Poyzer & Tritton

[2009] FamCA 298

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON [2009] FamCA 298

FAMILY LAW – CONTRAVENTION – where satisfied that there is no basis to support summary dismissal - undertaking specifically equated with an order of the Court for the purposes of contravention - where wife admits to breaching undertaking on four occasions – bond imposed on wife until conclusion of evidence in current proceedings before the Court

Family Law Act 1975 (Cth), ss 112AA, 112AD, 112AH, Part XIIIA

Croser v Attrill (1990) FLC 92-100

APPLICANT: Mr Poyzer

RESPONDENT: Ms Tritton

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 7 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 7 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr A.L. Jordan

SOLICITOR FOR THE RESPONDENT: David M Davidson

Orders

1. The wife must forthwith enter in a bond for a period of up to the conclusion of all evidence in the current property settlement proceedings before the Court on condition that:

   (a)the wife not attend the M Centre in the State of South Australia;

   (b)       not initiate any contact with Ms O.

2. That the wife is directed not to leave the precincts of the Court today until she has attended upon a registrar of this Court and signed a bond in those terms.

3. In relation to the interim matters in relation to the child I will list it for mention before me on the 16 April 2009.

4. That the parties attend before a Family Consultant as a matter of urgency pursuant to Section 11F (admissible and not without prejudice) to discuss the proposed schooling arrangements for the child.

5. If the appointment cannot be made within a short time I also direct that the parties agree upon and attend upon an independent mediator for the purpose of resolving the issue concerning the child’s schooling.

IT IS NOTED that publication of this judgment under the pseudonym Poyzer & Tritton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 of 2001

MR POYZER

Applicant

And

MS TRITTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter that is listed before me this morning is the final hearing in relation to the contravention application brought by the husband in these long‑running proceedings.  The application for contravention relates to an undertaking given by the wife to the Court on 7 November 2008.

2. The preliminary submission by counsel for the wife is that the application should be dismissed on an interim basis, taking into account several factors.  The first is that the undertaking was not attached to the actual contravention application.  The husband is unrepresented now.  At the time he filed the contravention a copy of the undertaking was indeed attached as an annexure to the affidavit of the husband, which was filed and served at the same time as the contravention and clearly relates to the contravention.

3. I take into account the authorities which refer to the need to comply strictly with the procedures in relation to contempt and contravention applications, but also take into account the authorities in relation to dealing with unrepresented litigants.  I am not prepared to dismiss, initially, the contravention application on that basis.

4. The wife's counsel also argues that, based on the authority of Croser v Attrill (1990) FLC 92-100, the matter should be dismissed because the implication is that the only purpose behind the contravention application is the husband's vindictive approach to the wife. In support of that argument it is alleged that the finding of contravention will serve no purpose other than punishment of the wife.

5. It is pointed out that the undertaking which was allegedly breached related to a period up to 4 February 2009.  That is clear on the face of the undertaking, and that period has expired. 

6. The husband's application for contravention was brought at a time shortly before the terms of the undertaking were due to expire; namely, on 28 January 2009, a matter of a few days before 4 February 2009.

7. I accept that that is established.  However, I do not accept that, on the face of it, there is an implication sufficient to support the dismissal of the proceedings on a summary basis that the matter is only brought on the basis of some vindictiveness of the husband.

8. Indeed it was an undertaking specifically obtained by the husband in relation to an application he sought to restrain the wife from visiting the M Centre and having dealings with his employee, Ms O, on the basis that Ms O was then to give evidence in the proceedings before this Court and material before the Court suggested she was concerned about ongoing interaction between herself and the wife. 

9. It is not necessary for me to make any finding about the basis of the application brought by the husband for the injunction because the wife provided the Court, on 7 November 2008, with an undertaking that she would not attend the property or initiate any contact with Ms O.

10. Having taken into account the authority of Croser v Attrill (supra), I am satisfied that this matter can be clearly distinguished from the type of matter to which Croser v Attrill (supra) relates.  I rely on various authorities in relation to contraventions of Court orders which, in many cases, stipulate the need for parties to recognise that orders of this Court are made, are expected to be obeyed and that serious consequences flow from the failure to obey a Court order.

11. The undertaking given by the wife to the Court was given to this Court on the specific understanding stated in the undertaking that in the event of a breach of the undertaking it says:

    “I may be dealt with by the Court as if I had breached an order of the Court restraining me in similar terms.”

12. The Family Law Act indeed specifically equates an undertaking given to the Court with an order of the Court, for the purposes of contravention.

13. I am satisfied therefore that it is not appropriate to summarily dismiss the contravention application on the basis of the submissions put to the Court, based on the authority of Croser v Attrill (Supra) I propose to hear the contravention as listed this morning.

14. This is a matter in which the contravention filed by the husband relates to a specific undertaking given by the wife in these proceedings on 7 November 2008.  The undertaking was given in the context of the husband wishing to have orders restraining the wife from attending the M Centre and from communicating with his employee, Ms O, on the basis that the husband sought those orders because Ms O was allegedly concerned about the wife's dealings with her and her ongoing participation in this matter as a witness on behalf of the husband.  The undertaking is:

    “On the 7th day of November 2008 I, [Ms Tritton], undertake to the Family Court of Australia that, until the 4th day of February 2009 or until otherwise earlier excused from this undertaking, I shall not attend the [M Centre], or initiate any contact with [Ms O].  I understand that in the event of a breach of this undertaking I may be dealt with by the Court as if I had breached an order of the Court restraining me in similar terms.”

15. It was then signed by the wife, dated 7 November 2008, and witnessed by counsel.  The Court received that undertaking in Court in the presence of the wife and her legal advisers and the husband.  On that day the matter was adjourned to 4 February 2009, when the trial was due to, and indeed did, resume. 

16. The matter comes on before me this morning in relation to the contravention of that undertaking.  The wife has given sworn evidence that she contravened the order without reasonable excuse on four occasions.  On 4 December 2008 she visited the M Centre and at the same time handed a letter addressed to Ms O to one of the staff.  The wife admits that without reasonable excuse, she attended the Centre on 12 December 2008, and on 11 December 2008 posted a letter to Ms O.

17. These contraventions are all admitted to be without reasonable excuse and fall within the provisions of Part XIIIA of the Family Law Act which relates to sanctions for failure to comply with orders and obligations that do not affect children.

18. The particular provision of that part of the Act refers to a definition of "order" under this Act, in section 112AA and that includes an undertaking given to, and accept by, the Court in proceedings under this Act, other than proceedings that relate wholly or partly to, or to the making of, a parenting order.

19. The undertaking therefore is to be treated as if it were an order of the Court and the wife was clearly aware of that situation.  The wife admits that she has contravened the order, and I am satisfied with her admission that she contravened the order without reasonable excuse.  She did so with the benefit of proper legal advice.

20. Section 112AD sets out the sanctions which can be imposed for a contravention which is not a contravention of a child-related order.  They range from a fine, bond, community service, up to imprisonment. There are specific requirements, of course, before the Court could impose a sentence of imprisonment.  The Court must take into account carefully, not only the provisions of the Act but the circumstances of each individual contravention in order to fix an appropriate penalty. 

21. It is also appropriate to take into account that the orders of the Family Court of Australia need to be seen to be orders which are required to be obeyed and respect given to orders of the Court.  Great care should be exercised before condoning a contravention of a Court order without reasonable excuse.

22. The husband brings these proceedings appropriately, because of the four contraventions which have now been admitted occurred without reasonable excuse.  He does not ask the Court for a penalty by way of fine, bond or imprisonment; indeed his submissions were that he sought that the wife undertake not to attend the Centre or contact Ms O until the end of the trial.

23. I raised the issue of a bond and gave the counsel for the wife an opportunity to get some further instructions in relation to that matter.  The Court is of course not bound by the submissions of either the husband or the wife as to the penalty that ought to be imposed in relation to a contravention of the Court orders.

24. I take into account the circumstances that relate to the contraventions.  Namely, that the contraventions occurred whilst the trial in relation to the property settlement proceedings between the parties was adjourned part-heard, whilst it was anticipated that Ms O was to be, and has indeed been since, a witness in these proceedings on behalf of the husband in relation to significant matters which have been in dispute between the parties for some time, and whilst the wife was at all times represented by a solicitor and counsel and has been closely involved in the preparation of her own proceedings before this Court.

25. I am asked by counsel for the wife to take into account that the wife says that she did not believe it would be a problem for her to attend at the Centre on two occasions, when she assisted in transporting her elderly father, who is unwell, to an appointment which happened to be at the Centre.  It was put to me on the basis that the wife chose not to make any other arrangements for her father on that occasion.  It was also put to me that she did so on an understanding that her attendance there would not be against the “principal purpose” of the undertaking she gave; namely, to provide assurance to Ms O and the husband that there would be no further difficulties in relation to the interaction between the wife and Ms O.

26. However, it is clear that the wife knew there was an undertaking in force which required her not to attend at the Centre but nonetheless she did so. 

27. Whilst I take into account that she says her purpose was to attend there for the benefit of her elderly father, I must also, at the same time, take into account the specific wording of the undertaking and the concern that her attendance there may have indicated that she was not going to abide by the terms of the undertaking.

28. The other two contraventions relate to handing correspondence to another staff member to be delivered to Ms O on the occasion that she attended on 4 December, by handing a letter to be delivered to Ms O and by posting a letter on 11 December to Ms O.  These involved accounts which the wife sought to be reimbursed from accounts under the control, or at least under the day-to-day control, of Ms O.

29. The posting and delivering of that correspondence can be seen in a lesser light than the actual attendance at the Centre but nonetheless are breaches in relation to the undertaking given to the Court.

30. Bearing all of those factors in mind, and taking into account the need to ensure that parties to proceedings in this Court understand that undertakings and orders of this Court are to be obeyed and are not to be taken lightly or interpreted in a loose way, I consider it appropriate to impose a bond upon the wife, with conditions which will require her to stay away from the M Centre pending the conclusion of the evidence in this case.

31. The bond is to be for a specified period.  I specify the period until the conclusion of the evidence in the current proceedings before Court.

32. I do not propose to require the wife to provide a surety or security but do intend to impose conditions upon her which would require her not to attend upon the M Centre and not to initiate communication with Ms O, on the clear understanding that any failure to comply with those conditions will bring about a situation where the wife will be brought back before the Court, under the provisions of section 112AH.  The Court can then either continue the sentence or impose a fine, or revoke the sentence and impose another sentence for the contravention, which of its very nature would be a significant exercise and may indeed involve a period of imprisonment or a form of community service, depending upon the circumstances in which the bond is breached.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  24 April 2009