Talman & Beckley
[2022] FedCFamC1F 1093
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Talman & Beckley [2022] FedCFamC1F 1093
File number(s): BRC 11030 of 2018 Judgment of: JARRETT J Date of judgment: 18 May 2022 Catchwords: FAMILY LAW – CHILDREN – Application for contravention – where respondent unilaterally withheld child from spending time with applicant for extended period – consideration of whether respondent had ‘reasonable excuse for contravening orders’ – no reasonable excuse – orders for compensatory time – bond imposed Legislation: Family Law Act 1975 (Cth) ss 70NAE(5), 70NFB(1)(a), 70NFB(2)(b), 70NFB(2)(g), Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 18 May 2022 Place: Brisbane Counsel for the Applicant: Mr Larson Solicitors for the Applicant: Freedom Law Solicitor for the Respondent: Mr Hawkes, Hawkes Lawyers ORDERS
BRC 11030 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TALMAN
Applicant
AND: MS BECKLEY
Respondent
order made by:
JARRETT J
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.Pursuant to s.70NFB(2)(b) of the Family Law Act 1975 (Cth) the respondent enter into a twelve (12) month bond on the following conditions:
(a)to be of good behaviour during the time that the bond is in force;
(b)to comply fully with the orders of Just Baumann made 9 December, 2019 in force in respect of the child X as amended or varied from time to time, including orders for compensatory time made 18 May, 2022;
(c)without security.
2.By way of compensation for time not spent between the father and the child, X, born 2015, by reason of the mother’s proven contravention of previous orders without reasonable excuse, the child shall, in addition to the time she will spend with him pursuant to the terms of the order made on 9 December 2019 spend the following time with the father:
(a)an additional four (4) nights between 5 and 9 June 2022.
(b)an additional four (4) nights between 19 and 23 June 2022.
(c)an additional four (4) nights between 17 and 21 July 2022.
(d)an additional four (4) nights between 31 July 2022 and 4 August 2022;
(e)an additional four (4) nights between 14 and 18 August, 2022;
(f)an additional four (4) nights between 28 August and 1 September, 2022;
(g)an additional four (4) nights between 11 and 15 September, 2022;
(h)an additional four (4) nights between 9 and 13 October, 2022;
(i)an additional four (4) nights between 23 and 27 October, 2022;
(j)an additional four (4) nights between 6 and 10 November 2022;
(k)an additional four (4) nights between 20 and 24 November 2022;
(l)an additional seven (7) nights with the father between 27 December 2022 and 3 January 2023;
(m)an additional four (4) nights between 5 and 9 February 2023;
(n)an additional four (4) nights between 19 and 23 February 2023;
(o)an additional four (4) nights between 5 and 9 March 2023;
(p)an additional four (4) nights between 19 and 23 March 2023;
(q)an additional three (3) nights between 17 and 20 February 2023;
(r)an additional four (4) nights between 30 April and 4 May 2023.
(s)an additional four (4) nights between 14 and 18 May 2023.
(t)an additional four (4) nights between 28 May and 1 June 2023;
(u)an additional four (4) nights between 11 and 15 June 2023;
(v)an additional four (4) nights between 23 and 26 July 2023;
(w)an additional four (4) nights between 6 and 9 August 2023.
3.Pursuant to s.70NFB(2)(g) the respondent pay all of the costs of the applicant, including those thrown away by the adjournment of 29 April, 2022 as agreed and, failing agreement, as assessed
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 Talman & Beckley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 9 December, 2019 Baumann J, sitting in the Family Court of Australia, made orders for parenting of a child X, born 2015. The orders were made between the applicant and the respondent now before me. The applicant is not X’s biological father, but I assume from the terms of the orders made by Baumann J, and the fact that they were made by consent, that he is considered by her to be her psychological father. The respondent to those orders, and this application, is X’s mother.
The orders provide for the parties to have equal shared parental responsibility for X, for her to live with her mother and for X to spend time with the applicant before me, from 4.00 pm on a Thursday, to the commencement of day care or school on a Friday, and then, the other week, from Thursday until Sunday afternoon. There are a range of other orders that were made, by agreement, between the parties.
By this application, the applicant asserts 35 contraventions of those orders. When the matter was first mentioned before me, count number 29 was withdrawn. There remain 34 counts to deal with. Counsel for the applicant, in his submissions, has grouped them together in six groups. That is a convenient grouping, and it demonstrates that there are six significant matters to deal with, although each grouping, apart from the first and second, deals with many contraventions.
The respondent has said that she agrees that she contravened the orders without reasonable excuse, as the applicant now alleges. She says, by way of mitigation, there should be no penalty other than a fine.
The gravamen of her case is that, following some new disclosures made by X to teachers at her school, she sought advice from police, and then, subsequently the Department of Child Safety, and that acting on that advice, she withheld X from spending time with the applicant in mid‑2021. A short time later, she offered some supervised time which apparently was taken up, until approximately a month later, the supervisor being the applicant’s new partner. But when she broke her leg, those arrangements fell down. The father commenced fresh proceedings, consequent upon non-compliance with the orders by the respondent. Those proceedings are ongoing, but it is plain from the respondent’s material that X spent no time with the applicant, between mid-2021 and when time was reinstated by order of a Senior Judicial Registrar in February, 2022.
It is right to conclude, in those circumstances, that the mother had no reasonable excuse for contravening the orders. The provisions of the Act that define the meaning of the phrase, “reasonable excuse for contravening orders”, refers to a number of examples, but that covers any range of circumstances that might present in any given case. Here, the mother’s argument is that she was acting protectively and that is recognised in s 70NAE(5) of the Act. She says that she took steps to protect the child from a risk of harm, but that subsection makes it clear that such action is only exculpatory where that action is only taken for such time as is reasonable in the circumstances to protect the interests of the child.
Here, what the evidence discloses is that the mother took what she alleges were protective steps, by withholding the child from spending time with the applicant, but then did nothing else. She made no application to the Court to discharge, vary, or suspend the orders. She made no application for any other relief, and in those circumstances, it cannot properly be said that she has acted reasonably. It was incumbent upon her to act proactively, and in the event that she took the view that X’s welfare was compromised by spending unsupervised time with the applicant, to bring an application to the Court to have the orders that were then in place suspended, discharged, or varied. She did none of those things.
The first matter that I need to determine, as set out in counsel’s written submissions, is to decide whether the matter ought to be dealt with under subdivision E or subdivision F of Division 13A, Part VII of the Family Law Act 1975 (Cth). I have not heard any submissions from the respondent about that, notwithstanding that the issue was squarely raised in the applicant’s submissions. In my view, notwithstanding that this is the first time the respondent has been dealt with before the Court on a contravention application, I should deal with the matter under subdivision F. That is because this is serious. This child has been deprived of time with her psychological parent for an extraordinarily long period of time, without the mother doing a single thing to remedy the situation.
To the extent that it might be said that offers of supervised time militate against that, the submission is entirely wrong; that is because once orders are made – and subject to the provisions relating to reasonable excuse – it is incumbent upon parties to comply with them. If it is said that the orders need to be discharged, varied, or suspended to take account of the welfare of the child, then it is incumbent upon the party asserting that to apply for those orders. The mother did none of those things. Instead, it was left to the applicant to do it by way of an application, and subsequently, this contravention application.
There was some criticism – veiled, perhaps – of the length of time that he has left it to bring this contravention application, but I see no difficulty with that. One might have thought that the applicant was attempting to avoid further conflict between these parties by not bringing such an application, but in circumstances where the mother consistently and obstinately refused to comply with the orders, he was probably left with no choice. The matter ought to be dealt with under subdivision F.
Subdivision F sets out a range of sanctions that the Court can impose in circumstances where it decides to proceed under that subdivision. They are set out in section 70NFB(2). The first option – mandatory, in a sense – is to make an order for costs. The Court must make an order for costs unless it is satisfied that it is not in the best interests of the child to make the order for costs.
The usual provisions for costs, set out in ss 117(1), (2), and (2A) of the Family Law Act 1975 (Cth) do not apply here. Questions of costs are governed by the contravention regime, and in particular, s 70NFB(1)(a) that requires the Court to make an order for costs. I have not heard any submissions about whether it is in X’s best interests or not for there to be an order for costs; what I have heard is that the mother is employed, she is a health professional, she earns about $70,000 or $80,000 a year, apparently, and has the capacity, apparently, to pay a $500 or $1000 fine. That tells me she probably has a capacity to pay an order for costs.
The father’s costs are unquantified, as far as I can tell, and the relief that he seeks in these proceedings does not include an order for costs. But the terms of the Act are clear; s 70NFB(1)(a) provides,:
(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;
……
I am not satisfied that it would not be in the best interests of the child concerned to make an order under s 70NFB(2)(g). Accordingly, I order that the respondent pay all of the costs of the applicant to these proceedings, including the costs thrown away by the adjournment on the last occasion. If those costs cannot be agreed, then they will need to be assessed in the usual way under the Rules.
Section 70NFB(1) provides that,
(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.
If the court makes an order under s 70NFB(2)(g) – that is, the costs order, it can consider making another order under subsection (2) that the Court considers to be the most appropriate of the orders under subsection (2) in the circumstances. Section 70NFB(1)(c) provides that, if the Court does not make an order for costs, then it must make at least one other order under subsection (2). Because I have made an order for costs, the making of an another order under s 70NFB(2) is discretionary. I need make no other orders.
Subsection 70NFB(2) sets out a range of orders that the Court might make. They range from essentially doing nothing, through to imprisoning the contravener. Sentences of imprisonment can be suspended, there can be fines imposed or there can be bonds. There can also be orders made for compensatory time. The facts of this matter demonstrate that this child has been deprived of a relationship with one of her parents – psychological parents – for almost 12 months. There has been no time and, in my view, it is mealy-mouthed to say that time was immediately reinstated once the Court said it should happen again. There was already an order in place for the time to happen; the mother did not need to be told for it to happen again and I was taken to no authority which would suggest that police, the Department of Child Safety, or anyone else, has the power to set aside, discharge, or vary an order made by this Court.
It is extraordinary, frankly, that the mother has acted in the way that she has. I see no basis to conclude that a bond is not appropriate. I do not think a fine is appropriate, because I do not think a fine will send the right message. There needs to be some mechanism by which the mother understands that, if she breaches this order again, there will be consequences which are perhaps are more significant than those that are to be imposed today.
The giving of a bond is a serious matter; it is a solemn undertaking to a Court to do what is required by the bond. A bond imposed in this case would require the mother to be of good behaviour, and also to comply with the orders of the Court, Baumann J’s orders, as varied from time to time, like any other order. The mother glibly says in her affidavit that up until she ceased time in mid last year, that she had, “generally”, complied with the terms of the order. Well, “generally” is not good enough. Compliance with orders is not optional.
I will ask the respondent to enter into a bond for 12 months, conditioned on her complying with all orders made by Baumann J, as varied or suspended, or otherwise altered from time to time, including any orders for compensatory time that I might order today.
Before I call on the respondent, through her lawyer, to indicate her assent to a bond, or her disinclination to agree to a bond, I will deal with the issue of compensatory time. I do not understand the submission that there should not be any compensatory time, and the matter should be left to be dealt with by the orders of the Senior Judicial Registrar.
This child has been deprived of something to which she was entitled. It has had an effect on her, no doubt. It is to be remedied as quickly and as efficiently as possible, and as I have indicated, there is no good reason demonstrated in the material, at all, for these orders not to have been complied with. It is appropriate to restore to this child that to which she was otherwise entitled. The orders sought by the father for compensatory time are entirely appropriate, and it is, again, mealy-mouthed of the mother to complain that, if those orders were made, she would not spend weekend time with her child. I will make the orders set out in the appendix to the father’s written submissions for compensatory time.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 18 May 2022
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