WALLINGTON & WALLINGTON (No.5)

[2020] FCCA 2660

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALLINGTON & WALLINGTON (No.5) [2020] FCCA 2660

Catchwords:
FAMILY LAW – Contravention – sentencing.

Legislation:

Family Law Act 1975 (Cth), ss.70NAB, 70NAC

Applicant: MR WALLINGTON

Respondent: MS WALLINGTON

File Number: NCC 1402 of 2014

Judgment of: Judge Dunkley

Hearing dates: 27 August 2020

Date of Last Submission: 27 August 2020

Delivered at: Parramatta

Delivered on: 23 September 2020

REPRESENTATION

Counsel for the Applicant: Mr J. Horowitz

Counsel for the Respondent: Ms L. Hamilton

Solicitors for the Respondent: Michael Jokovic & Associates

ORDERS

1. MS WALLINGTON, having on 7 August 2020 been found to have contravened in 4 counts parenting orders made on 25 January 2017, is sentenced as follows:

   (a)With respect to count 9 laid on 3 February 2020 to enter into a bond pursuant to s.70NEB(1)(d) for a period of 12 months from the date hereof without surety with the conditions to be of good behaviour and pursuant to s.70NEC(4)(b) attend 5 sessions with a family counsellor as defined in s.10C within 12 months.

   (b)With respect to each of counts 5, 7 and 11 laid on 3 February 2020 to enter into a bond pursuant to s.70NFB(2)(b) for a period of 18 months from the date hereof with surety in each case of $333.00 and with a condition of being of good behaviour.

2. The terms of the bonds in orders 1(a) and 1(b) are to be served concurrently.

3. The bonds are to be entered into forthwith and the surety is to be paid to the Collector of Public Monies at the Federal Circuit Court at Parramatta within 14 days of the date hereof.

4. If there is no proven breach of the bonds in order 1(b), the surety is to be refunded to Ms Wallington on effluxion of the bond period.

5. Pursuant to s.70NDB, in addition to time provided for in existing parenting orders Y born in 2012 shall spend compensatory time with her father for 3 additional nights during each term school holiday at the end of Term 3 in 2020, Term 4 in 2020 and Term 1 in 2021 and 2 nights at the end of Term 2 in 2021, such that the time in Terms 1 and 3 provided for in orders made on 23 May 2019 shall extend to 12 noon on the second Tuesday of those school holidays, and end at 12 noon on the second Tuesday of the Term 4 school holidays and end at 12 noon on the second Monday of the Term 2 school holidays.

6. Ms Wallington shall by 23 September 2021 complete either an online or an in person post separation parenting course of not less than 5 sessions.

7. (a)     Ms Wallington shall ensure X born in 2010 has weekly sessions with the child’s psychologist, Ms E, for 2 months from the date hereof relevant to that child’s recent admission to F Hospital as a consequence of the child self‑harming.

   (b)Ms Wallington shall direct X’s psychologist, Ms E, to prepare after 8 sessions a comprehensive treatment report relevant to the child X and provide a copy of that report to the father and to the Court.

8. Pursuant to s.70NBA and pending further order, the time X born in 2010 is to spend with her father, is suspended.

IT IS NOTED that publication of this judgment under the pseudonym Wallington & Wallington (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

NCC 1402 of 2014

MR WALLINGTON

Applicant

And

MS WALLINGTON

Respondent

REASONS FOR JUDGMENT

1. Mr Wallington (the father) alleged Ms Wallington (the mother) had breached parenting orders relevant to their children X aged 10, who was born in 2010 and Y aged 8, who was born in 2012.

2. There were 13 counts of alleged instances of contravention.

3. Four counts were proved.  Three of which were found to be more serious contraventions and one of which was a less serious contravention.

4. The remaining counts were dismissed.

5. Judgment relevant to the above was delivered on 7 August 2020.

6. On 27 August 2020 sentencing submission were made.

7. This judgment relates to the imposition of sentence.

Sentencing Documents and Submissions Summary

1. Mr Wallington the applicant father, through is counsel sought the following penalties be imposed:

   ·a bond for a 2 year period with a surety of $1,000;

   ·an order for make‑up time for a total of 11 days; and

   ·an order to reimburse costs and expenses.

2. Ms Wallington the respondent mother, through her counsel, conceded a bond to be appropriate, opposed the order for make‑up time and opposed an order for repayment of the applicant’s expenses and costs.

3. A hospital discharge summary relevant to X and a psychologist report relevant to X became exhibit A.  The Family Report dated 27 February 2020 prepared for the yet unheard substantive parenting proceedings became exhibit B.  Both were considered relevant to sentence.

4. Also considered and read was an affidavit by Mr Wallington sworn 25 August 2020 and written submissions prepared by Mr Wallington’s counsel.

Objective Considerations

1. Ms Wallington is a 43 year old mother of two.

2. She is unemployed as a result of COVID-19.

3. She is in receipt of the Commonwealth Government’s jobseeker payment.

4. She has $130,000 in savings in a bank account.

5. She lives with the children in the Town G/Town F area on the Region H of NSW.

6. She has previously been found to have contravened parenting orders on two occasions.  The first time on 16 February 2015, when no penalty was imposed.  The second time on 5 September 2019, when she was placed upon a bond for the period 5 November 2019 to 5 July 2020, without surety.

Subjective Considerations

1. Ms Wallington had sought to negotiate with Mr Wallington prior to the contravention about the dates on which he was to spend time with the children, so as to enable one of the children to attend a school friend’s birthday party.  She was “open” to a variation of the order to enable substantive compliance.  This demonstrates she was not wilful in her contravention of orders.

2. Mr Wallington was inflexible and insistent on complete compliance, as he was entitled to.

3. X was on 24 August 2020 briefly admitted to F Hospital as a consequence of a self‑harm incident, in which she cut herself causing 10 small and superficial lacerations to her left forearm.

4. X reported to the hospital:

   She does not know what she was thinking before she did it – says she cannot remember.  She reports she felt better after doing it.  She says she is stressed because she has to see dad in 2 weeks and because she has been fighting with her friends, who she thinks are bullying her.

5. X repeated to her psychologist “she has not visited her dad and she does not want to see him”, and she felt “angry” when her sister Y gave her the phone to speak to her father because “the sound of his voice and seeing him is difficult for her” and “she will not exit the car and stay with dad” on the next occasion of time.

6. In paragraph 92 of the Family Report the consultant wrote:

   Ms Wallington cited mental health difficulties for X, and both children’s distress at the prospect of spending time with Mr Wallington, as a reason for her reluctance to facilitate this. While it may be the case that Mr Wallington’s behaviour has contributed to the children’s apparent reluctance to spend time with him, their demeanour on the day of the assessment could suggest that their reluctance may be related more to managing the interface of their parents’ acrimonious relationship, and the attitude of each parent towards the other, than any real fearfulness of Mr Wallington.  If it is the case that difficulties for the children lie more in managing the relationship between their parents, then it may be considered that the children live only with one parent and spend no time with the other.  The advantages of this would be the removal of chronic conflict between the parents and the possibility that the children could live without the regular distress (and Court appearances) occasioned by this conflict.  If the status quo were to continue, and the children were to live with Ms Wallington, possible advantages would be a continuation of their schooling and living arrangements, and the familiarity of someone who has been their primary caregiver for some time.  On the basis of this assessment, nothing was found which indicated that Ms Wallington is not an adequate parent, apart from her apparent inability to facilitate contact with Mr Wallington.   However, the disadvantages of such an arrangement would be the children’s loss of a father and the loss of paternal involvement.  They would also lose touch with their extended paternal family and it may not be the case that these relationships would ever be re-established.

7. In paragraph 95 of the Family Report the consultant wrote:

   On balance, if the Court deems that Ms Wallington is able to facilitate Mr Wallington’s time with the children, then it would be recommended that the children live with Ms Wallington and spend time with Mr Wallington for one weekend in the month and for half of all school holidays.  It would be further recommended that a weekly video phone call occur.  It the Court finds that Ms Wallington is unlikely or unable to facilitate time with Mr Wallington, and that Mr Wallington does not pose a risk to the children through mental health or other issues then this could be a case where the children must live with one parent and spend no time with the other.

Determination

1. Penalties in contravention proceedings relating to parenting orders should have as one of their purposes “aiding parental compliance with existing court orders”.

2. Another purpose is the public policy issue of adherence by a party to a court order.  Finally there is a deterrence aspect with respect to sentence.

3. Sentencing involves a balancing of the above.

4. If make‑up time is to be ordered the resulting order must be in a child’s best interest.

5. A child not spending time with a parent is a serious disruption to that parent/child relationship.

6. It is not possible for reason of mental health concerns to find that make‑up time at this junction would be in X’s best interest.

7. No such mental health concerns exist relevant to Y.  Y has a more robust personality than X.

8. I am and remain satisfied, that the existing time with orders are in Y’s best interest.  A small extension of that time would also be in Y’s best interest as a means of repair to any disrupted relationship, is not contrary to her views and does not expose her to any negative parental capacity issues.

9. It seems from X’s report to her psychologist that Y has resumed telephone communication with her father.

10. Three extra days per school holiday period between Y and her father will not be so long a period of time to conclude the extended period is not in Y’s best interest.

11. Indeed the 3 extra days will mean more time for Y to enjoy activities with her father.

12. His capacity as a parent is good enough to enable him to meet Y’s needs for that extent of time.

13. It is also not too long a period to detract from Y’s relationship with her mother.

14. Y told the family consultant “that it is “good” when she sees Mr Wallington and that she enjoys seeing her cousins”.[1]

    [1] Family Report paragraph 75

15. She also reported to the consultant her father “yells at us”.[2]

    [2] Family Report paragraph 76

16. Having told the consultant the above during the observation session, Y vied with her sister for her father’s attention.[3]

    [3] Family Report paragraph 80

17. On balance I remain satisfied that the current orders for time between Y and her father, extended by 3 days/nights during the next 3 school holiday periods and extended by 2 nights in the school holidays at the end of Term 2 in 2021, is in Y’s best interest, even if she attends without her sister.

18. This is now the third occasion of a proven contravention against Ms Wallington.

19. Ms Wallington has come perilously close to a more severe sanction or penalty than a bond.

20. A bond with a forfeitable surety in the event of further breach, will hopefully “drive home” to the mother the seriousness of her offending behaviour, the opprobrium of such behaviour and thereby cause her to focus on compliance.

21. An 18 month bond period for the most serious contraventions, and a 12 month bond period for the other contravention to be served concurrently, is on consideration, of the objective and subjective considerations, a proper penalty.  Each bond will contain a condition to be of good behaviour.  The 12 month bond will contain an additional condition to have 5 sessions with a family counsellor within a 12 month period.

22. The 18 month bonds will each be augmented by a forfeitable $333.00 surety, refundable upon expiry of the bond term if there is no further contravention.

23. The mother will, because some of the contraventions are more serious, be directed to again attend a post separation parenting course either in person, or if such course is not available, then online.  The course work to be completed if possible by September 2021.

24. The cash reserves of the mother to enable her to afford the surety.

25. In combination, make‑up time relevant only to Y and bonds, is an appropriate and sufficient penalty.

26. No payment of costs or expenses will be ordered, as this would then cause the penalty to be excessive.

Variation of Orders

1. I am troubled by X’s mental health and her recent episode of self‑harm.

2. There has in recent periods been reported in the media a cluster of young female students suiciding.

3. To mitigate that risk, the orders for X to spend time with her father will be suspended pending further order.

4. The mother will be ordered to engage X with a counsellor initially weekly for 2 months and then at a frequency determined by that counsellor for as long as is necessary.

5. The mother is to seek X’s counsellor’s advice as to whether X should engage with the local child and adolescent mental health team.

6. The mother is to obtain, at her cost, from X’s counsellor by 15 November 2020 that is in 2 months’ time, a comprehensive treatment report.

7. The court’s power to make the above order can be found in s.70NBA; and relevant to that treatment report in s.68B(1)(a).

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  23 September 2020