Vaughton and Randle (No. 3)
[2013] FamCA 467
FAMILY COURT OF AUSTRALIA
| VAUGHTON & RANDLE (NO. 3) | [2013] FamCA 467 |
| FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of nine counts – where the mother admitted the nine counts of contravention – where the mother was found not to have a reasonable excuse for the nine admitted counts of contravention – consideration of what orders to make arising out of these findings FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – orders made adjourning father’s amended Application in a Case and the mother’s Response to final hearing to be given a priority listing. |
| Family Law Act 1975 (Cth) s 60CC, 70NAF, 70NBA, 70NFA, 70NFB, 70NFE, 70NFF, 70NFG |
| Burrows v R (1937) 58 CLR 249 Spencer & Verity [2012] FamCAFC 210 (14 December 2012) |
| APPLICANT: | Mr Vaughton |
| RESPONDENT: | Ms Randle |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 3046 | of | 2010 |
| DATE DELIVERED: | 19 June 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 30 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | Adey Lawyers and Mediators |
| COUNSEL FOR THE RESPONDENT: | Mr Wabnitz |
| SOLICITOR FOR THE RESPONDENT: | Daniel John Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fuda |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
Within seven [7] days from today the mother Ms Randle enters into a bond for a period of TWO YEARS without surety but with ONE THOUSAND DOLLARS [$1,000.00] as security upon the following conditions:
(a)be of good behaviour during the period of the bond;
(b)comply with all current and future parenting orders.
The child R born on … July 2008 is to spend compensatory time with the father pursuant to s 70NFB(2)(c) of the Act from 9.00 am Saturday 6 July 2013 until 5.00 pm Wednesday 17 July 2013. Handovers are to be conducted in accordance with existing orders.
The mother is to pay the costs of the father pursuant to s 70NFG(2)(g) as agreed between the parties, and in default of such agreement, the sum to be paid by the mother is to be determined by a Registrar of this Court, being the costs of the contravention proceedings according to the scale.
The mother is to pay the costs of the Independent Children’s Lawyer pursuant to s 117 of the Act in the amount of TWO THOUSAND FIVE HUNDRED AND THIRTY DOLLARS [$2,530.00] within sixty [60] days of the date of this judgment.
Paragraph 5 of the orders made by FM Lindsay (as he then was) on 28 March 2011 is varied pursuant to s 70NBA of the Act such that the time for commencement of alternate weekends is 6.00 pm Friday.
Paragraph 5 of the orders made by FM Lindsay (as he then was) on 28 March 2011 is varied pursuant to s 70NBA of the Act such that the order now reads:
5.All time-spent, including the overnight component, is to be supervised by either the paternal grandmother or a paternal aunt or the father’s wife [Ms S] or [Mr G].
Consideration of the father’s amended Application in a Case filed 26 September 2012 and the mother’s Response filed 13 March 2013 are adjourned to the final hearing on a date to be fixed by the Registrar as a matter of priority.
The Honourable Justice Dawe is disqualified from further hearings in this matter.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaughton & Randle (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3046 of 2010
| Mr Vaughton |
Applicant
And
| Ms Randle |
Respondent
REASONS FOR JUDGMENT
Introduction
I handed down a judgment that considered two applications for contravention orders filed by Mr Vaughton (“the father”) on 1 May 2013 (See [2013] FamCA 286) (hereafter referred to as “the 1 May 2013 judgment”). These applications alleged that Ms Randle (“the mother”) had contravened various orders of this Court relating to their child R, (“the child”). The child was born in July 2008 and therefore is nearly five years old.
The parties appeared before me on 30 May 2013 to make submissions as to the orders I should make consequent upon my findings in the 1 May 2013 judgment. The father was represented by Mr McQuade on instructions of Adey Lawyers and Mediators. The mother was represented by Mr Wabnitz on instructions of Daniel John Lawyers. Ms Fuda appeared on behalf of the Independent Children’s Lawyer on instructions of the Legal Services Commission of South Australia.
I reserved my judgment after hearing submissions from the parties and the Independent Children’s Lawyer.
The 1 May 2013 judgment
The first application for contravention orders considered in the 1 May 2013 judgment was filed by the father on 26 September 2012. This application alleged four counts of contravention.
The statement of the alleged contravention is similar across the four counts. The statement of the alleged contravention in Count 1 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00 am ON SATURDAY 11TH AUGUST 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00 am ON SATURDAY 11TH AUGUST 2012 TO 5.00PM ON SUNDAY 12th AUGUST IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011.
The statement of the alleged contravention in Count 2 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00 am ON SATURDAY 25TH AUGUST 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00 am ON SATURDAY 25th AUGUST 2012 TO 5.00PM ON SUNDAY 26th AUGUST IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011.
The statement of the alleged contravention in Count 3 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00 am ON SATURDAY 8TH SEPTEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00 am ON SATURDAY 8TH SEPTEMBER 2012 TO 5.00PM ON SUNDAY 9TH AUGUST IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011.
The statement of the alleged contravention in Count 4 reads:
“THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00 am ON SATURDAY 22ND SEPTEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00 am ON SATURDAY 22ND SEPTEMBER 2012 TO 5.00PM ON SUNDAY 23RD SEPTEMBER IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011.”
The alleged contraventions are said to have occurred:
a.Count 1: Saturday 11 August 2012 at 9:00 am at the Suburb B Police Station.
b.Count 2: Saturday 25 August 2012 at 9:00 am at the Suburb B Police Station.
c.Count 3: Saturday 8 September 2012 at 9:00 am at the Suburb B Police Station.
d.Count 4: Saturday 22 September 2012 at 9:00 am at the Suburb B Police Station.
All four counts are said to contravene paragraph 4(b) of the orders made by FM Lindsay (as he then was) on 28 March 2011 as modified by paragraph 6 made with the consent of the parties and certified by FM Lindsay (as he then was) on 1 November 2011.
Paragraph 4(b) of the orders made by FM Lindsay (as he then was) on 28 March 2011 states:
4.Pending trial the mother do all such things as may be reasonably required to facilitate the child spending the following time with the father, namely:
(b)from 9 am Saturday to 5 pm Sunday on alternate weekends commencing 11 June 2011.
Paragraph 6 of the orders made by FM Lindsay (as he then was) on 1 November 2011 states:
6.The cycle of the said child’s time with the father be varied such that the said child’s time with the father coincides with the children of [Ms S] being in the care of [Ms S] and the father commencing as and from Saturday, 28 January 2012 and each alternate weekend thereafter.
The mother admitted all four of the counts of contravention alleged in this application. I found the mother had failed to establish a reasonable excuse on the balance of probabilities for this contravention (See generally [2013] FamCA 286, [79]–[100]).
The time the father and the child did not spend together was equivalent to 32 hours per count of contravention (eg from 9.00 am Saturday to 5.00 pm Sunday). This totals to 128 hours total for this application for contravention orders.
The second application for contravention orders considered in the 1 May 2013 judgment was filed by the father on 11 December 2012. This application alleged five counts of contravention.
The statement of the alleged contravention is similar across the five counts. The statement of the alleged contravention in Count 1 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00 am ON SATURDAY 6TH OCTOBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00 am ON SATURDAY 6TH OCTOBER 2012 TO 5.00PM ON SUNDAY 7TH OCTOBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.
The statement of the alleged contravention in Count 2 reads:
“THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00 am ON SATURDAY 20TH OCTOBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00 am ON SATURDAY 20TH OCTOBER 2012 TO 5.00PM ON SUNDAY 21ST OCTOBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.”
The statement of the alleged contravention in Count 3 reads:
“THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00 am ON SATURDAY 3RD NOVEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00 am ON SATURDAY 3RD NOVEMBER 2012 TO 5.00PM ON SUNDAY 4TH NOVEMBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.”
The statement of the alleged contravention in Count 4 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00 am ON SATURDAY 17TH NOVEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00 am ON SATURDAY 17TH NOVEMBER 2012 TO 5.00PM ON SUNDAY 18TH NOVEMBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.
The statement of the alleged contravention in Count 5 reads:
THE MOTHER WITHOUT REASONABLE EXCUSE FAILED TO PRESENT THE CHILD [R] TO THE FATHER AT 9:00 am ON SATURDAY 1ST DECEMBER 2012 AND IN ORDER FOR THE SAID CHILD TO SPEND TIME WITH THE FATHER FROM 9:00 am ON SATURDAY 1ST DECEMBER 2012 TO 5.00PM ON SUNDAY 2ND DECEMBER 2012 IN ACCORDANCE WITH THE TERMS OF THE ORDERS OF THE FEDRAL MAGISTRATES COURT DATED 28TH MARCH 2011 AS VARIED BY PARAGRAPH 6 OF THE ORDER OF THE FEDERAL MAGISTRATES COURT DATED 1ST NOVEMBER 2011 AND 21ST SEPTEMBER 2012.
The alleged contraventions are said to have occurred:
a)Count 1: Saturday 6 October 2012 at 9:00 am at the Suburb B Police Station.
a.Count 2: Saturday 20 October 2012 at 9:00 am at the Suburb B Police Station.
b.Count 3: Saturday 3 November 2012 at 9:00 am at the Suburb B Police Station.
c.Count 4: Saturday 17 November 2012 at 9:00 am at the Suburb B Police Station.
d.Count 5: Saturday 1 December 2012 at 9:00 am at the Suburb B Police Station.
All five counts are said to contravene paragraph 4(b) of the orders made by FM Lindsay (as he then was) on 28 March 2011 as modified by paragraph 6 made with the consent of the parties and certified by FM Lindsay (as he then was) on 1 November 2011 and further modified on 21 September 2012.
Paragraph 4(b) of the orders made by FM Lindsay (as he then was) on 28 March 2011 as modified by paragraph 6 made with the consent of the parties and certified by FM Lindsay (as he then was) on 1 November 2011 are both provided above in relation to the first application for contravention orders.
The orders of FM Lindsay (as he then was) dated 21 September 2012 do not alter any existing parenting orders. Rather, they impose a penalty upon the mother following the finding that she committed the alleged contraventions in the father’s applications for contravention orders dated 23 November 2011 and 15 February 2012 without reasonable excuse. The penalty imposed was a sentence of imprisonment for one month suspended for so long as the mother is not convicted of contravening Court orders without reasonable excuse. The mother’s liability to serve such term of imprisonment is to be discharged from 21 September 2013 (one calendar year after the imposition of the sentence).
The mother admitted all five of the contraventions alleged in this application. I found the mother had failed to establish a reasonable excuse on the balance of probabilities for this contravention (See generally [2013] FamCA 286, [79]–[100]).
The time the father and the child did not spend together was equivalent to 32 hours per count of contravention (eg from 9.00 am Saturday to 5.00 pm Sunday). This totals to 160 hours total for this application for contravention orders.
As such, the total time the father did not spend with the child as a result of the nine counts alleged in the two applications for contravention orders considered in the application for contravention orders is equivalent to 288 hours or, phrased differently, 12 days.
The father’s Application in a Case as amended 26 September 2012
The father filed this Application in a Case on 31 August 2012. The application was supported by an affidavit of the father and an affidavit of the father’s solicitor. An amended version of this Application in a Case was filed on 26 September 2012. The amended application was supported by an affidavit of the father.
The amended application was listed to be heard before me on 6 June 2013. With the consent of the parties I vacated the 6 June 2013 listing and heard brief submissions on the matter at the date of the hearing concerning the orders I should make arising out of the findings I made in the 1 May 2013 judgment.
Counsel for the father abandoned orders sought 1 to 8 and 12 as included in the Application in a Case. He also sought that order 9 be abridged slightly. As such, the following remaining orders were pressed:
9.That further and in the alternative to the orders sought in paragraphs 3 and 4 hereof, the mother do on or before Friday 5th October return with the said child to reside in the metropolitan area of Adelaide pending the finalisation of the within proceedings and more particularly to reside at the mother’s residence situated at [H Street, Suburb J] in the State of South Australia or such other residential address as shall be ordered by this Honourable Court
and that the said child do thereafter live in an equal shared care arrangement between the mother and the father on an alternating weekly basis and subject to such further or other terms and conditions as may be determined by this Honourable Court.10. That pending the finalisation of the within proceedings:-
a)the father do be at liberty to: -
i) receive school reports, notices and any other information usually provided to parents by any school or education institution, sporting body or extra-curricular organisation in which the said child may from time to time be enrolled or attend.
ii) attend at all kindergarten or school functions and all school sports and extra-curricular activities and events to which parents are ordinarily invited to attend.
b)the mother do be restrained and injunctions do be granted restraining the mother from:-
i) denigrating or ridiculing the father to the said child or in the presence of the said child or permitting any other person to do so;
ii) removing the said child from the metropolitan area of Adelaide.
11.That until further order all handovers do occur to and from the said child’s kindergarten or school and any handover not able to occur to and from the said child’s kindergarten or school shall occur from vacation care or after hours school care and that the mother be restrained and an injunction be granted restraining the mother from attending at or remaining in the vicinity of the said child’s kindergarten, school, vacation care or after hours school care for a period of four (4) hours prior to the time of the handover.
…
13.Such further or other order as this Honourable Court deems just and equitable in the circumstances.
14.That the mother do pay the father’s costs of and incidental to the within application.
The mother filed a Response to this Application in a Case on 9 October 2012. The application was supported by an affidavit of the mother. An amended version of this Response was filed on 8 March 2013. The amended Response was supported by an affidavit of the mother. In the amended Response, the mother states “I do not agree with any orders in the application.” The orders sought in said response are:
1.That Orders 3 – 12 of Annexure “A” to the father’s Application in a Case and orders 3 – 12 Ammended [sic] Application in a Case be refused.
2.That paragraph 4 of the Order made on 4 November 2010 be, and is hereby, discharged.
3.That paragraph 7 of the Order made on 4 November 2010 and paragraph 4 of the Order made on 28 March 2011 be, and is hereby, discharged.
4.That the order made by FM Lindsay relating to the injunction preventing the child, [R], from attending a psychologist be discharged.
5.That pending trial, the child [R], contact is to occur on the Saturday and on the Sunday of the second weekend of each calendar month in the following manner:
5.1In April 2013 in Tasmania at the [K Contact Centre] and each alternate month thereafter at times offered by and convenient to the [K Contact Centre];
5.2In May 2013 in Adelaide at the [C] Children’s Contact Service and each alternate month thereafter at times offered by and convenient to the [C] Children’s Contact Service.
6.That the time spent in accordance with paragraph 5 occur only under the supervision of the [C] Children’s Contact Service and at times offered by and convenient to the [C] Children’s Contact Service.
7.That the parties forthwith enrol for acceptance into the Children’s Contact Service at [C] for the purposes of contact only and not handovers and following acceptance that all contact between the father and the child do occur at that service.
8.The mother book all airfares associated with the said child’s travel to Adelaide to facilitate time in accordance with paragraph 5 of this order.
9.That the father reimburse the mother for one half of the costs of the airfares booked in accordance with paragraph 8 no later than five (5) days after presentation of an account to him.
10.That the parties forthwith enrol for acceptance into the [K Contact Centre] Tasmania for the purposes of contact and following acceptance that all contact between the father and the child occur at that service.
11.The father book all airfares associated with his travel to Tasmania to facilitate time in accordance with paragraph 5.1 of this order.
12.The mother book all airfares associated with the said child’s travel to Adelaide to facilitate time in accordance with paragraph 5.2 of this order.
13.That the father continue to have communication with the said child by Skype at 6:00 pm Tasmanian time on Wednesday and Sunday of each week.
14.That the parties attended a Family Assessment for the preparation of a current and up to date Family Assessment Report.
15.That the parties be restrained and an injunction be granted restraining the parties from denigrating the other to the said child or in the presence of the said child or permitting others to do the same.
16.Such further or other orders as this Honourable Court deems just and equitable in the circumstances.
17.That the father do pay the mother’s costs of and incidental to the Application in a Case.
The Law
The sections of the Family Law Act 1975 (Cth) (“the Act”) concerning applications for contravention orders are contained at Division 13A of Part VII of the Act.
Subdivisions C to F of Division 13A of Part VII of the Act provide the orders available to the Court that can be made in instances where:
b)the contravention has been alleged but not established (Subdivision C);
c)the contravention is established but reasonable excuse for the contravention is found (Subdivision D);
d)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (Subdivisions E); and
e)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (Subdivision F).
I heard submissions from the parties as to whether Subdivision E or Subdivision F of Division 13A of Part VII of the Act should apply in this matter. For the reasons outlined below, I found that Subdivision F was applicable. The provisions relevant to the application of Subdivision F and the orders available under that subdivision are as follows:
SECTION 70NFA
Application of Subdivision
(1)Subject to subsection (2), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a Court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies.
Note: For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2)For the purposes of paragraph (1)(d), this subsection applies if:
(a)no Court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the Court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
(3)For the purposes of paragraph (1)(d), this subsection applies if a Court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4)This Subdivision does not apply if the Court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5)This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
SECTION 70NFB
Powers of court
(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.
Note: The court may also vary the primary order under Subdivision B.
(3)If a court varies or discharges under section 70NFD a community service order made under paragraph (2)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate.
(4)The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent.
(5)The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of:
(a)a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989 ; or
(b)a breach of a child support agreement made under that Act; or
(c)a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).
(6)An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.
(7)When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.
Sections 70NFC–70NFJ are also contained within Subdivision F of Division 13A of Part VII of the Act. These sections generally expand upon the orders that are available in s 70NFB of the Act.
Section 70NBA of the Act was also referred to during oral submissions. This section is contained within Subdivision B of Division 13A of Part VII of the Act, which is titled “Court’s power to vary parenting order”. Section 70NBA states:
SECTION 70NBA
Variation of parenting order
(1)A Court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a Court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the Court does not find that the person committed a contravention of the primary order; or
(ii) the Court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the Court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b)there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the Court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a Court having jurisdiction under this Act may vary a primary order.
Consideration
Consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Act
The first issue that arises for my consideration is whether I should deal with these contraventions under Subdivision E of Division 13A of Part VII of the Act as “less serious contraventions” or under Subdivision F as “more serious contraventions.”
Subdivision F will only apply if the conditions in either s 70NFA(2) or s 70NFA(3) of the Act are satisfied. Subsection 70NFA(3) is applicable as this is not the first occasion on which the mother has been found to have contravened an order of this Court without reasonable excuse (see generally my summary of the history of applications for contravention orders in this matter at paragraphs [23] to [32] of the 1 May 2013 judgment).
Subsection 70NFA(3)(a) of the Act speaks of the Court previously making an order imposing a sanction or taking an action in respect of a contravention by the respondent of “the primary order”.
The phrase “the primary order” is not defined in the Act. As such, it is unclear whether this refers to the entirety of a set of orders made by a certain judicial officer on a given date (eg, with reference to this matter, the entire set of orders made by FM Lindsay (as he then was) on 28 March 2011) or if it refers more specifically to a specified order in a set of orders made by a certain judicial officer on a given date (eg, with reference to this matter, order 4(b) of the orders made by FM Lindsay (as he then was) on 28 March 2011).
This distinction is of no import in the matter before me, as the subsection is activated on the both the narrower and the broader interpretation of “the primary order” as FM Lindsay (as he then was) penalised the mother arising out of a contravention of order 4(b) of his orders dated 28 March 2011 on 21 September 2012 (see generally my summary of the history of applications for contravention orders in this matter at paragraphs [23] to [32] of the 1 May 2013 judgment).
Despite the applicability of s 70NFA(3) of the Act, I retain a discretion to apply the provisions of Subdivision E if I am satisfied that “it is more appropriate for [the] contravention to be dealt with under Subdivision E” (s 70NFA(4)). The judgment of Cronin J in the Full Court of the Family Court of Australia decision of McClintock & Levier (2009) 233 FLR 179 at 219 confirms that I am “required by s 70NFA(4) to consider whether the matter should be more appropriately dealt with under Subdiv E.”
Counsel for the Independent Children’s Lawyer contended that I should apply Subdivision F. Counsel for the father concurred in these submissions. Counsel for the mother conceded that he “would not be able to convince [me]” that I should exercise my discretion under s 70NFA(4) of the Act to apply Subdivision E as a result of “the evidence and the surrounding circumstances and the seriousness in this case.”
The Full Court of the Family Court of Australia (composed of Faulks DCJ, Kay and Penny JJ) in Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 (5 July 2007) asserted at [50] that:
Given the consequences that potentially flow from treating the matter under subdivision F rather than subdivision E, we think it was incumbent upon the trial judge to spell out clearly what considerations enlivened the extra powers available under that section.
In that case, the Court was specifically dealing with the discretion provided in s 70NFA(2) of the Act. Subsection 70NFA(2) of the Act does not require the respondent to a contravention application to have previously been convicted of contravening an order of this Court without reasonable excuse. Rather, it requires the judicial officer to be satisfied that the respondent has “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
It is unclear if the Full Court in Elspeth & Peter; Mark & Peter; and John & Peter (Supra) also intended to assert that a judicial officer must provide reasons for not electing to exercise the discretion in s 70NFA(4) of the Act when there is a history of contraventions such that s 70NFA(3) of the Act applies, as is the case in this matter.
The Family Court of Australia (composed of Boland, Thackray and O’Ryan JJ) in Gravis & Major [2010] FamCAFC 239 (1 December 2010) discouraged engaging with the issue of whether a respondent to an application for contravention orders has shown the requisite “serious disregard” spoken of in s 70NFA(2)(b) of the Act by examining the contraventions in a “global manner” (see generally Boland, Thackray and O’Ryan JJ in Gravis & Major (Supra) at [161] citing Finn J in McClintock & Levier (2009) 223 FLR 179 at 192).
This reasoning is equally applicable to the consideration of whether or not to exercise the discretion available in s 70NFA(4) of the Act. The preferable approach is to individually examine each of the contraventions that have been found to have occurred without reasonable excuse and determine whether I am satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E as opposed to Subdivision F.
Subsection 70NFA(4) is silent on what the relevant considerations are that would make it “more appropriate” to deal with a given contravention under Subdivision E as opposed to Subdivision F.
The subsection has also thus far evaded any extensive judicial treatment. In Gervasis & Purdy [2009] FamCA 255 (25 March 2009) at [27]–[29], I exercised the discretion in s 70NFA(4) to apply Subdivision E despite the applicability of s 70NFA(2) of the Act. However, my reasons for doing so were largely specific to the circumstances of that case.
Elsewhere, in Abud & Abud [2010] FamCA 1132 (15 November 2010), Cronin J commented at [67]:
67.Section 70NFA(4) provides that subdivision F does not apply if the Court is satisfied that the subdivision E provisions could more appropriately deal with the matter. Subdivision E, however, has very limited enforcement powers in terms of someone who has an ambivalent or obstructive view about compliance with orders. None of those provisions would seem likely to give any impetus to the husband complying with the existing orders.
These comments are equally applicable to the mother in this case. The broader armoury of orders available in Subdivision F makes it more appropriate to deal with each of the nine counts of contravention under that subdivision as opposed to Subdivision E.
The most recent six counts of the nine total counts occurred whilst the mother was on a suspended sentence. The sole condition of that suspension was that the mother was not to contravene any parenting orders of this Court. Indeed, the fourth count of the first application for contravention orders occurred the day after the imposition of this suspended sentence. This fact alone enables me to conclude that it is not more appropriate for the most recent six counts of the total nine counts to be dealt with under Subdivision E.
The earliest three counts occurred after the mother had been found guilty of contravening the same order in an earlier application for contravention filed by the father (filed 23 November 2011) (see the orders of FM Lindsay (as he then was) dated 1 June 2012) and during the period in which his Honour was reserved on the orders to be imposed as a result of that finding. Once again, this matter leads me to conclude that it is not more appropriate to apply Subdivision E as opposed to Subdivision F in regards to the earliest three counts before me today.
Accordingly, I am satisfied that it is not more appropriate to deal with any of the nine counts of admitted contravention under Subdivision E as opposed to Subdivision F.
I will apply the provisions of Subdivision F. I refer to and rely upon the comments of Cronin J in McClintock & Levier (Supra) at 216 that “[t]he focus of a Court therefore in dealing with a contravention application under Div 13A must be in making orders which will enforce future compliance with its orders” (to similar effect see Coleman J at 203, cf Finn J at 189). This conclusion is reinforced upon consideration of s 70NAA of the Act, which states:
70NAASimplified outline of Division
(1)This division deals with the powers that a Court with jurisdiction under this Act has to make orders to enforce compliance with orders under this act affecting children.
Consideration of section 70NFB(2)(e) and 70NFG of the Act – orders for imprisonment
It is appropriate to deal with the issue of an order of imprisonment at the outset of my consideration. Both the parties and the Independent Children’s Lawyer made extensive submissions as to the appropriateness of such an order in this case.
Counsel for the Independent Children’s Lawyer suggested a term of imprisonment of two months was appropriate in the circumstances. She based this submission on the “seriousness” of the contraventions, the extended period during which the father and the child did not spend together as a result of those contraventions, and the fact that there were nine counts of contravention. Given the fact that the mother was the primary carer of the child, the Independent Children’s Lawyer conceded that a shorter period of imprisonment would be appropriate. She suggested such an order would need to strike a balance between the best interests of the children and the requirement for the mother to know that contraventions of orders of this Court will not be tolerated.
Counsel for the father suggested a period of imprisonment for six months. He suggested any order for imprisonment would have to be longer than the suspended sentence imposed by FM Lindsay (as he then was), as that sentence had no effect on the mother’s behaviour. Further, counsel for the father suggested that the mother should serve approximately two weeks of the sentence during the July school holiday period, during which the mother would have no work commitments and the child would be spending “makeup time” with the father in Adelaide. He submitted that then I should suspend the sentence on the condition that the mother enter into a bond to be of good behaviour and obey all existing and future orders of this Court.
Counsel for the mother suggested various alternative orders I should make as opposed to a sentence of imprisonment. Counsel for the mother noted that the legislation specifies that imprisonment is an order of last resort (s 70NFG(2) of the Act.)
Counsel for the mother put various arguments to me as to why imprisonment was not appropriate in this case. Ultimately, only one of these arguments is required for the disposition of the issue at hand. With reference to the judgment of Cronin J in McClintock & Lever (Supra) at 216, counsel for the mother contended that I could not be satisfied that imprisonment was an appropriate order in the matter at hand because the mother has been complying with the Court orders since March 2013.
I may only make an order for imprisonment pursuant to s 70NFB(2)(e) of the Act if I am “satisfied beyond reasonable doubt that the grounds for making that order exist” (s 70NAF(3)(a) of the Act). The Full Court of the Family Court of Australia (composed of Finn, Warnick and Boland JJ) in Dobbs & Brayson [2007] FamCA 1261 (25 October 2007) described the effect of s 70NAF(3) of the Act as follows:
[47] Returning to the interpretation first discussed, namely that, 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: the commission of a contravention, that the contravention was “more serious” and that other available orders were inappropriate; we note that each of these matters is a “step” required by provisions in Division 13A. Each “step”, in our view, is readily enough seen as a “ground” for making one of the orders in question. This interpretation we think consistent also with general principle, as emerges from the following authorities.
I am therefore required to be satisfied beyond reasonable doubt that the other available orders to me in s 70NFB of the Act would “not be appropriate” in “all the circumstances of the case” (s 70NFG(2) of the Act.
As stated in s 70NAA of the Act, and affirmed by the excerpts of the judgment of Cronin J in McClintock & Levier (Supra) referred to by counsel for the mother, the purpose of the contravention orders process is to enforce compliance with the orders of this Court.
The appropriateness of any order is to be measured against this end goal, namely, enforcing compliance with Court orders.
King CJ in R v Pahuja (1987) 49 SASR 191 at 194 stated that the expression “reasonable doubt” is “a composite expression meaning a doubt which would be entertained by a reasonable person in the circumstances” (citing Latham CJ in Burrows v R (1937) 58 CLR 249 at 256.)
Counsel for the father and the Independent Children’s Lawyer’s submissions were both firmly focussed on the past conduct of the mother. Counsel for the father suggested that the mother’s breaches were “flagrant”, and noted that the mother had contravened the orders of this Court the day after receiving a suspended sentence from FM Lindsay (as he then was). Counsel for the Independent Children’s Lawyer noted the “seriousness” of the mother’s conduct, as well as the fact that there were multiple counts of contravention.
The mother’s behaviour in the past does not satisfy me beyond reasonable doubt that only a sentence of imprisonment is appropriate in this case.
In the present circumstances, the mother has had the benefit of a period of nearly eight months in which to resume complying with the Court orders. She wisely seized this opportunity after a period of approximately six months upon resuming compliance in February 2013. At the time of the hearing in which the latest submissions were heard, the mother had amassed a “track record” of approximately three months of compliance with the Court orders.
In light of this extended period of compliance by the mother, I am not satisfied beyond reasonable doubt that a term of imprisonment is appropriate.
Consideration of section 70NFB(2)(b) of the Act – orders for a bond
Section 70NFB(2)(b) of the Act empowers me to require the mother to enter into a bond in accordance with s 70NFE of the Act. The following sections expand upon the power afforded to me by s 70NFB(2)(b) of the Act:
SECTION 70NFE
Bonds
(1)This section provides for bonds that a court may require a person to enter into under paragraph 70NFB(2)(b).
(2)A bond is to be for a specified period of up to 2 years.
(3)A bond may be:
(a)with or without surety; and
(b)with or without security.
(4)The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a)to attend an appointment (or a series of appointments) with a family consultant; or
(b)to attend family counselling; or
(c)to attend family dispute resolution; or
(d)to be of good behaviour.
Note: Before imposing a condition under this subsection, the court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).
(5)If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a)the purpose and effect of the proposed requirement; and
(b)the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond--fails to act in accordance with the bond.
SECT 70NFF
Procedure for enforcing community service orders or bonds
(1)If a court makes a community service order under paragraph 70NFB(2)(a) in respect of a person, or an order under paragraph 70NFB(2)(b) requiring a person to enter into a bond in accordance with section 70NFE, the following provisions have effect.
(2)If the court (whether or not constituted by the judge or magistrate who made the community service order or required the bond to be entered into in accordance with section 70NFE) is satisfied that the person has, without reasonable excuse, failed to comply with the order or bond, the court may take action under subsection (3).
(3)The court may:
(a)without prejudice to the continuance of the community service order or the bond entered into in accordance with section 70NFE, impose a fine not exceeding 10 penalty units on the person; or
(b)revoke the community service order or the bond entered into in accordance with section 70NFE and, subject to subsection (4), deal with the person, for the contravention in respect of which the community service order was made or the bond was entered into, in any manner in which the person could have been dealt with for the contravention if:
(i) the community service order had not been made or the bond had not been entered into; and
(ii) the person was before the court under section 70NFB in respect of the contravention.
(4)In dealing with the person as mentioned in paragraph (3)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account:
(a)the fact that the community service order was made or the bond was entered into; and
(b)anything done under the community service order or pursuant to the bond; and
(c)any fine imposed, and any other order made, for or in respect of the contravention.
It is appropriate for me to make an order requiring the mother to enter into a bond. I have reached this conclusion by considering each of the contraventions individually as opposed to globally, in accordance with the approach of Finn J in McClintock & Levier (Supra) at 192.
I note that, whilst each contravention it to be considered individually in determining what orders are appropriate, it is acceptable for an order in response to multiple contraventions to be “encapsulated” within one overarching order as opposed to an order for each contravention (see Cronin J in McClintock & Levier (Supra) at 220).
I am satisfied that the potential of facing a fine or various other serious consequences should she breach such a bond by refusing to comply with the existing parenting orders (see s 70NFE(3)(b) of the Act) will ensure that the mother complies with all orders of this Court in the future. I reiterate that ensuring compliance with the orders of this Court is the purpose of applications for contravention orders (s 70NAA(1) of the Act.
I will therefore make an order under s 70NFB(2)(d) of the Act requiring the mother to enter into a bond in accordance with s 70NFE of the Act. The bond is to be for a period of 2 years (s 70NFE(2) of the Act). The bond is to be imposed without surety (s 70NFE(3)(a) of the Act). The bond is to be entered into with $1000.00 as security (s 70NFE(3)(b) of the Act). The condition that will be imposed on the mother by the bond is that she is to be of good behaviour during the period of the bond (s 70NFE(4)(d) of the Act). The mother will be required to comply with all current and future parenting orders.
Section 70NFE(5) of the Act requires me to explain to the mother, “in language likely to be readily understood” by her, the “purpose and effect of the proposed requirement” of the bond and the “consequences that may follow” if the mother either “fails to enter into the bond” or “having entered into the bond - fails to act in accordance with the bond.” This explanation must occur before I make the requirement that the mother enter into the bond.
Consideration of section 70NFB(2)(c) of the Act – orders for compensatory time
Counsel for the parties and the Independent Children’s Lawyer agreed that a period of compensatory time, or “makeup time”, between the father and the child was appropriate. Opinions differed as to the amount of makeup time that was appropriate.
Counsel for the Independent Children’s Lawyer was not opposed to a “block” period of makeup time that was shaped around the child’s schooling. She suggested that the child should spend the entirety of the Tasmanian end of Term 2 school holidays period with the father (6 July 2013 to 21 July 2013).
The Independent Children’s Lawyer further contended that any makeup time ordered should be calibrated such that the father was compensated not just for the admitted contraventions that formed the subject of the two applications for contravention orders, but also for the time after the applications were filed during which the father did not see the child.
Counsel for the father concurred with the suggestions of the Independent Children’s Lawyer concerning the amount of makeup time that was appropriate. Counsel for the father suggested a “further five fortnights” of makeup time should be ordered to compensate for time the father and the child did not spend together as a result of the mothers’ contraventions that allegedly occurred after the applications were filed.
Counsel for the mother suggested I should order one week of makeup time during the Tasmanian end of Term 2 school holidays period.
The power to order makeup time is contained within s 70NFB(2)(c) of the Act.
SECTION 70NFB
Powers of Court
(2)The orders that are available to be made by the Court are:
…
(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 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”
I refer to and rely upon the comments of Murphy J concerning s 70NEB(1)(b) of the Act, a section that is functionally identical to s 70NFB(2)(c) of the Act, in the decision of McLory & McLory [2010] FamCA 305 (23 March 2010):
[54]It is interesting, as it seems to me, that a power given to a Court in order to remedy a party who is found to be the "victim" of a breach of an order might sound in time to a child. That seems to me, at least superficially, to be potentially antithetical to precisely the sorts of considerations which the legislation requires to be taken into account in making all parenting orders that affect children.
[55]Whether or not that is so, it seems to me that any order for compensatory time should necessarily take account of the child’s best interests, even if such a decision must be made within the truncated confines of an application of this type.
[56]It also seems to me crucially important that a decision with respect to "compensatory time" consequent upon a finding of contravention should not take the place of, nor be seen to be in substitution for comprehensive findings about best interests that will occur at a trial at which the "time and live with" arrangements for a very young child will be determined.
Section 60CC of the Act provides a framework by which to determine what the “best interests” of the child are. Subsections 60CC(2) and (3) of the Act respectively provide a list of “primary considerations” and “additional considerations” to that end.
The parties and the Independent Children’s Lawyer agreed that a period of makeup time should occur in the July school holidays. Counsel for the father and the Independent Children’s Lawyer submitted that it should be two weeks. Counsel for the mother submitted it should be one week.
I find that it would be in the best interests of the child for the child to spend the majority of the July school holiday period (from 9.00 am Saturday 6 July 2013 until 5.00 pm Wednesday 17 July 2013) with the father.
The father has been spending time with the child on alternate weekends without incident for approximately the last three months.
The additional time with the father would further the desirable goal of ensuring the child forges a “meaningful relationship with both of the child’s parents” (s 60CC(2)(a) of the Act) in that it would work to undo any damage done in 2012 during which the child and the father did not spend time together.
No submissions were put to me that this makeup time would be against the wishes of the child (s 60CC(3)(a) of the Act), or that it would expose the child to “abuse, neglect or family violence” (s 60CC(2)(b) of the Act). (It would have been difficult for counsel for the mother to advance such an argument, given the mother’s agreement that some amount of makeup time should occur during this period).
This would also serve as a reminder to the mother of the consequences of contravening orders of this Court without reasonable excuse. That reinforcement is also in the best interests of the child.
There is a pragmatic reason that the makeup time will finish on the Wednesday of the second week of the school holidays period as opposed to extend for the duration of the holidays. The child’s birthday is … . He will turn five. It would not be in the best interests of the child to spend his birthday away from his mother. The father will have an opportunity to celebrate his son’s birthday on the day before he is to return to the mother.
The time the father and the child did not spend together was equivalent to 32 hours per count of contravention (eg from 9.00 am Saturday to 5.00 pm Sunday). This totals to 288 hours for the nine counts across the two applications for contravention orders. This is equal to 12 days. The orders I will make for compensatory time are equivalent to 272 hours, or 11 days and 8 hours. As such, a rough parity has been achieved.
Therefore I make an order pursuant to s 70NFB(2)(c) of the Act that the child is to spend compensatory time with the father from 9.00 am Saturday 6 July 2013 until 5.00 pm Wednesday 17 July 2013. Handovers are to be conducted in accordance with existing orders.
The issue remains of whether the father should be compensated for time he did not spend with the child as a result of alleged contraventions by the mother that were not included in the two applications for contravention orders that are before me.
Section 70NFB(2)(c) of the Act is not phrased broadly enough to allow makeup time to be ordered for time between a party and a child that did not occur as a result of a contravention that has not been formally dealt with in an application for contravention orders.
References throughout s 70NFB(2)(c) of the Act to the “current contravention” suggest that compensatory time is limited to those that form part of the application for contravention orders that is before the judicial officer.
I decline to order any further makeup time.
Consideration of section 70NFB(2)(f) of the Act – orders for monetary compensation
Counsel for the mother suggested in his submissions that it may be appropriate for me to make an order pursuant to this subsection requiring the mother to reimburse the father for any costs he incurred as a result of her contraventions.
Order 7 of the orders of FM Lindsay (as he then was) dated 28 March 2011 states:
The mother book all airfares associated with the child’s travel to Adelaide to facilitate time in accordance with orders 4(a) and (b) of this order with the father to forthwith reimburse the mother for half of such cost upon presentation of an account to him.
Neither counsel for the father nor counsel for the Independent Children’s Lawyer made any submissions with respect to the potential for any order of this sought. None of the submissions of counsel for the father suggested that any such expenses had been incurred.
I decline to make any order under this s 70NFB(2)(f) of the Act.
Consideration of sections 70NFB(2)(g) and 117 of the Act – orders for costs
Both counsel for the father and the Independent Children’s Lawyer sought an order for the costs of these contravention proceedings.
Given that Subdivision F applies, I must make an order under s 70NFB(2)(g) of the Act unless I am “satisfied that it would not be in the best interests of the child concerned to make that order” (s 70NFB(1)(a)).
Subsection 70NFG(2)(g) of the Act enables me to order the mother to “pay all of the costs of another party, or other parties, to the proceedings under this Division.”
Counsel for the mother did not make any submissions to the effect that it would not be in the child’s best interests to make an order for costs against the mother. Indeed, he suggested such an order as an alternative to a period of imprisonment.
I am satisfied that such an order would be in the best interests of the child to the extent that it would ensure future compliance with the orders of this Court. Future compliance with the orders of this Court will ensure that the child and the father repair their relationship after the extended period during which they did not see each other as a result of the mother’s contraventions.
No evidence was put to me such that a costs order of this nature would reduce the capacity of the mother to provide for the needs of the child. A costs order would obviously reduce the amount of money the mother would have available for herself and the child.
However, I am not satisfied that an order for costs would not be in the best interests of the child.
The remaining issue is how the father’s costs should be quantified. An affidavit of the father’s solicitor was tendered on the day of the hearing. It annexes tax invoices concerning legal fees and disbursements paid on the father’s behalf from monies held on the father’s behalf in the deponent’s trust account since 21 August 2012.
Counsel for the father was unable to confirm whether the appended invoices solely concerned fees relating to the father’s applications for contravention orders, as opposed to the general dispute between the parties.
Counsel for the mother disputed my receipt of this affidavit as he had not had the opportunity to peruse the document and take instructions from his client on it prior to the hearing.
Counsel for the mother also noted that I had the discretion to order that the mother only pay “some” of the father’s costs.
Therefore the order I will make is that the mother pay the costs of the father in an amount as agreed between the parties and in default of such agreement, the sum to be paid by the mother is to be determined by a Registrar of this Court being the costs of the Contravention proceedings according to the scale.
The next issue is that of the Independent Children’s Lawyers costs.
The Independent Children’s Lawyer is not a party to contravention proceedings and as such, any application for costs by the Independent Children’s Lawyer is therefore to be determined pursuant to s 117 of the Act as opposed to s 70NFG(2)(g) of the Act (Dawe J in Short & Trevilian (Contempt and Contraventions) [2008] FamCA 866 (8 October 2008) at [94], see also the judgment of Faulks DCJ, Kay and Penny JJ in Elspeth & Peter; Mark & Peter; and John & Peter (Supra) at [109] but cf order 16 of Monteith J in Walters & Walters [2008] FamCA 720 (25 August 2008).
Any order for costs affecting the Independent Children’s Lawyer would necessarily have to be made under the more general powers contained in s 117 of the Act.
Subsection 117(1) states that each party to proceedings under the Act are to bear their own costs. Subsection 117(2) of the Act allows me to make such order as to costs as I consider just where I am of the opinion that the circumstances justify an order of that nature.
Subsection 117(3) of the Act allows me to make an order under s 117(2) of the Act to the effect that either or both of the parties to proceedings bears the costs of the Independent Children’s Lawyer. Subsection 117(2A) provides a list of considerations that I must have regard to in considering whether to make an order under s 117(2).
The financial circumstances of each of the parties (s 117(2A)(a)): Counsel for the mother alluded to the fact that these proceedings have been financially devastating for the mother. However, no evidence was advanced to that effect. Nor was any argument advanced suggesting that no costs orders should be made against the mother as a result of any financial consequences these proceedings may have imposed on her. I am satisfied that the mother has the capacity to pay the costs of the Independent Children’s Lawyer.
Whether any party is in receipt of legal aid (s 117(2A)(b)): No evidence was put before me that either party was in receipt of legal aid. Counsel for the mother suggested that a caveat had been placed over a property of the mother. as a result of outstanding legal fees owed by the mother. This suggests the mother was not receiving legal aid.
The conduct of the parties to the proceedings (s 117(2A)(c)): The hearing concerning these applications for contravention orders was initially listed on 20 February 2013. At the time the proceedings were listed to commence, the mother sought an adjournment via telephone from Tasmania. She claimed that she had not had enough time to adequately instruct her legal representatives.
This incurred costs for both the father and the Independent Children’s Lawyer.
Whether the proceedings were necessitated by the failure of a party to comply with previous Court orders (s 117(2A)(d)): The applications for contravention orders were obviously necessitated by the repeated failure of the mother to comply with previous Court orders.
Whether any party to the proceedings has been wholly unsuccessful (s 117(2A)(e)): The mother has been wholly unsuccessful in defending these proceedings. She failed to establish a reasonable excuse for any of the nine counts of contravention that she admitted. This is a significant factor.
Whether either party to the proceedings has made an offer in writing to settle the proceedings, and if so, the terms of that offer (s 117(2A)(f)): No submissions concerning any offers to settle were advanced at the hearing.
Such other matters as I consider relevant (s 117(2A)(g)): Given the serious nature of the applications for contravention orders, I consider that it was appropriate for the Independent Children’s Lawyer to attend and make submissions at both the hearing of the applications for contraventions and to perform the same at the hearing concerning the orders that should be made arising out of the 1 May 2013 judgment.
No evidence was put to me by counsel for the mother that such an order would cause the mother to suffer “financial hardship” which would prevent me from exercising the power to make orders for the costs of the Independent Children’s Lawyer pursuant to s 117(2).
The sum of $2,530.00 being sought by counsel for the Independent Children’s Lawyer was not contested. I will therefore make an order that the mother pay the costs of the Independent Children’s Lawyer in that amount within 60 days of the date of this judgment.
Consideration of sections 70NBA and 70NFB(7) of the Act – orders varying the existing parenting orders
Counsel for the father and the Independent Children’s Lawyer also submitted that I make various other changes to the existing orders. I am able to do this pursuant to s 70NBA of the Act.
Variations of parenting orders made pursuant to s 70NBA of the Act are approached differently to orders for compensatory time made under Subdivision E or Subdivision F (see generally the distinctions drawn by Murphy J in the decision of McLory & McLory (Supra)). The former are to be approached “no differently to any other application for parenting orders” (Warnick J in Sandler & Kerrington [2007] FamCA 479 (24 May 2007) at [48]). Such variations may not be “properly effected in a more summary way than, or upon an enquiry abbreviated more than, is appropriate to an application for variation outside of Division 13A” (Ibid at [41]). This approach was later acknowledged and adopted by the Full Court of the Family Court of Australia (composed of Finn, Warnick and Boland JJ) in Irvin & Carr [2007] FamCA 492 (29 May 2007) at [68].
The considerations outlined in the Full Court of the Family Court of Australia decision of Rice & Asplund (1979) FLC 90-275 will be relevant to this exercise where existing orders are in place (see, eg, the approach of Warnick J in Sandler & Kerrington (Supra) at [49]–[54]). In Rice & Asplund (supra), Evatt CJ (Pawley SJ and Fogarty J concurring) stated at 78,905–78,906:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as Mr. Broun submitted, change is an ever present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant, that, to quote Mr. Justice Barber, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman, at page 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
Once the Court is satisfied that there is a new factor or change in circumstances, then the issue of custody is to be determined in the ordinary way. The Court must apply the principles of s.64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the Court, the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the Court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier Court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard. (Emphasis added)
Consideration must be given to the “sufficiency of any change in circumstance” that justifies the alteration of existing parenting orders (Warnick J in Sandler & Kerrington (Supra) at [49]). In that case, Warnick J acknowledged that the act of contravening the orders themselves may provide the sufficient change in circumstance necessary to justify altering existing parenting orders.
Varying the parenting orders pursuant to s 70NBA of the Act to incorporate definitive changes to the existing parenting orders, as opposed to one-off compensatory changes pursuant to s 70NEB(1)(b) or s 70NFB(1)(c) of the Act, requires a “fulsome consideration of all of the relevant factors” including “all the relevant s 60CC factors and in particular the question of why, an order having been made, it was then appropriate that there be a “final change” (Finn, Boland and Warnick JJ sitting as the Full Court of the Family Court of Australia in Dobbs & Brayson [2007] FamCA 1261 (25 October 2007) at [130]).
Variations that are “of a minor nature not much more than tinkering” may call for a less meticulous consideration of the s 60CC factors (Coleman J in Spencer & Verity [2012] FamCAFC 210 (14 December 2012) at [85]). Conversely, “there may be cases where a much more comprehensive or even exhaustive consideration of “best interests” would be necessary or appropriate” (Coleman J in Spencer (Supra) at [95]).
With these considerations in mind, I turn to the variations sought by the father and the Independent Children’s Lawyer. As a brief overview, the following orders were sought:
a)That the time the father and the child spend together is extended pending trial from 9.00 am Saturday to 5.00 pm Sunday on alternate weekends to Friday afternoon to 5.00 pm Sunday on alternate weekends.
b)That the mother return to Adelaide pending trial.
c)That the time the father spends with the child is no longer required to be supervised.
d)That the father is no longer prevented from taking the child to any sporting club during the time the child spends with him.
The issue of the increasing the time the father and the child spend together
Paragraph 4(b) of the orders made by FM Lindsay (as he then was) on 28 March 2011 states:
4.Pending trial the mother do all such things as may be reasonably required to facilitate the child spending the following time with the father, namely:
(b)from 9 am Saturday to 5 pm Sunday on alternate weekends commencing 11 June 2011.
Counsel for the father contended that the time the father and the child should spend together should be extended such that it commences on Friday afternoons as opposed to Saturday mornings.
Counsel for the father propagated his submissions with reference to the Family Report of Ms L dated 1 September 2011. In this report, Ms L’s recommendations concerning the time the father and the child should spend together if the mother is not allowed to relocate to Tasmania are as follows:
In the absence of concerns about [the child’s] development, visits are gradually extended to 2 consecutive overnights on alternate weekends, and then extended weekends, (Friday to Monday morning) in addition to a midweek visit on the intervening week to share a meal.
Counsel for the Independent Children’s Lawyer agreed that the father’s time with the child should be extended in this manner. She contended that this would allow the child to better establish a routine with the father and the father’s family.
I agree with the counsel for the father’s submission that it is now appropriate to commence extending the child’s time with the father. It is likely the process of extending the father’s time with the child would have commenced much sooner but for the mother’s extended period of non-compliance with the orders of this Court.
Further, I agree that such an order would be in the best interests of the child. Increasing the father’s time with the child will foster a stronger bond between parent and child (s 60CC(2)(a) of the Act).
There is no evidence before the Court to suggest that the increase in time would put the child at risk of any physical or psychological harm, or subject or expose him to abuse, neglect or family violence (s 60CC(2)(b) of the Act). Indeed, there were no suggestions that the past three months of time during which the father and the child have recommenced spending time together has been anything but a positive experience for the child.
Nothing before me suggested that the increase in time would be against the wishes of the child (s 60CC (3) (a) of the Act).
An increase in time would not increase the “practical difficulty and expense” to either party of the father spending time with the child in any meaningful sense (s 60CC (3) (e) of the Act.
The increasing age of the child, and subsequent developments in his maturity, make it appropriate that the time he spends with his father increases (s 60CC (3) (g) of the Act.)
I conclude that it is in the best interests of the child to extend the time the child is to spend with the father (pursuant to Paragraph 4(b) of the orders made by FM Lindsay (as he then was) on 28 March 2011) to provide that the father’s time commences at 6.00 pm on Friday on the alternate weekends.
It is possible the child will have to miss a notional amount of school to enable handovers to occur at the specified time on Friday evening. Given the youth of the child, I do not believe this factor outweighs the broader best interests of the child in spending the increased period of time with his father pending trial.
The mother should be able to make suitable travel arrangements.
The issue of the mother returning to Adelaide pending final trial
Order 6 of the orders of FM Lindsay (as he then was) on 4 November 2010 states:
The application made by the father for the mother to return the child to a principal place of residence in Adelaide pending trial is refused.
Both the Independent Children’s Lawyer and the father sought an order that the mother return to Adelaide to live with the child pending final resolution of the parenting issues concerning the child.
Counsel for the Independent Children’s Lawyer argued that certain circumstances had changed that would make such a relocation order appropriate. First, the mother’s employment status has changed from full time to casual. Second, the mother has a residence in Adelaide that she is unable to dispose of due to the order 4 of the orders of FM Lindsay (as he then was) dated 4 November 2010.
Counsel for the father argued that the return order was necessary as it was the only way to ensure the mother complied with the order. He further contended that the father would be unable to rely on any recovery orders if the mother continued to reside in Tasmania. He suggested the effect on the child would be minimal as he has only just started schooling.
Counsel for the mother argued that making a relocation order in the absence of an updated Family Report would be akin to putting the proverbial “cart before the horse.” He further suggested that such an order would involve a significant disruption to the child, and further to the mother and to her family.
The best interests of the child are the paramount consideration. A move back to Adelaide, pending trial, risks significant disruptions for the child.
There is not significant material before me to enable me to engage in the thorough examination of the “best interests” consideration that is appropriate before making such an order.
In the words of Coleman J in Spencer & Verity (Supra) at [95] an order of this sought is one in which a “much more comprehensive or even exhaustive consideration of “best interests” would be necessary or appropriate.”
The more appropriate course of action is for the matter to be listed before a judge of this Court for urgent final hearing. At that hearing, the parties will be given a full opportunity to present all relevant evidence.
The issue of the father’s time with the child being supervised
Order 5 of the orders of FM Lindsay (as he then was) on 28 March 2011 states:
All time-spent, including the overnight component, is to be supervised by either the paternal grandmother or a paternal aunt.
This order was varied by Order 2 of the orders of FM Lindsay (as he then was) on 1 November 2011 as follows:
[Mr G] be approved as a person to supervise the child’s time with the father.
Counsel for the father suggested this order should be removed in its entirety. Counsel for the Independent Children’s Lawyer agreed with this contention, and in the alternative, suggested that the father’s wife should be able to supervise the time the father and child spend together. Counsel for the mother did not speak against the appropriateness of such variations.
Counsel referred to the Family Report prepared by Ms L and dated 1 September 2011, which recommends at page 23 that “supervision is advised until [the father] has completed a parenting course for children 0-5 years, the Kids are First program and for counselling to address anger management.” Counsel for the father asserted that these prerequisites had been fulfilled and the supervision requirement has “simply outlasted its use by date.” Counsel for the father also submitted that the aspect of supervision in itself sends a message to the child that the child is not safe unless there are other people around.
Counsel for the Independent Children’s Lawyer noted that the supervision order had been in place since 2011 and as such was no longer appropriate. Alternatively, the Independent Children’s Lawyer sought that the order be varied such that the father’s current wife could act as a supervisor.
Ms L, in her Family Report dated 1 September 2011, recommends that the father’s time with the child be supervised “until [the father] has demonstrated that the has completed the parenting courses advised above and for personal counselling as deemed appropriate.”
The father’s counsel suggested he had fulfilled these requirements. However, the submission did not go beyond a bare assertion. I am not in a position to “deem appropriate” any counselling or parenting courses the father has done. Further, the mother has not had an opportunity to test the same.
I will make an order varying Order 5 of the orders of FM Lindsay (as he then was) on 28 March 2011 in the following manner (the inclusion of Mr G simply reflects the variation of the order imposed by FM Lindsay (as he then was) on 1 November 2011):
All time-spent, including the overnight component, is to be supervised by either the paternal grandmother or a paternal aunt or the father’s wife [Ms S] or [Mr G].
I consider this a variation that is “of a minor nature not much more than tinkering” (Coleman J in Spencer & Verity (Supra) at [85]). The variation calls for a less than exhaustive consideration of the s 60CC factors.
The issue of the father taking the child to sporting events
Order 8 of the orders of FM Lindsay (as he then was) on 28 March 2011 states:
The father be restrained and an injunction be granted restraining him from taking the child to any sporting club during any periods of time the child spends with him.
Counsel for the father suggested this order should be removed in its entirety, as it prevents the father from taking his child to a swimming pool or a football game. Counsel for the Independent Children’s Lawyer suggested the order should stay, arguing that the father could do other activities with the child. Counsel for the mother did not speak on the issue.
I am reluctant to discharge this order without hearing fuller submissions from the parties. I am not in a position to accurately consider whether such a discharge would be in the best interests of the child.
Consideration of other orders available pursuant to s 70NFB of the Act
There are various other orders available to me in s 70NFB of the Act, such as a community service order (s 70NFB(2)(a)) or a fine (s 70NFB(2)(d)). No submissions were advanced in regards to these other sections.
I do not consider it necessary to make any other orders under s 70NFB of the Act to achieve the purpose of these applications for contravention orders. I reiterate that the purpose of applications for contravention orders is to enforce compliance with parenting orders (s 70NAA).
Consideration of the suspended sentence imposed by Judge Lindsay on 21 September 2012
Counsel for the father suggested I should refer the matter of the suspended sentence imposed upon the mother by FM Lindsay (as he then was) on 21 September 2012 back to him allow him to decide what consequences, if any, follow from the mother’s breach of the condition attached to the suspension of the sentence of imprisonment.
The complicating factor is that FM Lindsay (as he then was) on 8 March 2012 made the following order:
1.Federal Magistrate Lindsay be disqualified from further hearing of either the substantive application of the parties and of any interim or interlocutory applications.
It appears that Judge Lindsay has disqualified himself from presiding over any final or interim hearings in this matter. He did not refrain from determining the application for contravention orders that ultimately led to him imposing the suspended sentence upon the mother.
I do not propose to revoke the suspension of the imprisonment ordered by another judicial officer from another Court.
Consideration of the father’s amended Application in a Case filed 26 September 2012
In the midst of the submissions concerning the orders to be made arising out of the 1 May 2013 judgment, the issue of the Applications in a Case and subsequent Response in this matter was raised by counsel for the father.
I noted that this matter was listed to be heard on the 5 June 2013, approximately a week after the hearing at hand. As the issue of a relocation order was being sought in the father’s amended Application in a Case filed 26 September 2012 as well as being sought as a variation to the existing parenting orders arising out of the applications for contravention orders, it was agreed that this hearing date would be vacated.
I made an order that the listing date of 5 June 2013 be vacated, and brought the listing forward to the date of the hearing. It subsequently became clear throughout the hearing that this was not an appropriate occasion to consider all of the issues raised by the amended Application in a Case and the mother’s Response.
The mother’s Response seeks a total of seventeen orders. Perhaps due to the compressed time frame of the hearing concerning the contravention applications, her counsel did not address any of these orders.
The orders sought by the mother seek, inter alia, extensive changes to the current regime of time that the father and child spend together.
The appropriate course of action is to adjourn consideration of the father’s amended Application in a Case and the mother’s Response to be considered at a final hearing to be given a priority listing.
Conclusion
The orders I make as a consequence of the findings in the 1 May 2013 judgment are in the following paragraphs.
After I have explained to the mother the matters referred to in s 70NFE(5) of the Act, the mother is required to enter into a bond. The bond is to be for a period of two years. The bond is to be imposed without surety. The bond to be entered into with $1000.00 as security. The condition that will be imposed on the mother by the bond is that she is to be of good behaviour during the period of the bond. This will require compliance with all current and future parenting orders.
The child is to spend compensatory time with the father pursuant to s 70NFB(2)(c) of the Act from 9.00 am Saturday 6 July 2013 until 5.00 pm Wednesday 17 July 2013. Handovers are to be conduced in accordance with existing orders.
The mother is to pay the costs of the father pursuant to s 70NFG(2)(g) as agreed between the parties, and in default of such agreement, the sum to be paid by the mother is to be determined by a Registrar of this Court, being the costs of the contravention proceedings according to the scale.
The mother is to pay the costs of the Independent Children’s Lawyer pursuant to s 117 of the Act in the amount of $2,530.00 within 60 days of the date of this judgment.
Paragraph 5 of the orders made by FM Lindsay (as he then was) on 28 March 2011 is varied pursuant to s 70NBA of the Act such that the time for commencement of alternate weekends is 6.00 pm Friday.
Paragraph 5 of the orders made by FM Lindsay (as he then was) on 28 March 2011 is varied pursuant to s 70NBA of the Act such that the order now reads:
5.All time-spent, including the overnight component, is to be supervised by either the paternal grandmother or a paternal aunt or the father’s wife [Ms S] or [Mr G].
Consideration of the father’s amended Application in a Case filed 26 September 2012 and the mother’s Response filed 13 March 2013 are adjourned to the final hearing to a date to be fixed by the Registrar as a matter of priority.
I intend to make an order that I am disqualified from any further involvement in the proceedings.
I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on ?? June 2013.
Associate:
Date: 19 June 2013
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