Royston & Royston (No. 2)

Case [2024] FedCFamC1F 114

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Royston & Royston (No. 2) [2024] FedCFamC1F 114

File number(s): SYC 2960 of 2020
Judgment of: JUSTICE JARRETT
Date of judgment: 8 March 2024
Catchwords: FAMILY LAW – CONTRAVENTION – Where nine counts alleged – Where seven counts proven without reasonable excuse – Determination of sanction  
Legislation:

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NDA, 70NEA, 70NEB, 70NFA, 70NFB, 121

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13(1)(e)

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59

Gravis & Major [2010] FamCAFC 239

McClintock & Levier (2009) 41 Fam LR 245

Pearce v R (1998) 156 ALR 684

R v Hoar (1981) 148 CLR 32

Royston & Royston [2023] FedCFamC1F 967

Saldo & Tindall [2013] FamCA 951

Tindall & Saldo [2015] FamCAFC 1

Zamir v Zamir (2023) 65 FamLR 612 

Division: Division 1 First Instance
Number of paragraphs: 53
Date of hearing: 29 November 2023
Place: Brisbane
Solicitors for the Applicant: Brigid Justice Ltd
Solicitors for the Respondent: Litigant in person

ORDERS

SYC 2960 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ROYSTON

Applicant
AND:

MR ROYSTON

Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

8 MARCH 2024

UPON THE COURT FINDING THAT THE RESPONDENT HAS, WITHOUT REASONABLE EXCUSE, CONTRAVENED THE ORDERS MADE UNDER THE FAMILY LAW ACT 1975 (CTH) BY A DEPUTY REGISTRAR IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) AT SYDNEY ON 31 OCTOBER, 2022 (“THE PRIMARY ORDER”), IN THAT:

(a)in contravention of order 20, on 24 December, 2022 he refused to facilitate a video call between the child X and the applicant (“count 2”);

(b)in contravention of orders 18 and 19, on 28 March, 2023 he contacted the applicant (“count 4”);

(c)in contravention of order 5.10.1, on 14 April, 2023 he refused to return the child X to the applicant’s care (“count 5”);

(d)in contravention of orders 18 and 19, on 10 April, 2023 he contacted the applicant (“count 6”);

(e)in contravention of order 5.2, on 14 June, 2023 he failed to return the child to the applicant’s care (“count 7”); and

(f)in contravention of order 5.10.2, on 4 July, 2023 he failed to return the child to the applicant’s care (“count 8”).

THE COURT ORDERS THAT:

1.For count 4 no sanction shall be imposed upon the respondent.

2.For count 6 the respondent shall pay the applicant’s costs of and incidental to the application for contravention filed on 6 June, 2023 and the application for contravention filed on 27 July, 2023 fixed in the sum of $12,133.00.

AND THE COURT FURTHER ORDERS THAT:

3.For the purposes of order 3 made on 25 September, 2023 the costs to be paid by the respondent to the applicant thrown away by the adjournment that day be fixed at $1,320.00.

4.Paragraph 11 of the orders of 31 October, 2022 be amended…

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Royston & Royston (No. 2) [2024] FedCFamC1F 114
Case
[2024] FedCFamC1F 114
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Royston & Royston (No. 2) dealt with allegations of non-compliance with court orders in a family law matter. The applicant, Ms Royston, alleged that the respondent, Mr Royston, had contravened several orders made under the Family Law Act 1975. The court needed to determine whether the respondent had breached the specified court orders and, if so, what sanctions should be imposed. The legal issues encompassed the interpretation of the contraventions, the appropriateness of the sanctions proposed, and the calculation of costs. The court concluded that seven out of nine counts of non-compliance were proven without reasonable excuse. The court imposed a range of sanctions, including monetary payments for costs and the imposition of bonds to ensure future compliance. The reasoning focused on the need for sanctions that were proportionate to the breaches while considering the respondent’s history of non-compliance. The court rejected the imposition of cumulative bonds, opting instead for concurrent bonds to avoid excessive punishment. The final orders included specific financial penalties and amendments to the existing orders to better manage future communications between the parties.

The court ordered the respondent to pay certain costs related to the contravention proceedings and adjusted the communication provisions between the parties to limit contact to specified circumstances and frequency. Additionally, the court set bonds for the respondent to adhere to specific conditions in the future, with a total duration of six months for each bond. The decision emphasised the importance of proportionality in sentencing and the need to tailor sanctions to the individual circumstances of the case. The court also noted the necessity of ensuring that any imposed sanctions would effectively deter future non-compliance without being excessively punitive.

Orders

Orders of the court

SYC 2960 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ROYSTON

Applicant

AND:

MR ROYSTON

Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

8 MARCH 2024

UPON THE COURT FINDING THAT THE RESPONDENT HAS, WITHOUT REASONABLE EXCUSE, CONTRAVENED THE ORDERS MADE UNDER THE FAMILY LAW ACT 1975 (CTH) BY A DEPUTY REGISTRAR IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) AT SYDNEY ON 31 OCTOBER, 2022 (“THE PRIMARY ORDER”), IN THAT:

(a) in contravention of order 20, on 24 December, 2022 he refused to facilitate a video call between the child X and the applicant (“count 2”);

(b) in contravention of orders 18 and 19, on 28 March, 2023 he contacted the applicant (“count 4”);

(c) in contravention of order 5.10.1, on 14 April, 2023 he refused to return the child X to the applicant’s care (“count 5”);

(d) in contravention of orders 18 and 19, on 10 April, 2023 he contacted the applicant (“count 6”);

(e) in contravention of order 5.2, on 14 June, 2023 he failed to return the child to the applicant’s care (“count 7”); and

(f) in contravention of order 5.10.2, on 4 July, 2023 he failed to return the child to the applicant’s care (“count 8”).

THE COURT ORDERS THAT:

1. For count 4 no sanction shall be imposed upon the respondent.

2. For count 6 the respondent shall pay the applicant’s costs of and incidental to the application for contravention filed on 6 June, 2023 and the application for contravention filed on 27 July, 2023 fixed in the sum of $12,133.00.

AND THE COURT FURTHER ORDERS THAT:

3. For the purposes of order 3 made on 25 September, 2023 the costs to be paid by the respondent to the applicant thrown away by the adjournment that day be fixed at $1,320.00.

4. Paragraph 11 of the orders of 31 October, 2022 be amended to read “36-38” in lieu of “40-42”.

5. Paragraphs 18 and 19 of the orders of 31 October, 2022 be discharged and substituted with a new paragraph 18 in the following terms:

18. Other than in an emergency situation or facilitating contact between X and the parents pursuant to these Orders, the parents will not communicate with each other by any means other than the Our Family Wizard application or other co‑parenting application and only communicate a maximum of once per week (Sunday to Saturday) in relation to choosing a high school for X, or advising of illness, or giving notice as required pursuant to these Orders.

6. Paragraph (a) of the orders of 14 November, 2023 be deleted.

7. Otherwise, the outstanding applications are adjourned to 9.30am AEDT on 12 March, 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane for the purposes of explaining to the respondent the purpose and effect of the proposed requirements for him to enter into bonds in accordance with these reasons and the consequences that may follow if he:

(a) fails to enter into the bonds or any of them; or

(b) having entered into the bond—fails to act in accordance with the bond.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Again, I have concluded that a bond is appropriate. The length of the bond should, I think reflect the respondent’s proclivity for avoiding the court’s orders for his own unjustifiable ends. The length of the bond should be 6 months. It should be without security or surety but otherwise be in the same conditions I have set out earlier in these reasons.CONCLUSION In summary, I impose the following sanctions upon the respondent for the following contraventions found established by me on 14 November, 2023: (a)contravention application filed on 6 June, 2023:·Count 4 (28 March, 2023) order for costs pursuant to s 70NEB(1)(f)·Count 6 (10 April, 2023) order for costs pursuant to s 70NEB(1)(f) I propose that the respondent enter into bonds in respect of the following contraventions:(a)contravention application filed on 6 June, 2023:·Count 2 (24 December, 2022) 6 month bond pursuant to s 70NEB(1)(d)·Count 5 (14 April, 2023) 6 month bond pursuant to s 70NEB(1)(d)(b)contravention application filed on 27 July, 2023:·Count 2 (14 June, 2023) 6 month bond pursuant to s 70NEB(1)(d)·Count 3 (4 July, 2023) 6 month bond pursuant to s 70NFB(2)(b) In Pearce v R, the plurality of the High Court of Australia said:A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. …Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. This process is the preferred approach: Zamir v Zamir (2023) 65 FamLR 612 at [63] (dealing with contempt applications) and Gravis & Major (above) at [169]. The proposed bonds should run concurrently. I can see no reason that they should be made cumulative and in the event that they were, the total sanction would be out of all proportion to the conduct constituting the contraventions found proved. The two orders for costs are unnecessary and in relation to the two counts in respect of which I have proposed costs orders for the proceedings, only one order is necessary. No order will be made in respect of count 4 (28 March, 2023). The applicant filed an affidavit dealing with costs. Her solicitor, Ms H, deposes that to 31 October, 2023 the applicant had incurred costs in accordance with her agreement with the applicant, in the sum of $14,773 (including counsel’s fees). Calculated according to schedule three of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 costs for the same period total $11,444.79 (with solicitors) and $3553.56 (for work done by counsel) – a total of $14,998.35. In addition to those matters on 25 September, 2023 I made an order that the respondent pay half of the costs of the applicant thrown away by the adjournment on that day. Ms H deposes that those costs (including counsel’s fees) total $2640 of which half was $1320. Despite being asked to agree with that amount by correspondence dated 6 October, 2023 the respondent has provided no response. The amount to be fixed pursuant to the order of 25 September, 2023 should be fixed the sum of $1320.

Ratio Decidendi

Legal Principle Established

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