Virtanen & Ferreyra (No 2)
[2024] FedCFamC1F 104
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Virtanen & Ferreyra (No 2) [2024] FedCFamC1F 104
File number: BRC 1134 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – CONTRAVENTION – Where it was proved that the mother contravened the final parenting consent orders on 10 counts – Issue of penalty – Orders made by consent for the mother to attend a post-separation parenting program and for the children to spend compensatory time with the father – Whether the mother should enter into a bond – Where the father submits it is appropriate for the Court to deal with the matter pursuant to Subdivision E, of Division 13A of Pt VII of the Family Law Act 1975 (Cth) which are considered “less serious contravention” – Where it is not appropriate for the mother to be placed on a “good behaviour” bond – Mother to enter into a bond of one year on the condition that she comply with all parenting orders – Where the mother has the financial burden to pay for the costs of the children – Mother to forfeit $500 if she is in breach of the bond.
FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court is empowered to vary the current parenting orders pursuant to s 70NBA of the Family Law Act 1975 (Cth) – Matter set down for final hearing – Trial directions.
FAMILY LAW – COSTS – Where the father seeks costs in a fixed sum following the completion of the contravention hearing – Mother has modest means – Mother ordered to pay costs of father in fixed sum of $1,000.
Legislation: Family Law Act1975 (Cth) Pt VII, Div 13A, ss 70NBA, 70NEA, 70NEB, 70NEC, 70NECA, 70NED, 70NEF, 70NEG, 117 Cases cited: Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Dowse v Gorringe [2004] QDC 477
Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341; [2007] FamCA 1072
Glassop & Glassop [2015] FCCA 3437
Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87
Legal Aid ACT & Westwell (2021) 62 Fam LR 546; [2021] FamCAFC 50
McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62
Randal & Karpati and Anor (No 2) [2019] FamCA 335
Virtanen & Ferreyra [2023] FedCFamC1F 1078
Division: Division 1 First Instance Number of paragraphs: 56 Date of last submissions: 13 February 2024 Date of hearing: Determined on the papers Place: Sydney Counsel for the Applicant: Ms Davison Solicitor for the Applicant: BGM Family Lawyers Solicitor for the Respondent: HCM Legal ORDERS
BRC 1134 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FERREYRA
Applicant
AND: MS VIRTANEN
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
1 MARCH 2024
BY CONSENT, THE COURT ORDERS THAT:
Post-separation parenting program
1.Pursuant to s 70NEB(1) of the Family Law Act 1975 (Cth) (“the Act”), the respondent mother:
1.1attend and complete, as soon as practicable, a Post Separation Parenting Orders Program;
1.2will attend at the organisation at such times as requested by the organisation;
1.3will, upon completion provide a copy of certificate of completion of the program to the solicitors for the applicant father within twenty-eight (28) days of completion; and
1.4 will pay for the cost of the program.
Compensatory time between the children and the applicant father
2.Pursuant to s 70NEB of the Act, X born 2017 and Y born 2019 (hereinafter referred to as “the children”) will spend compensatory time with the applicant father pursuant to subsection 70NEB(4) of the Act as follows:
2.1In the March/April 2024 school holidays, June/July 2024 school holidays, September 2024 school holidays, and March/April 2025 school holidays:
2.1.1From after school on the final day of the relevant school terms, until 5.00 pm on the last Thursday of the applicable gazetted school holiday period, with changeover to occur pursuant to the final order made on 9 August 2022.
2.2For the purpose of the children’s compensatory time with the applicant father, the time provided for in the final order made on 9 August 2022 will be suspended, and time will recommence at the conclusion of the children’s compensatory time with the applicant father as though there had been no suspension (such that the usual sequence of care is not disrupted).
3.During the applicant father’s compensatory time, the applicant father will continue to ensure the children’s attendance at regular treatment with medical, allied health or mental health professionals, specifically X’s engagement with therapists for his Autism Spectrum Disorder (ASD).
4.For the purpose of paragraph 3 above, the respondent mother will confirm the names of the children’s treating medical practitioners and any other relevant details within seven (7) days from the date of this Order.
THE COURT FURTHER ORDERS THAT:
5.Pursuant to s 70NEB of the Act, the respondent mother is required to enter into a bond pursuant to s 70NEC of the Act for a period of one (1) year on the following conditions:
5.1that she complies with all parenting orders made and to be made under the Act;
5.2that in the event that the respondent mother breaches the condition of that bond, she will then forfeit to the Commonwealth of Australia the sum of $500.
6.The respondent mother will attend the Brisbane Registry on a date to be fixed to sign the bond in the presence of a Judicial Registrar or other judicial officer of this Court.
7.Pursuant to s 70NEB(f) of the Act, the mother pay part of the father’s costs in the sum of $1,000 within 12 months of the date of these orders.
Trial directions
8.The matter is listed for hearing before the Honourable Deputy Chief Justice McClelland at 10.00 am, 17 June 2024 with an estimated hearing time of two (2) days.
9.No later than 4.00 pm on 6 May 2024, the applicant and the respondent file and serve:
9.1a single consolidated trial affidavit;
9.2other witness affidavits upon which they intend to rely.
10.Each party will be permitted to rely on one consolidated trial affidavit. Reliance on earlier or additional affidavits, will not be permitted.
11.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
12.The parties have liberty to issue up to five (5) subpoenas each.
13.Any subpoena for production issued in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) shall be made returnable no later than 21 days before the commencement of the trial.
14.Unless objection is taken in accordance with the Rules, or a party gives notice in relation to medical records in accordance with the Rules, all parties have liberty to inspect, copy, and receive electronic copies of all subpoena material and arrangements for this should be made at least 14 days prior to the final hearing.
15.Not later than 4.00 pm on 10 June 2024, each of the applicant and the respondent is to prepare and serve a bundle of copies of documents not annexed to their affidavits, arranged chronologically, paginated and indexed, proposed to be tendered at the hearing, subject to objections.
16.If either party proposes to have the relevant Court Child Expert available for cross‑examination purposes at the final hearing, then such party is to notify the relevant Court Child Expert of his or her need to attend Court no less than 14 days prior to the final hearing.
17.The parties have liberty to provide to the Court Child Expert copies of the parties’ trial affidavits and any material produced under subpoena or pursuant to orders made under section 69ZW of the Family Law Act, with such material to be agreed by the parties.
18.No later than 4.00 pm on 10 June 2024, all parties are to file and serve a case outline document, of no more than 10 pages in length, which shall include:
18.1a final Minute of Orders sought;
18.2a list of the material relied upon;
18.3a bullet point statement of the issues to be determined in the proceedings
18.4a brief chronology listing significant events that are material to the issues to be determined by the Court;
18.5A summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the children to make the orders sought.
19.Not later than 2 days prior to the commencement of the trial, the parties are to confer and prepare a trial plan allowing for the matter to complete within the allocated time, including oral submissions.
20.In the event that the trial directions contained in Orders 8–19 above are not suitable, the parties are granted liberty to apply on apply on forty-eight (48) hours’ written notice to my Chambers and to the other parties.
THE COURT NOTES THAT:
A.Further information relevant to Post-Separation Parenting Orders Programs in Queensland can be accessed at
B.Pursuant to s 102NA(1) of the Act, on 13 September 2023, the Court made an order that the requirements of subsection (2) are to apply to the cross-examination.
C.The parties have each been advised by the Court that:
a.pursuant to those requirements, neither party may cross-examine the other party personally;
b.pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
c.as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
d.a copy of these orders will be provided by the Court to Legal Aid Queensland, which administers the said scheme.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Virtanen & Ferreyra has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
By orders made on 14 December 2023, I found that the applicant father, Mr Ferreyra (“the father”) had proved 10 counts of contravention by the respondent mother, Ms Virtanen (“the mother”) in respect to orders made on 9 August 2022. Those counts related to the mother withholding the identity of the medical practitioner who provided their children’s medical treatment and, more significantly, the mother withholding the children from spending time with the father in accordance with the orders of the Court.
These reasons concern the question of penalty consequent upon those findings.
BACKGROUND
I summarised the relevant background relating to the Application – Contravention filed 12 May 2023 in my reasons for judgment delivered on 14 December 2023: Virtanen & Ferreyra [2023] FedCFamC1F 1078. By way of summary, that background is as follows.
The parties, both 30 years old, separated in January 2019. They have two sons, X, who is currently 6 years old and Y, who is currently 4 years old. The mother works in sales and previously worked for an online business, while the father works in the security industry.
The children live with their mother and maternal grandmother in Region B, while the father lives in Brisbane with his partner, Ms D.
The parties started living together in 2015 and separated in January 2019. The separation was initiated by the father.
Legal proceedings in this Court began in February 2022. Those proceedings were resolved with final parenting orders being made by consent on 9 August 2022, following the parties attending a court-based dispute resolution conference.
Relevantly, in terms of spend time arrangements, those orders provided that the children were to live with the mother and spend time with the father as follows:
5.2.1Commencing immediately:
5.2.1.1 From 12 August 2022, from after school (or 3.00pm if a non-school day) Friday until the commencement of school on Monday (or 3.00pm if a non-school day) and each alternate week thereafter;
5.2.1.2commencing on 10 August 2022, each Wednesday from after school (or 3.00pm if a non-school day) until 7.00pm, and each week thereafter;
5.2.2 From June 2023:
5.2.2.1commencing from the first weekend the children are to spend time with the Father in June 2023, from after school (or 3.00pm if a non‑school day) Friday until the commencement of school on Tuesday (or 3.00pm if a non-school day) and each alternate week thereafter;
5.2.2.2each Wednesday from after school (or 3.00pm if a non-school day) until 7.00pm, and each week thereafter;
The orders further provided for the children to spend time with both parties during the school holiday periods as follows:
6.1In all mid-year school holiday periods (being March / April, June / July, and September / October school holiday periods):
6.1.1 for the first half of all school holiday periods, with the Father;
6.1.2 for the second half of all school holiday periods, with the Mother;
6.2 In the Christmas school holiday period:
6.2.1commencing from the first Sunday following the last day of school Term 4, until 3.00pm on the second Sunday and each alternate week thereafter, with the Father;
6.2.2from 3.00pm on the second Sunday until 3.00pm on the third Sunday and each alternate week thereafter, with the Mother;
There was substantial compliance with the orders in the period between August 2022 and February 2023. However, in February 2023, the mother failed to provide information to the father concerning the children attending a medical appointment. The mother also withheld the children from the father on 15 February 2023. More significantly, as and from the 31 March 2023, the mother withheld the children from spending any time with the father for the duration of the period specified in the Application – Contravention filed 12 May 2023, which was up to and including 5 May 2023.
I heard the Application – Contravention filed 12 May 2023 for hearing on 10 October 2023 and received written submissions from the parties on 30 November 2023. I delivered judgment on 14 December 2023. In my judgment, I invited the parties to file their respective case outlines in respect to penalty and listed the matter for a further hearing on 19 February 2024. Upon receipt of the written submissions filed by the father on 12 February 2024 and the written submissions of the mother filed on 13 February 2024, I wrote to the parties to seek their consent with dealing with the issue of penalty on the papers. The parties confirmed their consent for this judgment to be dealt with on the papers with judgment being reserved on 19 February 2024. I now turn to consider the issue of penalty.
THE PARTIES’ APPLICATIONS IN RESPECT TO PENALTY
In his written submissions filed 12 February 2024, the father sought the following orders:
6.That pursuant to section 70NEB (1) of the Family Law Act 1975 (Cth) (“the Act”) the respondent mother will attend a post-separation parenting program and:
6.1the program will occur at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Circuit and Family Court of Australia;
6.2.the respondent mother will attend at the organisation at such times as requested by the organisation;
6.3.the respondent mother will, upon completion provide a copy of certificate of completion of the program to the solicitors for the applicant father within twenty-eight (28) days of completion; and
6.4.the respondent mother will pay for the cost of the program.
7.That pursuant to section 70NEB of the Act, the respondent mother is required to enter into a bond pursuant to section 70NEC of the Act for a period of 2 years on the following conditions:
7.1 That she be of good behaviour;
7.2.that she complies with all parenting orders made and to be made under the Act; and
7.3.that in the event that the respondent mother breaches the condition of that bond she will then forfeit to the Commonwealth of Australia the sum of $2,000.
8.That the respondent mother will attend the Brisbane Registry on a date to be fixed to sign the bond in the presence of a Judicial Registrar or other judicial officer of this Court.
9.That pursuant to section 70NEB of the Act, [X] born […] 2017 and [Y] born […] 2019 (hereinafter referred to as “the children”) will spend compensatory time with the applicant father pursuant to subsection 70NEB(4) of the Act as follows:
9.1all of the March / April 2024 school holiday period, from 9.00am on Friday 29 March 2024 (Good Friday) until the commencement of school (or 3.00pm if a non-school day) on Monday, 15 April 2023.
9.2That changeover occur at the children’s school / day care;
9.3For the purpose of the children’s compensatory time with the applicant father, the time provided for in the final order made on 9 August 2022 will be suspended, and time will recommence at the conclusion of the children’s compensatory time with the applicant father as though there had been n suspension (such that the usual sequence of care is not disrupted).
10.That the respondent mother pay the applicant’s father’s costs in relation to the court event on 23 August 2023 in the fixed in the sum of $4,000, within 12 months of the date of this Order.
(As per the original)
To her credit, the mother acknowledged that there would be consequences as a result of her failing to comply with the final parenting orders made in August 2022. In her written submissions filed 13 February 2024, the mother submitted that the appropriate orders to make in the context of this case were as follows:
1.That pursuant to section 70NEB (1) of the Act within 6 months of the date of the orders the Respondent Mother will attend a post-separation parenting program and:
(a)The program will occur at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Circuit and Family Court of Australia;
(b)The Respondent Mother will attend at the organisation at such times as requested by the organisation;
(c)The Respondent Mother will, upon completion provide a copy of certificate of completion of the program to the Respondent Mother within twenty-eight (28) days of completion; and
(d)The Respondent Mother will pay for the cost of the program.
2.That pursuant to subsection 70NEB (1) (b) and (4) of the Act, that the Court make a further order for there to be compensatory time between the children and the Applicant Father, to occur during gazetted school holiday periods, until such time as he has been compensated for loss of time with the children, as follows:
(a)In the short (mid-year) school holidays, the Mother proposes time should occur:
(i)From after school on the final day of school, until 5pm on the last Thursday of the applicable gazetted school holiday period.
(b)In the 2024 to 2025 Christmas New Year School Holiday’s the Father should have four of seven weeks of the School School holidays, allocated in such a way as to allow the Mother to have the children in the final week before commencement of school in 2025.
(c)During the Father’s compensation time, the Father will continue to ensure the children’s attendance at regular treatment with medical, allied health or mental health professionals, specifically:
(i) [X’s] engagement with therapists for his ASD.
3.There will be no costs awarded to the Applicant Father as this is not in the best interests of the children.
4.There will be no financial penalties imposed on the Respondent Mother as this is not in the best interests of the children.
5.That the proceedings be adjourned to allow parties to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order.
(As per the original)
ORDERS TO BE MADE BY CONSENT
Following confirmation that the issue would be determined on the papers, the parties communicated to chambers on 19 February 2024 that they have agreed to the following orders being made by consent and provided a Minute of Order as follows:
Post-separation parenting program
1.That pursuant to section 70NEB (1) of the Family Law Act 1975 (Cth) (“the Act”) the respondent mother will attend a post-separation parenting program and:
1.1the program will occur at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Circuit and Family Court of Australia;
1.2.the respondent mother will attend at the organisation at such times as requested by the organisation;
1.3.the respondent mother will, upon completion provide a copy of certificate of completion of the program to the solicitors for the applicant father within twenty-eight (28) days of completion; and
1.4. the respondent mother will pay for the cost of the program.
Compensatory time between the children and the Applicant Father
2.That pursuant to section 70NEB of the Act, [X] born […] 2017 and [Y] born […] 2019 (hereinafter referred to as “the children”) will spend compensatory time with the applicant father pursuant to subsection 70NEB(4) of the Act as follows:
2.1In the March / April 2024 school holidays, June / July 2024 school holidays, September 2024 school holidays, and March / April 2025 school holidays:
2.1.1From after school on the final day of the relevant school terms, until 5pm on the last Thursday of the applicable gazetted school holiday period, with changeover to occur pursuant to the final order made on 9 August 2022.
2.3For the purpose of the children’s compensatory time with the applicant father, the time provided for in the final order made on 9 August 2022 will be suspended, and time will recommence at the conclusion of the children’s compensatory time with the applicant father as though there had been no suspension (such that the usual sequence of care is not disrupted).
3.During the Applicant Father’s compensatory time, the Applicant Father will continue to ensure the children’s attendance at regular treatment with medical, allied health or mental health professionals, specifically [X’s] engagement with therapists for his Autism Spectrum Disorder (ASD).
4.For the purpose of paragraph 3 above, the Respondent Mother will confirm the names of the children’s treating medical practitioners and any other relevant details within seven (7) days from the date of this Order.
Accordingly, I will make orders in terms agreed by the parties in respect to those issues that have been resolved. However, I will amend the structure of Order 1, including proposed Order 1.1 to reflect the practicality that the Court does not employ a “Dispute Resolution Coordinator of the Federal Circuit and Family Court of Australia” to assist litigants to enrol in a post-separation parenting course. Therefore, I will amend to order the mother to “attend and complete, as soon as practicable, a Post Separation Parenting Orders Program” and will include a notation of the appropriate services provided in Queensland.
ISSUES TO BE RESOLVED
This leaves the following issues to be resolved:
(1)Should the mother be required to enter into a bond pursuant to ss 70NEB(1)(d) and 70NEC of the Family Law Act1975 (Cth) (“the Act”) and, if so, what should be:
(a)the period of the bond; and
(b)what, if any, conditions should be imposed.
(2)Should the mother be required to pay the father’s costs in respect to the contravention proceedings and, if so, in what amount and on what terms.
THE PARTIES’ SUBMISSIONS
In his written submissions filed on 12 February 2024, the father submitted, at paragraph 11, that while it is appropriate for the court to deal with this matter pursuant to Subdivision E, Div 13A, Pt VII of the Act which are considered “less serious contravention” (“Subdivision E”), the mother’s contravention should be dealt with at the upper end of the “less serious penalties” which, in the circumstances of this case it was submitted, warrants the imposition of a bond of two years with financial consequences in the event of default.
Relevant to that submission, the father contended, at paragraph 12 of his written submissions filed 12 February 2024, that the Court should have regard to the following:
12.1.Nine of the ten contraventions relate to the children not spending time with the father pursuant to the Orders.
12.2.The mother admitted that from the period from 31 March 2023 onwards, she had ceased facilitating all time provided under the Orders between the children and the father. The Court ultimately found that the mother did not have a reasonable excuse for withholding the children from spending time with the father during this period.
12.3.The mother gave evidence at the hearing, in response to a question from the father’s counsel, that she intended to continue contravening the Orders.
12.4.The mother was put on notice well prior to the filing of the contravention application of the father’s proposed application. On 10 February 2023, solicitors for the father wrote to the mother setting out the alleged contraventions, how to remedy them, a copy of the relevant parts of Part 11.2 of the Rules and the brochure “Parenting orders – obligations, consequences and who can help”. The letter went onto state:
“In the absence of receiving confirmation with respect to the above, [the father] will consider filing an application alleging a breach of a parenting Order under Division 13A of Part VII of the Family Law Act.
Notice is given, hereby, that if [the father] is forced to commence court proceedings in relation to your conduct, [the father] will seek that his costs of and incidental to that application are to be paid by you.
You should promptly obtain independent legal advice.”
12.5.On 24 April 2023, the father’s solicitor again wrote to the mother and warned that the father intended to file a contravention application, stating:
“Given the non-compliance with the Order, [the father] intends to file a Contravention Application.
…
[The father] will seek for the Court to impose a penalty, and that there be an Order for makeup time (being the entire June/July 2023 school holiday period). [The father] will also seek an Order that you pay his costs on an indemnity basis.”
12.6.The mother deposed at paragraph 52 of her affidavit (in reply) filed 13 June 2023 that she was advised by “Child Safety” on “numerous occasions” to cease all time with the father. The father went to the cost of subpoenaing and having his lawyers inspect subpoena documents produced by the Department of Children, Youth Justice and Multicultural Affairs, which established that no such advice had ever been provided to the mother.
12.7.The mother made a number of allegations of criminal conduct against the father, without evidence, which were ultimately not substantiated by the Court.
12.8.In her material, the mother made a number of other serious allegations against third parties, including the father’s partner and her brother.
The mother contended at page 2 of her written submissions filed 13 February 2024 that the focus of the orders should be such that they “allow the [m]other an opportunity to improve her co-parenting skills and knowledge and compensate the [f]ather for lost contact time with the children will ensure the children’s primary relationships can be minimally disrupted by the conflict.”
In that context, the mother submitted at page 3 of her written submissions filed 13 February 2024 that in circumstances where she is a single mother working on a casual basis that “imposing a significant financial penalty would impact upon her capacity to provide for the children whilst in her care.”
The mother contended that while the Court found that she contravened the relevant orders without reasonable excuse, the Court found that aspects of her conduct were found to be not completely without foundation. In that respect, the mother referred to the following paragraphs of my reasons for judgment dated 14 December 2023:
73.It was not disputed that [X] was diagnosed with ASD at two years of age. I accept and agree with the submission of counsel for the mother that the father prevaricated in responding to questions asked of him as to whether he acknowledged that the child suffers from that condition (mother’s amended written submissions filed 30 November 2023, paragraphs 58–60). Clearly, it is in the child’s best interests if the parents are both on the same page in respect to this issue. It is important that they can agree because the issue is potentially one of great significance to the child’s future development, including whether it is necessary to engage services to address special educational or social challenges that may confront the child.
…
85.I respectfully accept and agree with the submission of counsel for the mother that there were aspects of the father’s evidence concerning the extent to which the children are naked within his house that was unsatisfactory. In particular, there was a degree of prevarication on the part of the father in responding to questions as to how frequently it occurs and in what circumstances. On one version, of the father’s evidence, it could be inferred that he permitted the children to be naked in circumstances where they had [medical issues]. However, his evidence was less than clear as to whether he permitted and or encouraged nudity on a more frequent basis.
…
91.I accept, however, that the mother, justifiably, in my view, has a legitimate concern as to the circumstances in which the children are allowed to be naked in the father’s home. I further accept that the mother was entitled to act protectively in seeking clarification from the father as to the circumstances in which that occurred and to take further steps if dissatisfied with that response. However, that is not the basis of the reasonable excuse defence. As earlier explained, the defence is limited to circumstances where the contravention, which is in this case, the withholding of the children from spending time with the father, was “necessary to protect their health or safety” of the children on the particular occasion in question.
…
96.I respectfully agree that it is reasonable for the mother to have concerns regarding the father publishing such videos of the children in the bath on social media even in circumstances where the father stated that he was at pains to ensure that the videos were taken from behind rather than displaying the genitalia of the children.
Specifically, the mother submitted at page 3 of her written submissions filed 13 February 2024, that:
The unreasonableness of her actions was not in respect of the existence of these concerns, but in respect to how and for how long she responded. This should be a factor taken into account considering the imposition of any penalty.
CONSIDERATION
It is the case that within the relevant paragraphs referred to by the mother and extracted above, I found that the mother’s concerns about certain aspects of the father’s conduct was not without foundation. Nonetheless, the mother’s conduct in completely withholding the children from spending time with the father was disproportionate to those concerns and could have been addressed by less significant actions rather than entirely withholding the children, who had a right to spend time with their father pursuant to the August 2022 orders.
In those circumstances, given the duration of the period during which the children were withheld from spending time with the father, I am satisfied that, in considering appropriate penalty, I should regard the matter as falling within the upper end of the less serious category of contraventions referred to in subdivision E (s 70NEA(3)(b) of the Act). In doing so, however, I refer the parties to the statement of the Full Court, concerning Subdivision E, in Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341 at [11]:
The singularly most significant result of an imposition of a penalty in this case is that any subsequent proven contravention of the orders may attract the more serious penalties … including the imposition of a fine or a sentence of imprisonment (see s 70NFA(3)(a)).
In considering the issue of penalty pursuant to Subdivision E, the powers of the Court are set out in s 70NEB of the Act as follows:
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child--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;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(e) 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;
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);
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Note 1: The court may also vary the primary order under Subdivision B.
Note 2:Paragraph (1)(a)--before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).
(2)The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:
(a)the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and
(b)the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.
(3)If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.
(4) If:
(a)the current contravention is a contravention of a parenting order in relation to a child; and
(b)the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court must consider making an order under paragraph (1)(b) to compensate the person for the 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 contravention.
(5)The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.
(6)In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:
(a) whether the primary order was made by consent;
(b)whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;
(c)the length of the period between the making of the primary order and the occurrence of the current contravention;
(d) any other matters that the court thinks relevant.
(7) The court must consider making an order under paragraph (1)(g) if:
(a)the person (the applicant) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent) who committed the current contravention committed a contravention of the primary order or that other primary order; and
(b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i)was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii)was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.
Additionally, ss 70NEC, 70NECA, 70NED, 70NEF and 70NEG of the Act, which are also contained within Subdivision E, generally expand upon the orders that are available in s 70NEB of the Act.
I respectfully adopt and apply the guidance provided by Cronin J in McClintock & Levier (2009) FLC 93-401 at [233] that “[t]he focus of a Court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.”
Having regard to that principle, and in the circumstances of this case where I have found the mother’s conduct to be at the serious end of those matters considered pursuant to Subdivision E, I am satisfied that it is appropriate for me to make an order requiring the mother to enter into a bond. The consequences of which create the potential of the mother to face a fine, or the Court may revoke the bond to deal with the initial contravention of the parenting order, should she breach such a bond by refusing to comply with parenting orders in the future: s 70NECA(3) of the Act.
I have considered the father’s application for the period of the bond to be specified as being two years in duration, which is the maximum time specified in s 70NEC(2) of the Act. In circumstances where this is the first occasion in which the mother has been found to have contravened orders of the Court, I intend to impose a bond of one year’s duration.
The father has, however, submitted that the bond should include a condition that breach of the bond, by the mother, would result in forfeiture of the sum of $2,000.
That application must be considered in the context where the respondent is a single mother who, subject to receiving a relatively small amount of child support from the father, is substantially responsible for her own expenses and those of the children.
Nevertheless, having regard to the seriousness of the contravention I am satisfied that it is appropriate to provide for a financial consequence in the event of the mother failing to comply with the terms of the bond. In the context of the mother’s financial circumstances and given the significant potential prejudice which could subsequently befall the mother in the event of non-compliance, I am not satisfied that it is necessary to impose a condition that the mother forfeit the sum of $2,000 in the event of breach, and will specify a lesser sum of $500.
In terms of the other condition pressed by the father, in the circumstances of this case, I am not satisfied that the imposition of a condition that the mother be of general “good behaviour” takes the intended purpose of the imposition of penalty beyond that which it is intended to achieve. That is, to secure the mother’s compliance with the orders of the Court.
In circumstances where the breach of an order potentially has serious consequences, that order should be expressed with appropriate particularity. In Dowse v Gorringe [2004] QDC 477, McGill DCJ, at [17]–[22] undertook a useful analysis of authorities that have considered the meaning of the phrase “good behaviour”, concluding that, without particularity, it is “an excessively wide concept” (at [11]), and that whatever its meaning in particular circumstances, in the context of domestic relationships, it is unnecessary to go further than to conclude that:
22.… the mere fact that the aggrieved spouse is unhappy about the conduct of the defendant, or that the defendant is doing something that the aggrieved spouse does not want the defendant to do, or is not doing something that the aggrieved spouse wants the defendant to do, will not without more amount to a failure to be of good behaviour.
I respectfully agree. Unless properly particularised, in the context of family law proceedings, there is a risk that the imposition of a broadly expressed obligation to be of “good behaviour” could be consciously or subconsciously used as a tool of control to induce compliant behaviour on the part of the parent who is subject to the bond.
Moreover, in considering the obligations imposed upon me by s 70NEC(5) of the Act, I would find difficulty in explaining to the mother “in language likely to be readily understood” by her, the “purpose and effect” of the requirement that she be of general “good behaviour” beyond complying with the orders of the Court. In that respect, it is a fundamental principle that “if the Court is to punish any one for not carrying out its orders the order must in unambiguous terms direct what is to be done”: Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 at 95.
I will not therefore impose the additional condition that the mother generally be of “good behaviour”.
COSTS
The power to award costs in this matter is set out in s 70NEB(1)(f) of the Act. I respectfully agree with the submission of counsel for the father, by reference to the decision of Judge Jones in Glassop & Glassop [2015] FCCA 3437 at [146] that, in exercising power pursuant to s 70NEB(1)(f), it is appropriate for the Court to have regard to the discretionary considerations set out in s 117(2A) of the Act.
In respect to the financial circumstances of each party (s 117(2A)(a) of the Act), I have earlier noted that the respondent is a single mother responsible for meeting her own expenses and the expenses of her two children. The mother has filed a Financial Statement on 19 February 2024 to assist the Court which states that she currently earns approximately $1,090 per week which comprises of her salary and social security benefits. This is a significant consideration. However, I note that in Cross & Beaumont (2008) 39 Fam LR 389 at [60], the Full Court held that financial incapacity to pay a costs order is not a barrier where the conduct of the party may warrant the making of such an order.
In respect to whether the parties are in receipt of legal aid (s 117(2A)(b) of the Act), on 13 September 2023, I made a discretionary order pursuant to s 102NA(1)(c)(iv) directing the mother to apply for funding from Legal Aid Queensland pursuant to the s 102NA cross examination-scheme which prevents self-represented litigants from cross-examining or being cross-examined when issues of family violence are a live issue in the proceedings. I am not aware that the respondent mother has been otherwise in receipt of a grant of legal aid for the purpose of these contravention proceedings. In Legal Aid ACT & Westwell (2021) 62 Fam LR 546 at [40] it was determined that the reference to “legal aid” in s 117(4) of the Act “does not include a reference to the provision of funding of a lawyer under s 102NA where that funding is from a legal aid body.” The father has provided a Costs Notice on 15 February 2024 that indicates that his legal representation is privately funded.
In respect of the conduct of the parties to the proceedings (s 117(2A)(c) of the Act), I have had regard to the fact that, as set out in paragraphs 25–30 of the father’s written submissions filed 12 February 2024, during the contravention proceedings, the mother made a number of serious allegations, including allegations of criminality against the father and potentially child abuse in respect to one relative of the father. Additionally, I found, at [105] of my judgment delivered on 14 December 2023, that the mother lacked a proper evidentiary foundation for the making of such serious allegations.
In respect to whether the proceedings were necessitated by the failure of a party to the proceedings to follow previous orders of the Court (s 117(2A)(d) of the Act), I note that the subject matter of the contravention proceedings was the direct result of the mother’s non‑compliance with orders of the Court. Noting, in my judgment delivered on 14 December 2023 I determined that the mother contravened the orders on 10 occasions.
In terms of whether any party to the proceedings has been wholly unsuccessful in the proceedings, (s 117(2A)(e) of the Act), I note that the father was successful in his Application – Contravention filed 12 May 2023 and substantiated all 10 of the counts that he pressed. Therefore, the mother can be deemed wholly unsuccessful in her response to the father’s application in being unable to prove that she had a reasonable excuse.
In respect to whether any party has made an offer in writing (s 117(2A)(f) of the Act), I note that, as extracted above, the mother was given written warning from the father’s solicitors as to the potential consequences of the mother failing to comply with the orders of the Court, including a reasonable request by the father to be provided with details of medical treatment received by the children.
In respect to any other matter that the Court considers relevant (s 117(2A)(g) of the Act), it was contended by the father that the Court should have regard to the fact that, at the request of the mother, the original listing for the contravention proceedings on 23 August 2023 before Judge Dickson were adjourned, with costs reserved by her Honour. The father submits that this should be additional consideration justifying the award of costs in his favour. I accept that is an additional relevant consideration.
Consideration of the amount of costs that should be awarded
In considering my assessment of the s 117(2A) factors outlined above, I am satisfied that an order for costs in favour of the father is justified. In doing so, I respectfully adopt the language of Forrest J in Randal & Karpati and Anor (No 2) [2019] FamCA 335 at [153] that the making of such an order in comparable circumstances is to ensure that the mother is aware “that contravening Court Orders does not come without some personal consequence, particularly where she has not had to pay legal fees herself for her own defence and the father, firmly committed to having a relationship with the [two] children, has paid many thousands of dollars for his representation.”
The question becomes the quantum of costs that the mother should be ordered to pay. In considering that question, I note that the father has sought an order that the mother pay his costs in the fixed sum amount of $4,000 within 12 months of the date of this order. I have little doubt that the father has incurred considerably more than what he is pressing in his application.
At the same time, I am conscious of the potential financial impact upon the mother and, consequently upon the children, of imposing an added financial burden upon the mother for what translates to approximately $77 per week from the household budget. In the context of these parenting proceedings, I am not satisfied that such an impost would be in the best interests of the children as it may affect upon the mother’s ability to provide for their physical and educational needs.
Nonetheless, for reasons which I have set out, I am satisfied that the mother should contribute to costs incurred by the father. In accordance with those powers available to me pursuant to s 70NEB(1)(f) of the Act, I order the mother pay a portion of the costs of the father, in the sum of $1,000, within 12 months of the date of these orders.
ORDERS IN RESPECT TO PENALTY
Accordingly, the orders in respect to the issue of penalty, including those which have been agreed to by the parties, are as set out at the commencement of these reasons for judgement.
POSSIBLE VARIATION OF PARENTING ORDERS
In circumstances where the Court has found that a person has committed a contravention of the primary orders made by the Court, in respect to parenting arrangements, the Court is empowered to vary those orders (s 70NBA of the Act).
Both parties have previously told the Court that they are respectively seeking a variation of the consent orders made in August 2022. On that basis, the Court has engaged a Court Child Expert to provide a Family Report. That report, dated 2 February 2024, has been provided to the parties.
By email dated 15 February 2024, I advised the parties that I have availability to hear the parties’ respective applications as to possible variation of existing parenting orders on 17‑18 June 2024. Accordingly, I will list the matter for hearing in respect to the issue of possible variation on those dates.
To ensure that the parties are properly prepared for hearing on those days, I will make standard trial directions with each party having liberty to apply, on 48 hour’s notice, in the event that they find difficulty with those trial directions.
While I do not make a separate order for it to occur, I would strongly encourage the parties to consider further Family Dispute Resolution prior to that hearing.
Accordingly, I make the trial directions as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 1 March 2024
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