Royston & Royston (No. 2)
[2024] FedCFamC1F 114
•8 March 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 14 November, 2023 I made findings and delivered reasons in a contravention application advanced by the applicant against the respondent (see Royston & Royston [2023] FedCFamC1F 967). The application alleged contraventions of consent parenting orders that had been made on 31 October, 2022. The orders are about the parties’ only daughter, X.
There were seven counts in the application that succeeded. Some of them concern breaches of the same orders. They can be collected and summarised as:
(a)three counts of contravening orders 18 and 19, (1 November, 2022; 28 March, 2023 and 10 April, 2022) in that the respondent contacted the applicant about issues not provided for in those orders;
(b)three counts of contravening order 5 (14 April, 2023; 4 June, 2023 and 4 July, 2023) in that the respondent refused to return X to the applicant’s care in the way or at the place required by those orders;
(c)one count of contravening order 20, (24 December, 2022) in that the respondent refused to facilitate a video call between X and the applicant on that day.
Both parties have had the opportunity to make submissions concerning the sanctions that might be imposed upon the respondent for these contraventions.
The possible consequences for a party’s failure to comply with orders affecting children are prescribed by Division 13A of Part VII of the Family Law Act 1975 (Cth). The Act identifies two categories of contraventions of orders without reasonable excuse that will attract sanction. The first category – dealt with by Subdivision E of Div 13A, concerns contraventions without reasonable excuse that might be said to be less serious. The second category dealt with in Subdivision F of Div 13A applies to those which are more serious. Each subdivision contains provisions that assist to determine which subdivision applies in any particular case.
Subdivision E applies where no previous sanction has been imposed for a past contravention. It will also apply if the Court considers that it is more appropriate to apply that subdivision notwithstanding that there has been, or have been, previous contraventions. Subdivision F applies if the respondent has been previously sanctioned for a past contravention or if the respondent’s contravention manifested serious disregard of the obligations created by the order said to have been contravened.
Neither party addressed me on the question of which subdivision I should proceed under in respect of each proven contravention. However, the applicant’s submissions, inferentially, were predicated upon Subdivision E being appropriate in respect of each contravention. They record:
The powers of the Court in relation to penalties are largely set out at section 70NEB of the Act, which also provides that the Court must consider making an order to compensate for time not spent with the child if that was the result of the contravention, which in this case was not a significant amount of time.
Section 70NEB is found within Subdivision E of Div 13A.
The applicant’s primary position is that the respondent enter into a bond, pursuant to s 70NEB(1)(d) of the Act, on condition that he be of good behaviour and that he comply fully with the final parenting orders concerning X as amended or varied from time-to-time.
Failing the respondent entering into a bond, the applicant argues that a fine of $3,130 be imposed on him pursuant to s 70NEB(1)(da) of the Act.
Further, the applicant seeks orders pursuant to s 70NBA of the Act, varying the final orders by:
(a)deleting “40-42” in paragraph 11 and substitute “36-38”;
(b)deleting all references to changeover at the Suburb F McDonalds and substituting an order that changeover is to occur at the Suburb F Police Station; and
(c)deleting paragraphs 18 and 19 and substituting an order:
That 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.
The applicant also seeks an order for costs as follows:
(a)in relation to the ‘half’ amount of costs ordered on 25 September 2023, the sum of $1,320 as set out at paragraphs 12 to 15 inclusive in the affidavit of Ms H filed on 28 November 2023;
(b)costs on an indemnity basis in the fixed sum of $12,133.00 being the amount payable by the applicant to Brigid Justice and Counsel (being calculated as the total amount of $14,773 less $2,640 deducted in relation to the appearance fees for lawyer and Counsel on 25 September 2023; or alternatively
(c)in accordance with Schedule 3, Parts 1 and 2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), costs allowable for lawyer’s and counsel’s work done and services performed as follows:
(i)costs in the amount of $10,910.13 for lawyer’s work pursuant to the Scale (being calculated as the total amount of $11,444.79 less the allowable amount of $534.66 deducted in relation to the lawyer’s fees for instructing counsel on 25 September 2023);
(ii)costs in the amount of $2,223.47 for counsel’s work (being calculated as the total amount of $3.553.56 less the allowable amount of $1,330.09 deducted in relation to counsel’s appearance fees on 25 September 2023).
Sanction
Both parties seemed to argue that one single sanction might be applied to deal with all of the proven contraventions compendiously. However, as pointed out in Saldo & Tindall [2013] FamCA 951 at [21] (relying upon Gravis & Major [2010] FamCAFC 239 at [169] and McClintock & Levier (2009) 41 Fam LR 245 at [65]-[67], [166]-[172], [252]-[259]), to take such an approach is either erroneous or at the very least, likely to lead to error.
The application of criminal law sentencing principles when determining sanction may be used as a guide to fix an appropriate order. In Saldo & Tisdall (above), Austin J suggested that the preferred approach is to be guided by recognised general sentencing principles, provided those principles are consistent with the statutory regime of Division 13A, the provisions of which are prescriptive and paramount: Saldo and Tindall [2013] FamCA 951 at [22], [27], [28] and [29] referred to on appeal without adverse comment in Tindall & Saldo [2015] FamCAFC 1 at [58].
Whilst I have identified three groups of contraventions earlier in these reasons separately, it is necessary to deal with each contravention separately. Having said that, where there are multiple contraventions of the order that arise out of the same or similar facts, it may be necessary to consider all the contraventions and the facts giving rise to them so as to avoid applying a sanction more than once for the same conduct (see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 at [11] and [12]; R v Hoar (1981) 148 CLR 32 at [38]) even if those sanctions are served or issued concurrently: Pearce v R (1998) 156 ALR 684 at [49].
Here, although some of the proved contraventions might be grouped together because they concern breaches of the same order or orders, they are factually separate and distinct and must be dealt with individually.
As to the first group, namely that on 1 November, 2022 28 March, 2023 and 10 April, 2023 in contravention of orders 18 and 19 the respondent contacted the applicant about issues not provided for pursuant to the orders, I have set out the circumstances of those contraventions in my earlier reasons. Having reflected upon my earlier reasons, it is apparent that there is an error in the order made on 14 November, 2023 in that the respondent was found not to have contravened orders 18 and 19 on 1 November, 2022. Although I found the respondent had contravened the orders by a communication he sent to the applicant on 17 November, 2022 that matter was not the subject of any contravention application before the court. An amended order will be issued to rectify that error.
As to the communication made on 28 March, 2023, in my earlier reasons I said:
43The respondent’s submissions (contained within his affidavit filed on 17 October, 2023) are difficult to follow and are not seemingly directed to the correspondence of 28 March, 2023 about which the applicant complains. His argument appears to be that as one of [X’s] parents, he has an obligation to correspond with the applicant about matters important to [X], especially where the parties have shared parental responsibility for [X’s] education. I agree with that proposition as far as it goes. The problem with the argument is that it fails to recognise that the very order that provides shared parental responsibility for [X’s] education also regulates how the parties will communicate with each other. The respondent is not entitled to ignore some of the terms of the orders just because he says that it is in [X’s] best interests to do so. Indeed, the terms of the orders agreed between the parties represent what the parties and the court considered was to be in [X’s] best interests. That included the regulation of the parties’ communication between them about [X] and her welfare.
44The respondent’s complaints about what he considers to be harassment or frustrating conduct by the applicant is not to the point. His communication to her breached order 18.4, 19.1 and 19.2 as the applicant alleges and the respondent admits. The respondent does not demonstrate that there was a reasonable excuse for contravening those orders in the way that he did. Subsequent messages from the applicant concerning other matters do not demonstrate a reasonable excuse for these breaches.
The final contravention concerned a communication sent by the respondent to the applicant on 10 April, 2023. The offending communication was a paragraph within a larger piece of correspondence from the respondent to the applicant in response to an email from her. Of the offending paragraph I said:
67I consider that the paragraph:
[X] and I also expected that safe and secure environment from your family. That was not to be the case, and it certainly is evident my expectations were too high in which members of your family put both [X] and I lives at risk. This Criminal Court matter to be conducted on the 14th, this Friday, is most important that I attend to gain part closure.
was neither polite nor courteous. It was directed to claims against members of the applicant’s family rather than confined to the applicant’s father. There is no probative evidence that the applicant’s father acted in concert with anyone else, although I note the respondent’s evidence that the maternal grandmother was present. But the evidence does not go so far as to suggest that she was part of or knew about the applicant’s father’s plan. To include other members of the applicant’s family in the respondent’s complaint is to be discourteous to the applicant in those circumstances.
Although these contraventions are of the same type, they do not involve any factual overlap. They are separate and distinct contraventions, in respect of which there should be separate consideration.
Nonetheless, neither contravention is objectively very serious. Neither has interfered with X’s relationship with either parent. Neither has impacted upon her opportunities to spend time with either parent. But each is a breach of the relevant orders and has led to significant irritation of the applicant. I have determined to deal with each under Subdivision E of Division 13A of the Act. The range of sanctions available is set out in s 70NEB of the Act.
I have considered imposing no order by way of sanction upon the respondent for either of these two contraventions, but I do not consider that is an appropriate course. Of those sanctions, the applicant argues for the imposition of a bond under s 70NEB(1)(d) of the Act (albeit in respect of all the contraventions). In my view neither of the separate contraventions, having regard to their objective seriousness, warrant the imposition of a bond.
Dealing specifically with the contravention of 28 March, 2023, the respondent sought to excuse the offending communication by saying that it was his duty to communicate with the applicant, notwithstanding the very clear terms of the orders that had been agreed between the parties. His conduct carries with it an element of self-justification that is not warranted and deserves some mark of admonition from the court. Of the sanctions permitted by s 70NEB(1), I consider that provided by s 70NEB(1)(f) is appropriate. That subsection provides for an order that the person who committed the current contravention pay some or all of the costs of the party to the contravention proceedings. Notwithstanding that this is applied to only one of many contraventions within the proceeding, having regard to my overall assessment of the sanctions to be imposed in this case, for reasons I have set out later, I consider it appropriate.
So too, for the contravention of 10 April, 2023. I do not consider that a bond is appropriate. Whilst the offending communication was an ill-considered and ill-informed remark that no doubt caused the applicant considerable irritation, no further sanction is called for other than an order that the respondent pay the applicant’s costs of the proceedings.
I turn to the contravention of 24 December, 2022. This concerned the respondent refusing to accept a video call from the applicant so she could speak with X. The order nominated the time for the call. The respondent admitted the contravention but said that he had a reasonable excuse, namely that he and X were attending a church service and it was inappropriate to interrupt that. I rejected the respondent’s case thus:
25The applicant’s evidence is that on 3 January, 2023 the respondent sent her a message via the Our Family Wizard communication app about her attempted calls, both on Christmas Eve and some that she attempted on New Year’s Eve (also a Saturday):
You have on several recent occasions now breached the above recent Orders.
Please refrain from video calling me during [X’s] time with her Father. This is certainly unacceptable and clearly a breach. Your actions are nothing but pestering and harassment. I refer to Christmas Eve where you continued to video call persistently. We were at a [church service], but you continued your selfish and ill-mannered actions in your own interest and continued to call.
I also refer to your video communication again on NYE. Please abide by the Orders. I will not accept this behavior (sic) but yearn for more appropriate conduct from you. [X] knows she is loved by both parents. If [X] wants to speak to you she is absolutely entitled. Please abide by these Orders.
26It will be observed that the respondent asserts in that message that it was the applicant who was breaching the orders. That assertion is inconsistent with the response he now makes to this count in the contravention application.
27In support of the respondent’s case that he had a reasonable excuse for the contravention, he swears in his affidavit filed on 17 October, 2023:
a. I accept responsibility in which the Christmas Eve call was to take place and did not.
b.Due to the excitement of having my daughter for the first time since 2018 Christmas Eve the [church service] did coincide with the time the call was to take place and I had not been aware of the time in the moment.
c. It certainly was not appropriate for [X] to take the call during [the church service].
d. At the conclusion of the [church service], I gently promoted [X] to contact the mother. [X] did not want to.
28I do not accept that because the time for the telephone call coincided with [church service] that it was appropriate for [X] not to take the call. She should have been available and if that meant missing [the church service] then so be it. In a case like this where the parents are in such toxic conflict, anything other than a strict adherence to the terms of the orders is bound to lead to more conflict (as it has done in this case).
29Moreover, the respondent’s claim that at the conclusion of [the church service] he “gently prompted” [X] to contact the mother is inconsistent with the message to the applicant that he sent on 3 January, 2023. The terms of that message demonstrate either that the respondent completely misunderstands the terms of the orders (and underlying agreement) with the applicant, or he has deliberately chosen to ignore them. In my view it is the latter. It is the height of hypocrisy for the respondent to “yearn for more appropriate conduct from” the applicant and yet to ignore the clear terms of the orders himself.
This contravention is serious for several reasons. First, it demonstrates a complete lack of empathy with X and her need to communicate with her mother at an important time of the year. On his own evidence, X had spent all recent Christmases with her mother. Second, it places X’s entitlement to communication with her mother behind X’s attendance at a church service, something which should not occur unless with the agreement of both parties. Third, it smacks of an attitude on the part of the respondent that despite the terms of the court’s order, he will act only in ways that suit him at any given point in time. Finally, there is no suggestion in the evidence that he is remorseful for his conduct or for the hurt that he caused the applicant and must have caused X. There is no suggestion that he has apologised to the applicant or X for his conduct.
I have determined to deal with this contravention under Subdivision E of Division 13A of the Act. Although I consider the contravention serious, I do not consider that its level of seriousness is such that I should deal with it under Subdivision F.
I consider that a bond is an appropriate sanction to ensure compliance with the order in the future. I reach that conclusion because the respondent’s apparent unwillingness to comply with the order unless he determined it was appropriate, is troubling. Some mechanism must be in place to ensure compliance with the order in circumstances where the respondent has demonstrated a cavalier attitude towards compliance. The bond should be for a period of 6 months. A surety or security is not necessary. It should be conditioned upon the respondent being of good behaviour for the period of the bond and that he comply with the parenting orders for X as they might be amended from time to time.
Three contraventions remain. They concern 14 April, 2023; 14 June, 2023 and 4 July, 2023 when the respondent refused to return X to the applicant’s care in the way or at the place required by order 5 of the final orders.
On 14 April, 2023 the respondent did not return X to the applicant’s care at 12.00 noon as required by the orders. I have set out the lengthy facts relating to this contravention in my earlier judgment. I will not repeat them, however, what the uncontroversial and found facts show is that it was the respondent who first perceived there might be a problem returning X on time on 14 April, 2023. He proposed two solutions, described by me as “sensible solutions” well before the appointed return day. The applicant did not respond to the respondent’s suggestions until a point when the first option proposed by the respondent (moving X’s time with him ahead by 24 hours) was no longer an option. The applicant did not take up the second alternative offered by the respondent either – returning X a few hours late. Knowing that the respondent intended to attend a court hearing which might not be predictable in terms of its length, she nonetheless insisted upon X being returned to her strictly in accordance with the orders. Whilst these facts do not detract from the fact that the respondent contravened the orders, they do go to mitigation. The facts paint a picture of two parents who will simply not co-operate with each other for the sake and well-being of their daughter. Neither wishes to co‑operate with the other and the result is that their desire to control the other dominates their behaviour. Reason is replaced with a dogged insistence upon strict compliance with the terms of the orders.
This contravention, although not particularly serious in that it did not result in X being deprived of time or the opportunity to communicate with one or other of her parents (save for perhaps two hours on the day of the contravention), nonetheless has a worrying aspect to it. Knowing of the applicant’s attitude towards his request for alternative arrangements and knowing of her insistence upon the terms of the orders, the respondent consistently with the contravention of 24 December, 2022, demonstrated a defiant attitude to the court’s orders preferring his own self-interest in watching the sentencing of the applicant’s father to complying with orders with which he had agreed when made.
I have determined to deal with this contravention under Subdivision E of Division 13A of the Act. As I have said, the contravention did not result in any appreciable imposition upon X’s relationships or time with either of her parents.
I have concluded that a bond is appropriate to secure compliance with the orders. This contravention too, demonstrates a troubling attitude towards the respondent’s respect for the orders and X’s entitlement to have them observed. The bond should be without surety or security and be for a period of 6 months on the same conditions as the bonds referred to earlier in these reasons.
The facts of the contravention of 14 June, 2023 are set out in my earlier reasons. In short compass, the respondent had collected X at the conclusion of school that day as the orders provided. He was to return her to the applicant at a local McDonald’s restaurant at 6.00pm. He did not. Instead, he went to a local police station and imposed upon them to ring the applicant to tell her where he and X were. He demanded that she collect X from him at the police station. The applicant eventually relented (not after arguing with the police about it) and collected X from the respondent at the police station.
Of the respondent’s explanation for his conduct I said:
89The respondent says that he was “intimidated, harassed, and bullied only two days prior at the 12 June changeover at a children’s restaurant [Suburb F] McDonalds including being videoed by members of the applicant’s family and others in front of customers, children, and families”. Further, he says “ill serving of ‘official Court documents’ was also conducted at this Family Court changeover”. I’m not sure what he means by the term “ill serving” and he did not explain it to me. The respondent says that he sought the protection of the [Suburb F] Police station for a changeover on 14 June, 2023.
90However, to the extent that the respondent argues that the experiences to which I have just referred amount to a reasonable excuse for contravening the orders, I reject his argument. His evidence does not explain the way in which he was “intimidated, harassed and bullied” at the changeover. To the extent that he says he was “videoed by members of the applicant’s family” he can complain via an appropriate application for contravention to this court that the applicant has caused a contravention of order 9 of the primary orders, or to the police if he says there was a breach of the peace. Alternatively, he could apply for a variation to the primary orders in the event that he says there is an appropriate reason, consistent with [X’s] best interests, to change the handover location to the [Suburb F] police station.
91Further, there is no proscription upon the respondent being served with court documents following a changeover. The evidence does not suggest that it was the applicant who served the documents upon the respondent. Indeed, the respondent could have been served with court documents at the [Suburb F] Police Station following the changeover at that location.
92To the extent that the respondent argues that by reason of his experience with the applicant’s father more than 18 months earlier, he was justified in demanding a relocation of the changeover location, I reject that argument because, the evidence demonstrates that changeover had occurred at McDonald’s, [E Street Suburb F] on many occasions following the incident with the applicant’s father in December, 2021.
This contravention demonstrates a continuation of the respondent’s poor attitude towards compliance with the court’s orders. His actions were both unreasonable and unwarranted and his reasons for those actions were contrived. Were it not for the fact that the respondent had not been found to have contravened orders in any earlier application, I consider that it would be appropriate to deal with the matter under Subdivision F of Division 13A. But in the absence of any earlier finding of contravention, I have determined to deal with the application under Subdivision E.
Again, I consider that a bond is appropriate to ensure ongoing compliance with the court’s orders. The bond should be without surety or security and be for a period of 6 months on the same conditions as the bonds referred to earlier in these reasons.
The final contravention concerns 4 July, 2023 when the respondent again failed to return X to the applicant at the local McDonald’s restaurant nominated for that purpose in the orders. The sentencing proceedings for the applicant’s father who had pleaded guilty to an act of violence against the respondent had been set for that day and, commencing on 1 July, 2023 the parties had danced the dance of the conflicted parents concerning where and when X would be returned, given that her return time seemingly conflicted with the respondent’s desire to “see justice done”. As it turned out the sentencing was further adjourned, but the respondent nonetheless insisted that the changeover take place at a local police station in contravention of the orders. After involving the local police and quite unnecessarily distracting them from their usual duties, the changeover of X took place at the local McDonald’s chaperoned by some officer from the local police station. The changeover was one hour and 46 minutes late.
This contravention demonstrates a continuing determination on the part of the respondent to avoid compliance with the court’s orders for confected reasons, so I have determined to deal with it pursuant to Subdivision F of Div 13A. The seriousness of this contravention should not be underestimated. It lies in the ongoing conflict the contravention demonstrates between these parties and the respondent’s unwillingness to address his behaviours so as to comply with the court’s orders. More than that, it demonstrates a willingness on his part to expose X to the conflict that exists between her parents and place her in a situation where she has to attend at a police station for no good reason so that she might pass into her mother’s care.
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.
As to the costs of the contravention application more generally, I propose to allow those costs in the lesser sum (calculated according to the applicant’s agreement with her solicitors) of $12,133 (calculated in accordance with paragraph 16(a) and (b) of Ms H’s affidavit filed on 28 November, 2023).
THE APPLICATION TO VARY THE ORDERS
The applicant seeks variations to the present orders pursuant to s 70NBA(1) of the Act.
The first variation sought is merely to correct an erroneous cross-reference in the orders to other paragraphs in those orders. It is, or should be, uncontroversial. However, I am not so sure that to correct the order pursuant to s 70NBA(1) of the Act is a correct use of the power, but in any event rule 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 supplies the necessary power. I will make the order sought.
The third variation sought is designed to remedy what I perceive to be a failure of orders 18 and 19 to achieve what the parties’ intended it to achieve. I raised what I considered to be the correct interpretation of those orders with the parties, but initially neither perceived the difficulty I had perceived. Upon reflection, however, at the least, the applicant can appreciate the difficulty. It is as well to ensure that the order properly reflects the parties’ intention. I will make the order sought by the applicant. Similarly, this variation seems to be the correction of a slip in the orders or poor drafting that did not properly reflect the intention of the parties or the Court when the order was made. I will make the order sought pursuant to rule 10.13(1)(e).
As to the second variation sought by the applicant, notwithstanding that the respondent agrees with it, I decline the application. The present orders are clear and precise. All that is required is for the parties to comply with them. No good reason is demonstrated in the applicant’s case for the proposed variation. Apart from anything else, the notion that X should be subjected to changeover at a police station on each occasion she passes from one parent’s care to the other (save for school drop offs and pickups) is abhorrent. No persuasive submissions were made to the effect that such a variation is in X’s best interests. Moreover, apart from one changeover where the respondent complained that he was the subject of video recording and was served with some documents (matters I considered to be of no consequence in my earlier reasons), and leaving aside the respondent’s unwillingness to simply comply, there is no evidence that changeovers at the place nominated in the orders has been problematical. I am not satisfied that the variation is in X’s best interests.
The application will be adjourned to a date for the purposes of fulfilling the requirements of s 70NEC(5) of the Act. Otherwise, the orders will be as set out at the commencement of these reasons.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 8 March 2024
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