Tenillo & Mackay

[2009] FamCA 341

FAMILY COURT OF AUSTRALIA

TENILLO & MACKAY [2009] FamCA 341

FAMILY LAW – CHILDREN – contravention – where respondent pleads guilty to one count – where respondent has previously been found guilty of a contravention – penalty of fine and bond agreed to by parties – determination of amount of fine

Family Law Act1975 (Cth)

APPLICANT: Mr Tenillo

RESPONDENT: Ms Mackay

INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

FILE NUMBER: ADC 5723 of 2007

DATE DELIVERED: 20 January 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 & 20 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Lees

SOLICITOR FOR THE RESPONDENT: North East Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

Orders by Consent

1. By way of penalty in relation to count 3 the respondent mother do forthwith enter into a bond for a period of 12 months to be of good behaviour and to comply with all orders of this court providing for the children N born … March 1995 and K born … March 1998 to spend time with and/or communicate with the applicant father.

2. By way of penalty in relation to count 12 the respondent mother do pay to the Registry Manager a fine of TWO HUNDRED DOLLARS [$200.00] on or before 20 April 2009.

3. That all remaining counts in the said Applications filed on 13 March 2008 and 10 October 2008 be dismissed and the said Applications be removed from the active pending cases list.

4. That until further order and pending the trial of this case listed on 2 February 2009:

   (a)       the orders made on 25 July 2007 be suspended;

   (b)the said children spend time with the applicant father from 10:00am Saturday 24 January 2009 until 6:00pm Monday 26 January 2009 at the home of the father’s sister C at W with the said children spending the nights at the home of the father’s sister unless they otherwise wish to stay at the home of the father in which event the children will advise the respondent mother of this by telephone;

   (c)for the purposes of the children spending this time with the father the mother do deliver the children to the home of the father’s sister at the commencement of such time and collect the children from that home at the conclusion of such time.

5. That the parties be restrained and an injunction is hereby granted restraining each of them from discussing the within proceedings with the said children.

6. That the parties be restrained and an injunction is hereby granted restraining each of them from using any name to call or refer to or describe the other party in any way except as they are christened or formally described.

7. That the father do provide the said children with a mobile telephone and the father be at liberty to telephone the children on that telephone without any interference from the mother.

8. That the said children be at liberty to telephone either party at their reasonable request and the parties do facilitate that.

9. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5723 of 2007

MR TENILLO

Applicant

And

MS MACKAY

Respondent

EX TEMPORE REASONS

1. This is a case which commenced before me yesterday afternoon.  The applications before me were both applications alleging contravention.  They were applications filed by the father respectively on the 13 March 2008 and 10 October 2008. 

2. The hearing has proceeded on those two applications to this point but I am pleased to record that the parties have now reached agreement about these applications.  The agreement involves the mother the respondent pleading guilty to one of the counts of alleged contravention in the application filed on 13 March 2008 and also pleading guilty to one of the counts alleged in the application filed on 10 October 2008. 

3. The penalty proposed and agreed to by the mother in relation to those contraventions is that she be placed on a bond for a period of twelve months with the condition of that bond being that she complies with all orders of this Court in relation to the children spending time with the father. 

4. It is agreed that there should be a further penalty of a fine and the reasons for that have been explained to me, namely that the mother had previously been found guilty of contravening an order and was placed on a bond.  So this is obviously a serious matter being the second contravention.  In my view, in those circumstances, it is appropriate to impose a fine as well as require the mother to enter into a bond. 

5. As I said, the mother is prepared to enter into a bond and she has also agreed to a fine.  However, the amount of the fine has been left to me, understandably, and I will come back to that in a moment. 

6. Separate to that, it is agreed that there should be an order that the children spend time with the father this coming weekend.  I note and I am pleased to record that the parties have been able to reach this agreement in the spirit of allowing this matter to be disposed of such that the hearing which is set for the 2 February in relation to applications for final orders can proceed at that time and hopefully also be finalised in a similar fashion, namely by agreement in the best interests of the children.  Anyway, that is for the parties to address and not for me to concern myself with at the moment. 

7. Thus they are the parameters of the agreement that has been reached and the orders are I am being asked to make.  I will still come back to the issue of the fine. 

8. I should record and note that I have already made orders dismissing a number of the counts alleged in both applications.  I will not repeat those orders.  Those orders have been made as I say and will be drawn in due course. 

9. The next thing I should note is that the agreement is, and the father is prepared to do this, to withdraw all remaining charges, and thus allow me to dismiss the two applications.  It is unnecessary for me to go into the reasons why the father has taken that position but that is his position and that will be part of the order that I make ultimately.

10. Turning to the one issue that has been left for my decision and that is the amount of the fine.  As I have said to the parties, the primary considerations for me in fixing the amount of the fine are firstly, the nature of the offences that the mother has pleaded guilty to, the seriousness of them, and the history of the matter, but also taking account of and bearing in mind the mother’s financial circumstances. 

11. The fine is first and foremost a penalty and it is not intended to be compensation for any loss of expenditure.  It is a penalty as a result of the mother pleading guilty to two counts of contravening an order of this Court, and thus a very serious matter.  One aspect of the fine and the imposition of it is to bring home to the mother the seriousness of breaching court orders. 

12. Mrs Lindsay, counsel for the Independent Children’s Lawyer has been quite instrumental, and I thank her for this in allowing the parties to reach this agreement, and I am sure as well Ms Lees as counsel for the mother has had a significant role in enabling this position to be reached.  In any event, Mrs Lindsay has proposed that the appropriate amount for the fine would be $200.  The father was not quite sure about that initially but ultimately he does not quibble with that.  Ms Lees on the other hand has not suggested an amount that her client should pay by way of fine but she has put to me her client’s financial circumstances which in brief and in summary are that the mother works part time, she receives in addition a Centrelink benefit, and her total income is approximately $500 per week.  Out of that she pays $260 per week rent and supports herself and the two children who reside with her.  It is an expensive time of the year given the children are about to conclude their school holidays and commence again at school, and there are issues of uniforms and books, and obviously the mother cannot be specific about how much all that is going to cost but clearly there is significant expense involved there, apart from the general day to day costs of living.  She has no assets save and except a motor vehicle.  She has a visa card debt of $9,000 which is the maximum on that card and she pays that off at the rate of $200 per month. 

13. The father has, he tells me, and I accept this, commenced paying child support in the sum of $160 per month.  It is as recent though that the mother has not yet even received it, and as I have said during the course of submissions it is not an uncommon circumstance that money is being held by the Child Support Agency and will ultimately obviously be paid to the mother.  Thus I proceed on that basis.  But, of course, as Ms Lees has put to me and I accept, that $160 will quite quickly be eaten up with the expenses associated with the children that the mother has.  So that is a significant issue and Ms Lees has put to me that whatever the figure I fix on for the fine, the mother is unlikely to be able to pay it in one lump sum and she would need time to pay the fine. 

14. Having considered all those matters, obviously there should be a fine imposed.  There is no issue about that, the only issue is the amount of the fine. 

15. In my view it would be appropriate to require the mother to pay a fine of $200.  The only concern I have is whether that should be paid in one lump sum or over a period of time, and if it is to be paid over a period of time, what period of time. 

16. I have interrupted the reasons to hear from counsel as to time to pay that fine and it has been put to me by Ms Lees that six months would be an appropriate time.  The father has not commented on that.  Mrs Lindsay supports it. 

17. In my view six months is too long.  As I have said I have to try and balance the seriousness of this issue and the importance of bringing home to the mother that she cannot breach orders of this Court and that has to be given significant weight. The mother in a sense has to appreciate that she will have to reprioritise her financial circumstances and that the reason for that is that she has breached an order of this Court.  Nothing and no-one else can be blamed.  It is a consequence of the mother’s own actions in breaching the orders of this Court. 

18. However, I am prepared to allow time. I do not consider it appropriate to require the amount of $200 to be paid in one lump sum but I propose to allow three months for the mother to pay that fine.

I certify that the preceding 18 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 20 January 2009.

Associate