Saldo & Tindall
[2013] FamCA 951
•5 December 2013
FAMILY COURT OF AUSTRALIA
| SALDO & TINDALL | [2013] FamCA 951 |
FAMILY LAW – CHILDREN – Contravention of orders without reasonable excuse – Subdivisions E and F of Division 13A of Part VII apply – serious disregard of obligations in all but one instance – sanctions imposed – good behaviour bonds
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A
Evidence Act 1995 (NSW) s 4AA
Family Law Act 1975 (Cth) ss 69ZM, 69ZX, 70NAF, 70NEA, 70NEB, 70 NEC, 70NFA, 70NFB, 70NE, 70NFF, 70NFG, 70NECA, 94
Cachia v Hanes (1994) 179 CLR 403
| Dobbs & Brayson (2007) FLC 93-346 Gravis v Major [2010] FamCAFC 239 |
Hay v Hay (1998) FLC 92-819
Langer & Griffin [2013] FamCAFC 170
Lindsey & Lindsey (1995) FLC 92-638
McClintockv Levier (2009) 41 Fam LR 245
Oscar v Traynor [2008] FamCAFC 158
| Saldo & Tindall [2012] FamCA 194 Tindall & Saldo [2012] FamCA 1156 Yule v Junek (1978) 139 CLR 1 |
| APPLICANT: | Mr Saldo |
| RESPONDENT: | Ms Tindall |
| FILE NUMBER: | NCC | 3176 | of | 2008 |
| DATE DELIVERED: | 5 December 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 4 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Mr B. Kelly |
| SOLICITOR FOR THE RESPONDENT: | Derham Houston Lawyers |
Orders
For the contravention of Order 5 made on 10 May 2010 without reasonable excuse, pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into a good behaviour bond upon the following conditions:
(a) The bond shall be without surety and without security;
(b)The mother must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and
(c)The bond shall be for a period of 6 months, commencing on the date the mother enters into the bond.
For each of the 18 contraventions of Orders 3 and 4(b) made on 10 May 2010 without reasonable excuse, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into separate good behaviour bonds upon the following conditions:
(a)The bonds shall be without surety and without security;
(b)The mother must be of good behaviour for the duration of the bonds, which shall include compliance with all existing parenting orders; and
(c)The bonds shall be for periods of 12 months, commencing on the date the mother enters into the bonds.
For the contravention of Order 2.2 made on 10 December 2010 without reasonable excuse, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into a good behaviour bond upon the following conditions:
(a)The bond shall be without surety and without security;
(b)The mother must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and
(c)The bond shall be for a period of 12 months, commencing on the expiration date of the bonds entered into by the mother pursuant to Orders 1 and 2 hereof.
Within 14 days hereof the respondent mother shall serve upon the applicant father sealed copy of the bonds she enters pursuant to Orders 1-3 hereof.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saldo & Tindall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3176 of 2008
| Mr Saldo |
Applicant
And
| Ms Tindall |
Respondent
REASONS FOR JUDGMENT
Introduction
On 18 January 2011 the applicant father (“the father”) filed an Application-Contravention alleging numerous contraventions of interim parenting orders by the respondent mother (“the mother”).
On 3 April 2012, those of the alleged contraventions that were prosecuted were all found proven and, in respect of each of them, the mother failed to prove the existence of reasonable excuse (Saldo & Tindall [2012] FamCA 194).
Following publication of those reasons on 3 April 2012 the mother appealed, but the appeal was not competent because the published conclusions were merely findings, not decrees. They were only steps in the litigious process and not themselves decisive of the parties’ rights (s 94; Yule v Junek (1978) 139 CLR 1; Hay v Hay (1998) FLC 92-819 at [22]-[28]). These proceedings were held in abeyance during the pendency of the appeal, but were revived once the absence of any appealable orders was confirmed.
These reasons now explain the orders sanctioning the mother’s contraventions and should be read in conjunction with the reasons delivered on 3 April 2012 because they collectively determine the controversy.
The evidence
As foreshadowed,[1] the father did not adduce any evidence on the question of sanction.
[1] Notation B made on 9 October 2013
The mother adduced evidence through her affidavit filed on 28 October 2013. No objection was taken by the father to its late filing or service,[2] or to any portion of its contents. The mother was not cross-examined.
[2] Order 4 made on 9 October 2013
Essentially, the mother’s evidence established two important considerations.
Firstly, the mother has the day-to-day care of the parties’ child, although her care for the child is not constant and unremitting because the child is now seven years of age and the mother undertakes some casual work when the child is at school.
Secondly, the mother’s financial circumstances are difficult. She receives Centrelink benefits, has no savings, and owns only a few modest items of personal property.
Legislative scheme
The consequences of a party’s failure to comply with Court orders affecting children are prescribed by Division 13A of Part VII of the Family Law Act (“the Act”).
The Act prescribes two levels of sanctions for contraventions of orders without reasonable excuse. The first category falls under Subdivision E and the second category under Subdivision F.
Relevantly, Subdivision E applies if no previous sanction has been imposed for a past contravention or if the Court considers it is more appropriate to apply that Subdivision irrespective (ss 70NEA(1),(2),(3); 70NFA(4)).
Subdivision F, again relevantly for present purposes, applies if the respondent’s contravention manifested serious disregard of the obligations created by the subject order (ss 70NEA(4); 70NFA(1),(2)).
It is important to differentiate between conduct that amounts to contravention of a Court order and the more serious delinquent conduct that amounts to contempt of the Court, since there was room to infer the mother perhaps confused those concepts. Even a more serious instance of contravention of an order without reasonable excuse does not encapsulate a flagrant challenge to the authority of the Court, for that would constitute contempt and be amenable to prosecution and sanction pursuant to Part XIIIB of the Act.
In determining the appropriate sanctions for individual contraventions the Act prescribes alternative burdens of proof. Before the Court is permitted to impose a fine, community service order, or sentence of imprisonment, the Court must be satisfied beyond reasonable doubt that the grounds for making such an order exist (s 70NAF(3); Dobbs & Brayson (2007) FLC 93-346 at [51]). Otherwise, satisfaction on the balance of probabilities will suffice (s 70NAF(1)).
Conclusions
The contraventions found established were, in chronological order:
(a)A single continuing contravention of Order 5 made on 10 May 2010 – by the mother’s failure to forthwith inform the father of her contact details in writing (“the first count”);
(b)The 18 separate contraventions of Orders 3 and 4(b) made on 10 May 2010 – by the mother’s failure to deliver the child to the designated changeover venue, thereby precluding the child from spending time with the father each Saturday, between 7 August 2010 and 4 December 2010 inclusive (“the second to nineteenth counts”); and
(c)A single continuing contravention of Order 2.2 made on 10 December 2010 – by the mother’s failure to enrol at the designated contact centre, thereby precluding the child from spending time with the father (“the twentieth count”).
The first and twentieth counts, which were continuing contraventions, ceased when the relevant orders made in May 2010 and December 2010 were discharged upon Cleary J making final parenting orders on 6 September 2012.[3] However, it should be observed that the father was imprisoned in July 2011[4] and so after that time he was unable to avail himself of the interim orders made on 10 December 2010 in any event. Therefore, for all practical purposes, from July 2011 it was not unreasonable for the mother to desist from compliance with at least the interim orders made in December 2010 and the sanction imposed for the twentieth count must recognise that fact.
[3] Order 1 made on 6 September 2010
[4] Notation A made on 20 July 2011
The mother submitted that none of the contraventions could be sanctioned other than under Subdivision E because, firstly, none of the orders had previously been the subject of proven contravention and sanction against her, and secondly, none of the contraventions manifested serious disregard of the orders by her. Moreover, the mother boldly submitted that none of the contraventions should attract any sanction at all, it being contended there was “no utility” in the imposition of any sanction.
It is correct that, prior to the findings on 3 April 2012, no contravention of the orders had been proven against the mother and so no occasion arose to consider the imposition of any sanction upon her.
Nevertheless, save in respect of the first count, the submissions that none of the contraventions manifested serious disregard of the mother’s obligations under the orders and that there was no utility in the imposition of any sanctions upon her are rejected as baseless.
The mother’s submissions fell into the error, or at least risked the error, of incorrectly urging the compendious consideration of multiple contraventions. Notwithstanding that a respondent’s conduct on discrete occasions may demonstrate systematic violation of the same orders, individual contraventions should be the subject of separate and individual sanction (see Gravis v Major [2010] FamCAFC 239 at [169]; McClintockv Levier (2009) 41 Fam LR 245 at [65]-[67], [166]-[172], [252]-[259]).
Aside from the need for the individual sanction of the discrete contraventions, the principled approach to the imposition of sanctions also needs consideration. Differing views about the preferred approach have spilled from the Full Court. Without purporting to be exhaustive of the detail, in summary, the alternative approaches include the following:
(a)General common sentencing principles, including “general deterrence”, may be considered but are not determinative of the sanction (McClintock v Levier at [43]-[46], [125], [156]-[158]);
(b)It constitutes an error of law to apply the sentencing principles of “punishment” and “general deterrence” (McClintock v Levier at [48]-[52], [156]-[158], [233]-[237]);
(c)It is proper to take “deterrence” into account as a relevant factor (see Dobbs & Brayson at [79]); and
(d)It is an error of law to refrain from application of common sentencing principles, including both specific and general deterrence, at least when imprisonment is being considered as the appropriate sanction (see Langer & Griffin [2013] FamCAFC 170 at [55]).
In the face of such disparate appellate authority, some caution should attend the process of imposition of sanctions at first instance.
The approach espoused in Langer is the most recently expressed and it enjoyed the unanimity of the Full Court on that occasion. Although the circumstances of that case pertained expressly to sanctions of imprisonment, there is no logical reason to infer limitation of the Court’s views to sanctions of that type.
Divergent views were expressed in McClintock, but Finn J did not regard it as appealable error to take into account general sentencing principles. Other than observing the Court should not seek to punish the respondent, Coleman J agreed. The views of Finn and Coleman JJ tend to be consistent with, or at least are not directly repugnant to, the view espoused in Langer.
The unanimous view expressed in Dobbs was also broadly consistent with the view expressed in Langer.
In such circumstances, the preferred approach should be guidance of the Court by recognised general sentencing principles, provided those principles are consistent with the statutory regime of Division 13A. Of course, the provisions of Division 13A are prescriptive, to which common law principles must yield.
It is important to recognise that the imposition of sanction upon respondents under Division 13A is not an identical process to the imposition of sentence upon defendants for offences, even though the process may be analogous or “quasi-criminal” (see Dobbs & Brayson at [45]). That is because, by reference to the definitions of “civil proceeding”, “criminal proceeding” and “offence” found within Part I of the Dictionary within the Evidence Act 1995 (Cth), proceedings under Division 13A of the Act are civil proceedings, not criminal proceedings.
Such a conclusion is consistent with earlier authority dealing with similar, but not identical, enforcement provisions under the Act in which it was concluded a contravention did not constitute an offence against or arising under Australian law and the proceedings dealing with the subject contravention were therefore civil in nature (see Lindsey & Lindsey (1995) FLC 92-638).
The invocation of common law sentencing principles is only likely to have utility when the Court is contemplating the more serious sanctions under Subdivision F, since the various sanctions available under Subdivision E are much less punitive in nature. Rather, they seek to educate the respondent and coerce future compliance with the orders.
When appropriately applied, common law sentencing principles require consideration of the objective seriousness of the conduct which is to be sanctioned, circumstances which aggravate and mitigate the subject conduct, specific deterrence of the offender, prospects of the offender’s rehabilitation, and deterrence of others from similar delinquent conduct. Such common law principles may now be embodied in State legislation as, for example, in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The parties acknowledged it was permissible for the Court to have regard for the current final parenting orders made by Cleary J between the parties in respect of their child on 6 September 2012 and the reasons published by her Honour for those orders (see Tindall & Saldo [2012] FamCA 1156). The effect of the orders was to allocate sole parental responsibility for the child to the mother, require the child to live with the mother, and to only permit the child to communicate with the father in writing three times each year.
The first count
The first count was the mother’s first proven contravention and the provisions of Subdivision E are thereby enlivened. In such circumstances, the Court’s powers are delineated by s 70NEB of the Act.
There is no point to be served by compelling the mother’s attendance at a post-separation parenting program (s 70NEB(1)(a)), for two reasons. Cleary J previously found the mother was unwilling to attend such a course and, in any event, her education by such a program will likely have little bearing upon her future compliance with the final parenting orders made in September 2012 because the terms of the child’s ability to communicate in writing with the father are meticulously prescriptive.
The contravened order which was the subject of the first count was not an order which made provision for the child to spend time with the father, so it is inapposite to make an order compensating the father for the time he missed spending with the child (s 70NEB(1)(b)).
Nothing is to be gained by adjourning these contravention proceedings, which were commenced nearly three years ago, to permit the filing of a fresh application to vary existing orders (s 70NEB(1)(c)). The contravened order was an interim order made in May 2010, but the substantive parenting proceedings were concluded in September 2012 when orders were made for the child to only infrequently communicate with the father in writing.
The father did not needlessly incur expense through the mother’s contravention of the order so it is inappropriate to order the mother’s compensation of such expenses (s 70NEB(1)(e)). As already mentioned, the first contravention did not result in the deprivation of the child from spending time with the father.
The father was self-represented throughout the contravention proceedings and did not incur any costs in prosecuting the application, so an order compelling the mother’s payment of his costs is inapt (s 70NEB(1)(f)). For such purposes, the “costs” of the successful party should be confined to liabilities incurred for professional legal services and not include compensation for time spent by an unqualified litigant, like the father, preparing and conducting his case (see Cachia v Hanes (1994) 179 CLR 403; Oscar v Traynor [2008] FamCAFC 158 (at [73]-[92]).
In such circumstances, the only viable alternatives are for the Court to impose no sanction at all, as the mother proposed, or to make an order requiring the mother to enter into a bond (s 70NEB(1)(d)).
I reject the mother’s submission that her contravention should not sound in any sanction at all. Her behaviour deserves some degree of condemnation, in which case it would be absurd to order the father to pay any portion of her costs (s 70NEB(1)(g),(7)). Indeed, the mother made no suggestion to the contrary.
The bond the mother is required to enter into will be without surety or security (s 70NEC(3)) and requires her to be of good behaviour (s 70NEC(4)(d)). The requirement of good behaviour will oblige the mother’s compliance with existing orders for the duration of the bond.
The bond will be for a period of six months (s 70NEC(2)), which period satisfactorily reflects the gravity of the mother’s continuing contravention of the order made in May 2010 requiring her to inform the father of her contact details.
By way of an explanation to the mother pursuant to the Act (s 70NEC(5)):
(a)The purposes of the bond are to record the community’s dissatisfaction with her past violation of the Court order and to induce her future compliance with parenting orders;
(b)The consequence of the mother’s failure to enter into the bond will be her potential liability for a fine of up to 10 penalty units (s 70NEA(1)(da)). Since a penalty unit is now valued at $170 (s 4AA Crimes Act 1914 (Cth)), the maximum fine is $1,700; and
(c)The consequence of the mother’s breach of the bond is, similarly, her potential liability for a fine of the same amount (s 70NECA).
The second to nineteenth counts
By 7 August 2010, when the second contravention was committed, the mother’s first contravention had already been continuous for some three months.
While the first contravention did not preclude the child from spending time with the father, the second and subsequent contraventions certainly did. That was the very purpose of her conduct. On each of the eighteen occasions the contraventions occurred between 7 August and 4 December 2010 the mother deliberately intended to violate the orders in order to preclude the child’s interaction with the father. Her conduct was calculated and brazen. She could no longer be fairly regarded as guileless and timorous.
For the purposes of these proceedings, it has already been accepted that the mother held an honest and genuine belief it was necessary for her to protectively avert the child’s interaction with the father. Nor is there any reason to doubt the mother’s submission that she was genuinely fearful of having to meet with the father at the changeover venue designated by the orders.
However, the mitigation those considerations might ordinarily attract is surely attenuated by the mother’s knowledge that her concerns about the risk of harm posed by the father to both her and the child had already been factored by the Court into the interim parenting orders she then chose to contravene (see Saldo & Tindall [2012] FamCA 194 at [49], [67], [72]-[74]). It is permissible to take into account the reasons delivered by the Court in adjudication of the parties’ preceding disputes since all of the disputes, including these current contravention proceedings, are “child-related proceedings” within Part VII of the Act (see ss 69ZM, 69ZX(3)).
The mother’s conduct on each occasion it occurred between August and December 2010 was tantamount to usurpation of the Court’s authority to determine the parenting arrangement that reflected the child’s best interests. In such circumstances, the mother contraventions manifested serious disregard of the obligations created by the subject orders, thereby triggering application of Subdivision F (see ss 70NEA(4); 70NFA(1),(2)).
The evidence adduced by the mother to prove the change of opinion by the single expert witness appointed in the substantive parenting proceedings was of limited utility.[5] It served to vindicate the authenticity of the mother’s fear and apprehension, but that was not doubted for the purposes of either these contravention proceedings or the substantive parenting proceedings finalised by Cleary J in September 2012. Such evidence could not, however, be used to undermine the veracity of the findings already made in these proceedings that the mother had no reasonable excuse to act in the manner she did. Evidence used to establish mitigating circumstances cannot be employed to controvert findings which are elemental to proof of the respondent’s contraventions.
[5] Mother’s affidavit, paras 6-9
Each of the mother’s contraventions was objectively serious. On each and every occasion it occurred her conduct reflected a premeditated decision to deprive the child of interaction with the father. She genuinely feared the father and was apprehensive of the harm he may cause her and the child but, for reasons explained in April 2012, she had no reasonable basis to deliberately violate the Court’s orders in order to sate her fear and apprehension.
The mother deposed to her contrition,[6] the truth of which I accept in the absence of her challenge. While it may be unlikely she will act similarly again, the sanctions imposed upon her must serve to encourage her future compliance with orders and deter her from future contraventions. The specific deterrence of the mother will, through publication of these reasons, also serve as a general deterrence of others who might be inclined to contravene Court orders without reasonable excuse.
[6] Mother’s affidavit, para 16
The Court is empowered to impose sanctions of community service orders, bonds, fines of up to 60 penalty units, and sentences of imprisonment of up to 12 months duration (ss 70NFB(2), 70NFG).
For reasons already explained in relation to the first count, it is futile to consider making orders for compensation of expenses or the payment of costs (s 70NFB(1),(2)(f),(2)(g),(2)(h)). Although the second to eighteenth counts were contraventions that precluded the child from spending time with the father, the father is still in custody and the final orders made in September 2012 make no provision for the child to spend any time with him, so it is also futile to consider orders for compensatory time (s 70NFB(2)(c)).
It is more appropriate to deal with the mother’s contraventions by sanctions other than terms of imprisonment (s 70NFG(2)). The objective seriousness of the contraventions can be satisfactorily reflected in sanctions of a different type. Imprisonment should always be the very last option.
The mother’s difficult financial circumstances militate against the imposition of fines and the mother’s responsibility for the ongoing care and supervision of the child tends to militate against the imposition of community service orders.
It is possible for the mother to pay fines of modest amounts or to undertake community service at times when she does not care for the child, but her subjection to good behaviour bonds is evidently a preferable way in which to address her contraventions. Unlike other sanctions, the imposition of bonds does not require findings of fact beyond reasonable doubt (s 70NAF(3)).
The Court is empowered to require the mother to enter into good behaviour bonds for periods of up to two years (s 70NFE(2)). The duration of the bonds is guided by the considerations already addressed, in the context of the maximum period permissible.
On each occasion it occurred, the mother’s contravention was as egregious as the one it followed or preceded. Accordingly, the sanction imposed for each contravention is identical. A bond of 12 months duration in respect of each contravention is appropriate.
The bonds the mother is required to enter into will be without surety or security (s 70NFE(3)) and require her to be of good behaviour (s 70NFE(4)(d)), which includes her compliance with existing orders.
By way of an explanation to the mother pursuant to the Act (s 70NFE(5)):
(a)The primary purposes of the bonds are to record the community’s dissatisfaction with her past violation of Court orders and induce her future compliance with parenting orders;
(b)The consequence of the mother’s failure to either enter into the bond or to comply with the bond will be her potential liability for a fine of up to 10 penalty units or the imposition of some other form of sanction prescribed at first instance (s 70NFF). Of course, for that purpose, the mother is then amenable to eighteen separate sanctions of that type, not just one.
The twentieth count
The twentieth count entailed contravention of an order made in December 2010, which for practical purposes ended when the father was incarcerated in July 2011.
The effect of the contravention was to deprive the child of interaction with the father at a contact centre. For the same reasons already articulated, the contravention manifested serious disregard of the obligations created by the orders and consequently invokes operation of Subdivision F (see ss 70NEA(4); 70NFA(1),(2)).
The aggravating and mitigating circumstances in respect of the twentieth count are practicably equivalent to those attending each of the eighteen counts that preceded it. The contravention should therefore be sanctioned in the same way, by imposition of a good behaviour bond of 12 months duration.
The bond is designed to achieve the same purpose and exactly the same consequences are liable to befall the mother’s failure to enter into the bond or her failure to faithfully comply with it.
Concurrence and accumulation
The first to nineteenth counts were contraventions of orders made in May 2010. The bonds imposed for each of those counts should be served concurrently.
The twentieth count was a contravention of orders made in December 2010. It had the same effect of depriving the child of interaction with the father, but the context was different because the mother’s concerns about the preceding orders had already been taken into account. Her concerns were reflected by the orders made in December 2010 changing the parenting regime that formerly applied under the orders made in May 2010 – by requiring the time spent by the child with the father to occur less frequently and to be supervised in a contact centre instead of by the paternal grandmother (see Saldo & Tindall [2012] FamCA 194 at [67], [70]).
The sanction imposed for the twentieth count should therefore be served cumulatively upon, rather than concurrently with, the sanctions imposed for the other counts.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 5 December 2013.
Associate:
Date: 5 December 2013
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