Raider and Raider (No 2)

[2011] FamCA 555

`FAMILY COURT OF AUSTRALIA

RAIDER & RAIDER (NO 2) [2011] FamCA 555

FAMILY LAW – CONTEMPT – Contravention of Court order – Whether the mother’s contraventions show a serious disregard of her obligations under the primary orders – Whether the provisions of subdivision E of Division 13A of Part 7 apply or whether the provisions of subdivision F of Division 13A of Part 7 apply – Where the latter is to apply if the Court is satisfied that the mother has behaved in a way that showed a serious disregard of her obligations under the primary order – Court considers that the mother be dealt with pursuant to the former provisions.

FAMILY LAW – CONTEMPT – Penalty – What is an appropriate penalty for the mother for contravening Court orders – Order that the mother and father attend a post-separation parenting orders program – Court does not consider it appropriate in the circumstances to impose any other penalty upon the mother.

Family Law Act 1975 (Cth) s 70NEB(1)(a)(ii), s 65LB, s 68L(2), s 62G, s 70NAE, subdivision E of Division 13A of Part 7, subdivision F of Division 13A of Part 7, s 70NEB(1) and s 4

Elspeth & Peter; Mark and Peter and John and Peter [2007] FamCA 655

APPLICANT: Ms Raider

RESPONDENT: Mr Raider

FILE NUMBER: BRC 4124 of 2008

DATE DELIVERED: 15 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 23 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ashcroft

SOLICITOR FOR THE APPLICANT: JPM Legal

COUNSEL FOR THE RESPONDENT: -

SOLICITOR FOR THE RESPONDENT: -

Orders

1. That pursuant to the provisions of s 70NEB(1)(a)(ii) the mother and the father shall each separately attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs.

2. Each of the mother and the father shall be personally responsible to access details of such programs through a Family Relationship Centre in their residential proximity and for making contact with a provider of such programs, enrolling in, attending and completing such a program.

3. Each of the mother and the father shall complete such a post-separation parenting orders program within six (6) months of the date of these orders and provide evidence in writing of the completion of such a program to the other party and also to any Independent Children’s Lawyer appointed in these proceedings.

4. That further pursuant to the provisions of s 70NEB(1)(a)(ii) the father shall also attend and complete an anger management program to assist him in discharging his parenting responsibilities, such program as is conducted by a s 65LB provider of such programs.

5. The father shall be personally responsible to access details of such programs through a Family Relationship Centre in his residential proximity and for making contact with a provider of such a program, enrolling in, attending and completing such a program.

6. The father shall complete such an anger management program within six (6) months of the date of these orders and provide evidence in writing of the completion of such a program to the other party and also to any Independent Children’s Lawyer appointed in these proceedings.

Orders in the Parenting Proceedings

1. That pursuant to s 68L(2), the interests of the children, J born … June 1998 and M born … March 2000 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the children’s interests.

2. That forthwith upon appointment by the said Legal Aid Queensland the Independent Children’s Lawyer file a Notice of Address for Service.

3. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer has leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date and also leave to inspect the Court file in this matter.

4. Pursuant to s 62G a Family Consultant nominated by the Manager, Child Dispute Services, Brisbane Registry shall, as soon as is practicably possible, prepare a report relating to the care, welfare and development of the children, J born … June 1998 and M born … March 2000 and shall, in particular, report as to any views expressed by the said children, the level of maturity of the children and the soundness of any basis for such views, particularly having regard to the father’s opinion as to the basis for the views reported to have been expressed by the children to date.

5. The mother and the father and their respective partners must attend all appointments fixed by the Family Consultant and the mother shall ensure that the children attend all appointments as notified by the Family Consultant.

6. The Family Consultant has leave to inspect the Court file and all documents produced on subpoena to this date or subsequent to this date once permission to inspect has been granted to at least one party or the Independent Children’s Lawyer in this matter.

7. The matter is referred to a Registrar for case management until it is trial ready after which it shall be referred to a call-over for listing for trial before Justice Forrest but not before the mother and the father have completed the post-separation parenting orders programs and the father has completed the anger management program as ordered.

8. The parties, including the Independent Children’s Lawyer once appointed, have liberty to apply to the Court for further interim orders or directions as he or she may consider appropriate, particularly after the Family Consultant’s report has been made available. 

IT IS NOTED that publication of this judgment under the pseudonym Raider and Raider (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4124  of 2008

Ms Raider

Applicant

And

Mr Raider

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On the 17^th of June, 2011, I heard contravention proceedings brought by Mr Raider (“the father’) against Ms Raider (“the mother”) in which he alleged that she had contravened, on five occasions, final parenting orders made by his Honour Justice Bell on 1 July 2010, with the consent of Mr and Ms Raider and Mr Patrick Dooley, Independent Children’s Lawyer, in respect of the two children, J born in June 1998, now aged 13, and M born in March 2000, now aged 11.

2. On the 23^rd of June, 2011, I delivered my reasons for judgment in which I concluded that the mother had contravened three of the provisions of those final parenting orders as alleged by the father and that the mother did not have reasonable excuse for those contraventions. In respect of the remaining two alleged contraventions, I found that the mother had contravened the orders as alleged but that she had reasonable excuse for contravening the order within the meaning of that term as provided for in s 70NAE of the Act.

3. On the same day that I delivered my decision I heard submissions from counsel representing the mother and from the father as to which sub-division of Division 13A of Part 7 of the Family Law Act should apply in the circumstances of the contraventions as found by me and also as to penalty.

4. The entire final parenting orders made by consent on 1 July, 2010, are set out in paragraph 3 of my reasons for judgment delivered on 23 June, 2011.  I shall not repeat them here.  I also set out the specific allegations of contravention that I heard and determined in paragraph 7 of those same reasons for judgment.

5. Although this is not the first time that the father has brought contravention proceedings against the mother, it is the first time that the mother has been found to have contravened orders as alleged by the father without reasonable excuse. The father conceded that. Accordingly, I have to determine whether the provisions of subdivision E of Division 13A of Part 7 apply or whether the provisions of subdivision F of Division 13A of Part 7 apply. The latter is to apply if I am satisfied that the mother has behaved in a way that showed a serious disregard of her obligations under the primary order.

6. The father submitted that the contraventions should be found by me to demonstrate a serious disregard by the mother of her obligations under the primary order.  He submitted that the mother has a history of non-compliance and that these three contraventions that I have found her responsible for are just further examples of her unwillingness to abide by orders of the Court and to facilitate and encourage meaningful relationships between the two children and him.

7. At the hearing of the contravention applications, the father actually submitted that if I found the mother had contravened the orders as he alleged that I should sentence her to a term of imprisonment, at least weekend detention.  In the alternative, he submitted that I should make an order that the mother relocate with the children from Sydney back to N where they had previously lived so as to make it more convenient for him to spend time with the children. 

8. For the mother, it was submitted that I would not be satisfied in respect of any of the contraventions that I found the mother responsible for that she behaved in a way that showed a serious disregard of her obligations under the primary order.  Specifically, in respect of the contravention where I found that she had not complied with the obligation to forward an itinerary for the children’s holiday travel to the father at least 28 days prior to the commencement of that travel, it was submitted that I needed to view the mother’s actions in the context of her bringing an application in the Local Court at Sydney Suburb 1 to suspend her obligations under the order because of her concern about J’s mental wellbeing and that after the mother realised that her application for suspension was not going to be heard and dealt with by the Local Court at Sydney Suburb 1 before the holiday time, she took steps to put in place the proposed travel arrangements and send details of those arrangements to the father. 

9. Counsel for the mother submitted that the arrangements that were then made by the mother cannot be seen to have prejudiced the father as flights were booked (although the children did not end up flying) for the time at which the father otherwise expected to have the children coming to him. 

10. In respect of the contravention of the obligation to ensure the children spoke by telephone to the father between 1 November and 23 November, counsel for the mother submitted that the mother simply did not realise that the phone had been disconnected for some time and that as soon as she did, her evidence was that she caused a new phone to be put in place and the father to be notified by mail of that.  That, of course, was a matter upon which I did not consider it necessary to make factual determinations in order to find the contravention.  In respect of the third proven contravention, counsel for the mother submitted that serious disregard of her obligations was not demonstrated by the mother in that she sent the children to spend time with their father, albeit a few days later than was actually required and she let them stay an extra night than was actually required. 

11. The Full Court has discussed the issue of what might be seen as constituting a serious disregard of obligations under an order.  It did so in its decision in Elspeth & Peter; Mark and Peter and John and Peter [2007] FamCA 655. In that decision the Full Court discussed a number of first instance decisions in which the question had been considered and, at paragraph 66, said:

    What seems to be the common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under subdivision F.

12. On the evidence that is before me, I cannot find, as the father submits I should find, that there is a history of non-compliance.  The father himself concedes that although he has brought several previous contravention applications, none of them has been successful.  This is the first occasion on which the mother has been found to have contravened obligations imposed upon her by parenting orders.

13. Although I found that the mother had no reasonable excuse for contravening the obligations imposed upon her by the order relating to the itinerary and the order relating to telephone communication between the children and the father, I am nevertheless conscious of the fact that during that month of November 2010, the mother was dealing with J in circumstances where he was reporting to his school teacher suicidal ideation and had been referred by the school counsellor to the Youth Mental Health Service for assessment and counselling.  Although I did not find that she had reasonable excuse for contravening the orders as she did, I do consider that those circumstances certainly mitigate against a finding that her contraventions were so clearly wilful and deliberate that they constitute more serious contraventions. 

14. In respect of the third contravention that I found, the failure to send the children to spend time with their father for the first half of the September/October school holidays as required by the order, I am satisfied that, given the fact that the mother did send the children for the holiday visit some three days later than she was supposed to and let them stay indeed for an extra night than she was actually required to have them stay, that, again, this contravention did not constitute the more serious type of contravention.  I am not satisfied that the mother’s conduct amounts to behaviour showing a serious disregard of her obligations. 

15. In the circumstances, I consider that it is appropriate that the mother be dealt with pursuant to the provisions of subdivision E of Division 13A of Part 7 of the Act.

What is an appropriate penalty?

1. I have already noted that the father submitted at the hearing of the applications that I should consider imposing a jail sentence upon the mother if I found her to have contravened the primary orders as alleged.  When the father made further submissions on 23 June 2011, he appeared to resile from that submission but maintained the submission that I should order the mother to relocate with the children from Sydney back to N. 

2. I indicated to the father on that day that I did not anticipate making such an order and I do not intend to.  I point out at this juncture what I consider to be very instructive, at least in my view, from the Full Court’s decision in the case of Elspeth and Peter; Mark and Peter and John and Peter.  In that case the Full Court highlighted the fact that the “singularly most significant result of an imposition of penalty” in a case like this one “is that any subsequent proven contravention of the orders may attract more serious penalties under subdivision F of Division 13A of the Part 7 of the Act including the imposition of a fine or a sentence of imprisonment”.

3. I consider it entirely appropriate to refer to that statement in the context of this case and to remind the mother, most strongly, that when orders are made by this Court they create serious obligations that are to be complied with. Any further proven contraventions may end up being dealt with under subdivision F of Division 13A of Part 7 and may attract a fine or indeed a period of imprisonment.

4. Pursuant to s 70NEB(1) included in the things that the Court may do on a proven contravention that is held to be one falling within the provisions of subdivision E of Division 13A of Part 7, is the discretion to make an order directing the person who committed the contraventions or the person who committed the contraventions and another specified person to attend a “post separation parenting program”. That term “post separation parenting program” is defined in s 4 of the Act. It means a program:

   a)That is designed to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities (including by providing counselling services or by teaching techniques to resolve disputes); and

   b)That consists of lectures, discussions (including group discussions) or other activities; and

   c)That is provided by an organisation that meets the conditions in s 65LB.

5. Significantly, in this particular case, paragraph 8 of the parenting orders made by consent on 1 July 2010 obligated both parties to complete a Parenting Orders Program approved by the Independent Children’s Lawyer.  On the evidence before me, I am satisfied that the mother has done that but that the father has not.  Further, paragraph 7 of those orders obligated the father alone to complete an anger management course as directed by the Independent Children’s Lawyer.  The father concedes that he has not completed such a course, saying that he was not directed to such a course by the Independent Children's Lawyer.

6. I am indeed satisfied, having regard to the definition of post separation parenting program referred to above, that a parenting orders program and an anger management course are both likely to meet that definition.  Accordingly, amongst the things that I can do as a consequence of finding the mother proven to have contravened orders as alleged by the father is to order them both to attend such courses.

7. I intend to utilise the power available to me pursuant to s 70NEB(1)(a) of the Act to direct both the mother and the father to attend a post-separation parenting program. I have, as I am required to do pursuant to s 11E(1)(f) of the Act, considered whether I should seek the advice of a family consultant as to the services appropriate to the needs of the mother and the father and the most appropriate provider of those services.  I am satisfied that the parties, utilising the assistance of their nearest Family Relationships Centre, can find appropriate providers and programs. Accordingly, I will not seek the advice of a family consultant before making the order.

8. I am satisfied that although the mother has apparently completed a parenting orders program that, as her counsel actually submitted, it would be appropriate in all the circumstances of the proven contraventions to order that she attend and complete another such course.  Further, having regard to the evidence before me as to the reasons expressed by the child, J, for not wanting to spend time with the father, I am also satisfied that it is appropriate to direct orders to the father that require him also to attend and complete a parenting orders program as well as an anger management course.  I am satisfied, as I am required to be under s 17NEB(2), having regard to the connection between the contraventions found on the part of the mother and the carrying out by the father of his or her parental responsibilities in relation to the children to whom the primary order relates. 

9. The evidence before me establishes there is currently a breakdown of the relationships between the two children and the father and that although the father attributes responsibility for that to the mother, at least the child J is expressing to independent persons his own views that the father’s inability to control his temper is partly responsible for that.  Accordingly, although the father clearly does not consider it necessary, I am satisfied that a significant step in the process of re-establishing the relationships between the children and the father such as to ensure the children again begin to spend time with the father in a safe and secure way that allows a fostering of meaningful relationships between them is for the father to attend and complete the anger management course that he previously consented to undertaking as well as the parenting orders program that he also previously consented to attending and completing. 

1. In all the circumstances, I do not consider it appropriate to make any other orders or to impose any other penalty upon the mother in respect of the proven contraventions and I will be ordering accordingly. 

The further conduct of the proceedings

1. The mother’s application for interim orders that was filed in the Local Court at Sydney Suburb 1 in November last year was also before me.  In that application she seeks orders suspending those provisions of the final order made by consent on 1 July, 2010.  The father, Mr Raider, made clear his opposition to any such order, continuing to assert that the children have a good time when they are with him and that all that needs to happen is for the mother to be forced to make the children go to spend time with him as ordered.  The father’s continued submission that the evidence of J’s suicidal ideation and the matters he reported to the Youth Mental Health Service in New South Wales simply reflect the pure influence of his mother, prima facie, I simply cannot accept.  In the circumstances of the determination of this matter on an interim basis, bearing in mind that my paramount concern must be the best interests of the children, I am satisfied that a cautious approach should be taken.  Accordingly, I determine that interim suspension of the orders requiring the children to go and spend holiday time with the father was in order.  Indeed, I made such an order on 23 June, 2011.  I did not suspend the order in respect of telephone communication on the Monday and Friday nights of each week and I made it clear to the mother and the father that such orders still apply and I expect them to be complied with. 

2. I consider that an Independent Children's Lawyer should now be appointed and I will make the appropriate order doing so.  I also consider that a Family Consultant in this registry should prepare a report in respect of this family as soon as possible with a view to assisting all of the parties, including the Independent Children's Lawyer, to be in a position where any party can relist the matter for further interim consideration by me if he or she considers it appropriate in the light of the report so prepared.  I note that I also made it clear that I would be likely to make such an order and that I expected the mother and children to travel from Sydney to the Brisbane registry for interviews as required by the Family Consultant in the course of the preparation of such report. 

3. The matter will be referred back to a Registrar for ongoing case management until it is trial ready and able to go into one of the regular callovers taking place in this registry.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 July 2011.

Associate: 

Date:  15 July 2011