Tamal & Semak (No. 2) - [2017] FamCA 972

FAMILY COURT OF AUSTRALIA

TAMAL & SEMAK (NO. 2)

[2017] FamCA 972

FAMILY LAW – CONTRAVENTION – Where the father has failed to comply with orders to facilitate the return of the parties’ child from Country E to Australia – Where it is conceded this is a more serious intervention – Where the father has not established reasonable excuse – Where the father has not taken reasonable steps to comply with the order – Where alternate penalties to imprisonment are inappropriate in the circumstances – Where a sentence of six months imprisonment is appropriate in the circumstances – Where the father is to be released on compliance with the subject order – Orders made accordingly.

FAMILY LAW – COSTS – Where the contravention has been proved – Where the father has shown serious disregard for court orders – Where it is appropriate that the father should pay the mother’s costs as agreed or assessed.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NFA, 70NFB, 70NFC, 70NFE, 70NFG, 117

D & D (Costs) (No. 2) (2010) FLC 93-435
Dobbs v Brayson [2007] FamCA 1261
Hawkins & Roe [2012] FamCAFC 77
Ongal & Materns [2015] FamCAFC 68
Penfold v Penfold (1980) 144 CLR 311
Tamal & Semak [2017] FamCA 172
Witham v Holloway (1995) 131 ALR 401

APPLICANT:

Ms Tamal

RESPONDENT:

Mr Semak

FILE NUMBER:

PAC

5255

2015

DATE DELIVERED:

29 November 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 June 2017 and 10 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cairns

SOLICITOR FOR THE APPLICANT:

Faye Rose Legal

COUNSEL FOR THE RESPONDENT:

Mr Pierce

SOLICITOR FOR THE RESPONDENT:

Stewart Cuddy & Mockler

Orders

That pursuant to section 70NFB(2) of the Family Law Act 1975 (Cth), the respondent father, Mr Semak, is sentenced to imprisonment for a period of six (6) months or until such time as he complies with his obligation under the order of this Court made on 13 March 2017 for the return of the child D born … 2012 to the Commonwealth of Australia and into the care of the mother and upon the said Mr Semak complying with his obligation under the said order he shall forthwith be released.
That the father Mr Semak pay the mother’s costs of and incidental to this contravention application as agreed within one month of this order or otherwise as assessed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tamal & Semak (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5255 of 2015

Ms Tamal

Applicant

And

Mr Semak

Respondent

REASONS FOR JUDGMENT

The application for determination is the mother’s application that the father be dealt with for his contravention of orders made on 13 March 2017.
The suite of orders made that day (Tamal & Semak [2017] FamCA 172) are as follows:
(1)The mother have sole parental responsibility for the children B born … 2007, C born … 2009 and D born … 2012.
(2)The said children live with the mother.
(3)The children spend time with the father at times reasonably agreed by the mother and father in writing such writing to include SMS or email communication.
(4)That until further order, the father Mr Semak born … 1971 and the mother Ms Tamal born … 1984, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children B born … 2007 (female), C born … 2009 (male) and D born … 2012 (male) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period or until the Court orders its removal.
(5)The father Mr Semak born … 1971 be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the father on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the father’s name on the Watchlist pending further order of this Court.
(6)The father, within 24 hours, deposit at the Parramatta Registry of this Court any current passport held by him and any passports issued for the said children with such passports to remain in possession of the Registrar of the Family Court of Australia pending further order.
(7)The father shall within one month of this date do all things necessary and sign all necessary documents so as to cause the return of the child, D, born … 2012 to the Commonwealth of Australia and into the care of the mother.
(8)The father shall within 24 hours of making arrangements for the return of the child and any accompanying person inform the mother’s solicitors forthwith of the child’s travel arrangements including date and time of arrival.
(9)Pursuant to s 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Polices Forces of all the States and Territories of Australia requiring them to find and recover the child D born … 2012 and to return/deliver the said child to the Applicant mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
(10)Leave is granted to the Independent Children’s Lawyer and the mother’s solicitors to relist the proceedings on short notice in appropriate circumstances by application to the Court in Chambers.
(11)The parties and the Independent Children’s Lawyer are granted leave to issue such subpoena as they consider relevant to the issues for determination before the Court with such subpoena to be returnable by no later than Friday 28 April 2017.
(12)Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
(13)The proceedings are otherwise adjourned for further directions before a Registrar at 11.00am on Tuesday, 18 April 2017.
The father was personally present before the Court on that day when orders were made and was represented by his solicitor.

Background

The background to the Application is set out in the reasons for judgment as to the orders made 13 March 2017 but relevantly to the present application:
13.The parties commenced cohabitation in Country F in March 2005 and married in Country G in 2006.
14.The parties moved to reside in Sydney in late August 2006 and have lived in Australia since that time save for two short periods of about six months each when the parties resided in Country E. The last period of residence in Country E ended in August 2010.
15.All of the children were born in Australia and are Australian citizens.
16. The parties separated in March 2014 when the mother left the then family home with the children and for a period resided in a women’s refuge. The mother asserts that during the relationship the father was violent towards her and threatened her and the children. She further asserts that he was controlling of her and that she was fearful of him. She recites a series of incidents when she has been subjected to physical assaults and abuse by the father.
17.The mother alleges that in September 2013 she was seriously assaulted by the father, suffering swelling and bruises to her head and face and partial hearing loss in her left ear. The father was charged with the offences of assault occasioning actual bodily harm and common assault. He was granted bail pending hearing.
18.As a consequence of the abuse during the relationship and on 17 December 2013 New South Wales Police (‘NSW Police’) took out a provisional apprehended domestic violence order (‘ADVO’) against the father for the protection of the mother and the children. A final ADVO was made at Parramatta Local Court on 16 July 2014 for a period of 12 months for the protection of the mother and the children.
19.A further apprehended violence order was made against the maternal grandmother Ms H Semak for the protection of the mother on 16 July 2014.
20.The father had been under treatment by Dr I, a clinical psychiatrist, since September 2012 for major depression. It appears that in late 2014 he continued to be medicated.
21.On 8 November 2014 the father was taken to J hospital by his mother and sister who expressed concerns for his mental health. The father was admitted but later left the hospital in company with his mother and sister. The hospital contacted police and the father declined to return to the hospital: Exh “C”.
22.On 3 December 2014 Dr I provided a medical report in relation to the father confirming the father’s diagnosis of recurrent major depression and panic disorder since September 2012. He reported that the father’s condition had deteriorated significantly over the last several months and more recently the father had been diagnosed with major depression with melancholic features. The father remained on medication and on review on 3 December 2014 was found to be in a state of major depression with severe agitation. It was recommended that due to the father’s deteriorating mental state that he have urgent psychiatric hospitalisation to ensure his safety and suitability for a course of electroconvulsive therapy.
23.Subsequently on 8 December 2014 the father was admitted to K Hospital as an involuntary patient and diagnosed on admission with agitated depression. A Mental Health Tribunal enquiry determined that the father had treatment resistant severe agitated depression.
24.Since separation the father had spent irregular time with the children and demonstrated little interest in the child B. The mother permitted the father to spend time with the children on an irregular basis including some overnight time.
25.The mother agreed for C and D to spend time with the father from the morning of Sunday, 28 December 2014 until the morning of Monday 29 December 2014 in the presence of his family. On Monday 29 December 2014 the paternal grandmother requested that the boys remain with the paternal family until the evening of Tuesday 30 December 2014.
26.On Tuesday, 30 December 2014 the mother attended the father’s home to collect the children D and C. There was no one present and the property appeared locked up.
27.The mother made urgent enquiries of the NSW Police in relation to the whereabouts of the children who were in the father’s care and was informed that on 29 December 2014 the father had left Australia with the children D and C: (Exh “D”). The mother asserts that the father had unknown to her removed C’s passport from her possession and procured a passport for D without her consent.
28.The father remained in Country E with both children in the period from 30 December 2014 until 25 October 2015. The mother was able to speak to the children at times via Skype or telephone. The father refused the mother’s requests for the children to be returned to Australia.
29.The mother arranged to meet the father in the Middle East on 21 October 2015 on the pretence of reconciliation. The father met the mother in the Middle East but only brought the child C with him.
30.The mother was able to obtain possession of C’s passport and was able to return to Sydney with him only.
31.The father has consistently refused to return the child D to the mother’s care and concerningly has said to the mother “you will see your son in the next life”. The mother has not seen the child D save for electronic communication since December 2014.
32.The father returned to Australia in late November 2016 apparently in the hope of resuming his relationship with the mother. The father left the child D in Country E with the paternal grandmother.
33.The father was arrested on 1 December 2016 for breach of his bail conditions and on 2 December 2016 was granted conditional bail including the surrender of his passport in relation to the pending criminal charges. The mother is of the understanding that the criminal matters are now finalised with the father pleading guilty and receiving a fine of $500.00.
34.She fears that upon the return of the father’s passport, which had been surrendered as a condition of his bail, the father will again seek to depart Australia.
The Father’s evidence
35.The father in his Response seeks, in effect, orders that the child D live with him and otherwise the other two children live with the mother. He opposes any order that facilitates the return of the child D to Australia.
36.The father denies the mother’s assertions as to his violence notwithstanding his plea of guilty to charges of assault and the making of a final ADVO order for the mother and children’s protection.
37.He asserts a conflictual relationship between himself and the mother and complains of her behaviour in the presence of the children. He makes salacious allegations of her engaging in sexual activity in a car in the presence of the children after separation.
38.He concedes he is being treated for “deep depression”. He asserts a need to return to Country E for treatment and proposes to live there.
39.He concedes that the child D presently lives in City L, Country E with his mother in an apartment and is attending school.
40.He complains that the mother has prevented the children in her care from engagement with the wider paternal family in Sydney. Although it appears that the father’s sister was complicit in the removal of the two children from Australia, from the sister’s affidavit it appears she has had significant contact with the children in the mother’s care.

The present application

The Application Contravention made by the mother was filed by the mother on 24 April 2017. The application asserts the father’s contravention of Order 7 made 13 March 2017 that is in the following terms:
(7)The father shall within one month of this date do all things necessary and sign all necessary documents so as to cause the return of the child, D born … 2012 to the Commonwealth of Australia and into the care of the mother.
The mother’s application was heard on 16 June 2017.
It is common ground that the father has failed to comply with the subject order and that the mother had established a prima facie case for the father to answer.

A more serious contravention

The father through his legal representative conceded that if proved the contravention was “a more serious contravention” to which Subdivision F of Division 13A of the Family Law Act 1975 (Cth) (“the Act”) applies in that the father “has behaved in a way that showed a serious disregard of his or her obligations under the primary order”: s 70NFA(2)(b).
The removal of a child from the Commonwealth of Australia and the father’s persistent failure to return the child is a most serious contravention of this Court’s orders. The concession was appropriate in the circumstances discussed below. The Court is also satisfied beyond reasonable doubt for the reasons discussed below that the contravention is a more serious contravention.

The mother’s evidence

The mother relied on her affidavit filed 24 April 2017. She was cross-examined.
The mother was able to speak to the child in Country E via Skype communication on 10 April 2017 in a communication initiated by the parties’ daughter. The child in Country E was in the company of the paternal grandmother Ms H Semak. The mother was not informed of any travel arrangements for the return of the child. The paternal grandmother appeared to have no knowledge of the orders made 13 March 2017.
On 12 April 2017 the mother’s solicitors wrote to the father’s solicitors enquiring as to the child’s return and advising that in default of compliance with the orders there would be a Contravention Application filed.
The father’s sister Ms Semak sent an email to the mother’s solicitors on 14 April 2017 that advised:
“….[Mr Semak] wants to comply with the orders but is unable at this point of time. My mother is unable to come to Australia at the present time as her sister is sick and she also has health issues that prevent her from travelling….”
Ms Semak provided a medical certificate in relation to the grandmother asserting that she has “infection at the gum and pain at the teeth. The treatment needs a very long period to solve the problem. For this reason ….she cant travel to Australia in this time.” (sic)
Ms Semak’s email continued:
“[Mr Semak] has checked all the airlines that come from [Country E] to Australia and they all said the same thing. The minimum age of the unaccompanied minor has to be at least 5 years. [D] is 4.5 years so he can’t travel unaccompanied. Emirates, Etihad and MEA all said the same thing.”
The proceedings were adjourned part heard to 10 November 2017 for the purpose of submissions as to the question of reasonable excuse and penalty. The lengthy adjournment was to allow the child to reach an age where all agreed that he could travel as an unaccompanied minor with the father to make arrangements for the child’s return to Australia. He did not do so.
Section 70NAC of the Act relevantly provides:
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 …
The mother asserts that the father has both intentionally failed to comply with the order and otherwise made no reasonable attempt to comply with the order.
The mother submits (and the father concedes) that the circumstances in which the contravention has occurred places the contravention in the more serious category as contemplated by subdivision F of Division 13A of Part VII of the Act.
The alleged contravention is properly conceded by the father to be a “more serious” contravention and pursuant to s 70NAF(3), the mother has the evidentiary onus of satisfying the Court “beyond reasonable doubt that the grounds for making the order exist”: s 70NFB.
The Court for reasons set out in the discussion above is satisfied beyond reasonable doubt that the father contravened the subject order.

Reasonable excuse

The father has the onus of establishing, only to the balance of probabilities, that he had a reasonable excuse for the contravention.
Section 70NAE of the Act relevantly provides as follows as to reasonable excuse:
(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).
…

The father does not contend that he did not understand his obligations under the order. He was present in court and represented when the order was made.
He does not contend that his actions (or inaction) were necessary to protect the health or safety of the child and that his actions were only for as long as necessary to protect the child.

The father’s evidence

The father on 16 June 2017 gave oral evidence in chief and was cross-examined and with leave he relied on his affidavit filed in court on 10 November 2017.
The father is aged 46 and unemployed.
He asserted that he suffered from depression, was on a suite of medication and was being treated by Dr I.
The father produced a report from Dr I dated 3 December 2014: Exh “A”. Dr Way, who had first seen the father in 2012, reported that the father at that time suffered from “major depression with melancholic features”. The father had attended on Dr I on 7 June 2014 after returning from two years in Country E. Dr I continued the father’s medications.
The father was admitted to K Hospital Psychiatric Unit in December 2014 for ECT therapy but was uncooperative and absconded. The father as set out above then travelled to Country E on 29 December 2014 with two of the children of his marriage.
He remained in Country E for two years.
The father relied on a report from Dr I dated 2 November 2017 that revealed that the father had not seen Dr I in the period from the end of 2014 until 7 June 2017 when he was consulted by the father who was “extremely worried about the forthcoming family law court proceedings”. Such reference is clearly in relation to the present application. The father remains on medication and suffers from major depression.
Dr I notes that the father lives on his own and “lacks social support” although he is visited by his sister. The father’s evidence is that he speaks to his mother in Country E weekly. He gives no evidence as to what has passed between them as to his current predicament.
Dr I notes that the father “regrets he impulsively took his five year old son to Country E. He expressed remorse about his thoughtless action. He is extremely worried about the prospect of imprisonment for his actions”.
The father asserted that he had spoken to two friends a “few weeks ago” to have them travel to Country E and bring the child back. They could not due to their work commitments. He had otherwise spoken to three airlines about unaccompanied travel for the child.
He had otherwise “spoken to his mother” and contacted her by Skype daily in the month after the orders. There is no evidence as to what may have passed between them.
He said he sent to his mother a “registered letter” requesting that she send the child with “someone she might know”: Exh “B”. He informed her that “I will be jailed if you cannot organise his return”. His request was repeated through his solicitor’s letter to his mother dated 23 May 2017: Exh “C”.
He asserts that his mother has filed a Petition in a court in Country E seeking guardianship of the child D. This notwithstanding the current orders of this Court. The father says he wants to oppose his mother’s Petition and to do so he needs to travel to Country E. If successful he would return with the child.
Put frankly, there are grave reservations as to whether, if allowed to travel, the father would ever return to Australia with the child. He has no real ties here and has previously spirited the child away and remained in Country E for two years.
He conceded that after the orders of March 2017 his sister sometimes acted on his behalf and was written to by his solicitor on 4 April 2017 and, indeed, she emailed the mother’s solicitor on 14 April 2017: Exh “D”.
He has financial support from his sister who had paid to date about $3,000.00 for his legal fees in respect to the present application.
He has family in Sydney being his sister who is married with three children and resides with her husband who is in full time employment.
Otherwise, he has a number of cousins with whom he asserts he not in close contact. When it was put to the father that he was not motivated to approach his relatives to assist, he asserted that there was no close relationship and he had not asked them to assist him.
It is simply contended on behalf of the father that he has done all that he can to comply with his obligation to return the child. The order places an obligation on the father. His “efforts” to comply demonstrate obfuscation and delay on his part. The father’s sister and his mother were and are complicit in the child’s removal from Australia.
The issue for determination is whether the father has a reasonable excuse for doing so. The mother submits that the father has not established a reasonable excuse for the contravention
It is asserted, unconvincingly on his behalf, that he has done all he can do to comply and thus has a reasonable excuse for his contravention.
In Ongal & Materns [2015] FamCAFC 68 the Full Court said:
43. Rees J relied upon the comments of Brennan CJ, Toohey, McHugh and Gummow JJ in the High Court decision of Taikato v R [1996] HCA 28; (1996) 186 CLR 454 in her recent decision of Mitty v Mitty [2012] FamCA 329 concerning the meaning of reasonable excuse in the context of applications for contravention orders. At paragraph 15 of the Mitty decision, her Honour states:
“In Taikato v R [1996] HCA 28; (1996) 186 CLR 454, the High Court (per Brennan CJ, Toohey, McHugh and Gummow JJ), in a different context, considered the meaning of reasonable excuse in relation to which their Honours said:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception...
...
However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the Courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a Court makes its decision. They effectively require the Courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the Courts must give effect to the will of parliament and give effect to their own ideas of what is a “reasonable excuse”... (p 466)”
47. The fact that the father thought he was acting in the best interests of the children in contravening the order is irrelevant to the determination of whether he had a reasonable excuse for his contraventions. As noted by the Full Court of the Family Court (Evatt CJ, Emery SJ and Hogan J) in the case of In the marriage of Gaunt (1978) 4 Fam LR 305 at 308: “A party’s subjective view of the rights and wrongs of a decision cannot be relied on as ‘just cause or excuse’ or ‘reasonable cause’.”
The Court must determine “reasonable excuse” objectively.
The removal of a child from Australia in circumstances such as these and the failure to procure the child’s return constitutes a most serious disregard for the orders and authority of this Court. The father’s continuing contravention is a most serious disregard for the child’s right to reside in accordance with orders with his mother and siblings here in Australia.
The father’s “attempts” to comply with his obligation to return the child are superficial and unconvincing. He fails to understand the serious obligation imposed on him by the subject orders. Such obligation requires clear evidence on the balance of probabilities that his actions have provided him with a “reasonable excuse” for his ongoing contravention. He has failed to adduce such evidence.
In all the circumstances of this matter, as discussed above, the Court is not satisfied that the father has established reasonable excuse for his contravention of the court’s order.
The Court is, otherwise, satisfied beyond reasonable doubt that the father has behaved in a way that shows a serious disregard for his obligations under the primary orders.

Penalty

These are proceedings under s 70NFA (Subdivision F) of the Family Law Act 1975 (Cth). In summary, the section applies if the Court is satisfied that a person has committed a contravention of a primary order and:
a)a person does not prove that he or she had a reasonable excuse for the current contravention and,
b)a court has previously not made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order or otherwise adjourned proceedings in respect of a contravention by the person of the primary order,
c)the court is satisfied in respect to the present contravention that the person has behaved in a way that showed a serious disregard of his obligations under the primary order.
Section 70NFB sets out the powers of the Court in circumstances where a contravention is found proved under s 70NFA. Section 70NFB 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; 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.
(2)The orders that are available to be made by the court are:
(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
Upon finding the contravention proved, it is contended on behalf of the mother that a penalty should be one directed towards securing compliance with the order. The Court, it is contended, should impose a sentence of imprisonment with release conditional upon compliance with the order to return the child to the care of the mother.
Whilst the father contends mental health issues there is no evidence that the father will not receive appropriate assistance whilst in custody.
It is contended on behalf of the father that a monetary penalty is inappropriate by reason of the father’s financial circumstances. It is, otherwise, contended that the father’s inability to see his son in Country E and his other two children here in Australia is sufficient penalty. Such submission shows little regard for the mother’s circumstances.
In Witham v Holloway (1995) 131 ALR 401, Brennan, Deane, Toohey and Gaudron JJ said at 407:
Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes...
Before a sentence of imprisonment can be imposed, s 70NAF requires the Court to be satisfied beyond reasonable doubt of all of the following elements (Dobbs v Brayson [2007] FamCA 1261).
a)the commission of a contravention,
b)that the contravention was “more serious” and
c)that other available orders were inappropriate.
The father is impecunious and suffers from long term depression. He has a history of non-compliance with medication and reluctance to engage with or consult his health professionals. His contravention is serious (and continuing), he asserts to his medical practitioner that his conduct was “thoughtless”. His conduct has removed a young child from his primary carer and left the children in Australia separated from their young sibling.
The father’s conduct is a most serious disregard for his obligations under the order. The purpose of sentencing in part is coercive and to seek the father’s compliance with his obligations. A Community Service (s 70NFC) order will not achieve that end: it is in effect an alternative to a period of custodial imprisonment. In circumstances where there is a clear and ongoing breach of court orders a community service order is clearly inappropriate. The Court is satisfied beyond reasonable doubt that the imposition of a s 70NFC community service order (s 70NFB(2)(a)) is inappropriate.
Likewise the Court is satisfied beyond reasonable doubt that the ordering of the father to enter a bond under s 70NFE (s 70NFB(2)(b)) is inappropriate. His personal circumstances, mental health and past conduct must lead to the conclusion that a bond that requires him to comply with the subject order is of no utility. A more coercive punishment is clearly called for.
A further compensatory parenting order (s 70NFB(2)(c)) is not appropriate in this matter clearly by reason of the matters discussed above and the fact of the child’s current residence in Country E.
The imposition of a fine (s 70NFB(2)(d)) by reason of the father’s financial circumstances and unemployment is of no utility in that it affords the Court no coercive influence on the father to comply with the orders. The father’s conduct is a most serious disregard for his obligations under the order. The Court is satisfied beyond reasonable doubt that the imposition of a fine is inappropriate.
As a consequence of the inappropriateness of the alternatives to imprisonment as discussed above and in considering the gravity of the contravention found proved, the Court is satisfied beyond reasonable doubt that a sentence of imprisonment is appropriate in all the circumstances of the case.
Section 70NFG provides:

Sentences of imprisonment

(1)A sentence of imprisonment imposed on a person under paragraph 70NFB(2)(e) is to be expressed to be:
(a)for a specified period of 12 months or less; or
(b)for a period ending when the person:
(i)complies with the order concerned; or
(ii)has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court;
whichever happens first.

(2)A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).
(3)If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:
(a)state the reasons why it is satisfied as mentioned in subsection (2); and
(b)cause those reasons to be entered in the records of the court.

(4)The failure of a court to comply with subsection (3) does not invalidate a sentence.
(5)A court that sentences a person to imprisonment under paragraph 70NFB(2)(e) may:
(a)suspend the sentence upon the terms and conditions determined by the court; and
(b)terminate a suspension made under paragraph (a).

(6)A court, when sentencing a person to imprisonment under paragraph 70NFB(2)(e), may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (7) after he or she has served a specified part of the term of imprisonment.
(7)A bond for the purposes of subsection (6) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.
(8)A court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.
(9)To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 70NFB(2)(e) for failure to make a payment under a child maintenance order does not affect the person's liability to make the payment.

In Dobbs v Brayson (supra) the Full Court said:
83.It is well recognised that what is required in reasons is closely linked with context. Imprisonment is of itself a serious matter. It should be, as the Full Court of this Court said in Sahari and Sahari (1976) FLC 90-086 at 75,406, “...invoked only as a last resort.” …
84.In Tate and Tate (2003) FamCA 112 (albeit a case dealing with a contempt), the Full Court of the Family Court said:
...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. ...
The maximum sentence available to the Court is one of 12 months. Such a sentence would reflect the most serious of contraventions. It is not contended that the father’s conduct is not a serious breach of his obligation under the subject orders. Indeed, such was properly conceded by his legal representative.
The spiriting of a child out of Australia and away from the primary carer and that child’s retention in Country E out of the reach of this Court’s jurisdiction is reprehensible conduct on the part of the father and brings his actions into the range of most serious contraventions deserving of the imposition of a period of imprisonment.
The question of retribution by imposing a period of full time imprisonment in this matter leaves open the question of obtaining compliance otherwise with the order. It would serve no utility if the father whilst in custody is precluded from making or has no incentive to make the necessary arrangements for the child’s return.
This conundrum then brings into focus the coercive role of sentencing.
It is useful then to consider whether a sentence, reflecting the seriousness of the father’s conduct, conditional on the father’s compliance, might be appropriate: s 70NFG(1)(b). The father has failed to comply with the court order without reasonable excuse. He is presently precluded from travelling overseas in an endeavour to obtain compliance by him with the court order and prevent him absconding.

The father to date contends he has had no cooperation from his family particularly his mother in Country E and his sister here in Sydney, yet they were and are complicit in the child being removed from Australia and remaining in Country E.
The prospect of the father commencing a full time sentence with the prospect of release on compliance with the order might give him (and his family) sufficient impetus to make appropriate arrangements for the return of the child. It is clearly in his interest for him to have regard to the possible consequences to him of a lengthy period of imprisonment in the event that the child is not returned.
It is thus appropriate that the father be sentenced to a period of six months imprisonment ending when he complies with his obligation under the subject orders.
Orders will be made accordingly.

Costs

The question of costs as to the present proceedings is subject to the provisions of s 70NFB as follows:
If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
2…(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.
The issue is whether the father is ordered to pay all or part of the mother’s costs.
Section 117 of the Act provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relevantly, in these proceedings, relate to the following:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party has legal aid and the terms of any grant of aid;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the Court considers relevant.
The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:
17. With respect to the application of the section, in Penfold and Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
18. The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative forA (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
These are contravention proceedings that relate to a serious disregard for the court’s orders. The mother has been put to the expenses of prosecuting the contravention that has now been found proved.
Whilst the father may be in poor financial circumstances it is his own actions that have led to the current application and it is to be noted that impecunious circumstances are not a barrier to a costs order being made against a party (D & D (Costs) (No. 2) (2010) FLC 93-435).
It is proper that the father be ordered to pay the mother’s costs of and incidental to this application as agreed or in default as assessed.
Orders will be made accordingly.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 November 2017.

Associate:

Date: 28 November 2017