may:
70.1.Impose a fine not exceeding 10 penalty units on the mother. A penalty unit is $210. Ten penalty units is $2,100; or
70.2.Revoke the bond and deal with the mother for the contraventions in respect of which the bond was entered into in any manner in which the mother could have been dealt with for the contravention.
The mother should be aware that if she fails to sign this bond within a period of 14 days, or after having signed it, if she is convicted of a further contravention of the orders, the mother will come back before me to be sentenced further in relation to the contraventions that I have found in these reasons.
COSTS
The father also seeks that the mother pay his costs on a party/party basis. Counsel for the mother opposed an order for costs.
Counsel for the father submitted that the father is happy to delay the payment of the costs order and avoid any potential hardship that that could cause the mother until the parties are in receipt of the proceeds of sale of the former matrimonial home. The mother gives evidence at [31] of her affidavit of 6 June 2018, that the sale price of the former matrimonial home was $2,205,000, with a $430,000 mortgage secured against the property. They are awaiting the settlement which is due in July of this year.
Section 117(1) of the Act provides that subject to s 117(2) each party to a proceedings should bare his or her own costs. Section 117(2) provides that if the court is of the opinion that there are circumstances that justify it in doing so, the court may make such orders as to costs as the court considers just. In considering what order should be made, the court is to have regard to those matters set out in s 117(2A). The proceedings were necessitated by the mother’s failures to comply with an order of the court. The mother has been wholly unsuccessful in opposing the father’s application. These are the overwhelming considerations pursuant to s 117(2A). The cost order sought by the father is just.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 June 2018.
Associate:
Date: 20.6.18
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Breach
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Costs
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Remedies
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Intention
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