Federal Circuit and Family Court of Australia
(DIVISION 1)
Sandison & Thornhill [2022] FedCFamC1F 894
File number: NCC 1503 of 2016 Judgment of: CARTER J Date of judgment: 18 November 2022 Catchwords: FAMILY LAW – CONTRAVENTION – contravention of final parenting orders – where the mother pleaded guilty to the alleged contraventions – where the mother acknowledged she had no reasonable excuse – consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – where the contraventions are regarded as less serious – penalty – bond without security and without surety – where a bond of twelve months is imposed upon the mother – whether there should be make up time ordered.
COSTS – where the applicant sought indemnity costs – whether costs should be ordered on party-party or indemnity basis – consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – costs ordered in a fixed sum.Legislation: Family Law Act 1975 (Cth) Part VII, Division 13A, ss 70NAF, 70NBA, 70NEA, 70NEB, 70NEC, 70NECA, 70NFA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Colgate-Palmolive Company & Cussons Pty Limited [1993] FCA 801
D & D (Costs) (No. 2) [2010] FamCAFC 64
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
Hugh & Sawer [2010] FamCA 290
Keehan & Keehan [2019] FamCAFC 250
Kohan & Kohan [1992] FamCA 116
Limousin & Limousin (Costs) [2007] FamCA 1178
Munday & Bowman (1997) FLC 92-784
Spencer & Verity [2012] FamCAFC 210
Division: Division 1 First Instance Number of paragraphs: 81 Date of last submission: 20 September 2022 Date of hearing: 20 September 2022 Place: Melbourne (via videolink) Counsel for the Applicant: Ms Melissa Gillies SC Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Linton Teoh Solicitor for the Respondent: Lindeman Lawyers ORDERS
NCC 1503 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SANDISON
Applicant
AND: MS THORNHILL
Respondent
order made by:
CARTER J
DATE OF ORDER:
18 November 2022
THE COURT ORDERS THAT:
Upon finding that the mother has contravened parenting orders without reasonable excuse:
1.Pursuant to s.70NEB(1)(d) of the Family Law Act 1975 (Cth), the mother forthwith enter into a bond to be of good behaviour upon the following conditions:
(a)the bond shall be without surety or security;
(b)the mother shall be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and
(c)the bond shall be for a period of 12 months.
2.By way of make-up time:
(a)for the balance of this school year, and for the duration of Terms 1 and 2, 2023, the child’s time with the father pursuant to Order 4.2 of the orders made 3 March 2020 commence at 3.00 pm Tuesday;
(b)for the purposes of the long summer holidays…
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- Sandison & Thornhill [2022] FedCFamC1F 894
- Case
- [2022] FedCFamC1F 894
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CaseChat Overview and Summary
The court determined that the contraventions were less serious, and thus, Subdivision E of Division 13A of the Family Law Act 1975 (Cth) applied. The court considered that the mother had not previously been sanctioned for a contravention or had proceedings adjourned for further parenting orders. The court also found that the mother's actions did not demonstrate a serious disregard of her obligations under the primary order. A bond of twelve months was imposed upon the mother, without security and without surety. The court ordered makeup time for the father with the child, including specific arrangements for school holidays and term breaks. The court also varied the primary order to provide for equal sharing of school holiday time between the parties.
The court ordered the mother to pay the father's costs assessed in the sum of $12,000, to be paid within twelve months. The court considered factors in s 117(2A) of the Family Law Act 1975 (Cth) and determined that an indemnity costs order was appropriate due to the mother's persistent non-compliance with the parenting orders. The court dismissed the Contravention Application filed 25 May 2022, except for the orders regarding the bond, makeup time, variation of the primary order, and costs. The mother's solicitors were required to arrange an appointment for the mother to attend the Sydney Registry to enter into the bond in accordance with the court's order.
Orders
Orders of the court
NCC 1503 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR SANDISON
Applicant
AND:
MS THORNHILL
Respondent
order made by:
CARTER J
DATE OF ORDER:
18 November 2022
THE COURT ORDERS THAT:
Upon finding that the mother has contravened parenting orders without reasonable excuse:
1. Pursuant to s.70NEB(1)(d) of the Family Law Act 1975 (Cth), the mother forthwith enter into a bond to be of good behaviour upon the following conditions:
(a) the bond shall be without surety or security;
(b) the mother shall be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and
(c) the bond shall be for a period of 12 months.
2. By way of make-up time:
(a) for the balance of this school year, and for the duration of Terms 1 and 2, 2023, the child’s time with the father pursuant to Order 4.2 of the orders made 3 March 2020 commence at 3.00 pm Tuesday;
(b) for the purposes of the long summer holidays in 2022/2023, the child shall spend a total of 30 nights with the father, at times agreed, and failing agreement, the father shall nominate the nights, not less than 14 days prior to the commencement of the holiday period, with such nights to not include both the night of 24 December and the night of 25 December 2022, and the balance of the holiday period with the mother; and
(c) for the purposes of the Term 1 2023 school holidays, the child spend the first 12 nights of that holiday with the father, from the conclusion of school on the last day of term, and the balance of the holiday period with the mother.
3. Paragraph 6 of the orders made 3 March 2020 be varied to provide as follows:
6. During school holiday periods as defined in these orders the child shall spend time with the Mother and Father for one half of the school holiday period as agreed between the parties in writing and failing such agreement, with the father for the first half of each school holidays period and with the mother for the second half of each school holiday period.
4. The mother shall pay the father’s costs assessed in the sum of $12,000, with such sum to be paid within twelve months.
5. The Contravention Application filed 25 May 2022 otherwise be dismissed.
THE COURT NOTES THAT:
A. Following the publication of this order, the mother’s solicitors forthwith arrange an appointment for the mother to attend the Sydney Registry to enter into the bond in accordance with Order 1 herein.
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
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Ratio Decidendi
Legal Principle Established
The matters that fell to be determined by me are as follows: (a)whether the contraventions were “less” or “more” serious, and accordingly whether Subdivisions E or F of Division 13A of the Family Law Act 1975 (Cth) (“the Act”) apply;(b)the penalty to be imposed for the contraventions, as instructed by the relevant subdivision;(c)how the father’s makeup time with the child should be arranged;(d)whether there should be any variation made to the primary order; and (e)whether the mother should pay the father’s costs of and incidental to the Contravention Application. If so, whether that should be on a party-party or indemnity basis, and the quantum of such costs order, if any.Consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Act The court’s jurisdiction to deal with contraventions without reasonable excuse can be found in Subdivisions E and F of Division 13A of the Act. Where the contravention is deemed “less serious”, Subdivision E will apply, and Subdivision F will apply in the case of “more serious” contraventions. Subsection 70NEA(2) of the Act provides that Subdivision E will apply where a court has not:(a)previously made an order imposing a sanction for a contravention or taken action in respect of a contravention; or (b)adjourned proceedings in respect of a contravention under paragraph 70NEB(1)(c) . An adjournment pursuant to s 70NEB(1)(c) is an adjournment for the purposes of allowing a party to apply for further parenting orders that discharge, vary or suspends or revives some or all of an earlier parenting order. Even where the court has previously taken one of the steps contained in s 70NEA(2) in earlier contravention proceedings, s 70NEA(3)(b) stipulates that Subdivision E may still apply where the court considers it more appropriate for the contravention to be dealt with under Subdivision E. No orders have been previously made imposing a sanction for a contravention, or adjourning proceedings pursuant to s 70NEB(1)(c) in this particular matter. Pursuant to s 70NFA(2)(b), if the court is satisfied that the contravening party “has behaved in a way that showed a serious disregard of his or her obligations under the primary order”, then Subdivision F will apply. Section 70NFA(4) provides that Subdivision F does not apply if the court is satisfied that it is more appropriate for the contravention to be dealt with under Subdivision E. Whilst the meaning of “serious disregard” is not defined in the Act, the Full Court in Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655 (“Elspeth & Peter”) at [61] said: The theme that emerges from an examination of several decisions… is that “serious disregard” tends to be found in cases of deliberate, pre-meditated non-compliance with orders, and continued and protracted breach. Their Honours continued at [66]:What seems to be a common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on the first breach does not appear to be sufficient to attract the more stringent sanctions set out under Subdivision F.