Sykes & Sykes

[2021] FCCA 1154

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sykes & Sykes [2021] FCCA 1154

File number(s):

SYC 950 of 2009

Judgment of:

JUDGE MORLEY

Date of judgment:

4 May 2021

Catchwords:

FAMILY LAW – contravention – cross applications for contravention – prior convictions for contravention without penalty – Court imposes bonds for good behaviour and compliance with orders for a period of 12 months without security and without surety.

Legislation:

Evidence Act 1995 (Cth) ch 4

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NEA, 70NEB, 70NEC

Cases cited:

Stevenson & Hughes [1993] FamCA 14

Number of paragraphs:

70

Date of hearing:

3 May 2021

Place:

Sydney

Counsel for the Applicant:

Ms Murphy

Solicitor for the Applicant:

Swifte Law

Counsel for the Respondent:

Ms Friedlander

Solicitor for the Respondent:

Sharah & Associates Solicitors And Conveyancers

ORDERS

SYC 950 of 2009

BETWEEN:

MS SYKES

First Applicant

AND:

MR SYKES
Second Applicant

ORDER MADE BY:	JUDGE MORLEY
DATE OF ORDER:	4 MAY 2021

THE COURT ORDERS THAT:

1.In relation to the contravention asserted against the Mother, in that at 8:12AM on 3 May 2019, the Mother failed to drop the child X born in 2006 off at B School in breach of order 3 of the orders made by consent on 8 April 2019, I find that such failure was without reasonable excuse and I convict the Mother of that charge.

2.In relation to the contravention asserted against the Father, in that at 2:38PM on 27 March 2020 the Father failed to provide the child X born in 2006 to the Mother for the Mother to spend time with X in breach of order 6 of the orders made on 27 November 2013, I find that the Father did fail to provide the child to the Mother for the Mother to spend time with the child and that such failure was without reasonable excuse, and I convict the Father of that charge.

3.In relation to the conviction of the Mother, the Court directs that the Mother enter into a bond pursuant to section 70NEC of the Family Law Act 1975 (Cth) for good behaviour and compliance with all orders made pursuant to the Family Law Act 1975 (Cth) for a period of 12 months without surety and without security, and the Court orders that the Mother attend upon the Court registry in order to enter into that bond prior to leaving the Registry today.

4.In relation to the conviction of the Father, the Court directs that:

(a)The Father enter into a bond pursuant to section 70NEC of the Family Law Act 1975 (Cth) for good behaviour and compliance with all orders made pursuant to the Family Law Act 1975 (Cth) for a period of 12 months without surety and without security, and the Court orders that the Father attend upon the Court registry in order to enter into that bond prior to leaving the Registry today; and

(b)The child X born in 2006 spend compensatory time with her Mother from the end of school on 14 May 2021 until the start of school on 17 May 2021.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE MORLEY:

1. These are contravention proceedings between the mother, Ms Sykes, and the father, Mr Sykes, whom I will refer to as, respectively, the mother and the father. One application commenced 19 August 2019 as an application for contravention filed by the father against the mother. The other contravention was filed on 18 June 2020 being an application for contravention filed by the mother against the father. They were both heard on 3 May 2021.

2. In sequence, as the first is more recent, I will deal with them in that order.

   THE CONTRAVENTION ASSERTED AGAINST THE MOTHER BY THE FATHER

3. Firstly, in the contravention from 19 August 2019, the father asserted that on 3 May 2019 at 8.12 am, the mother failed to drop the child the subject of these proceedings, X, born in 2006, at B School at Town C in New South Wales, contrary to order number 3 of the orders made on 8 April 2019. That order 3 had been made by consent between the parties on that day.

4. In support of the application for contravention, the father filed an affidavit that he swore or affirmed on 4 August 2019. At the commencement of the hearing the asserted contravention was put to the mother in compliance with the Rules in relation to conduct of contravention proceedings in the Federal Circuit Court of Australia, and it was indicated by the mother that she admitted the contravention, but that she relied upon a defence of reasonable excuse.

5. The meaning of contravention is defined in section 70NAC of the Family Law Act 1975 (Cth) (‘the Act’), and I incorporate that into these Reasons:

   Section 70NAC – Meaning of contravened an order

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a) where the person is bound by the order--he or she has:

   (i) intentionally failed to comply with the order; or

   (ii) made no reasonable attempt to comply with the order; or

   (b) otherwise--he or she has:

   (i) intentionally prevented compliance with the order by a person who is bound by it; or

   (ii) aided or abetted a contravention of the order by a person who is bound by it.

   Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.

6. The meaning of reasonable excuse for contravening an order is defined in section 70NAE of Act, and I incorporate that into these Reasons:

   Section 70NAE – Meaning of reasonable excuse for contravening an order

   (1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   (2) A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b) the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (7) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

   (a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

7. The subject order, order 3 of the orders made 8 April 2019, was as follows:

   The child X born in 2006 (“the child”) spend time with the Applicant mother on 2 May 2019 for the purposes of the child attending the graduation of the child’s sister, Y, at the Suburb D Campus of the Region E University with the mother to pick up the child from the child’s school at 2:38pm at 1 May 2019 and to be dropped off at the child’s school at 8:12am on 3 May 2019.

8. As indicated the mother admitted the contravention in that she did not drop X to B School at Town C at 8.12 am on 3 May 2019, she says with a reasonable excuse, contravening the order.

9. The father’s evidence is contained in his affidavit of 4 August 2019. I have read the parts of that affidavit that are relevant to the matter currently before the Court, in particular at paragraphs 5, 6, and 7. Paragraph 5 refers to the order. Paragraph 6 states:

   On 3 May 2019 the respondent was to drop our daughter, X, at school at 8.12 am as specified in the orders dated 8 April 2019 at order 3. The orders were made by consent. Annexure E is a printout from the B School portal indicating X’s absence for the full day on Friday 3 May 2019.

10. The mother’s admission to the contravention goes hand in hand with that evidence.

11. The mother provided an affidavit by her that was affirmed on 31 October 2019, and filed and served prior to the hearing of the contravention. In that affidavit I have taken note of the mother’s evidence therein so far as it is relevant to the contravention heard by the Court. The mother’s evidence boils down to that the purpose of the order made for 8 April 2019 was to allow X, as the order says, to attend her older sister’s graduation from Region E University.

12. The mother picked X up on 1 May 2019. The function was attended on 2 May, and then on the evening of 2 May 2019 the mother and Y and X spent the night at Location F. The mother says that they got up early enough to have X at the school at Town C by 8.12 am in compliance with the order, that they (the mother, X, and Y) were to travel separately in two cars. One car was to be the mother and X. The other car is irrelevant.

13. While they were walking to the exit gates X got very upset and started crying. The mother said to X, “What’s wrong, X”. X turned to the mother and said, “I don’t want to go to school”, then the mother was told something by X’s older half-sibling, Y, to the effect that X had received a text message from her father, but Y did not know what was in the text message. The mother’s evidence is that she did not know what was in the text message until the following Sunday, 5 May.

14. The mother asserts that X said to the mother, “I am scared Daddy is angry at me”, and that X also said, “I don’t want to go to school because Daddy is angry. I don’t know what he will do to me”. And that she also said, “I don’t want to be in trouble with Dad”. The mother checked the school program for the day.

15. That is that for the mother’s evidence-in-chief.

16. In the course of cross-examination of the mother by counsel for the father, it emerged that while walking from where they had stayed overnight to the car, intending to convey X back to her school to comply with the order, X became upset. The mother said that they sat down, variously on a seat or a step, and variously firstly for 30 minutes, later for 20 minutes, later asserting that the process took about an hour, and that X was upset and did not want to go to school.

17. However, in the course of time, mother and X got to the car park and got into the car. The mother then travelled with X, not to B School at Town C in compliance with the order, but to the Region J, where she lives, because that was a weekend when X was due to spend time with her, pursuant to the current orders in relation to time between mother and child. On the Sunday, the mother saw the subject message which X had received from her father. That is in evidence as exhibit M1, and it reads:

    The reading program has started. If you can go to the back to the learning commons at 7.45 am on Friday and Monday, please. Love you, XO”.

    There is a response from X:

    I will try.

18. Also in evidence from the hearing and the cross-examination of the mother is exhibit F1, which is a print of further SMS correspondence between X and her father on Friday 3 May, asserted to be commencing at 9.46 am, X saying:

    They’re making me miss school, I don’t want to get in trouble.

    The father saying:

    You’re not going at all, or you’re going late.

    X saying:

    I don’t know.

    The father saying:

    Where are you now?

    X saying:

    The Location F.

19. I note again that that purports to have been at 9.46 am, and there is no evidence to the contrary in relation to the time marked on the print of that SMS.

20. It was the purport of the mother’s evidence in cross-examination by Ms Friedlander as counsel for the father that X was upset, she indicated she was afraid of her father and she did not want to go to school. Of course, on the evidence, on the Monday, X was taken to school by her mother or sent to school by her mother (it is not in the evidence which) in the normal course of compliance with the reigning orders for spending time.

21. There is nothing in the evidence to indicate that X had a cause to be in any fear of her father. The message from the father that is in evidence that I have read out concludes with the words “love you, XO”. X’s further SMS conversation with her father at about 9.46am on that day does not indicate any fear, does not contain any criticism. What is absent in the matter is any evidence from the mother indicating that she made any positive effort by way of encouragement or by way of action to comply with the order.

22. This contravention is a little different from most contraventions that come before the Court, in that it is a contravention of an order that does not entail X losing any time or any relationship with a parent. It entails X having some extra time with her mother and her sister, following her sister’s happy occasion the day before, but it does not entail X losing any time with her father. It relates strictly to a failure to comply with a specific order to return X to school so that she would spend Friday, 3 May 2019 in school, thereafter, going straight back into her mother’s care at the end of school, to spend the weekend.

23. Of course, in hearing a contravention as to whether a contravention has occurred or not, it is not an emotion judgment. It is not an appraisal of the effect of the order on the relationship, child with parents and so forth. It is simply a strictly legal question as to whether there has been a contravention in accordance with the definition in the Act, and if there has been a contravention, was there a reasonable excuse.

24. There was a contravention. That is admitted, and I will say quite readily, properly admitted by the mother at the commencement of the proceedings. She pleads reasonable excuse.

25. As I referred during cogent submissions made by both counsel in this matter to the well-known Full Court decision of Stevenson & Hughes [2003] FamCA 14, a decision of Fogarty, Nygh and Gun JJ (Gun J did not deliver a judgment, simply an agreeing judgment). That decision is the very well-known authority for the principle that parenting orders, particularly parenting orders that relate to children spending time – which is the purport of the case – bring with them an obligation on the parent to make reasonable efforts, make a positive effort to comply with the order, and to encourage, help and assist a child to act in compliance with the order.

26. They noted, of course, that the orders do not bind children.

27. From the judgment of Nighe J, I quote:

    [25] This is what I might call the classical case which the Full Court dealt with in In the Marriage of Stavros (1984) 9 Fam LR 1025, namely, that there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.

28. In the next paragraph, his Honour says:

    [26] … an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order, but Mummy really does not mind if you say no.

29. Of course, the particular case was dealing with an asserted breach of an order for communication between father and child but facilitated by the mother, and in the judgment of Fogarty J, his Honour refers to comments from the judgment of the original trial judge appealed from, Moore J, and quotes from her Honour’s judgment the following:

    [6] At p 8 of the Appeal Book her Honour said this:-

    There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs.

    And later:

    It is not a sufficient discharge of a custodian’s obligations, express or implied, to point to words and actions and to say, in effect, “you see, I tried, but the child does not want to go and, thereafter, they figuratively fold their arms, as if they are with the end of the matter …

    And then further on:

    … it is not sufficient to make a token effort of compliance by the utterance of a few phrases which in the main are designed to impart on the child not positive encouragement to go and access, but to convey the burden both the child and the custodian of compliance with the obligation.

1. As I have said, that all relates to orders relating to a child spending time with a non-custodial parent. But I take the sentiments expressed by the Full Court as to apply to any order made under the Act in parenting proceedings imposing on the parent who has to take the active role in complying with a particular order to do more than figuratively stand with arms folded.

2. In this case, as was submitted to the Court by counsel on behalf of the father, the mother took no action other than to spend time trying to find out from X what was wrong, and there is no evidence to gainsay the evidence of the mother that she did do that. Then when everyone got into the car, X was in the car. There is no evidence that the mother suggested or made any attempt to convey X towards her school, let alone to her school.

3. I find that the attitude of the mother to compliance with the order fell below the required level of positive action and encouragement of the child to act in a way that puts the parent in compliance with the order and accordingly I find that there has been contravention of order 3 of the orders made on 8 April 2019 by the mother, as admitted, and that such a contravention was without reasonable excuse.

   THE CONTRAVENTION ASSERTED AGAINST THE FATHER BY THE MOTHER

4. In relation to the contravention asserted by the mother against the father, in her contravention application filed 18 June 2020 the mother asserted the father was in contravention, in that on 27 March 2020, at 2.38 pm, at B School at Town C, the father was in breach of order 6 of the orders made by Rees J in the Family Court of Australia, on 27 November 2013, in that the father failed, without reasonable excuse, to bring the child to the appointed location for changeover, thereby preventing the child from spending time with her mother, in accordance with the orders.

5. The relevant order was as follows, being order 6, made by her Honour on 27 November 2013:

   During school terms, X shall spend time with the mother each alternate weekend from after school on Friday until the commencement of school on Monday (or on Tuesday if the weekend is a long weekend) and the mother shall collect X from the school on Friday afternoon and return her to the school on Monday (or on Tuesday if the weekend is a long weekend).

6. There was no contest made in the hearing that the appropriate place for changeover was at X’s school, B School at Town C. Some reference was made in the Court at the hearing to order 12.2 of those orders made, but that order does not relate to the relevant changeover place for commencement of the alternate weekend time with the mother during school term, and no submission in relation to that was pursued in the course of the matter.

7. The mother relied upon her affidavit that had been either sworn or affirmed, the document asserted, on 29 May 2020. As the affidavit contained no jurat at all, we took the step of having the mother re-swear that affidavit when she entered the witness box to give her evidence-in-chief.

8. In that affidavit, the mother asserts that on 27 March 2020, she attended the B School to collect X in accordance with the orders, that X was not at the school and was not available there to be collected by the mother, and that in consequence, the mother did not spend any alternate weekend time with X from Friday 27 March through to Monday 30 March 2020. The mother says that she sent the father a text message at 10.12 am, on Friday 27 March, stating:

   Good morning, Mr Sykes. Just to confirm, it is my weekend with X starting today. I will be at B school at 2.38 pm to collect her, as normal. Thank you. Ms Sykes.

9. The mother says that she had also texted to X that morning to ask if she was at school, and when she responded she was not, the mother texted the father, as above, to arrange for school pickup.

10. I should note at this point that on the relevant date, 27 March 2020, Australia, like the rest of the world, was just falling into the pit of the SARS-CoV-2/COVID-19 world pandemic crisis, and governments were making daily changes to the relevant governing rules under law as to what people could and could not do, that a comment had been made by Federal Parliamentary members in relation to what step should be taken state by state and that on the relevant day, the State of New South Wales was in a circumstance where, unlike the State of Victoria on that day, public schools had not been closed altogether, but the Government had advised, pursuant to regulations that all have been found to be within law, that those schools were open.  They were open for the purpose of attendance of children who could not otherwise be kept at home and, in particular, children of frontline healthcare workers who otherwise would either not be in a position to attend to their work, as was desperately needed at the time, or be in circumstances where children are left without proper supervision. But the Government advice was that if children can be kept home, they should be kept home. Whether X attended school on that day or not is irrelevant to this contravention.

11. Continuing the evidence. The mother received a response SMS from the father, the time is not stated, that she says was:

    Yes, it’s your weekend.

    And also said:

    I have also said that she needs to call you now and to sort it out between you.

    The mother then sent a text to X saying:

    Okay. But we will still meet you at school at 2.30 like normal.

12. There was correspondence sent that day by the mother’s solicitors on her instructions to the father’s solicitors, but in written evidence and during cross-examination there was no evidence as to when the father saw that letter and it came to his notice. The mother says that she waited at the B School at Town C for an hour, waiting for X for the changeover, and then sent a text to the father at 3.45 pm saying:

    Good afternoon, Mr Sykes. It’s now 3.40 pm on Friday, 27 March 2020. I’m attending B School to collect X for my weekend. I’ve sent a text message to advice I would meet you at school at normal school conclusion. X is not at school as arranged. You have not kept me informed of X’s attendance at school this week. The changeover has not occurred today. I have met with the school principal to discuss your contravention of the Family Court orders. Kind regards, Ms Sykes.

13. The rest of the evidence in the mother’s affidavit is not relevant to the contravention before the Court.

14. At the beginning of that hearing, the contravention as asserted was put to the father and it was indicated on his behalf that he did not admit the contravention. The hearing proceeded on the basis of all matters related to the asserted contravention being in issue. The father was cross-examined, and the father also called his wife Ms Sykes who gave evidence-in-chief, and then after a period of time was allowed to counsel for the mother to obtain instructions in relation to that evidence-in-chief which had not been seen or heard before, Ms Sykes was cross-examined.

15. In summarising all of that evidence, it would seem that in the morning of 27 March 2020, the father went to his normal employment as a tradesman, that he was not contactable through the day in the course of his work, that Ms Sykes attended her place of work where she is a public servant, until lunch time. She then returned home where X was engaged in online learning as she had been during the earlier part of that week, Tuesday, Wednesday, and Thursday, and that for the next several hours Ms Sykes made positive efforts to encourage X to join her in the car to be driven to the school, to attend the changeover, to spend the alternate weekend time with her mother.

16. The father’s affidavit is the focal point in this matter. In that regard, in paragraph 3 he says that X’s school was closed down and she was doing home learning. That is contrary to the law prevalent in New South Wales on 27 March 2020 of which I can take judicial notice under the Evidence Act 1995 (Cth)[1] in that the school was not closed down. It was as I have already described. He says:

    X did not want to go to her mother’s place because she was worried she may not be able to return home for some time.

    [1] Evidence Act 1995 (Cth) ch 4 pt 4.2.

17. That would have been a legitimate concern for X to have at the time.

18. The father then goes on to say:

    When X has made up her mind she will not go to her mother’s place, she becomes extremely distressed but extremely stubborn.

19. He refers to two previous occasions, and he says:

    At X’s age, it’s not possible to force her into the car.

20. Then the focal point of the evidence is the following in paragraph 7:

    I was working at City N on 27 March 2020. The mother did not contact me until 10.12 am on that day to give me notice she was picking up X. X had already told me she did not want to go to her mother’s place and told me the reasons why. I texted the mother that she would have to talk to X and they would have to work it out between them.

21. Earlier in these Reasons I referred to Stevenson & Hughes and read extracts therefrom. This was a case where the child was to spend time with the non-custodial parent on the father’s own evidence and that evidence did not change in the course of his cross-examination or in the course of cross-examination of Ms Sykes.

22. On the basis of that evidence, there is no evidence that the father made any attempt whatsoever to encourage X to attend the changeover to spend time with her mother. On the father’s own evidence, he was aware that X had a problem with going for the weekend with her mother. She was worried that there may be a lockdown and she could not get home. There is no evidence whatsoever that the father took any steps to address that concern by talking to X about it. There is not even any evidence that the father took any steps to address that concern by requesting Ms Sykes address the matter with X. Even if he had, I find that it is not a reasonable excuse to a contravention for a parent who is required to take the necessary action to comply with an order, particularly an order in relation to a child spending time with a non-custodial parent, to delegate that responsibility to another person, turn their back, and walk away and go off to work.

23. The fact that the father was at work throughout the day and uncontactable is, I find, not an element of any reasonable excuse. The father, as I already said, was well aware of the problem. There is no evidence of him taking any steps to address it in any manner. I find that that also falls well short of the obligation on a parent under orders made under the Act and most particularly in relation to compliance with orders in relation to a child spending time with the non-custodial parent.

24. In relation to the evidence given by Ms Sykes, I will say gratuitously at this point that as far as I can see from all of the evidence Ms Sykes acted entirely appropriately, did what she could, made repeated efforts, continued those efforts all the way up to the final moment, did not contact the mother to advise her that she could not get the child to the changeover point. I do not levy any criticism against Ms Sykes for that. She contacted the school and made arrangements for the mother to be met and informed by people on the spot, but I do find that there was a contravention by the father as alleged by the mother and I find that such contravention was without reasonable excuse.

    FINDINGS

25. Accordingly, in relation to the contravention asserted against the mother in that at 8.12 am on 3 May 2019 at B School at Town C, the mother failed to comply with order number 3 of the orders made on 8 April 2019 by consent in that the mother failed to drop X to B School at Town C at that time on that day and that such failure and non-compliance was without reasonable excuse. I convict her of that contravention.

26. In relation to the father, I find that the father was in breach of order 6 of the orders made on 27 November 2019 in that at 2.38 pm on 27 March 2020 he failed to provide X to the mother for the mother to spend time with X in compliance with order 6 of the orders made 27 November 2019, and I convict him of that contravention.

    PENALTY

    Preliminary Views

27. I will invite some submissions in relation to penalty, but I will give counsel this assistance beforehand, in indicating that despite 11 years of litigation about X in this court, almost the whole of her life, in relation to the contravention brought against her mother on which I convicted her, my view at the moment, subject to submissions, which can completely change my mind if counsel offers them, is to follow a path that was sometimes followed by a former Judge Donald who sat in this court at Parramatta for many years – who, in his wisdom, would hear a contravention, convict of the contravention, and then impose no penalty.

28. That is my attitude in relation to the conviction of the mother at this stage, and I will say it is also my attitude in relation to the conviction of the father at this stage, though keeping in mind that I regard, in a penalty sense, his contravention as more serious than the mother’s in that it did involve a loss of time between parent and child. But I still lean to the view at the moment in this particular matter of impose no penalty. At the moment, I do not consider that an attending a course order would do any real good in this matter. So I invite submissions.

29. [SUBMISSIONS MADE]

    Findings

    Contravention asserted against the father

30. In relation to the conviction for contravention occurring on 27 March 2020, I indicated prior to submissions a preliminary view. It was put to me by counsel on behalf of the applicant mother in those proceedings that on the basis the father has received a previous conviction (before her Honour Judge Henderson on 31 October 2017), that this is a second conviction in relation to contravention.

31. The Court is informed by Mr Holmes, the Independent Child’s Lawyer for X, that no penalty was imposed by her Honour on that occasion, and the Court accepts that absolutely, there being nothing on the Court record available on CaseTrack.

32. The matter is, in my view, a matter that can still, therefore, come within Subdivision E of the Act, contravention without reasonable excuse (less serious contravention) in consequence of section 70NEA(2) referring to:

    (2) For the purposes of paragraph (1)(d), this subsection applies if no court has previously:

    (a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

    (b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

33. Section 70NEA(4) provides:

    This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.

34. I do not consider the father showed a serious disregard. He simply left it to someone else. He is not entitled to do that. And in the future, the obligation is on him to ensure the orders are properly complied with by taking proper positive steps to make a reasonable attempt to comply with orders.

35. I find that in view of a previous conviction and in view of submissions made on behalf of the father, properly, by Ms Friedlander, I find that the appropriate penalty is for the father to enter into a bond under the powers of the Court in section 70NEB and such bond will be pursuant to section 70NEC, and I order that the father attend at the Court registry for the purpose of entering into that bond before leaving the Court precincts today.

36. Further, the Court has powers to order compensatory time for the mother. Pursuant to section 70NEB(1)(e), the mother seeks compensatory time, being from end of school for X on 14 May until start of school for X on 17 May 2021, that time encompassing an important event.

37. In relation to the bond to be entered into by the father, I find that that bond is to be of good behaviour and comply with all orders made under the Act for a period of 12 months, be a bond without surety and without security.

38. [SUBMISSIONS MADE]

    Contravention asserted against the mother

39. In relation to the conviction of the mother for contravention of order 3 of the orders made 8 April 2019, that contravention occurring on 3 May 2019, I find that in consequence of the mother having been previously convicted of a contravention by then Federal Magistrate Altobelli, as his Honour Altobelli J then was, on 28 June 2011 in relation to which his Honour made a specific decision to impose no penalty, I find that this is a second contravention, but no penalty has been imposed or any action taken and it can still be dealt with under Subdivision E of the Act, contravention without reasonable excuse (less serious contravention).

40. I find, being a second contravention, that penalty is warranted, similar to my finding in relation to the father, though I consider it a less serious contravention than the contravention which the father was convicted in that there was no loss of time between parent. Nevertheless, it is a contravention where the mother has acted in disregard, though I say not in serious disregard, of her obligations under the orders and I find it is appropriate to impose a penalty.

41. Accordingly, in relation to the mother, I find that she must enter into a bond pursuant to section 70NEC, that that bond to be of good behaviour and comply with all orders made under the Act for a period of 12 months without surety and without security.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.

Associate:

Dated:       27 May 2021