Waite and Fairbank
[2011] FMCAfam 824
•7 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAITE & FAIRBANK | [2011] FMCAfam 824 |
| FAMILY LAW – Contravention – sentencing – 19 breaches of parenting orders – Mother acted in serious disregard of orders – deliberate – wilful – mother shows no respect for relationship between Father and children – suspended jail sentence. |
| Family Law Act 1975, ss.70 NEA, NEC, NFA, NF(2), NFB, NEB, NAF, 117 |
| Elspeth & Peter, Mark & Peter and John & Peter (2007) FamCA 655 Curran & Jones [2001] FamCA 1314 Parsons & Parsons [2000] FamCA 1697 R & A [2001] FamCA 619 B & W [2003] FMCAfam 114 Black & Black [2005] FMCAfam 567 Denny & Denny [2006] FMCAfam 49 Dobbs & Brayson (2007) FLC 93-346 Penfold & Penfold (1980) FLC 98-100 |
| Applicant: | MR WAITE |
| Respondent: | MS FAIRBANK |
| File Number: | TVC 24 of 2007 |
| Judgment of: | Willis FM |
| Hearing date: | 7 July 2011 |
| Date of Last Submission: | 7 July 2011 |
| Delivered at: | Mackay |
| Delivered on: | 7 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Macrossan & Amiet Solicitors |
| Solicitors for the Respondent: | In person |
ORDERS
That the mother be sentenced to a term of imprisonment for a period of one month, to be suspended immediately for a period of 18 months subject to the mother entering into a Bond.
That pursuant to section 70NEB(1)(d)/70NFB(2)(b) of the Family Law Act 1975, the mother enter into a Bond in accordance with section 70NEC/70NFC. The mother is to be of good behaviour toward the father and act in compliance with the Orders of this Court at all times.
The mother has indicated her agreement to enter into a Bond to the Court today and she will sign the Bond on Friday 8 July 2011 in the presence of the Registrar.
The mother is directed to attend upon the Registrar of the Federal Magistrates Court of Australia at Mackay for the purposes of signing the Bond at 11:00am on 8 July 2011.
That the mother pay a contribution toward the father’s cost of and incidental to these proceedings fixed in the sum of nine thousand dollars ($9,000.00) within sixty (60) days of the date of this order.
This matter be listed for mention on 30 August 2011 at 9:30am in the Federal Magistrates Court of Australia at Mackay.
IT IS NOTED that publication of this judgment under the pseudonym Waite & Fairbank is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MACKAY |
TVC 24 of 2007
| MR WAITE |
Applicant
And
| MS FAIRBANK |
Respondent
REASONS FOR JUDGMENT
This matter is a matter that has been before me on a number of occasions. In my reasons for judgment delivered on 3 June 2011 in relation to the contravention applications, some 20 contraventions, I made findings that the mother was guilty of contraventions in relation to all of the contraventions except contravention number 2, in which I found that the mother had a reasonable excuse. The mother has been found guilty of contravening orders as set out in the summary at paragraph 144 of my reasons of 3 June 2011 in relation to contraventions 1, 3, 4, 5, 6, 7, 8, 9, and 10 to 20.
I noted in those reasons that the husband’s solicitor was calling for a suspended jail term and a good behaviour bond, and I considered that the written submissions of the wife, prepared by the wife’s solicitor who acted for her throughout the proceedings (submissions being in relation to the contraventions and also to the appropriate punishment) did not properly address the findings that had been made by me.
I wished to give the mother another opportunity to consider the reasons for decision and to make any further submissions accordingly.
Those submissions were taken on 14 June which I did by telephone link from Cairns to Mackay. At that time the mother was self represented her solicitor having earlier filed a notice of withdrawal. Further submissions were made orally, by the mother which I have had regard to. The mother said, at that stage, she had not been able to bring herself to read all of the reasons for judgment and that she had only read them in part. That the mother failed to read all of the reasons by that date was a matter entirely within the discretion of the mother. The reasons and findings were delivered on 3 June. The mother said she did not see them until a few days later. She has had, in my view, plenty of time to read the decision.
I have had regard to the submissions made on behalf of the mother by Ms Hinschen solicitor on the record for the mother and who appeared for the mother during the hearing. Ms Hinschen and the mother were aware that the father’s solicitor was calling for a term of imprisonment to be suspended, as that was stated by Mr Carroll during the hearing and contained in Mr Carroll’s written submissions provided to
Ms Hinschen for the mother. Mr Carroll for the applicant also made oral submissions and he relied on his written submissions filed prior to the mother’s legal representative filing the mother’s written submissions.
I adjourned the matter of sentencing over for delivery of these reasons to occur in person in Mackay during my next circuit in July. I am informed that the Mother has, of today, now read the reasons.
On behalf of the mother, it was submitted that I should regard the mother’s contraventions as less serious contraventions, and that the mother should be considered to have committed a contravention under Section 70NEA under Part VII, Division 13, sub-division E. It is submitted that the mother could be placed on bond to be of good behaviour.
It is also submitted on behalf of the mother that the evidence shows a breakdown in communication between the parties and that I should order the parents, plural, to undertake a post-separation parenting course with Lifeline under Subdivision 1.
It was also suggested that I make an order for compensatory time between the children and the father, and that I should be cautious of various matters in relation to the allegation that [X] has or will self-harm. [X] has attended a psychologist. It is contended that [X] and [Y] are undergoing counselling and the girls have expressed a firm desire not to spend time with the father, and indicated an unwillingness to go in the presence of the father and other people, including the police.
The mother’s solicitor asks that a Family Report be prepared to address the children’s wishes as this report could assist the court in determining whether the girls’ wishes are influenced, as suggested by the father, through forcing the girls to choose to live in [P] or on the Sunshine Coast, or if the girls have made their own decision not to spend time with the father for the reasons stated by the mother. I do not intend to order a family report to investigate the matters that I have evidence about in these proceedings because I consider that I have sufficient evidence before me to deal with the matter. I also do not intend to use these contraventions to invite the children to make comment about some proposed future relocation by the mother. If the mother wants relocate, she can file an application to do so.
The father submits I should regard the contraventions under Subdivision F under Part VII, Division 13A, as a more serious contravention which set out the terms of the Act.
In my reasons for decision handed down on 3 June 2011 I foreshadowed that I regarded the contraventions as more serious and, with that in mind, I adjourned the matter to enable each of the parties to make submissions as to the seriousness of the matter and sanctions applicable, and, in particular, to allow the submission to be made by the mother in the knowledge that I had indicated that the contraventions would be regarded as more serious.
That was my initial indication, but I allowed the parties to make submissions in relation to that issue and requested that they make those submissions prior to my findings before I continue to consider the appropriate sanction.
On the adjourned date the mother appeared self-represented. Her submissions were therefore of limited assistance. I have, however, had regard to the other submissions made on her behalf, as well as what she had to say to me. The mother did not indicate any insight into the basis of the findings and her role in the contraventions and continued to say that she feared for the safety of the children.
On trying to explain to the mother that she needed to turn her mind to the possible sanctions and inviting her to submit anything further than had already been submitted on her behalf, and explaining to the mother that the finding suggested to me that the contraventions were indeed in the category of a more serious contravention, the mother’s submissions were to the effect that she should not really be punished and that, if she had to be, she guessed that community service would be preferable.
The reasons for a decision will show that the mother has pleaded guilty, albeit on the second day of the hearing, to contravening the Orders and that she had a reasonable excuse. The matter proceeded on the basis, therefore, that the mother alleged that she had a reasonable excuse, and the onus of proving that reasonable excuse was upon the mother. The proof of that reasonable excuse is on the balance of probabilities.
Turning to the findings and the submission that the contraventions ought not to fall in the category of being in serious disregard of the mothers, as submitted by the mother’s lawyer, or whether they should, as submitted by Mr Carroll, on behalf of the father, to assist my understanding of the meaning of “serious disregard of orders” I have read and had regard to a Full Court decision known as Elspeth & Peter, Mark & Peter and John & Peter (2007) FamCA 655, a decision of Faulks DCJ and Kay and Penny JJ of 4 June 2007.
In that matter, their Honours considered it prudent for the trial judge to set out what considerations enlivened the extra powers available under that section, being section 70NFA, which is a contravention without reasonable excuse being a more serious contravention, which is what is urged upon me by the father.
Adopting the reasons set out in paragraph 54 onwards, their Honours have referred to, first, the Revised Explanatory Memorandum that accompanied the Family Law Amendment Bill which stated:
What amounts to a serious disregard will depend on the circumstances of the case and the terms of the parenting order but, by way of example, could include the kidnapping of a child or harassment despite repeated warnings.
The Revised Explanatory Memorandum that accompanied the Family Law Amendment (Shared Parental Responsibility) Bill 2005 stated:
307. What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the removal of a child to another place despite orders of the court or harassment despite repeated warnings and the terms of the parenting order.
In Curran & Jones [2001] FamCA 1314, which continues on at paragraph 56, an unreported decision of Forbes J, Forbes J said:
Serious disregard is, as counsel for the wife says, something less than a contumacious breach and something more than a simple finding of a contravention. In other words, it is a description of a degree of intent that lies somewhere between these two matters. I accept his submissions on that. For a contumacious breach it is necessary to show a direct wilfulness to contravene an order. A contumacious breach is a subject well known and, in his view, a contempt. I have no doubt that this the term that would have been used if it was intended but that the disregard be pitched at such a level. But if it is not that then, of course, it must be something more than simply the necessary intention that comes from the contravention as to which we have found. It must be something more than something which is not actually casually or unintentionally or inadvertently essentially a factor which would persuade us that there was the contravention in the first place.
In another decision of Dawe J her Honour stated in Parsons & Parsons [2000] FamCA 1697:
The question of whether there has been a serious disregard, in my mind, has to be seen as a question of proportion and a question of degree. This is not a case where there has been one minor occurrence or misunderstanding over a brief or short time. This is not a case where allegations arose concerning sexual abuse of the children and the wife immediately instituted proceedings to suspend, vary or discharge the contact order. This is a case where no proceedings had been issued up until the time of the hearing before me and, indeed, until I delivered my judgment. Therefore, I find that this is a case where the wife has behaved in a way which shows serious disregard for the primary court orders of Bourke J.
Reference is made to the matter of R & A [2001] FamCA 619 (unreported) in which it was stated by judgment Olson J that:
While acknowledging that section 70NF(2) only applies in respect of a serious disregard where there has been no previous contravention of the primary order, I consider that his Honour’s are instructive and serve to illustrate the degree of wilfulness which would need to be found before the court should recourse to its powers of last resort under the provisions of section 70NJ in respect of a first offence.
There is also reference to serious disregard being made in relation to cases where there is a first offence:
Cases, generally, refer to a situation where there have been previous contraventions and also though cases where there have been no prior orders imposing a sanction on action in respect of a contravention but which, nonetheless, was found to be contraventions and serious disregard. Amongst the authorities there are authorities also of various references to cases conducted by Federal Magistrates. Those start at paragraph 61 of the decision in Elspeth. Those decisions, as stated in paragraph 61 reveal a theme in which there has been a deliberate, premeditated non-compliance with the orders and a continued and protracted breach.
Ryan FM, as she then was, in B & W [2003] FMCAfam 114, referred to where a mother showed disregard for her obligations when she contravened a residence order by not returning her child. FM Ryan, as she then was, said:
The following factors contribute to my comfortable satisfaction that this matter should be dealt with as a stage 3 contravention. I am satisfied the respondent deliberately intended, prior to the end of contact, that she would not return the children on 11 January and would keep them until 13 January 2003. Consequently, her actions were considered and not compulsive. On 12 January when the applicant attended her home she had the opportunity to return the children to him without any difficulty. When she called the children into the front yard she involved them as direct observers of her refusal to return them to their father. Next the respondent invited James’ assistant to maintain her refusal to comply with the orders on January 2003 with reckless disregard as to the likelihood that he would use considerable physical force to the applicant in the presence of the children. At the end of the assault and before she went to Queensland she had the opportunity, absent James’ overt and direct influence to return the children to the applicant or his nominee and did not do so. Finally, the respondent kept the children until 1 March 2003. The continuing nature of the breach is a serious issue.
Connolly FM in Black & Black [2005] FMCAfam 567, dealt with a mother who contravened orders by failing to give contact on two occasions. His Honour viewed the circumstances of the breach and the mother’s conduct at the attempted changeover as constituting a serious disregard of her obligations of same. The respondent’s behaviour in failing to facilitate the contact between the husband and the children on 16 July 2005 displayed an absolute disregard of the relationship that these children have with their father and her oral evidence, given yesterday, indicated that she still has that disregard. If the wife’s behaviour were to continue in this vein then there is no doubt that the children’s relationship with the father would be destroyed.
In Denny & Denny [2006] FMCAfam 49, Riethmuller FM was satisfied that the mother behaved in a way that showed a serious disregard that of her obligations under a contact order. In this matter the mother had not previously been found to have contravened an order, however, Riethmuller FM said that he was satisfied in the case that the mother behaved in a way that showed a serious disregard of her obligations, and he came to that conclusion after considering a number of the circumstances attendant upon a number of contraventions that were subject to the proceedings which included:
… her continued resistance of and attempts to ensure the father did not obtain a seven-day period of contact as specifically ordered; her lack of explanation with respect to count 8, despite the fact clearly was available; her demeanour and conduct during the course of the proceedings; her conduct in attending upon a shop rather than attending for a contact handover. What seems to be, as I have said, is the common thread is that –
That is their Honours have stated in Elspeth –
The more serious sanction should only be invoked if there is persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sections.
Turning to the matter before me, I am satisfied that the respondent behaved in a manner which showed serious disregard of the orders. This series of contraventions represent the first contravention hearing in this matter, and there are 19 separate contraventions. I note in the evidence that the father refers to an occurrence, in 2007, when an application was lodged by the father for the mother to return the children to [P] as she unilaterally relocated to the Sunshine Coast with the children, and orders were made for the mother to return, failing which, a recovery order would issue as confirmed by the mother in her evidence in this matter. It seems to have occurred when there was no order in place and is, therefore, not a contravention.
I, therefore, take the position that the mother has not previously been found to have disregarded an order by formal contravention up until the filing of these contraventions. The matters that I have considered in determining that this matter is a more serious matter are found in my reasons in which I have expressed being satisfied that the mother has acted with a degree of wilfulness in disregard of the orders. I have found that she wilfully contravened the orders at paragraph 113 count 9. I have found that the mother did not have a genuine belief that it was necessary to withhold the children to protect their health or safety. I have found that she invited the children to believe that compliance with the orders is optional in paragraph 115.
I have found that the mother was actively involved in making it clear to the children that it was their choice as to whether they would go to their father, whilst at the same time, turning up at school when they were to go to their father, inviting the children to choose where to go and that the mother had attended school for the purpose of undermining the arrangements. The mother has, therefore, contrived to undermine the orders. I have found that the mother was making up her evidence under cross-examination and that she gave inconsistent and contradictory evidence.
I have found that the mother has placed the children under emotional pressure in trying to have them choose between their mother and father, and that she has shown disregard for the relationship between the mother and children. I have found that it is likely that her conduct was done with the overarching long term position of the mother being, as her evidence was, her stated desire to relocate and that she had told, to this end, the children that she was going to relocate and that they would have to choose where they wanted to live.
This has further placed pressure on the children not to spend time with their father as he would not agree to them relocating and has placed the children in a wedge between their parents. This conduct was to lay the foundation for her proposed relocation. I have found that the mother had no intention of complying with the orders as set out in count 8 at paragraph 98. I have found that the mother had effectively decided that the orders were no longer appropriate and she imposed her own view of what was best for the children over the terms of the orders. My overall impression was that the mother failed wholly to comply with the orders. The mother contrived the situation in which the children left school and went directly to the police station while she waited at home for their call, instead of, as she usually did, going up to school to collect them.
In relation to the telephone calls, I found that the mother had acted in a cavalier manner in deliberate disregard of the orders. Her attitude was well-demonstrated in the exchange quoted at paragraph 126 of the judgment, which the mother was questioned in depth about the phone calls of 4 July 2010. The passage of questions and answers show that Mr Carroll asked and Mr Waite did not get to speak to his children then, either did he? Answer: no. No, and not at the BMX track? Answer: no. No, there is no reason? No. Just your whim that he would not speak to them? Answer: yes. 3 August is a Tuesday? Yes. What is your reason there? No reason. Just he is not going to talk them? Yes.
The mother also had made arrangements with third parties, such as her friend, Mr S, to assist in taking [Z] to the airport unbeknown to the father and in time when [Z] was still in the father’s care. That in relation to the children’s attendance at the Brisbane Exhibition, the mother made plans irrespective of the orders and left the father in a compromised situation with [Z], all designed to overlay her plans in place of the orders. That the mother’s conduct in count 7 in locking the children in the car at the handover and then sitting in the car while the father spoke to the girls, compromised the father’s and the children’s positions and the orders themselves.
I found that the mother had acted repeatedly in total disregard of her obligations, that this conduct had been an ongoing series of breaches sustained over months. It is not a one-off breach. It is an ongoing course of conduct. I found that the mother had shown a flippancy and arrogance towards the orders of the court. The mother had shown her intention not to comply with orders in the future by ensuring that she alerted the Child Support Agency that she now has the children in contravention of an order and that the child support assessment ought to be adjusted. The mother received some $9,600.00 over and above what would have otherwise been paid.
The mother has shown no contrition about this issue. She has just stated that she needed the money for her children. For all of these reasons, I am satisfied that the ongoing conduct engaged in by the mother ought to be seen as the mother acting in serious disregard of the orders as stated in paragraph 66 of the Full Court decision in Elspeth, which I have already referred to. Therefore, the matter should be dealt with under section 70NFA subdivision (f). Section 70NFA(1) and (2) are relevant. Section (1) reads:
A primary order has been made whether before or after the commencement of the division. A court having jurisdiction under this Act is satisfied that a person has, whether before or after the commencement, committed a contravention of the primary order and the person does not prove that he or she has a reasonable excuse for the current contravention and either (2) or (3) applies.
And that is, (2) is:
That no court has previously made under (i) an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order or (ii) under section 70NEB(1)(c) adjourned proceedings.
(b) the court dealing with a 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 –
which is what I have just found.
Turning then to the sanctions available. Section 70NFB(1) says:
A court must make order unless not in the best interest of a child. When this subdivision applies, the court must, in relation to the person who committed the current contravention -
And then it lists out (a), (b) and (c). First is reference to make an order under 2(g), which is making an order that the person who committed the current contravention pay all of the costs of the party or parties to the proceedings, or make an order that the person who committed the current contravention pays some of the costs of another party to the proceedings, and if the court makes an order under 2(g), consider making another order or orders under subsection (2) that the court considers to be most appropriate of the orders under subsection (2) in the circumstances, and if the court does not make an order under paragraph 2(g), make at least one of the orders 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.
Section 70NFB(2) sets out the orders that a court can make. The orders that are available to be made by the court are:
(a) If the court is empowered to do so 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, make a further parenting order that compensates the 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 –
I note the maximum fine is $6,600.00 –
(e) Subject to subsection (7), impose a sentence or imprisonment on the person in accordance with section 70NFG or if the current contravention is a contravention of a parenting order in relation to a child and it resulted in a person not spending time with a child, the person referred to in subsection (2) reasonably incurs expenses. In result, make an order requiring the person who committed the current contraventions to compensate the person referred to in subsection (2) for some or all of the expenses –
and that leads to sections (g) and (h).
I have had regard to the Full Court decision in Dobbs & Brayson (2007) FLC 93-346 in relation to the appropriate interpretation of section 70NAF, , relating to the standard of proof and in particular to section 70NAF(3):
The standard of proof is to be the balance of probabilities, subject to subsection (3) as defined in subsection (1). The standard of proof to be applied in determining matters under this division is proof on the balance of probabilities.
The reasonable excuse for contravening an order is referred to in section 70NAF(2). That subsection applies to the determination of whether a person who contravened an order under this Act and affected children had a reasonable excuse, and I have found that there was no reasonable excuse on the balance of probabilities. Importantly, section 70NAF(3) says:
When a court may make an order, the court may only make an order under paragraph 70NFB(2)(a), (d) or (e), which is an order for community service, a fine or a sentence of imprisonment if the court is satisfied beyond reasonable doubt that the ground for making the order exist.
After much discussion of how this order might work, paragraph 51 of their Honours’ decision sets out how they see the general principles working, notwithstanding the apparent oddities of the process that may arise between what appears to be determining a contravention on the standard of balance of probabilities, but then moving to a different standard at different steps when the court is determining what sanction it is going to impose. In paragraph 51of Dobbs and Brayson their Honours set our in their view the general principles applicable to proceedings in which sanctions may result, notwithstanding the oddities:
Before an order of the type that is anticipated referred to in that section is made, the court must be satisfied beyond reasonable doubt about all of the factual matters that relate to the finding of contravention. They must be satisfied to the treatment of the contravention. As to one which subdivision (f) of division 13A applies – and all of this is to be beyond reasonable doubt, and it is subject to what we next say: that if imprisonment is proposed, the inappropriateness of the other available orders.
In line with their Honours’ reasoning as to how I am to approach this, I note firstly that the contraventions have been admitted. I have given my reasons as to why these orders have been breached in what I regard as a serious disregard of the orders, and I am satisfied beyond reasonable doubt that these contraventions are an order to which that would apply.
Turning then to appropriateness of the availability of other orders.
I will first look at the order for community service. While the mother elects for this sanction, if any at all is issued, I consider that this is a difficult order for the court to actually implement and oversee. This matter is in a circuit list in Mackay. I consider there would be difficulties involved in implementing and overseeing such an order, but more important than that I do not consider that the mother could be trusted to comply with such an order without stringent supervision by the court. Also, I do not consider that in the circumstances of the mother’s complete indifference and cavalier attitude shown towards her obligations under the orders and the authority of this court that a community service order properly addresses circumstances that have occurred in these contraventions.
In relation to a bond, I am able to, if the mother will enter into a bond, place her on a bond to be on good behaviour for a period of time. A decision to place the mother on a bond to include a condition that she would comply with each and every obligation both legally and in the spirit of the orders. I would see this as being beneficial in hanging over the mother’s head to try and ensure compliance, but standing alone I do not consider that it properly addresses the mother’s wilful disregard of the orders and her conduct, which I have referred to, in which she has contrived to work around the orders.
An order for compensated time. I have already ordered that the father have make-up time. There is a limit to how this can occur, given the father’s work commitments, though I will hear from him in relation to any further make-up time.
As to the option of a fine, I am not satisfied that the mother would pay such a fine. She says she has no funds to do so. I would see this sanction as being ineffective and resulting in further litigation as the father would no doubt spend even more money trying to get the mother to comply with paying a fine. I also do not consider it an appropriate sanction, given the mother’s wilful disregard of the orders and to the relationship between the children and the father up to this point. Also, I have had regard to the flippancy that the mother showed towards the Court and the Order in this whole process.
Turning then to imposing a sentence of imprisonment. I do consider that this is the most appropriate of sanctions in the circumstances. I have had regard to the mother’s conduct both inside and outside of the court. I consider, however, that a suspended jail sentence is the most appropriate sanction, with an order that the mother also be on a Bond to be of good behaviour. In my view, this is the single most appropriate sanction that will elicit some degree of respect of respect for this court and the Orders from the mother and hopefully some degree of respect for the relationship between the father and children.
I am mindful of the mother’s attitude and wilful disregard for the order as I have found in my reasons. Given her demeanour, her dishonesty and connivance I consider in the circumstances that the strongest of sanctions needs to be pending as an indication to others of the seriousness of the mother’s conduct, but significantly as a sanction for the ongoing and sustained breach of orders as found by me in the judgment. I consider that anything short of a suspended jail term will simply be treated with the same disregard that the mother has shown towards the orders and the court and the children’s relationship with the father to date.
As I have set out and have regard to in Brayson & Dobbs, I am satisfied beyond reasonable doubt that the factual matters that relate to the findings of the contraventions have been made out, noting that the mother pleaded guilty. I am satisfied beyond reasonable doubt that it is appropriate to treat the contraventions as a serious contravention, and I am satisfied beyond reasonable doubt as to the inappropriateness of other available orders and the appropriateness of a suspended jail term.
Costs
The other matter which is outstanding is the issue of costs. The father seeks costs of and incidental to these proceedings. The affidavit of Patrick John Carol sets out what I would regard as the indemnity costs in the sum of $24,927 which are the costs that he, the father, has incurred in relation to his appearances at his hearing and the preparation for this hearing. I have asked the mother at the last hearing about her attitude to costs and she submits that there ought be no order as to costs and the father should pay his own costs.
This matter has proceeded to a full hearing in relation to contravention of proceedings. I have made findings in which I have referred to, as set out in my reasons, that the mother has contravened orders, save and except one of the contraventions. There is an application for costs. Submissions have been made by Mr Carroll. I have given the mother an opportunity to make her submissions. I would have thought as a self-represented person that she would want an order that each party pay their own costs, and that is the mother’s position.
In turning to the matters relevant to my considerations, section 117 is the relevant provision. The initial position is that each party pay their own costs subject to subsection (2). The High Court in Penfold & Penfold (1980) FLC 98-100 has stated that subsection (2) is not subservient to subsection (1). Subsection (2) sets out relevant considerations if the court is contemplating making an order for costs.
Looking at those matters, the first of them is the financial circumstances of each of the parties. The mother has told me in the hearing of 14 June from the bar table that she earns about $700 a week. She says to me it is up and down. She has told me that her occupation is that she [omitted]. She has had at least one small business of her own in relation to [omitted]. For the period of time during the contravention, the mother received significantly more by way of child support, namely $1,700 a month, instead of $844. As I have referred to in my decision, once she ceased complying with the orders and the children were with her, she promptly advised the Child Support Agency that the children were now living with her, and she has for many months received more like $1,100.00 a week, which includes the family allowance.
She says her income is about $18,000 a year. She says that she is on Centrelink benefits, which ranges up and down, according to how much she earns in her other endeavours. The mother says that her current tax return said she had an income of $10,000. She owns a car, she has her other furniture and possessions, she received $90,000 from the father by way of a property settlement in October last year. So for a long period of time she received $400 a week, as opposed to $200 a week, which she says she needed for the children. As I say, plus the family assistance. The mother earns, it seems, a modest income.
The father is in the [omitted] industry and earning significantly higher, I think at around $120,000 or so per annum. The father is paying off a house. He has been paying significant child support, $1,700 a month, for some time. Prior to that, he paid around $400 a month. The mother tells me that she has spent most of the funds she received in the property settlement. She says that she has not paid her solicitor who acted for her throughout these proceedings up until the appearance in June. The mother’s solicitor has filed a notice of withdrawal only on 14 June 2011, which was the day that I had heard the submissions.
The mother seems to have some fluidity in her income. I asked her on the last occasion if she was planning on going to fly to Brisbane with the children to attend the exhibition as she has done every year, and I queried how she could do so if her income was as she had indicated to me. The mother said she was undecided. I can see though that she earns substantially less than the father. The father himself is paying off a mortgage and he ought to have the children with him for a significant period of time pursuant to the orders at which time he covers the costs of raising the children. He also has incurred significant legal costs. The mother’s legal costs were about $5,000. The father’s indemnity costs were set out at $24,000 on the 27th. I am not aware of any written offers to settle this matter. They have not been placed before me.
As to whether the proceedings were necessary as a result of a breach of an order, it is obviously clear to me that the father has had to bring proceedings in an attempt to have the mother comply with the orders of this court. The proceedings are entirely as a result of the mother breaching the orders.
In looking at whether either of the party has been wholly unsuccessful, the mother was successful in defending one out of 20 contraventions, so I would regard her as being wholly unsuccessful. In relation to the conduct of the mother and father as a litigant, it is submitted that the mother’s approach to these proceedings has resulted in a waste of the court’s time. The first day of the hearing when the mother was legally represented, was ultimately wasted due to the position that she adopted in which she simply denied all of the contraventions.
This required the court to commence the proceedings as it did on the basis that each and every contravention had to be proven. After the first full day of cross-examination of the father by the mother’s solicitor and taking submissions that there was no case to answer by the mother, an entire day of court time was consumed. The matter was stood down at the end of the day for me to return the following day and as I was about to deliver my reasons to find that there was a prima facie case to answer and that the matter should proceed on that basis,
Ms Hinschen announced that the mother has reconsidered her initials denials over night and now decided that she would plead guilty to the contraventions but say that she had a reasonable excuse.
The costs of the first day were entirely incurred through the wife’s conduct. The effect of that waste of that day cannot be understated. The matter had then to proceed as a part heard manner, which is difficult in a circuit location. Arrangements were made for the court to resume the hearing in person in Mackay between circuits to have the matters heard. In addition, as a litigant, the mother has, as referred to in my reasons, seemingly adopted a strategy of permitting and encouraging the children to disregard the orders in place whilst at the same time discussing an imminent relocation to the Sunshine Coast.
The mother has been previously subjected to an order to return to the Mackay region when she unilaterally left earlier in 2007 and that was accompanied by an order, the recovery order issue. The details are on the file and that matter was raised during the hearing. The mother has therefore, in my view, in these contraventions set about in engaging a tactic to ensure that the children and herself can relocate at some future time to the Sunshine Coast. The evidence is referred to in my reasons. The mother has told the children she is relocating and the children will have to decide if they’re coming too. I note also that correspondence regarding the contraventions was exchanged, but that the contraventions continued and I regard the father as being left with no alternative other than to institute proceedings.
I note also, in coming to this decision, I have had regard to the mother’s conduct in approaching the Child Support Agency during the period of contravention to say that the children were living with her for 100 per cent of the time, which is quite a breathtaking illustration of the mother’s conduct in acting outside the terms of the orders and showing them complete disregard.
The financial effect of that on the father was that he had to pay $1,700.00 a month as opposed to $844.00 The mother says that she has used that money and that she has her children and that she needs the money. The mother also approached the Family Assistance office and gave them the same information, increasing her family assistance from $38 a fortnight to $95 during the period of the contraventions. The mother’s position in relation to the costs order is that a costs order should not be made, that she cannot pay and that she is not guilty.
Having considered all of those matters, I am of the view that it is appropriate that, notwithstanding the mother’s poor financial circumstances, that she make a contribution towards the father’s costs. I am not making this order as a punishment for the mother under section 70NFB(1). I have gone through the statutory provisions relating to costs and I consider that in the ordinary course of events, the mother ought to pay a portion of the father’s costs.
I am, as I said, mindful that she says she cannot afford to pay a costs order. I have some doubts as to the mother’s income and regard her income as being somewhat fluctuating as the mother moves between running her own business and doing her house cleaning jobs. I am not sure what she has done with her remaining $60,000.00 which she received as part of her property settlement which has gone, that is a matter for the mother. I am very mindful of the costs that the father has incurred. I have been asked to make an Order that the mother pay 100 per cent of the father’s costs. I do not intend to make that order, I consider that it would be an oppressive order and one that would never be complied with, though I agree that the mother ought to pay some contribution towards the father’s costs.
I therefore intend to Order that the mother pay a portion of the father’s costs and I will fix that amount at $9,000.00 which the mother is to pay to the father towards his costs of and incidental to these proceedings.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Willis FM
Date: 25 August 2011
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