Ramsay and Wade (No.4)
[2014] FCCA 2333
•9 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMSAY & WADE (No.4) | [2014] FCCA 2333 |
| Catchwords: FAMILY LAW – Children – contravention of parenting orders – contravention without reasonable excuse – less serious contravention – where no court has previously made an order imposing a sanction or taking an action in respect of a contravention by the respondent – appropriate sanction – whether a bond appropriate – post-separation parenting program – whether order should be made under Family Law Act 1975 (Cth) s.70NEB(a) – purpose of applying sanctions for contravention of parenting orders – two-fold purpose – education of parties about the necessity to comply with parenting orders – indication of disapproval of contravention of orders – imposition of a bond – length of time for bond to operate – 2 years unduly harsh. |
| Legislation: Family Law Act 1975 (Cth), ss.70NEA, 70NEB, 70NEC |
| Cases cited: Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072 McClintock & Levier [2009] FamCAFC 62; (2009) 41 Fam LR 245; FLC 93-401; 233 FLR 179 Ramsay & Wade [2014] FCCA 1431 Ramsay & Wade (No.3) [2014] FCCA 2051 Stubbs & Stubbs [2013] FamCA 427 |
| Applicant: | MS RAMSAY |
| Respondent: | MS WADE |
| File Number: | SYC 5648 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 9 October 2014 |
| Date of Last Submission: | 9 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Reeve |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms Murphy (direct brief) |
ORDERS
The Respondent Mother is required to enter into a bond under the provisions of section 70NEC of the Family Law Act, without surety or security, for a period of 12 months from today on condition that she be of good behaviour during the term of the bond.
IT IS NOTED that publication of this judgment under the pseudonym Ramsay & Wade (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYC 5648 of 2012
| MS RAMSAY |
Applicant
And
| MS WADE |
Respondent
REASONS FOR JUDGMENT
I have heard submissions from Mr Reeve for the Applicant, and from Ms Murphy of Counsel for the Respondent in respect of the appropriate sanctions which should be applied in respect of six findings of contravention of parenting orders. On 8th July 2014 I found that the Respondent Mother did, on various dates between 20th February 2014 and 16th March 2014 contravene two sets of orders that were made on 19th December 2012, and varied 7th February 2013[1]. I handed down a decision on that point and granted the Mother leave to file and serve an affidavit setting out the facts upon which she sought to rely in support of any contention that she may wish to make that she had a reasonable excuse for all or any of the eight contraventions that were found.
[1] Ramsay & Wade [2014] FCCA 1431
I would note that at that stage, and at the time when the contraventions took place, the Mother did not have the benefit of legal representation. Fortunately, that situation changed. When the matter came before the Court on 20th, 21st and 22nd August this year, the Mother was represented by Ms Murphy of Counsel, and I heard evidence and submissions on whether or not the Respondent had established a reasonable excuse for the contraventions.
In a decision handed down on 26th August[2], I found that the Mother had established a reasonable excuse for contravening orders on 20th February and 23rd February 2014. However, I went on to find that the Mother had without a reasonable excuse on six other occasions contravened those orders. As I had made clear in the earlier decision, the onus is on a Respondent to establish a reasonable excuse once a contravention has been established. The onus is not on the Applicant to negative reasonable excuse. The legislation makes that quite clear.
[2] Ramsay & Wade (No.3) [2014] FCCA 2051
I have now heard submissions from Mr Reeve for the Applicant and Ms Murphy for the Respondent as to the appropriate sanction to be applied. Certainly, it has been submitted on behalf of the Applicant that section 70NEA of the Act, which comes in subdivision E – part 7, division 13A, was the appropriate section. The heading of subdivision E refers to “Contravention without reasonable excuse (less serious contravention)”. It was not put to the Court that there was any aggravating behaviour on the part of the Respondent, and, indeed, Mr Reeve was at pains to point out that that was not the submission. Mr Reeve was also at pains to point out that the Respondent should be regarded as a first offender, and that appears to me appropriate in the circumstances.
However, as to the sanction to be applied, he submitted that there was a need to apply some kind of brake to the Mother’s behaviour. He submitted that the appropriate penalty should be a bond and it should be for a period of two years, 24 months, which is the maximum time provided by the section. Ms Murphy of Counsel, who appeared for the Respondent, submitted that a bond was not required in the circumstances. She did bring the Court’s attention to the fact that the Respondent was not represented at the time.
And, indeed, that is so, that the Respondent did not acquire representation until the latter part of the contravention proceedings, which was, in fact, to her advantage in that submissions were made which then persuaded the Court that a reasonable excuse had been established in respect of two of the contraventions. What Ms Murphy has submitted as far as a sanction is concerned is that the appropriate sanction under section 70NEB of the Act would be under paragraph (a), which provides that the Court should make an order directing the person, i.e., the Respondent, who committed the current contravention to attend a post-separation parenting program.
Ms Murphy submitted, and, I think, with some justification, that the sanction under paragraph (b) would not be appropriate in these circumstances as the Court had already made an order, again, on 26th August, providing for interim parenting orders which substantially increased the Father’s time with the children. Even though those orders did not specifically relate to the amount of time with the children that the Father had not had as a result of the contraventions that were found, it was the case that the orders made on 26th August in those proceedings in that separate decision provided a significant increase in the Father’s time with the children.
As such, it seems to me that the provisions of paragraph (b) of subsection (1) are neither appropriate nor necessary. Paragraph (c) of that subsection requires the Court to adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order. That is being done. There are substantive proceedings which, for part of the time, at least, have been going along parallel to the contravention proceedings. Paragraph (d) empowers the Court to make an order requiring the person to enter into a bond in accordance with section 70NEC.
Further paragraphs relate to a sanction for a failure to enter into a bond, orders for compensation or/and orders for costs of one sort or another. I am referred by counsel for the Respondent to the decision of her Honour Dawe J in the Family Court of Australia of Stubbs & Stubbs[3], a decision handed down on 11th June 2013. In particular, I am referred to the provisions of paragraphs [71] and [72] of that decision where her Honour referred to the decision of the Full Court of the Family Court in a decision called Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs)[4], the decision of Faulks DCJ and Kay and Penny JJ in 2007.
[3] [2013] FamCA 427
[4] [2007] FamCA 1072
Her Honour also referred to the comments of the Honourable Cronin J in McClintock & Levier[5], a decision of the Full Court of the Family Court. Her Honour drew from those decisions these particular points, which I shall quote. In paragraph 71, her Honour said:
The singularly most significant result of an imposition of a penalty in this case is that any subsequent proven contraventions of the orders may attract the more serious penalties under subdivision F of division 13A of Part 7 of the Act, including the imposition of a fine or a sentence of imprisonment.
[5] [2009] FamCAFC 62; (2009) 41 Fam LR 245; FLC 93-401; 233 FLR 179
At paragraph 72, Her Honour noted the comments of Cronin J saying that:
The focus of a court, therefore, in dealing with a contravention application under division 13A must be in making orders which will enforce future compliance with its orders.
The function of making orders and, where necessary, applying sanctions in respect of contraventions is two-fold. Initially, there must be a process of education of parties about the necessity to comply with court orders in respect of parenting, but there must also be the need, where the Court considers it appropriate, to apply a sanction or penalty to indicate the Court’s disapproval of the behaviour that has been the subject of the application, and, indeed, the Court applies the penalty to indicate the community’s disapproval of disobedience of court orders relating in this case to parenting.
I am satisfied that under subsection 70NEA(2), no court has previously made an order imposing a sanction or taking an action in respect of a contravention by the respondent. I am not satisfied that there are any aggravating circumstances that would take the matter out of the realm of subdivision E, and I have always been of that view, and I have indicated this morning and on a previous occasion that any sanction made in respect of the findings would not involve a custodial sentence. The Court does impose custodial sentences from time to time, but this is not such a matter, and the Court would look at a less draconian result with the intention of educating the parties about the need to comply with court orders and making an order that would be intended to ensure that there should be no future contraventions.
As I said, I have already decided that making a further parenting order compensating the Applicant under paragraph (b) of subsection 70NEB(1) is not appropriate. I have considered the submission on behalf of the respondent that the appropriate sanction would be to make an order under paragraph (a), requiring the Respondent to attend a post‑separation parenting program. In my view, these proceedings have gone past that stage.
There is a requirement, as submitted on behalf of the Applicant, for some sort of brake or control to be placed upon the Respondent in order to ensure that there will be compliance with parenting orders in the future, noting, indeed, that there are proceedings for final parenting orders which will continue today and are intended to be completed today.
In my view, the Court, having considered and found inappropriate the requirements of paragraphs (a), (b) and (c) of subsection 70NEB(1), then gets to paragraph (d), which empowers the Court to make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC. It is a fact that a bond is to be a specified period for up to two years, and the Court has been urged by the solicitor for the Applicant to set a period of two years.
Under subsection 70NEC(3), a bond may be with or without surety and with or without security. Under subsection (4) of section 70NEC, the Court may impose conditions on the bond, and paragraphs (a) to (d) of that subsection set out conditions that may be imposed, although that list is not exhaustive. The suggested conditions in the legislation are attending an appointment or a series of appointments with a family consultant, attending family counselling, attending family dispute resolution or to be of good behaviour.
It has been submitted by the solicitor for the Applicant that the only condition that would be required would be a requirement to be of good behaviour, and I am satisfied that a requirement to be of good behaviour is appropriate in the circumstances. Being of good behaviour would require a person to comply with any current or future court orders because a future contravention of a court order is, per se, a failure to be of good behaviour.
The Court is also required, if proposing to require a person to enter into a bond, to explain to the person, in language likely to be readily understood, the purpose and effect of the proposed requirement and the consequences that may follow if the person fails to enter into the bond or, having entered into the bond, fails to act in accordance with the bond.
It is my intention to require the Respondent to enter into a bond on the condition that she be of good behaviour. I have considered the period of time suggested, and I am not persuaded that there is a necessity in the circumstances to require the Respondent to enter into that bond for a period of two years from today. In my view, based on, I think, many years experience in the past in imposing bonds upon people in various jurisdictions in various courts, a period of 12 months would be sufficient, and I think that 24 months is perhaps unduly harsh on the Respondent.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 9 October 2014
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