Smoothe and Enmore (No. 2) - [2014] FamCA 45

FAMILY COURT OF AUSTRALIA

SMOOTHE & ENMORE (NO. 2)

[2014] FamCA 45

FAMILY LAW – CHILDREN – Where the father seeks a Contravention Order – Where the mother found without reasonable excuse for contravening parenting orders – s 70NEB(1)(d) Family Law Act1975 (Cth) – Ordered to enter into a bond – Ordered an extension of existing orders to compensate the father for time that was not spent with the child due to the contravention – Costs.

Family Law Act 1975 (Cth)

McClintock & Levier (2009) 233 FLR 179

APPLICANT:

Mr Smoothe

RESPONDENT:

Ms Enmore

INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

FILE NUMBER:

BRC

4709

2012

DATE DELIVERED:

29 January 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

16 January 2014 and 29 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT:

Carroll Fairon Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Merkin

SOLICITOR FOR THE RESPONDENT:

Kim Eccleston Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders

IT IS ORDERED THAT:

Pursuant to s 70NEB(1)(d) of the Family Law Act 1975 (Cth), THE MOTHER having been found without reasonable excuse contravening the parenting Orders of 7 August 2012 and 18 December 2012, IS ORDERED to enter into a bond in the sum of FIVE HUNDRED DOLLARS ($500) without surety for a period of two (2) years as security upon the condition that the Mother comply with all current parenting Orders.
The Mother to pay the $500 security referred to in Order (2) hereof within fourteen (14) days of the date of this Order to the Collector of Public Monies.
As and by way of compensation, Order 1(b) of the Order of 18 December 2012 is extended for a period of three (3) months, to 5.00 pm Sunday.
Leave be given to the Father’s legal representatives to file and serve an Application in a Case seeking that a Recovery Order issue, with such Application in a Case to be adjourned to a date to be fixed before the Honourable Justice Bell on the giving of twenty-four (24) hours notice, should the Mother fail to comply with any parenting Order of this Honourable Court.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The parenting Orders of 7 August 2012 and 18 December 2012 remain in full force and effect.

IT IS FURTHER ORDERED THAT:

The costs of this application be reserved to the trial Judge.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smoothe & Enmore (No. 2) 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 BRISBANE

FILE NUMBER: BRC 4709 of 2012

Mr Smoothe

Applicant

And

Ms Enmore

Respondent

REASONS FOR JUDGMENT

Introduction

The reasons follow on from my reasons handed down earlier today in respect of the father’s application in a case filed on 11 December 2013.
Having found that the mother did contravene Order 4 of the orders of Federal Magistrate Demack made 7 August 2012 on one occasion and Order 1 of the orders of Federal Magistrate Demack made 18 December 2012 on seven occasions, I turn then to the question of what orders ought be made.
As was submitted at the hearing of the application on 16 January 2014, the father seeks an order that a bond be imposed pursuant to Subsection E of Division 13A of the Family Law Act 1975 (Cth) (“the Act”). The father also sought orders, pursuant to the same subsection, for the child to make up the time with the father that was not spent due to the mother’s contraventions.
Following the reasons being handed down today, I required Linklater-Steele and Merkin to give submissions as to what orders ought be made in light of the contravention.
Linklater-Steele submitted that the mother’s contravention be considered a “serious” contravention and sought orders for:
(a)there to be a bond imposed;
(b)there to be compensatory time ordered between the father and child;
(c)there to be a recovery order made;
(d)the current interim parenting orders to be varied to provide for the parties to have equal shared parental responsibility;
(e)the mother to comply with the Orders of Federal Magistrate Demack relating to the mother keeping the father informed of her current residential address; and
(f)the mother to disclose to the father the school which the child attends.
The mother resists all but one of the orders made by the father, that being the order for the mother to inform the father about the child’s residential address. It is the mother’s case, as submitted by Merkin, that she has done so.
As regards the father’s order sought for the current interim orders to be varied to provide for the parties to have equal shared parental responsibility, as those orders sought were not agitated at the earlier hearing and in light of their serious nature, I shall not be making orders to that effect in the circumstances.

THE LAW

The purpose of Division 13A of the Act is clear: to ensure ongoing compliance with orders of the Court.
I am mindful of the objects of Part VII of the Act as set out in s 60B, and relevantly for the purposes of the matter before me, subsections (1)(a) and (2)(a) – (b). I am also mindful of s 65N and s65NA of the Act which provide:
Section 65N General obligations created by parenting order that deals with whom a child spends time with
(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2)A person must not:
(a)hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child benefiting from spending time with each other under the order.
65NA General obligations created by parenting order that deals with whom a child communicates with
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with.
(2) A person must not:
(a) hinder or prevent a person and the child from communicating with each other in accordance with the order; or
(b) interfere with the communication that a person and the child are supposed to have with each other under the order.
Subdivision E of Division 13A is entitled “Contravention without reasonable excuse (less serious contravention)”. Despite the submissions of Linklater-Steele of counsel that this contravention falls within the category of a “serious” contravention. Subdivision E provides the circumstances in which the subdivision will apply (see s 70NEA of the Act).
The mother has conceded that she contravened:
·Orders (1)(a) and (b) of the Order of 18 December 2012 on 16 August 2013, 23 August 2013 30 August 2013, 20 September 2013, 8 November 2013, 22 November 2013 and 29 November 2013 (as those dates did relate to the orders); and
·Order (4) of the Order of 7 August 2012 on 10 October 2013.
I am satisfied on the evidence before me that Subdivision E of Division 13A applies to the circumstances of this case. That is, I am satisfied that:
(1)(a) A primary order has been made, being the Orders of 7 August 2012 and 18 December 2012;
(1)(b)The mother has contravened the abovementioned orders;
(1)(c) The mother has not proven that she has a reasonable excuse (see my reasons handed down earlier today);
(2)(a) for the purposes of paragraph (1)(d), that no court has previously made an order imposing a sanction or taking action in respect of a contravention by the person of the primary order.
I turn then to the issue of whether it is appropriate to make an order requiring the mother to enter into a bond. Subsection 70NEB(1)(d) empowers the Court, where Subdivision E of Division 13A applies, to make an order requiring the mother to enter into a bond in accordance with s 70NEC of the Act.
The procedure for enforcing bonds is set out in s 70NECA of the Act. Having considered the submissions made on behalf of both the mother and the father, in the circumstances of this case, I consider that it is appropriate to make an order for the mother to enter into a bond.
I have approached the matter by considering each of the contraventions individually as opposed to globally (see McClintock & Levier (2009) 233 FLR 179 per Finn J at 192). I do note that, though each contravention ought be considered individually in determining what orders are appropriate, it is acceptable for an order in response to more than one count of contravention to be encapsulated within one overarching order as opposed to making a separate order for each of the specified contraventions (see McClintock & Levier supra per Cronin J at 220). I consider that the possibility of a fine being incurred or other consequences under the Act occurring (see s 70NECA) if the mother breaches the bond will act as a deterrent against the mother breaching the current parenting orders.
As such, I shall make an order that the mother, pursuant to s 70NEC of the Act, enter into a bond. The bond shall be for a period of two years (s 70NEC(2)). The bond shall be imposed without surety (s 70NEC(3)(a)). The bond is to be imposed with security of $500.00 (s 70NEC(3)(b)). As regards what conditions ought be imposed on the mother by the bond, I consider it necessary that a condition be imposed that the mother comply with all current and future parenting orders (s 70NEC(4)).
I am mindful of the obligations placed upon the Court where it is to make an order requiring a party to enter into a bond (see s 70NEC(5) of the Act). As such, at the handing down of this judgment I shall provide a clear explanation, in “language that is likely to be readily understood” by the mother, the “purpose and effect of the proposed requirement” and “the consequences that may follow” if the mother “fails to enter into the bond” or “having entered into the bond – fails to act in accordance with the bond”.
In placing a requirement on the mother to comply with the earlier orders of the court, she will be required to provide her residential address pursuant to the earlier order of Federal Magistrate Demack, as sought by Linklater-Steele for the father.
I also note that, as regards the order sought by the father for the mother to disclose the school which the child attends, I see no reason on the evidence before me why that ought not be the case.
Subsection 70NEB(1)(b) grants the Court the power to make an order, if the current contravention is a contravention of a parenting order in relation to a child, 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.
As regards the order sought by the father for time to be made up to compensate for the lost time between himself and the child as a result of the mother’s contravention, I have considered the submissions of counsel for each of the parties on this point. While I am mindful of the decision of Federal Magistrate Demack, made in the best interests of the child, for the current contact orders, in the circumstances of the case, as advanced by Linklater-Steele, I consider it is necessary for there to be some compensatory make-up time to be spent between the child and the father. I am also mindful of the child’s young age and that the mother is currently the primary care giver of the child, and in those circumstances, I shall make orders that the father have an additional night of contact with the child every second and fourth weekend (see Order 1 of the Order of Federal Magistrate Demack made 18 December 2012). That compensatory contact shall continue for a period of three months.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 29 January 2014.

Associate:

Date: 29 January 2014