REID & SECCO

[2017] FamCA 1140

FAMILY COURT OF AUSTRALIA

REID & SECCO [2017] FamCA 1140

FAMILY LAW – CHILDREN – Obligation to return child to Australia

FAMILY LAW – CONTEMPT – Disobedience of orders – Significance of a subsequent application to the Court – Significance of legal advice

Evidence Act 1995 (Cth) s 141
Family Law Act 1975 (Cth) s 112AP
Family Law Rules 2004 r 21.08

Ibbotson and Wincen (1994) FLC 92-496

In the Marriage of Tate (2002) 29 FamLR 195
Medlow & Medlow (2017) FLC 93-796
R v Pfitzner (1976) 15 SASR 171

APPLICANT: Mr Reid

RESPONDENT: Ms Secco

FILE NUMBER: CAC 1283 of 2008

DATE DELIVERED: 10 November 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 2 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Evans Family Lawyers

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The respondent is held to be in contempt of the Court.

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 Reid & Secco 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 CANBERRA

FILE NUMBER: CAC 1283 of 2008

Mr Reid

Applicant

And

Ms Secco

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant in this matter is Mr Reid, born in 1968; the respondent is Ms Secco, born in 1964.  The parties have one child, X (the child), who is twelve.

2. The current proceedings arise from the applicant’s application for contempt, filed 20 March 2017.

3. At the hearing of the matter the respondent denied the contempt.

4. The contempt is said to relate to an alleged breach of orders made by Judge Henderson on 13 December 2013 that provided for a suspension of orders made by Federal Magistrate Hartnett on 16 December 2009, and allowed the respondent to remove the child from Australia to City A for the duration of her employment posting there.  The posting was envisaged to be for a period of three years, and so the 16 December 2009 orders were suspended for that time.

5. The application for contempt filed 20 March 2017 stated the alleged contempt as follows:

   …the mother did not return [the child] to Australia from [City A, Country B] on 28 January 2017 or in the alternative on 28 February 2017 in deliberate breach and in flagrant disregard of Orders 1 and 4 of Orders dated 13 December 2013 of the Federal Circuit Court Canberra. 

6. What led to this formulation was a degree of ambiguity within the orders made by the Federal Circuit Court.  They firstly suspended the previous orders for the applicant to spend time with the child until 28 January 2017 as follows:

   1.Orders 4 to 14 inclusive of the Orders dated 16 December 2009 in relation to the child [B] born … 2005 be suspended for a period of 3 years commencing 27 January 2014.

7. The orders also provided that the respondent was at liberty to retain the child in Country B until the conclusion of her posting there, a posting that ended 28 February 2017 as follows:

   4.The mother be permitted to take the child out of the Commonwealth of Australia from 27 January 2014 for the duration of her posting to [City A, Country B].

8. On the commencement of the hearing, it was necessary to formulate a charge of the allegation.  I indicated to the applicant that in its present form the statement of allegation was duplicitous.  The allegation was reframed to formulate a charge as follows:

   …that [Ms Secco] did not return [the child], born … 2005, to Australia from [City A, Country B] on 28 February 2017 in deliberate breach and in flagrant disregard of Order 4 of Orders dated 13 December 2013 of the Federal Circuit Court Canberra.

9. This dealt with a latent ambiguity that was contained in the previous formulation of the charge and ensured that the respondent faced a clear and single allegation of the contempt.  The amendment to the allegation reflected the construction of the orders most favourable to the respondent. 

10. At the hearing the respondent was charged with and denied the allegation.

11. The applicant then relied upon the affidavit by the applicant of 12 October 2017 along with a tender bundle filed 13 October 2017.  Various paragraphs of the affidavit were struck out as inadmissible, as was one entry in the tender bundle.  The applicant was then cross-examined by the respondent.

12. The respondent challenged the applicant’s assertion that he had commenced the proceedings that led to the making of the orders on 13 December 2013 by Judge Henderson.  The applicant was unable to recollect whether he commenced those proceedings or whether they were commenced by the respondent in 2013.  The respondent said that this was important as it showed that she had respect for the Court as it was she who had instigated that Court process.  The Court record shows that the proceedings were commenced by the respondent filing an Initiating Application on 2 April 2013.

13. The applicant accepted that the respondent had not communicated to him in direct terms that she would retain the child in Country B regardless of Court orders. 

14. Following the completion of the applicant’s evidence the respondent was invited to make a response to the allegation in accordance with r 21.08. The respondent challenged that she had acted with flagrant disregard for the Court orders, emphasising that she had acted on legal advice. As a result of that legal advice she said that she understood that she could make no application to the Court until her arrangements in City A, in particular as to whether or not her posting would be extended, were settled. She said that she sought consent from the father and that she ultimately commenced legal proceedings shortly after the due date of return. The respondent emphasised difficult personal circumstances at the time involving her daughter, Y, requiring hospitalisation and medical treatment, and issues relating to the child being assessed as having a significant degree of distress. The respondent said that she had previously been in compliance with orders. The respondent emphasised that she had followed legal advice, sought the consent of the father and made an application to the Court on 7 March 2017, shortly after her posting had ended. As a result of these matters, she says, her conduct should not be seen to be in flagrant disregard of the Court orders.

15. The respondent did not address the question of whether there was a case to answer.  Taking the case as put by the applicant at its highest, where the evidence, if accepted, supported a potentially serious and deliberate breach of the orders governing the retention of the child in City A, I determined that there was a case to answer.

16. The respondent then gave evidence and was cross-examined.  In her submissions at the end of the case the respondent accepted that, in failing to return the child to Australia, she was in breach of the orders.  The issue that she identified was whether the breach, in context, meant that she was in flagrant disregard of the orders.

Evidence in relation to the breach

1. In her evidence the respondent accepted that she had participated in the 2013 proceedings that had led to the orders which enabled her to take the child to City A.  She accepted that she had read the judgment and the orders.  In accordance with the orders she departed Australia in late January 2014 commencing work in City A on 5 February 2014.  On taking up the position the respondent understood that the basis of the posting was not that it would continue until June or July 2017 but that it would run from February 2014 to February 2017.  It is established beyond reasonable doubt that the respondent both knew that an Order had been made and knew the content of the Order.  In reliance on those she was able to travel to City A with the child.

Agreement on the part of the applicant

1. The respondent asserted that in 2015 she had indicated to the applicant her hope that she and the child would be able to stay beyond February 2017.  She accepts that he gave no consent at that point, but asserted that he did not mount disagreement at that stage.  The respondent did not assert that the applicant gave consent at any stage for the extension of the time beyond February 2017.  She accepted that they did not even have what she would describe as “tangible” discussions about the possibility of the extension in 2015.  Even though she said that he appeared relaxed about the possibility of an extension of posting, her view of the applicant was that he opposes everything.  She asserted that he has never given his consent for anything.  She accepted that from November 2016 the applicant had expressly advised her that he did not consent to the child remaining beyond the posting.[1]  That advice was given in writing by the applicant.  The respondent asserted the consequence of receiving this from the applicant is that she obtained legal advice. 

   [1] At [43] of the mother’s affidavit filed 31 October 2017.

Ending of the posting period

1. From 2015 the respondent took steps to extend the period of her posting.  The respondent asserted that it was always her intention to remain in Country B until June, but that the child would stay if he either had permission from the applicant or from the Court.  The applicant, in contrast, asserted that the determination to stay revealed from an early point an intention not to comply with the orders regarding the child’s return.

2. In September 2015 the respondent wrote to Ms L (tab 11 exhibit A2) seeking an extension of her posting to August 2017.  She was advised that a decision could not be made through that process. 

3. In early 2016 the respondent made an application to her employers to remain in City A until July 2017.

4. In March 2016 the respondent was subject to a performance appraisal from her employers.  Issues arising from that performance assessment are set out at tab 28 of exhibit A2 and, under the heading Next Steps, the respondent was advised as follows:

   One of the risks of not taking appropriate steps to address these performance issues is that your current performing well rate will be reviewed, which is the minimum required to remain at the post and can be reviewed at any time.

5. The respondent asserted that, despite this description, she was told by Ms M, the author of the correspondence to her, that it was a separate process to the posting application that she had made to extend her time and did not affect it.  That conversation has not been referred to in the respondent’s material.  The respondent further asserted that she was not “overly concerned” about the performance issues given the positive feedback that she had received from others and given her view that if it was a serious problem she would have been returned home at that stage.  The applicant submitted that the significance of the appraisal was that it placed the respondent on notice of a lack of likelihood that her posting would be extended.

6. In June 2016 the respondent received information as to the identity of the person who would be taking over her role in early 2017.  She knew, at tab 31 of exhibit A2, that the nominated start date for this person was January 2017.  At that point she was aware that her application for an extension of time in City A had been refused.  She indicated that she then had discussions with her replacement about the possibility of her staying on until later in the year. 

7. On 30 June 2016 the respondent made a further request for extension of the time in City A, as evidenced by tab 30 of exhibit A2.  This was a request for her employers to consider an extension to the posting on personal grounds.  The respondent did not receive an answer to this request until January 2017.

8. On 17 November 2016 the respondent emailed the applicant seeking consent to an extension of time in City A.  The same day the applicant emailed the respondent and stated that he did not consent to the child being retained in City A.  He sought evidence from the respondent as to when the posting would end.  The following day the respondent emailed the applicant (at Annexure D of her affidavit), on the basis that she thought it was unlikely that he would consent to the child remaining in City A.  The respondent’s email stated that if the applicant would not consider it (the extension) then she would “pass it to a magistrate to decide.”

9. On 21 November 2016 (tab 33 exhibit A2) the mother was advised by the her employers that she should prepare for her departure, notwithstanding that there was a review of her extension application pending.

10. While still awaiting the outcome of her application for an extension to the posting, the respondent approached her employers in early December 2016 about the possibility of securing a voluntary redundancy (tab 37 exhibit A2).  The need for this voluntary redundancy arose, she said, from the need to expend legal costs (for the purpose of securing the child in City A) and the need to fund herself and the children remaining the extra time in City A until the end of the school year, an additional 16 weeks.

11. On 16 December 2016 further communication took place in relation to the voluntary redundancy and the respondent was advised that should she be considered appropriate for an offer, then she would be given four weeks to decide if she wanted a redundancy offer.  On 22 December 2016 she was advised that if she took the voluntary redundancy her exit date would be 28 February 2017.  At that stage, she says, the issue of the potential extension of the posting was still outstanding.  The offer for voluntary redundancy was formally put to the respondent on 5 January 2017 (tab 41 of exhibit A2).

12. On 25 January 2017 the respondent received formal advice that she had not received an extension of the posting in City A.  She asserts that, until this time, she had reason to believe that it would be extended and had received a call to say it was still being considered because her replacement would not commence until July 2017.  No evidence appears in her affidavit material of this conversation.  I accept that until this time the respondent hoped that the posting would be extended.

13. The respondent subsequently accepted the voluntary redundancy which had the effect that her employment would end on 28 February 2017.

Legal advice

1. Admitting that she was in contravention of the orders, the respondent contested whether the breach was a flagrant challenge to the authority of the Court.  A central plank of this defence was that she had sought and acted upon legal advice that she had received.  She said that, absent the applicant’s consent, she did not understand that she needed to make an application to the Court prior to the return date for the child.

2. This view of the matter, she said, was gained from legal advice that she received.  Her first attempt to obtain legal advice occurred in November 2016 when she made contact with her former solicitor, Mr N.  Exhibit R4 set out the terms of email advice that she received from him.  She stated that there were also conversations with Mr N.  Exhibit R4 set out the following:

   The Orders made on 13 December 2013 suspend the 2009 orders until 27 February 2017.  From that date the 2009 orders apply again.  You are required to comply with those orders.

   If you fail to comply with the orders [Mr Reid] can make an application to the Court.  He could file a Contravention Application seeking to have you dealt with for non-compliance with the order.  A ground of defending such an application is that you have reasonable excuse.  It appears that extension of your posting is voluntary.  If it is voluntary, then all the surrounding circumstances including [Y’s] education would need to be considered in the context of “reasonable excuse”.  You make several valid points in that regard in your email.  Also, the additional time is not particularly long and [Mr Reid] will look bad if he takes steps against you.  It will be more dispute at the expense of child-focused decision making.

   [Mr Reid] could bring another application, such as seeking an order that the child be returned to Australia to be in his care.  The time frame for an application is relevant.  He probably shouldn’t bring an application until after 27 February 2017, but there is nothing to stop him doing so sooner.  However, the delays at Court are quite lengthy at present and there may be little utility in him bringing an application, as there cannot be any real grounds of urgency.

   If [the child] were to return to Australia any time from now on it would be problematic for you to get him back to [City A] against [Mr Reid’s] opposition. After 27 February 2017 it would be a breach of the Family Law Act for you to remove [the child] from Australia against [Mr Reid’s] opposition. You should expect that the child would be retained by [Mr Reid] if [the child] comes to Australia at any time from now.

3. The respondent took from her legal advice that she needed a decision regarding whether or not she would receive an extension from her employers to her posting before she was able to make an application.  That is, she needed to understand what her circumstances were before an application could be made to the Court.  She further says that she understood that there were orders in place from the Court, but understood that she was at liberty to apply for new orders.  The reason that she did not apply for new orders until after the proper return date was, she says, because of the legal advice that she had received. 

4. The respondent was subsequently advised by Mr N that he was unable to provide her with further assistance because of a potential conflict issue.  She then sought advice from O Law on 1 February 2017.  She complains that they were slow in acting upon her case.  Exhibit A5 sets out e-mail correspondence in relation to Ms O.  This e-mail correspondence does not contain instructions to file an application.  The respondent says that those are implicit in the matters that she addressed in her email.  It may be accepted that the implication within the email was that the matter was urgent. 

5. Being dissatisfied with O Law, the respondent sought advice from her previous solicitor (now of counsel) Mr P.  He responded on 24 February 2017.  His response to her is at exhibit A6.  Consequently the respondent contacted Q Legal (Exhibit A7), commencing to engage them on 24 February 2017.  The respondent subsequently commenced proceedings by the filing of an application on 7 March 2017, one week after the City A posting ended.

6. Under cross-examination the respondent said that she understood that she had an obligation to return the child to Australia after the three years posting.  She further said that she understood that if there was to be a change to that it would require her making an application if she could not secure consent. 

7. She asserted that she had made an application (a reference to her application filed on 7 March 2017).  When questioned as to whether she understood that she needed to make the application before retaining the child beyond the end of the posting, she asserted that she did not understand that to be the case because, if she had understood it, she would have made an application before that time.  She further said that at no time was the advice received by her to the effect that she should immediately return the child to Australia.  She did not disclose whether she had specifically sought advice on that point.

Contempt Application – applicable law

1. Section 112AP of the Family Law Act 1975 applies to contempt of a court that “constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.”

1. As stated by the Full Court in Ibbotson and Wincen (1994) FLC 92-496 at 81,162:

   The use of the term "flagrant challenge" to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s.112AD.

   In the ultimate, it is a question of fact and degree whether the stringent terms of [s 112AP(1)(b)] are satisfied.

2. While it is not necessary that breaches be repeated to constitute a flagrant challenge, repetition “may more readily attract” the provision[2].  While each case turns upon its own circumstances, in Ibbotson the matters that led to a description of the breach to be flagrant included that the actions were premeditated, and formed a carefully planned course of conduct designed to “deliberately deprive the applicant of custody” for a period of seven months by the means of abduction from Australia.

   [2] Ibbotson and Wincen (1994) FLC 92-496 at 81,162.

3. In Medlow & Medlow (2017) FLC 93-796 the Full Court confirmed the relevant inquiry as being as to “the “exceptional or striking nature” of the contravention in question”.

4. In the Marriage of Tate (2002) 29 FamLR 195 makes it clear that while contempt pursuant to s 112AP is not an offence against a law of the Commonwealth, it is an offence arising under an Australian law, meaning that, in accordance with s 141 of the Evidence Act 1995, the standard of proof is beyond reasonable doubt.

5. It is necessary that both the breach of the order, and its characterisation as a flagrant challenge to the authority of the Court, are proven beyond reasonable doubt.

The contravention

1. The respondent accepted that she was in breach of the order providing that the child was permitted to be taken out of Australia for the duration of her posting to City A.  The child was not returned at the end of that period to recommence time with the applicant in accordance with the orders of 16 December 2009.

2. While the charge specified a date of 28 February 2017 as the date of non-compliance, it may readily be seen that the non-compliance did not commence until 1 March 2017.  28 February 2017 marked the end of the period for which the child could be retained overseas.  In accepting that she was in contravention, the respondent raised no issue as to this recitation of the date.

3. In R v Pfitzner (1976) 15 SASR 171 Bray CJ stated[3]:

   Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it.

   [3] See Ross on Crime 5^th Edition at [9.1825].

4. In this case, no issue was raised as to the date specified in the charge by either party.  Each directed their case to the substance of the contravention in failing to return the child to Australia in accordance with the orders, something the respondent accepted that she did not do.  Accordingly, nothing turns on the particular date as set out in the charge, save that the first contravening date must be found to be 1 March 2017 rather than 28 February 2017.  That the contravention commenced on 1 March 2017 is established beyond reasonable doubt.

flagrant challenge to the authority of the court

1. The controversial element in this case is whether the contravention can be characterised as a flagrant challenge to the authority of the Court.  The burden to show this element rests upon the applicant and, as stated above, must be proven beyond reasonable doubt.

2. The applicant calls in aid the following matters.

3. Firstly, the posting was for three years and, on the evidence of the respondent at the time of the hearing that allowed her to take the child to City A, was unlikely to be extended.  The respondent made a series of applications to extend the posting, none of which was successful and which, he submitted, could not be seen as likely to be successful in the context of the performance appraisal.

4. It may readily be accepted that the respondent was determined to extend the posting beyond the three year mark.  This determination does not equate to a long standing intent to breach the orders by the retention of the child.  It does evidence a long-term and settled desire on the part of the respondent to keep the child in City A until the middle of 2017.  If the posting had been extended a question, not addressed at the hearing by the applicant, arises as to whether the retention would have resulted in a breach of the orders.  In her submissions the respondent appeared to accept that an extension would have made it necessary in any event to seek a variation of the orders.  It is not clear that this is so.

5. In any event, the matter does not fall to be resolved on what may have occurred if the posting was extended.  From the commencement of the posting, while desiring an extension of the posting, the respondent was acutely aware that an extension may not be forthcoming.  The unlikelihood of an extension was addressed in her oral evidence before Judge Henderson.  It was reinforced with each failure or refusal to extend by her employers, and by her employer’s advice that she should continue to prepare for leaving City A in the absence of advice that the posting would be extended.  It is difficult to accept the respondent’s assertion that she did not see her prospects as undermined by the comments by her manager (Exhibit A2 tab 28), although I accept that it is possible that was the case.  Accordingly, I do not place any significant weight upon the performance review of the respondent.

6. Even at its most favourable to the respondent, the situation was that she was aware that there was a significant risk that her posting would not be extended beyond 28 February 2017.

7. The respondent was also aware that the obligations contained in the orders meant that the child was required to be returned at the end of the posting, and that her conduct meant that he was not.  Rather than being returned to Australia, and resuming substantial and significant time with his father, an arrangement that had been in hiatus for three years by virtue of the orders of Judge Henderson, the breach of the orders retained the child in City A and continued the hiatus, until further orders were made by the Court on 24 March 2017 for the child’s return to occur by 26 April 2017.

8. This constitutes a serious breach of the orders that governed the relationship between the child and the father.

9. In order to ameliorate the seriousness of the breach as exhibiting a defiance of the authority of the Court, the respondent points to having previously made applications to the Court, to having complied with the order of this Court for the return of the child, and to having made an application on 7 March 2017 to extend the child’s stay in City A.  These, she asserted, show that her attitude was not in flagrant disregard for the authority of the Court.  In particular she asserted that her reliance on legal advice and the particular difficulties she faced with Y’s hospitalisation and the child’s upset at about the time of the end of her posting mean that the lateness of the application should again not be seen as a flagrant disregard of the Court, but rather a product of difficult circumstances.  She further points to the fact that her application to the Court was delayed by difficulties in progressing her legal representation as set out above.

10. While it may be the case in some instances that other compliance with orders could give a context to a particular non-compliance such that it should not be seen as being in flagrant disregard for the authority of the Court, the compliance with the other provisions of Judge Henderson’s orders, and the subsequent compliance with the orders of this Court of 24 March 2017, do not detract from the non-compliance with the obligation to return the child at the end of the posting.  Non-compliance with those orders may have accentuated the seriousness of this non-compliance.  Previous compliance, in this instance, does not diminish the seriousness of this particular breach.

11. Much turns on the respondent’s reliance on legal advice, and the respondent’s efforts to commence proceedings.

12. As to the first of these matters, the clear advice given by Mr N was that the respondent was required to comply with the orders, and that failure to comply would be a contravention of the Orders.  He advised that this contravention may be able to be explained in a manner to show that there was a reasonable excuse for the contravention.  At no stage was it suggested that the obligation to return the child was not binding upon the respondent.  The respondent pointed to no advice that suggested that she was not bound by the Orders to return the child.

13. As to the second of these matters, the respondent had a long settled desire to extend the child’s time in City A, stemming from shortly after her posting commenced in 2015.  She was on notice from at least November 2016 that the applicant did not consent to the child remaining in City A.  There was no basis for her to know that her posting would be extended given her lack of success despite multiple attempts to have it extended.  Even accepting that the respondent faced difficult personal circumstances at the time that she sought the representation, her engagement with legal practitioners to progress a Court application came very late, and only after a time when she knew certainly that there would be no extension of her posting. 

14. From at least as early as the acceptance of the voluntary redundancy on 25 January 2017 it may be inferred that the respondent had no intention to comply with the obligation to return the child at the end of the posting.  She had, prior to that date, taken no steps to arrange his return.  She took no steps to arrange his return despite the certainty of the date of the end of her posting.  She did not arrange his return until further orders were made by the Court.

15. The steps to make an application to the Court came too late to significantly ameliorate the intent to breach the orders for the child’s return.

16. The retention of the child overseas in City A in the face of long standing Orders to return the arrangements to have the child spend substantial and significant time with the father is a striking and exceptional case of a breach of Court Orders.  It was a flagrant challenge to the authority of the Court.  This conclusion is reached beyond reasonable doubt.

17. Accordingly the respondent is guilty of contempt of Court.

18. The matter will be adjourned in order to deal with the question of sentence.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 November 2017.

Associate: 

Date:  10 November 2017