Sykes & Sykes

[2021] FedCFamC1A 58

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Sykes & Sykes [2021] FedCFamC1A 58  

Appeal from:

Sykes & Sykes [2021] FCCA 1154

Appeal number(s):

EAA 60 of 2021

File number(s):

SYC 950 of 2009

Judgment of:

AINSLIE-WALLACE J

Date of judgment:

11 November 2021

Catchwords:

FAMILY LAW – APPEAL – Where the mother appealed against contravention orders – Cross-applications for contravention – Prior convictions for contravention without penalty – Where the Court imposed bonds for good behaviour and compliance with orders for a period of 12 months without security and without surety – Appeal dismissed.

Legislation:

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

Cases cited:

House v The King (1936) 55 CLR 499; [1936] HCA 40

Keehan v Keehan (2019) 60 Fam LR 276; [2019] FamCAFC 250

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Number of paragraphs:

55

Date of hearing:

22 October 2021

Place:

Sydney

The Appellant

Self-represented litigant

The Respondent:

Self-represented litigant

ORDERS

EAA 60 of 2021
SYC 950 of 2009

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SYKES

Appellant

AND:

MR SYKES

Respondent

ORDER MADE BY:	AINSLIE-WALLACE J
DATE OF ORDER:	11 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The appeal EAA 60 of 2021 be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

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

REASONS FOR JUDGMENT

AINSLIE-WALLACE J:

1. Ms Sykes (“the mother”) and Mr Sykes (“the father”) are the parents of the child X aged 15 years (“the child”) and have been engaged in parenting litigation since 2009 when the child was two years and two months old.  The child will turn 15 in December of this year.  The parties each have brought contravention applications against the other and this appeal relates to orders made by a judge of the Federal Circuit Court on 4 May 2021.

2. The parties began living together in February 2005, were married in December 2005 and separated in 2008.  After the parties separated the child remained with the mother.

3. Proceedings in relation to the child commenced very shortly after separation with an application filed in February 2009 and in 2010 orders were made by consent that the child live with the mother and spend time with the father.  Those orders included an order restraining the mother from moving the child’s residence away from the Sydney metropolitan area.

4. In January 2013 the mother and the child moved to Region J area outside of Sydney.  The father sought and obtained orders requiring the mother to return the child to Sydney, which she did and from then the child has lived with the father and spent time with the mother. 

5. Later that same year on 27 November 2013 final parenting orders were made which resulted in the child living with the father and he having sole parental responsibility for long term decisions for her.  The orders provided for the child to spend time with the mother on alternate weekends during school time and for one half of the school holidays.  Orders dealing with the child’s time on special occasions, Christmas and the like were also made.

6. Relevantly to the appeal, the Court made the following order in November 2013:

   6. That during school terms, [the child] shall spend time with the mother each alternate weekend from after school on Friday until the commencement of school on Monday (or Tuesday if the weekend is a long weekend) and the mother shall collect [the child] from school on Friday afternoon and return her to school on Monday morning (or on Tuesday if the weekend is a long weekend).

7. On 8 January 2019 the mother commenced proceedings seeking final parenting orders that the child live with her and she have sole parental responsibility.  She sought orders that the child spend alternate weekends during the school terms with the mother and father.  The father responded to these applications. 

8. On 8 April 2019 the Court made the following order by consent:

   3. The child… born 20 December 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, [mother’s child 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 on 1 May 2019 and to be dropped off at the child’s school at 8:12am on 3 May 2019

9. On 19 August 2019 the father filed a contravention application alleging that the mother contravened Order 3 made 8 April 2019 by failing to return the child to school in the morning of Friday 3 May 2019. 

10. On 18 June 2020 the mother filed a contravention application asserting the father contravened Order 6 made on 27 November 2013 in that on 27 March 2020 he failed, without reasonable excuse, to bring the child to the changeover location and as a result prevented the child from spending time with the mother.

11. The competing contravention applications and the determination of whether there has been a sufficient change in circumstances since the final parenting order was made in 2013 so that it was in the best interests of the child that the parenting orders be reconsidered in accordance with the well-established principle enunciated in Rice and Asplund (1979) FLC 90-725 (“the Rice & Asplund issue”), were listed for hearing before the primary judge on 4 May 2021.  The primary judge found each asserted contravention proved and imposed penalties on both the mother and father.

    Contravention applications

12. It is appropriate to consider the nature of the contravention applications with which this appeal is concerned. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) says:

    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…

13. “Reasonable excuse” is defined for the purposes of s 70NAC in s 70NAE of the Act and relevantly to this matter is s 70NAE(5)(a).

14. In Keehan v Keehan (2019) 60 Fam LR 276, Kent J said apropos the nature of contravention applications:

    31. … Div 13A reflects the legislative intention that Div 13A is directed only to enforcing compliance with operative parenting orders by those individuals bound by the subject orders. Neither punishment of the individual concerned nor deterrence (either specific to the individual or general deterrence) have any legitimate role in proceedings under Div 13A and specifically the imposition of sanctions under that Division.

15. Thus, the purpose of the contravention process is to secure compliance with parenting orders.

    Father’s Contravention Application

16. The mother admitted that she had contravened the 8 April 2019 order but asserted that she had a reasonable excuse for the contravention. 

17. As is apparent on the face of the order it was expressed to operate for one occasion only, that is, for the graduation of the mother’s child X.

18. The mother said that she and the child attended the mother’s child X’s graduation and they spent the night at Location F as planned, however in the morning of Friday 3 May 2019, the child became upset, was crying and refused to go to school because, she said her father was angry. The mother said that on this morning she discovered that the father had, without informing her, enrolled the child in an early morning class on Fridays which started at 7.45am and which the child should attend on Friday 3 May 2019.

19. In short, the mother’s evidence was that because the child was upset, time was lost and it became untenable for her to be returned to school in time for class and, since it was a weekend on which the child was otherwise spending time with her, took her to her house for the weekend.

20. The primary judge concluded that the mother did not have a reasonable excuse for failing to comply with the order so found the contravention proved.

21. In determining the appropriate penalty, the primary judge reflected on the effect of the breach, namely that it did not involve the child not spending time with the father but in the result spent a little more time with her mother and thus its consequences were of less moment than when the contravention leads to a child not spending time with a parent.  Correctly the primary judge noted that the mother had before been found to have contravened an order and in relation to which no penalty had been imposed and while the present contravention was not an act in “serious disregard” of the mother’s obligations under the order it nonetheless warranted a penalty (at [69]). 

22. The primary judge required the mother to enter into a bond for twelve months without the need for a surety pursuant to s 70NEC of the Act.

    Mother’s contravention application

23. The terms of order 6 made on 27 November 2013 were that for the purpose of the child spending time with the mother, the mother would collect and return the child to her school.

24. On Friday 27 March 2020 at about 10 am, the mother sent a text to father confirming it was her weekend with the child and notifying him that she would be at the child’s school at

    
    

    2.38 pm to collect her.  The mother also sent a text to the child asking her if she was at school and the child answered that she was not. The primary judge noted that this was at a time when, as a result of the Covid-19 pandemic schools and other institutions were shutting down, although the primary judge found that the school was not closed [44] and later noted the father’s evidence that the child did not want to go to the mother’s house because she was concerned that because of lockdown she may not be permitted to return home.

25. The mother then sent a text to the father asking that the child be taken to her school for the purposes of being collected.  The father while responding it was the mother’s weekend informed her that he had told the child that she could work out the arrangements.  The mother’s response was that even so she would still be at the school to collect the child.  The mother arrived, the child was not there.

26. The father contested the facts of the contravention.  In fact on that day the father went to work where he was not able to be contacted, leaving it to his present wife to see to compliance with the orders.  His present wife said that she was not able to persuade the child to go to school to be collected by the mother.  While she contacted the school to ask for the mother to be met and told the child was not coming, neither she nor the father paid the mother the courtesy of a phone call to inform her.

27. The primary judge found that the father made no attempt whatsoever to comply with the orders and further found that he knew the child was concerned about going but took no steps to address her concerns about her ability to return home.

28. Thus he found the father had contravened the order without reasonable excuse his Honour said:

    51. … 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.

29. The primary judge in considering penalty found the father’s conduct of a more serious nature than that of the mother in that it involved the child losing time with her mother.  The primary judge noted that the father had previously been found to have contravened an order but no penalty was imposed.

30. The primary judge found that the father had not shown “serious disregard” to compliance with the orders as contained in s70NEA and concluded that in order to secure compliance with the parenting orders, he would have the father enter into a bond without surety for a period of  twelve months.  The primary judge further made an order for additional time between the mother and the child as compensation for the time lost.

    THE APPEAL

31. The Notice of Appeal raises four grounds in challenge to the primary judge’s orders, although curiously, the mother does not appeal against the orders relating to her contravention of the order made on 8 April 2019, but against the leniency of the penalty imposed on the father in relation to his contravention of the order of 13 November 2013.

32. However, before turning to that particular challenge, although there are four asserted grounds of appeal the mother’s summary of argument makes it clear that only one ground, Ground 3 concerns the penalty imposed on the father.

33. The other grounds relate to the dismissal of the mother’s application for parenting orders.

34. As I have said, the parenting application was listed on 4 May 2020 before the primary judge for consideration of the Rice & Asplund issue.

35. Two days had been set aside for both hearings and the parenting applications came on before the primary judge on the second day.  The Independent Children's Lawyer appointed for the child also appeared.  When the primary judge turned to consider this aspect of the parenting proceedings he sought the views of the Independent Children's Lawyer, he submitted that although the parents’ relationship had been described in two family reports, one in 2010 and the other in 2012 as “chronically conflicted” subsequent circumstances have shown that it is still conflicted but there was no sufficient change of circumstances.

36. He said:[1]

    Absent the mother establishing that there’s something new or something different to what 10 has been going on for the last 10 years – 12 years, what’s new? It’s a great sadness.

    In many respects the imposition of the bond is an appropriate message to these parents, which is quite simply just obey the orders. That’s all this child needs.

    [1] Transcript 4 May 2021, p.105 lines 9–14

37. The primary judge heard submissions from counsel representing the parties and observed that if the parenting proceedings went ahead they would be heard at about the time the child turned 16.  He then said the proceedings between the parties commenced in 2009 when the child was just two years of age and they had been in fairly continuous conflict over her since then and he could not see how a continuation of the litigation would be in her best interests.  The primary judge adjourned to allow the parties each to consider their position.

38. When the matter returned to the primary judge, counsel for the mother indicated that she wished to discontinue her application for parenting orders subject to some arrangements being made for the child to have some counselling and for the mother to be involved in that.

39. The Independent Children's Lawyer said:[2]

    From [the child X’s] position, as I’ve said to both parents, she really does want an end to the litigation, and that’s what has happened, so the child does benefit….

    [2] Transcript 4 May 2021, p.114 lines 9–11

40. So the primary judge dismissed both the mother’s application for parenting orders and the father’s response to that application.

41. Returning then to the grounds of appeal, the mother sought to challenge the dismissal of the application asserting that his Honour, amongst other things, failed to hear the application.

42. The grounds that challenge the dismissal of the parenting application are incompetent.  The primary judge was not required to hear and determine them because he was, in effect, asked not to by the mother’s withdrawal of them.  I do not propose to consider those grounds further.

43. Ground 3 contends that the penalty imposed on the father was insufficient to the seriousness of the contravention especially compared with the penalty imposed on her in relation to her contravention.

44. In particular the mother contended that the primary judge was wrong in finding that the father had been found in contravention of an order once before when she said that on 28 June 2011, the father was found to have contravened the orders on four separate occasions.  It was argued then that the primary judge was in error when he considered the father’s past history of contraventions.  Although no formal application was filed, the mother’s submissions sought the introduction of further evidence on the point.  It is unnecessary to consider that application because it is clear that the primary judge was given this information.

45. The transcript of the hearing before the primary judge concerning what penalty should follow the father being found to have contravened the order shows that counsel appearing for the mother told the primary judge that on 31 October 2017, the father was found to have contravened an order and in respect of which no penalty was imposed.[3]  However, in submissions by the father’s counsel in relation to what penalty should be imposed on the mother, there was some discussion about prior findings and counsel for the mother referred the primary judge to a decision of a judge of the Federal Circuit Court made on 28 June 2011 who had considered competing contravention applications of the parties.  It seems that on that day both the mother and father were found to have contravened orders of 2010 and in respect of which no penalty was imposed.[4]

    [3] Transcript 4 May 2021, p.96

    [4] Transcript 4 May 2021, p.99 to p.100

46. Clearly then the evidence of both parties having been found in contravention of orders in 2011 was before his Honour.  The mother’s contention that his Honour was not in full possession of the relevant facts is not made out.

47. In short, the mother’s evidence was that the penalty imposed on the father should have been more severe than that imposed on her.  In support of that proposition she points to the fact that he did not concede the breach, his contravention deprived the child of time with the mother and she pointed to the primary judge’s criticism of the father’s failure to attend to his obligations as the custodial parent in ensuring the orders were obeyed.

48. It is not the function of s 70NAC of the Act to “punish” a contravening parent but to impose a penalty which will encourage compliance with orders. The determination of penalty is was one which must be mindful of the purpose of s 70NAC and, as the sections demand, take into account the relative seriousness of the breach. That does not however require a balancing against a penalty imposed on another party for a contravention different in form and substance from the one being considered.

49. The primary judge’s determination of penalty was, quintessentially, an exercise of his discretion and will not be the subject of successful appeal unless the mother can establish one of the well know errors as set out in House v The King (1936) 55 CLR 499. She has not and so this challenge must fail.

50. There is however one matter which is fatal to the appeal and which is, that when asked by the primary judge as to what penalty would be appropriate to be imposed on the father in respect of the contravention, counsel for the mother said that if the primary judge found the father’s contravention to be in the less serious range (which his Honour did) then the mother’s counsel said:[5]

    … seeks an imposition of a penalty that will protect her relationship – help to protect her relationship with [the child] in the future, and she’s seeking a bond.

    [5] Transcript 4 May 2021, p.96 lines 13–14

1. Counsel continued and added that the mother sought an order for compensatory time.

2. The primary judge said:[6]

   HIS HONOUR: … So she seeks bond pursuant to section 70NEC and 15 compensatory time, and does she put a proposal in relation to compensatory time?

   [COUNSEL FOR THE MOTHER]: Yes, well, she would like a weekend for the time that she lost.

   [6] Transcript 4 May 2021, p.97 lines 15–18

3. They were the orders the primary judge made.  The mother cannot now complain that the primary judge made the very orders sought by her counsel.

4. Thus the appeal will be dismissed.

5. The father did not seek an order for costs. No costs order will be made.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace.

Associate:

Dated:       11 November 2021