Short & Trevilian (Contempt and Contraventions)

[2008] FamCA 866

FAMILY COURT OF AUSTRALIA

SHORT & TREVILIAN (CONTEMPT AND CONTRAVENTIONS) [2008] FamCA 866

FAMILY LAW – CONTEMPT – contravention of court order – sanctions – husband removed child contrary to orders of Court – found to be flagrant challenge to authority of Court – husband’s behaviour warrants significant penalty – need for Court to ensure its orders are obeyed – husband to be sentenced to imprisonment for 1 calendar month, to be suspended upon husband complying with all parenting orders and injunctions of Court for 12 months.

FAMILY LAW – CONTRAVENTION – penalty – contravention by husband showing serious disregard for his obligations found proven beyond reasonable doubt – consideration of available penalties pursuant to s 70NFB – husband to pay a fine of $3,300 within 28 days – court to consider order for costs.

FAMILY LAW – CONTRAVENTIONS – penalty – two further contraventions proven on balance of probabilities – consideration of available penalties pursuant to s 70NEB – restriction on Court’s ability to place husband on bond following Full Court’s decision in Elspeth & Peter;  Mark & Peter and John & Peter (2007) FLC 93-341 – court to consider order for costs.

FAMILY LAW – COSTS – costs sought by wife and Independent Children’s Lawyer – consideration of s 70NFB(1)(a) with respect to contravention showing serious disregard – consideration of exception to mandatory order for costs pursuant to s 70NFB(1)(a) – not satisfied order for costs would not be in child’s best interests – consideration of s 117 – order for husband to pay costs of wife and Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60CB, 60CC, 70NEB, 70NEC, 70NFB, 70NFG , 112AP, 117

Tate and Tate (No 3) (2003) FLC 93-138
Pelechowski v Registrar Court of Appeal (NSW) (1999) 198 CLR 435
DAI and DAA (2005) FLC 93-125
Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115; [2004] NSWSC 1259
LGM and CAM (Contempt) (No 2) (2008) FLC 93-355
Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341

APPLICANT: Ms Short

RESPONDENT: Mr Trevilian

INDEPENDENT CHILDREN’S LAWYER: Judith Cocks

FILE NUMBER: ADF 1855 of 2003

DATE DELIVERED: 8 October 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE:

30 September 2008 – Penalty

8 October 2008 – Costs

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: Self-Represented

SOLICITOR FOR THE RESPONDENT: Self-Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Judith Cocks

Orders

1. That the husband Mr Trevilian serve one [1] calendar month’s imprisonment PROVIDED THAT the sentence of imprisonment is suspended upon condition that for a period of twelve [12] months from today the husband comply with all parenting and injunction orders of this Court. 

2. That within twenty-eight [28] days from today the husband pay to the Adelaide Registry Manager of the Family Court of Australia a fine of THIRTY [30] penalty units or THREE THOUSAND THREE HUNDRED DOLLARS [$3,300.00]

3. That the husband pay the wife’s costs of and incidental to the contempt and contravention proceedings on a solicitor/client basis such costs to be agreed and in default of agreement within twenty-eight [28] days to be taxed.

4. That the husband pay the Independent Children’s Lawyer costs of and incidental to the contempt and contravention proceedings fixed in the sum of FIVE THOUSAND SEVEN HUNDRED AND SEVENTEEN DOLLARS [$5,717.00] within twenty-eight [28] days.

5. That the mother’s applications for contempt and contravention filed on the 2 April 2008 are dismissed and removed the list.

IT IS NOTED that publication of this judgment under the pseudonym  Short & Trevillian (Contempt & Contraventions) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1855  of 2003

MS SHORT

Applicant

And

MR TREVILIAN

Respondent

REASONS FOR JUDGMENT

PART ONE – PENALTY JUDGMENT

Introduction

1. On the 17 July 2008 I delivered my judgment setting out my reasons for finding that the husband had committed contempt and contravened orders of this Court.  Paragraphs 183 to 186 inclusive were as follows:

   “183.The husband committed contempt of Court when he removed [the child S] from [R College] on the 25 March 2008.

   184.I am satisfied beyond reasonable doubt that on the 28 January 2008 the husband contravened the order of the 18 January 2008 when he took [S] to the IGA Supermarket and was not supervised by his father, [the paternal grandfather], and he did so without reasonable excuse and behaved in a manner which showed serious disregard for his obligations under the order.

   185.I am satisfied on the balance of probabilities that on the 1 February 2008 the husband contravened the order of 30 January 2008 when he had contact with [S] in his car unsupervised.  He did not have reasonable excuse.

   186.I am satisfied on the balance of probabilities that on numerous days, between the 29 February 2008 and 24 March 2008 the husband contravened the orders of the 12 February 2008 when he had contact with [S] when playing tennis with  her which was not under the supervision of [R] College Staff.  He did not have reasonable excuse.”

2. I adjourned the matter for the parties to consider my reasons and prepare submissions in relation to the consequences and penalties.

3. On the 30 September 2008 I heard the submissions of counsel for the mother, Mr Berman, Ms Cocks the Independent Children’s Lawyer and the husband in person.  Submissions concerning costs were not completed.  I adjourned further argument in relation to costs to the 8 October 2008.  On the 8 October 2008 I gave leave for the husband to make further submissions on penalty generally, in particular in response to the written submissions of counsel for the wife.

Background

1. The general background setting out the important dates and history of litigation between the parties is set out in my judgment of the 17 July 2008.  Some of the significant details are that S, the eldest child of the parties, was born in July 1992 and is now aged 16.  The most recent litigation for final orders was prompted by allegations made by the father’s former housekeepers that S had been sexually abused by the husband.  The husband has denied any wrongdoing.  The younger children of the relationship are V who was born in June 1995 (now aged 13) and E who was born in June 1998 (now aged 10).  For some period of time S resided with the husband and did not spend time with the wife, whilst V and E resided with the wife and spent time with the husband.  Orders have been made by way of interim orders which are more particularly referred to in my judgment of the 17 July 2008.

2. The final applications await determination by way of a final hearing.

Contempt and Contravention

1. The contraventions and contempt relate to interim orders made in January, February and March 2008.

2. The contempt occurred on the 25 March 2008.  Full particulars of the evidence and findings on contempt are set forth in paragraphs 47 et seq of my judgment of the 17 July 2008.  In that judgment I concluded that the husband personally removed S from R College Boarding House in contravention of my order of the 25 March 2008 (that same day) and that this involved a flagrant challenge to the authority of the Court.

The Law on Consequences of Contempt

1. Pursuant to s 112AP(4) the penalties available for consideration are, committal to prison, a fine or both committal to prison and a fine.  Section 112AP(6) provides for punishment on terms, suspension of punishment, or the giving of security for good behaviour.

2. In the Full Court decision of Tate and Tate (No 3) (2003) FLC 93-138 Nicholson CJ, Kay and Monteith JJ said:

   “57.Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, it is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.

   58.The majority of the Full Court (Ellis and Holden JJ) in the husband’s most recent appeal (SA 39 of 2001 delivered 30 May 2002) referred to the decision of the High Court in Witham v Holloway (1995) 183 CLR 525. In that case, in the joint judgment of Brennan, Deane, Toohey and Gaudron JJ, their Honours referred (at 530) to the distinction between civil and criminal contempt as being that a civil contempt involves disobedience of a court order in civil proceedings, whereas a criminal contempt involves either a contempt in the face of the court or an interference with the course of justice. They qualified this distinction by saying:

   “However disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.”

   59.They further commented that the differences upon which the distinction between criminal and civil contempt are based are, in significant respects, illusory. In a separate judgment McHugh J expressed himself in similar terms on this issue.

   60.In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577 at 584; 161 CLR 98 at 107 (per Gibbs CJ, Mason, Wilson and Deane JJ) the purpose of proceedings for civil contempt was stated as follows:

   “Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.””   (My emphasis).

3. At paragraph 62 of Tate and Tate (No 3) (supra) it was said:

   “…the purpose of punishment in family law proceedings was not so much upholding the Court’s authority as an end in itself, but in fulfilling the expectations of the litigant’s themselves that Court orders will be obeyed and imposing sanctions if this does not occur.”

1. Counsel for the wife referred to the decision of Justice Kirby in Pelechowski v Registrar Court of Appeal (NSW) (1999) 198 CLR 435 and at paragraphs 147 and 148:

   “147.… In determining the order which is appropriate to the contempt found, the Court must take into account those general principles which govern the sentencing of persons convicted of criminal offences which are apt to the peculiar character of contempt.  …

   148.… a fine (and sometimes more) may be needed to vindicate the authority of the court.  But in a case of contumacious defiance of a court’s orders and authority, it will frequently be appropriate for a custodial sentence to be imposed as a response to an apparent challenge to the authority of the law.”

2. The recent authorities on sentencing for contempt are few.  In DAI and DAA (2005) FLC 93-215 the Full Court indicated that s 112AP gives the Court a wide discretion with respect to consequences and does not impose limits on the length of the sentence of imprisonment. At page 79,592 in paragraph 85 the Full Court stated:

   “85.In summary, we are satisfied that, in dealing with contempts under s 112AP, the following factors are relevant:

   •The Division provides a code for dealing with contempt under the Act.

   •A trial Judge must comply with the procedure set out in rule 21.08 on hearing the application.

   •The allegation must be proved beyond reasonable doubt (s 141 of the Evidence Act 1995 (Cth)).

   •The procedure is a summary one, conducted in accordance with the Rules and the guidelines for the conduct of a criminal trial do not apply.

   •If a custodial sentence is to be imposed, transparency in the sentence imposed will be afforded in an appropriate case if general criminal law sentencing procedures are adopted including imposing sentence for each offence to be served either cumulatively or currently, but such procedure is not mandatory;

   •State and Federal sentencing laws have no application;

   •In imposing penalty reference to relevant factors to be considered provides a useful framework, but ultimately the penalty should be structured having regard to the individual facts of the particular case.”

3. In that case the Full Court reviewed some earlier judgments dealing with sentencing but agreed with the comments by his Honour Justice Palmer in Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115; [2004] NSWSC 1259 at paragraph 49:

   “review of the punishments in other cases is of limited assistance, as each case really depends upon the Court's assessment of the relevant facts.”

4. More recently in LGM and CAM (Contempt) (No 2) (2008) FLC 93-355 her Honour Justice Finn agreed with the other members of the Full Court (Chief Justice Bryant and Justice Warnick) that the appeal from the sentence imposed could not succeed. Her Honour said at paragraphs 144 and 145:

   “144. The decision as to whether a term of imprisonment is an appropriate punishment for the contravention of an order made under the Act where the contravention has been found (as it was in this case) to involve a flagrant challenge to the authority of the court, and then the further decision as to the appropriate length of the term of imprisonment are, in my view, particularly difficult decisions on which minds are likely to vary greatly. This is because, given the relatively few cases that have arisen over the life of the Act and the fact (recognised by the Chief Justice and Warnick J) that each case turns much on its own facts, no sentencing guidelines have been developed (unlike in the criminal law area).

   145.Furthermore, such cases are complicated, to say the least, by the fact that the person in the position of prosecutor (who can, and did in this case, make submissions on penalty) is not an independent public authority, but rather the other party to a failed marriage, or similar relationship, whose motives may well go beyond issues of principle such as the upholding of the dignity of courts and court orders. The discretion in relation to penalty for the contravention of court orders must therefore be exercised with great care.” [Emphasis added]

The Law on Consequences of Contravention

1. Consequences for Contravention of orders of the Family Court of Australia  where the Court is satisfied beyond reasonable doubt that serious disregard has been shown are set out in Subdivision F.  The powers of the Court in s 70NFB are:

   1) If this Subdivision applies, the court must, in relation to the person who committed the current contravention:

   (a)make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and

   (b)if the court makes an order under paragraph (2)(g)--consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and

   (c)if the court does not make an order under paragraph (2)(g)--make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.

Subsection (2)(g) provides:

(g)    to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division;

§s 70NFB(2):

(a)if the court is empowered under section 70NFC to make a community service order--to make such an order; or:

(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or

(c)if the current contravention is a contravention of a parenting order in relation to a child--to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or

(d)to fine the person not more than 60 penalty units; or

(e)subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or

(f)if:

(i)the current contravention is a contravention of a parenting order in relation to a child; and

(ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or

(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or

(h)    to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.

(Subsections (c) and (f) not relevant).

1. Pursuant to s 70NFG(2) a sentence of imprisonment is not to be imposed unless the Court is satisfied that it would not be appropriate to deal with the contravention under any of the other paragraphs in s 70NFB(2).

2. The law applicable to penalties to be imposed for the contraventions found on the balance of probability without reasonable excuse fall into the matters to be determined under the Subdivision E.  Section 70NEB(1) provides the following available and relevant subsections:

   (a) make an order directing:

   (i)the person who committed the current contravention; or

   (ii)that person and another specified person;

   to attend a post‑separation parenting program;

   …

   (f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

1. Subsection (d) refers to an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC.

2. The Full Court decision of Elspeth & Peter;  Mark & Peter and John & Peter (2007) FLC 93-341 decided that a bond is not available for such less serious contraventions.

Submissions on Penalty and Consequences

1. On the 30 September 2008 I received written submissions from the wife’s counsel and heard him briefly.  Ms Cocks, Independent Children’s Lawyer did not seek to be heard on the question of penalty or consequences.  She did seek however to be heard on the application for the husband to pay the Independent Children’s Lawyer’s costs.  I also heard oral submissions of the husband and received three exhibits tendered by him.

2. The written submissions of the wife’s counsel in relation to the contempt matter refer to the defiance of my order of the 25 March 2008 being “against the backdrop of an allegation that there have (sic) been inappropriate sexual behaviour between the husband and the child [S].”

1. The submissions refer to the breach of the order being only a few hours after the making of the order and that it was a “serious contumacious breach being intentionally disobedient”. 

2. Page 4 of the submissions continues:

   “The husband has shown no contrition, has not offered an apology to the Court nor has he demonstrated in any way that he understands the seriousness of his behaviour.

   It is submitted that only a sentence of imprisonment can strike an appropriate balance in respect of the following matters:

   ·The need for contempt proceedings to be punitive in circumstances where there has been a flagrant defiance of Court Orders – Tait (sic) No 1 FLC 93-138

   ·Where a child is taken contrary to an Order of the Court – U & U (1979) FLC 90-648 at 78,492.

   ·The punishment of a contemnor balanced against the suffering of another party and child which may be occasioned by imprisonment – G & G (1981) FLC 91-042

   ·The need for a sentence to be coercive to enable a Court to be satisfied that the contemnor can reasonably comply with orders of the Court.”

3. The submissions of the wife’s counsel referred to the serious contravention on the 28 January 2008 when the husband was at the IGA Supermarket at B with S unaccompanied by any supervisor.  Page 5 of the submissions of counsel contains the following:

   “The seriousness of the husband’s behaviour in respect of the breach on 28 January 2008 should be seen against the background generally but in particular in respect of the husband’s behaviour at trial.  The husband sought to deliberately mislead the Court and conduct his defence on the basis that the witness was wrong and that it may have been a case of the witness not being able to identify that a supervisor was present.  At all times the husband well knew that no supervisor was present pursuant to the orders and accordingly the conduct of his defence was misleading and deceptive.

   The husband’s behaviour at trial is suggestive of a contravention at the higher end of the scale and further that imprisonment is warranted.”

4. In relation to the less serious contraventions (which were found to be contraventions without reasonable excuse on the balance of probabilities) the submission referred to the available orders.  In oral submissions, counsel for the wife agreed with the Court about the difficulty of a bond for these contraventions because of the decision of Elspeth (supra).  Page 6 of the written submissions of counsel includes the following:

   “In respect of each of the two contraventions upon which Her Honour made a finding on the balance of probabilities the significant aspect and the common feature was that the husband took steps to ensure that he was alone with the child contrary to the intention of the orders of the Court but knowing the nature and extent of the allegations against him and that there were proceedings currently extant and ongoing.”

1. The brief oral submissions of Mr Berman, counsel for the wife, referred to the contempt matter.  He submitted that there was “an inescapable conclusion” that imprisonment was appropriate, but left to the discretion of the Court the question of suspension of any imprisonment and the length of any order.

2. The Independent Children’s Lawyer made no submissions on penalty but informed the Court that S is aware of these proceedings and wants to be informed of the “outcome”.  The Independent Children’s Lawyer did not know how S had become aware of the possibility of imprisonment of her father.  Save and except for the question of costs, the Independent Children’s Lawyer made no further submissions on penalties or consequences.

3. The hearing of the matter was stood down whilst the Independent Children’s Lawyer and the husband had an opportunity to consider the written submission of the wife’s counsel before the husband was required to give his submissions.

4. The husband’s submissions included references to his tertiary education and his professional experience.  At the beginning of his submissions the husband emphasised that in the last eight years he has conducted 20,000 professional consultations affecting approximately 4,500 different people.  He said words to the effect that “research indicated that he has had a direct affect on 45,000 to 90,000 members of the public having a direct input into their lives.”  He submitted that he has also found the time to write 650 full reports, including work for which he did not charge a fee.  The Court received, by consent, his Curriculum Vitae, which is Exhibit 1.  The husband also referred to his first class Honours Degree received in the 1980s.  As part of these submissions he referred to the comments which had been made in relation to his thesis.  Over the objections of Mr Berman, I received these comments made by university staff in February 1986.  The age of these comments and their lack of direct relevance to issues of penalty seriously limit the weight these comments can be given.  (Exhibit 2).

5. The husband referred to his past service with an aboriginal organisation and the public service.  He told the Court that he was a useful productive member of the community.  His submissions were that “conviction and incarceration were disproportionate”.

6. The husband submitted that the “reality” was that S would become aware that her mother had suggested that he be imprisoned. 

7. The husband made submissions suggesting that the Court should find that the wife was responsible for his behaviour. He referred the Court to communications emanating from the wife to the Police Department.  He alleged that the proceedings had not been “calm” but had been “stirred by communications” emanating from the mother.  He referred with some emphasis to his early request to have S medically examined and the wife’s failure to consent to this.

8. The husband said that because of the allegations and the material filed in the Family Court proceedings, together with his own professional commitments, “it got too much for me”.  He submitted that he had never been able to “bring his whole brain to these proceedings”. 

9. As part of his submissions the father referred to an email the wife had written to the Boarding House in January 2008.  He referred to this email as indicating a plan by the wife to remove S from his care “irrespective of the truth of the matter” (the sexual abuse allegations).  When the email was produced (Exhibit 3) the husband maintained that this email indicated that the wife wanted S removed from his care, regardless of the truth of the allegations.  The email (to the Boarding House staff at R College) however states:

   “Hello […],

   I am writing about our conversation of Friday 18^th January 2008.  I wish to confirm my understanding from that conversation that, should it be required, a place would be available in the Boarding House at [R College] for [S] as a year 11 student in 2008 and, if required, continuing in 2009 for her year 12 studies.

   I look forward to your response.

   Kind Regards,

   [the wife]”

10. This email clearly refers to “should it be required”.  It does not support the husband’s contention that it shows that the wife intended to have S removed from his care regardless of the truth of the allegations of sexual impropriety.  (My emphasis).

11. In further submissions the husband described the option of a prison sentence as “yet another backdoor approach” by the wife to keep him out of the children’s lives. 

12. He further submitted that the history of the wife’s behaviour reveals the explanation for his difficulty.

13. During his submissions the husband maintained that he needed help and assistance but that there was not any forthcoming.

14. In relation to the contempt matter the husband submitted that “it came about as a spur of the moment”.  He then referred to being “on the spot”. 

15. In relation to mitigating circumstances the husband raised the question of his understanding of the meaning of “supervision”.  I indicated that I had made findings about his understanding of the order which required his time to be supervised.  After discussion the husband did not seek to tender twenty-five documents which he said related to his understanding of what “supervision” meant.

16. In relation to the contempt matter the husband submitted that his concern was for S and that explains the actions he took.  He said these actions were not premeditated and he was “alive to the irony” that he was the one and only person who was not permitted to be in the company of S.  He emphasised that both he and S knew that the allegations concerning sexual impropriety were untrue.

17. The husband asked that I take into account the whole history of the litigation, including both parents’ behaviour and the gravity of the situation.  He referred to S’s most recent school reports which apparently show her completing an excellent physics project, which he said arose out of a conversation he had with S on the tennis courts, at a time when he was not supervised by a staff member.

18. The husband emphasised that “thousands now rely on my input” referring to his professional practice and the fact that he has provided help to numerous people in the State of South Australia.  Towards the end of his submissions the husband asked the Court to bear in mind “the vendetta which the [Professional] Board has conducted against him” and his submissions that the Professional Board might think that imprisonment would provide “a wonderful opportunity to re-open” the Board’s case against him.  No specific detail of any Professional Board proceedings were provided to me.

19. On the 8 October 2008 the husband made further submissions which emphasised the lack of precedent which would assist the Court.  He also submitted that this matter should not be seen as “at the serious end of the scale.”

Discussion

1. The husband is a well-educated professional man with the ability and resources to access assistance and advice.  In his submissions on penalty (and indeed during the hearing of the contempt and contravention applications) the husband displayed little contrition.  During the submissions on penalty he continued to seek to explain away and excuse his behaviour.  A considerable part of his submissions sought to blame either the wife or his previous lawyers.

2. I accept that because the husband has chosen to represent himself it is difficult for him to present his submissions on character, without appearing to be self-centred.  I accept that the husband has qualifications in two professional areas.  I accept that he has a large practice.  Obviously, any order of the Court imposing any penalty for failure to obey Court orders may have an impact on his standing in the community. 

3. The Court was not given any character references for the husband (other than the 1986 comments by university staff about his thesis).

4. In considering the husband’s personal circumstances I also take into account the possible impact of any penalty on the relationship between all members of this family.

1. Contempt

2. On the 25 March 2008 (the day that I made the orders in the presence of the husband) the husband removed S from R College.  She resided with him at his home until, following the urgently listed Court hearing on the 28 March 2008, the husband returned S’s belongings to R College and complied with his undertaking to cause S to remain as a boarder at R College.

3. At that time there was also an injunction restraining the husband from spending any time with or in the company of S, save and except under the supervision of the staff of R College or from spending overnight occasions where S was sleeping or residing. 

4. The husband’s behaviour was a flagrant challenge to the authority of the Court.  I accept that this is not one of the extreme cases where a child has been abducted and kept hidden or out of the jurisdiction for a considerable period of time.  Nonetheless, it is a contempt of Court and must be considered a serious matter.  I take into account the submissions of the husband, but note that any contrition shown by him was limited with his submissions often focussed on blaming the wife whilst not taking responsibility himself.

5. I take into account the husband has had the benefit of a good education and currently practices a profession.

6. I consider it necessary to impose a period of imprisonment to ensure that the husband understands that orders of this Court are to be obeyed and to encourage and ensure his future compliance with orders of this Court.  I also consider that his deliberate behaviour on the 25 March 2008 warrants a significant penalty.  As a secondary factor I also consider the need for this Court to be seen to ensure that its orders are obeyed. 

7. Notwithstanding the possible impact of any imprisonment on the husband’s future career and the emotions of the  children, I am satisfied that a short period of imprisonment is appropriate.  The prison term should be suspended on condition that the husband comply with all parenting orders and injunctions of this Court.  It is appropriate that these conditions continue for a period of twelve months. 

8. I therefore propose to order that the husband be sentenced to imprisonment for a period of one calendar month and further that such term of imprisonment is suspended upon the husband complying with all parenting orders and injunctions of this Court for a period of twelve months from today.

9. Contraventions

   (a)The contravention of the 28 January 2008 when the husband was with S in the IGA Supermarket at B without any supervision.

10. I found (beyond reasonable doubt) that the husband contravened the order of the Court and had shown serious disregard for his obligations.  The power of the Court are set out in s 70NFB.  The husband did not make specific detailed submissions in relation to this contravention.  He said that he was in a difficult position at this time, that he needed help but did not get any.  He referred to his stress.

11. Section 70NFB(1)(a) applies.  Therefore the Court is required to make an order under subsection (2)(g) unless the Court is satisfied that it would not be in the best interests of the child concerned to make that order. 

12. I deal with this issue later when determining the costs application.

13. The order contravened by the husband on this occasion was the order of Justice Burr of the 18 January 2008 which specifically provided that the husband be restrained and an injunction was granted restraining him from having any contact with S “save and except under the supervision of [the paternal grandfather]” (the husband’s father).  The husband did not admit the contravention, but having heard the evidence of Professor JS, I found there was a case to answer.  In cross-examination the husband admitted that when he was in the supermarket with S he was not accompanied by either his father, nor his friend Dr A, with whom he said S was residing at the time.  I refer to the evidence and findings on contraventions at paragraphs 101 to 112 in my earlier judgment.

14. The behaviour of the husband showed serious disregard for the orders of the Court.  This must be seen in the context of the serious allegations (albeit yet untested) made concerning the husband’s behaviour towards S. The serious disregard of his obligations under the order displayed by the husband on this occasion places  the contravention at “the higher end of the scale”. 

15. I have given consideration to the options of community service, a bond or a further sentence of imprisonment for this contravention.

16. Taking into account the order for imprisonment (albeit suspended) I propose to make in relation to the contempt, I do not intend to impose a further order for imprisonment in relation to this serious contravention.

17. Section 70NFB(2)(d) permits the Court to impose a fine of not more than 60 penalty units (a penalty unit is $110.00).  Bearing in mind the options available under s 70NFB and the previous suspended order for imprisonment and taking into account the serious disregard of the husband for the order of this Court, I order that the husband pay a fine of $3,300 within 28 days.

    (b)      The remaining two contraventions

18. The contravention on the 1 February 2008 (when the wife saw the husband driving with S in his car) and the contravention concerning the orders of the Court of the 12 February 2008 contravened by the husband when he played tennis with S regularly in the afternoons and early evenings in the period from the end of February 2008 to the 25 March 2008 were found proven on the balance of probabilities.

19. The penalty options for these contraventions are restricted to the powers of the Court set out in s70NEB.  The Full Court decision of Elspeth (supra) removes the option of placing the husband on a bond for either of these contraventions.

20. In view of the husband’s attitude and his qualifications as a professional an order that he attend a parenting programme is not appropriate as a penalty.

21. The contraventions were not minor nor inconsequential but the Family Law Act gives the Court a limited choice of consequences.

22. The remaining option is to consider orders for costs against the husband.

PART TWO – COSTS JUDGMENT

1. Both the wife and the Independent Children’s Lawyer seek orders that their costs be paid by the husband in relation to the contempt and contravention proceedings. 

2. The wife's formal written application seeks costs on an indemnity basis.  Counsel for the wife now seeks costs on a solicitor-client basis. 

3. The husband asks that the application for costs be dismissed because it was not in proper form; namely, that she does not now seek indemnity costs as contained in the application. 

4. The husband has, however, been on notice about costs being sought by the wife and the Independent Children’s Lawyer.  He suffers no disadvantage by the reduction of the claim by the wife to costs on a solicitor-client basis. 

5. I do not dismiss the wife's application for costs orders against the husband and proceed to deal with it now.

6. The law in relation to the question of costs is primarily set out in section 117.  Substantially, the provisions of section 117(1) provide that, subject to various subsections, each party to the proceedings, under this Act, shall bear his or her own costs.

7. Subsection 117(2A) sets out the matters to which the Court shall have regard, and subsections (3), (4) and (5), in particular, deal with certain aspects of costs of the Independent Children’s Lawyer:

   (3)To avoid doubt, in proceedings in which an Independent Children’s Lawyer for a child has been appointed, the Court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the Court considers just, the costs of the Independent Children’s Lawyer in respect of the proceedings.

   (4)However, in proceedings in which an Independent Children’s Lawyer for a child has been appointed, if:

   (a)a party to the proceedings has received legal aid in respect of the proceedings; or

   (b)the Court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the Independent Children’s Lawyer;

   the Court must not make an order under subsection (2) against that party in relation to the costs of the Independent Children’s Lawyer.

   (5)In considering what order (if any) should be made under subsection (2) in proceedings in which an Independent Children’s Lawyer has been appointed, the Court must disregard the fact that the Independent Children’s Lawyer is funded under a legal aid scheme or service established under a Commonwealth, state or territory law or approved by the attorney-general.

8. The provisions of the Act concerning contempt do not specifically deal with costs, so it is clear that section 117 applies to the application in relation to the contempt. 

9. On the contravention matters which were found to be proven on the balance of probabilities, the powers of the Court are set out in the Act, which includes section 70NEB (1) (f), “Power to make an order for costs of another party, or other parties, to the proceedings”.  This section is not specifically dealt with in section 117.  Nor does section 70NEB specifically refer to section 117.  However, I am of the view that, in relation to those contraventions, the provisions of section 117 also apply to the application for costs.

1. In relation to the contravention which shows serious disregard of the obligations under the order, the powers of the Court are specifically set out in section 70NFB, in particular section 70NFB(1)(a):

   Make an order under paragraph (2) (g), unless the Court is satisfied that it would not be in the best interests of the child concerned to make that order.

2. In particular, I emphasise that the wording of section 70NFB (1) (a) refers to an expression which includes:  that the Court must make that order.  (My underlining).  Subsection (2) (g) specifically refers to an order in favour of a party, or other parties, to the proceedings.

3. Section 117(1) specifically makes the provisions of subsection (1) subject to section 70NFB (1).  It is therefore my conclusion that the provisions of section 70NFB (1) override the provisions of section 117.

4. As indicated, the making of a costs order is mandatory, save and except where the exception is made out, that exception being:  Unless the Court is satisfied that it would not be in the best interests of the child concerned to make the order.

5. The expression "the child concerned", in these proceedings, must relate to the child referred to in the order which was contravened.  This was the order of 18 January 2008, and the child concerned must therefore be S.

6. When considering whether it would not be in S’s best interests for an order for costs to be made against the husband in favour of the wife, it appears that section 60CC, in subdivision BA of Division 1 of Part VII of the Act, only applies to proceedings in which the best interests of the child are the paramount consideration, or otherwise the particular sections mentioned in s 60CB (2) apply.

7. This application for costs does not fall within one of those sections, therefore the provisions of section 60CC are not directly binding upon the Court in this application.  However, section 4 of the Act defines "interests" which, when used in Part VII in relation to a child to include matters related to the care, welfare or development of the child.

8. So notwithstanding the provisions of section 60CB, I give some consideration to the matters set out in section 60CC, when considering whether or not an order for costs against the husband would not be in S’s best interests.

9. Neither the husband nor the wife in these proceedings submitted that the exception applied; namely, that it would not be in S’s best interests if the husband was ordered to pay the wife's costs.  Many of the subsections in section 60CC do not assist the Court in determining whether an order for costs would or would not be in S’s best interests. 

10. S is now 16.  She has attended R College as a day student and boarder.  Both her parents have professional careers.  It appears that S is aware of some aspects of these proceedings.

11. The most relevant part of section 60CC which could relate to S’s best interests as connected to a costs order is subsection (f); namely, the capacity of each of the child's parents to provide for the needs of the child.

12. There is nothing in relation to any of the material before me which would suggest that an order for costs would reduce the capacity of either of the parties to provide for the needs of S, or indeed the other children, save and except that any order for costs will of course reduce the amount of money available to the husband but at the same time would increase the prospect of the mother having more money available for the family rather than payment of her lawyer's fees.

13. Considering all of the factors in section 60CC, I am not satisfied that an order for costs would not be in S’s best interests.  Indeed I find that it is in S’s best interests for her father to be encouraged to obey all Court orders.

14. I conclude that, in the circumstances before me, the Act requires me to make an order that the husband pay the wife's costs of the contravention proceedings relating to the contravention on 28 January 2008; namely, when he attended at the IGA supermarket with S, unsupervised.

15. In relation to that particular contravention, therefore, I am required to make the order that the husband pay the wife's costs in the circumstances, having found that the exception does not apply.

16. If section 70NFB(1)(a) does not apply, then considerations of section 117 would be relevant. 

17. I have determined that the Independent Children’s Lawyer is not a party to the proceedings and the Independent Children’s Lawyer's application for costs is therefore to be determined under section 117 rather than the mandatory provisions under section 70NFB.

18. In relation to the contempt and other contraventions, consideration of section 117 is required.  Section 117 is also required to be considered when considering the Independent Children’s Lawyer's costs of the serious contravention as well.

19. I turn to consideration of the provisions of section 117, so far as they relate to the Independent Children’s Lawyer's application, and to the contempt and other two contraventions.

20. The husband is correct in his submission which is that the provisions of subsection (1) provide that, subject to the provisions of the Act, each party to the proceedings, under the Act, shall bear his or her own costs.

21. Subsection (2) provides that if, in proceedings under this Act, the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs as it considers just.  It requires the Court to take into account subsections (2A), (4) and (5) and the applicable Rules of Court.

22. In considering the provisions of subsection (2A), the matters which need to be taken into account in this matter are, in my view, subsections (a), (c), (d) and (e).

23. As far as subsection (a) is concerned;  the financial circumstances of each of the parties to the proceedings;  I have before the Court material which indicates that both parties have professional qualifications and significant assets and income. 

24. I am not satisfied that the financial circumstances of the husband have been shown to be a factor which would require me to not make an order for costs or reduce any order for costs.  To the contrary, I am satisfied that the financial circumstances of the parties indicate the capacity of both parties to incur the costs and indeed pay the costs.  Legal aid is not relevant in these proceedings.  The legal aid situation of the Independent Children’s Lawyer is specifically to be disregarded under subsection (5) of section 117.

25. In relation to the conduct of the parties to the proceedings, the wife's counsel has argued that I should take into account the husband's conduct.  In particular, in relation to the steps taken by the father not to admit the contraventions and later, during cross-examination, admitting the contravention, particularly in relation to the IGA supermarket occasion.

26. I accept that the facts referred to are correct.  However, bearing in mind that the contraventions and contempt matters are serious matters, it could be argued that the husband has the right to put the wife to proof of the allegations rather than concede the contraventions and contempt.  However, in taking that attitude I also take into account, once the findings were made by me, the husband maintaining in his submissions an attitude that suggested the wife should bear responsibility for his conduct.

27. Subsection (d):  “Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.”  This in fact speaks for itself.  The contraventions and contempt were brought in circumstances where it was alleged that the husband had failed to comply with the previous orders of the Court.  This is a significant factor.  So also is subsection (e):  “Whether any party to the proceedings has been wholly unsuccessful in the proceedings.”  The husband has been wholly unsuccessful in his defence of the proceedings.

28. I am not aware of any offers, and this would not be an appropriate matter for offers in writing to have been made. 

29. “Such other matters as the Court considers relevant” subsection (g).  I consider that it was appropriate, in these circumstances, for the Independent Children’s Lawyer to be present during the hearing in relation to the contempt and contravention proceedings brought whilst the final proceedings remain yet to be determined, and bearing in mind the serious nature of the contempt and contraventions.

30. The husband asked that, as an alternative to any costs order being made, that the matter be adjourned for determination by the judicial officer who hears the final orders trial. This would not be appropriate. The contempt and contravention proceedings are discrete proceedings that have been dealt with by me. I have heard and determined the matter.  It is appropriate that I determine the costs applications in relation to those proceedings.

31. Having considered, therefore, all of the provisions of section 117, and in relation to the serious contravention the provisions of section 70NFB, I am satisfied that there are circumstances that justify the Court in making an order for costs in favour of the wife against the husband and in favour of the Independent Children’s Lawyer against the husband.

32. In relation to the question of quantum, the material before the Court from the wife does not enable the Court to clearly make a specific order as to the amount as it is not clear from the material produced the basis upon which those costs have been calculated and whether they are on a solicitor-client basis in accordance with the scale or otherwise. 

33. I am satisfied that the orders in relation to the Independent Children’s Lawyer should refer to the particular sum which is the sum provided by the Independent Children’s Lawyer.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  8 October 2008