Walsh and McKinnon and Anor

[2007] FamCA 1034

FAMILY COURT OF AUSTRALIA

WALSH & MCKINNON AND ANOR [2007] FamCA 1034

FAMILY LAW – Contravention – Plea of guilty – Bond

Family Law Act 1975 (Cth)

APPLICANT: MS WALSH

RESPONDENT: MR MCKINNON

INTERVENOR: MS HONEY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 4641 of 2001

DATE DELIVERED: 3 SEPTEMBER 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 3 SEPTEMBER 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ALLEN

SOLICITOR FOR THE APPLICANT: VICTORIA LEGAL AID

COUNSEL FOR THE RESPONDENT: MR JAMES

SOLICITOR FOR THE RESPONDENT: SUSAN RUFFIN

COUNSEL FOR THE INTERVENOR: EXCUSED FROM THE HEARING THIS DAY

SOLICITOR FOR THE INTERVENOR:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR EIDELSON

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CE FAMILY LAWYERS

ORDERS

1. THAT the father, … , be convicted upon his plea of guilty to each and every of the 26 contraventions as alleged and he be required forthwith to enter into a Bond without surety for a period of two (2) years to:

   (a)      be of good behaviour; and

   (b)comply with the current order of this Court pronounced 6 August 2007 or any further or subsequent order of the Court.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Walsh & McKinnon and Anor.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4641 of 2001

MS WALSH

Applicant

And

MR MCKINNON

Respondent

And

MS HONEY

Intervenor:

And

INDEPENDENT CHILDREN’S LAWYER:

REASONS FOR JUDGMENT

1. This matter is before the court on the application of the mother filed on a Form 18 for the father to be dealt with if convicted of 26 alleged contraventions of orders of and related to the two children of their relationship, they being the older son, born in October 1998, and the younger son, born in June 2000. 

2. There is annexed to the contravention application a convenient summary whereby the breaches are specified.  It is alleged that there were earlier orders made by her Honour Brown J on 4 November 2005 and subsequent orders made by his Honour Mushin J on 7 July 2006.  The breaches of those orders are identified in that annexure and occurred between 19 August 2006 and up to and including 22 July 2007 and separately a particular breach was alleged on Christmas Day of last year.

3. In support of the contravention application the mother filed an affidavit on 16 August 2007 exhibiting a copy of the orders and otherwise a commentary on the particular breaches.  I have read that affidavit.

4. Mr Allen of counsel represents the mother and Mr James of counsel represents the father.  Mr Eidelson of counsel is instructed by the Independent Children's Lawyer.  I observe that there is an intervener in these proceedings, Ms Honey.  She is the paternal grandmother who has previously appeared on her behalf in proceedings in this court but who I propose to excuse from any actual appearance or involvement in these contravention proceedings.  I will for completeness, however, retain her name as an intervener and her address for service upon the form of the order.

5. I observe that there are recent orders of this court made 6 August 2007 by her Honour Bennett J.  Those orders were made after a hearing and have been made upon the undertaking of the paternal grandmother which remains current.  I have considered those orders which are extensive and as I am advised by counsel, are operative on an ongoing and developing basis.  The children's names are retained on the airport watch list and there are restrictions on their movement.  There are other injunctive orders and the further hearing of this matter remains in the Magellan defended list of cases.

6. I therefore have before me today a discrete contravention application.  It is somewhat unusual that the application was filed more than one week after the substantial orders of Bennett J.  I also observe that there is an extensive affidavit of the father filed 30 July 2007 by way of explanation and effectively a “mea culpa” in relation to his past actions and in particular the removal of the two children from their school and their departure via South Australia to Western Australia and ultimately their return to regional Victoria where they were located by Federal Police pursuant to outstanding orders and warrants. 

7. I have been directed to, in particular, paragraphs 27-33 of that affidavit which I have read and considered.  On behalf of the father, Mr James indicated at the outset of proceedings that, upon proper advice and instructions, his client proposed to enter a plea of guilty to each and every one of the individual 26 alleged breaches.  It was agreed that the acknowledgment of guilt would be received through his counsel and the other practitioners in this case have no objection to that procedure.

8. I am satisfied that the father has been fully advised of and does understand the serious nature of the charges, that they are substantial in nature and continued over a period of a year.  The effect of his removal of the children from the mother and from the jurisdiction effectively meant that the children had no contact, involvement or lifestyle with their mother for approximately one year.  They were kept out of education for a period and have endured much of the trauma of life on the road, living in caravans and unsuited accommodation.  That was brought to a close by the intervention of Federal Police and perhaps were it not for that, the children might still be living elsewhere.  In any event, I now understand that the father has returned to live in Gippsland and there is a regime of orders before the court which is current and ongoing.

9. This is a serious matter and it was appropriate that the contravention application was issued and the matters are before the court.  Such an abuse of court orders and actions contrary to the best interests of children cannot be ignored and there must be an appropriate level of punishment. 

10. I have listened carefully to Mr James who has certainly developed to the court the issues and concern of his client but more particularly highlighted the level of remorse and understanding that it is said his client now has of his past actions.  I accept that fact.  Hopefully the undertaking of and consistent involvement of his mother, that is, the paternal grandmother as intervener, will have some good influence on this case.

11. I observe that the history of this case is substantial.  It is in four volumes and growing and still is before the Magellan defended judge for an examination of what may be serious allegations.  I carefully make no finding in that regard.

12. What I do conclude to be an appropriate outcome of this case is for the father to be required to enter into a bond to be of good behaviour.  Two years is an appropriate period for the bond.  I will not require a surety as I accept Mr James' submission that the father has no assets.  He is on a Newstart allowance and otherwise works in a manual job. 

13. I did reflect upon the other available options which are far more draconian in nature but in the context of the developments post the father's return and trying to balance the best interests of the children with the wrongdoing of the father, I put to one side the option of any substantial fine or monetary penalty or otherwise of any term of imprisonment.

14. I very carefully record in these reasons delivered extempore that the father must understand that any other breach of any order may have dire consequences for him.  There would be no more leniency.  If he enters into a bond voluntarily and then breaches his good behaviour, the consequences are that all issues will be before the court.  The father must understand that past breaches could be revisited, together with future breaches.  It would likely lead to a far more serious and substantial penalty and would likely, certainly if I were the judge, lead to a term of imprisonment.  Every case and every breach must be determined on its own facts but I very clearly highlight to the father the consequences of any other breach or any other act of stupidity on his behalf.

15. On the bright side of this case, it may be that these children will in the future have a level of time spent with the father but I make no other observations or comments as the matter remains before the court in the Magellan list.

16. I am required to explain carefully to the father that by entering into the bond, he is making what is a substantial and serious promise to the court that for a period of two years, and that is the maximum period I would entertain for this bond, he will be of good behaviour.  By "good behaviour", what is clearly meant is responsibility as a parent, accepting the orders of the court and following to the letter the obligations that he has as a parent pursuant to those orders.

17. I will include within these extempore reasons the step of asking the father to stand and to acknowledge that he will enter into this bond, that he will accept this opportunity he has from the court which is one more chance, and that particularly he understands specifically the nature and obligation of the bond and that this is very much his last chance.

HIS HONOUR:   [Mr McKinnon], can I ask you firstly to stand and to confirm that your full name is [Mr McKinnon]?

MR MCKINNON:  That's correct, your Honour.

HIS HONOUR:   You've heard exactly what I said?

MR MCKINNON:  Yes, I have, your Honour.

HIS HONOUR:  Do you understand?

MR MCKINNON:  Yes, I do, your Honour.

HIS HONOUR:  You are prepared to enter a bond?

MR MCKINNON:  Yes, I am.

HIS HONOUR:  You know this is your last chance?

MR MCKINNON:  Yes, I do know it's my last chance, your Honour.

HIS HONOUR:   You intend to comply with the bond and keep away from any other alleged          breach of any court order?

MR MCKINNON:  Yes, I do, your Honour.

1. I accept what the father says in court and that will be incorporated within the extempore reasons for judgment that I will order to be taken out, placed upon the court file and made available to all parties.

MR ALLEN:The only other matter, your Honour, are you proceeding with this matter on the basis that it is a serious disregard of the orders?  By coming to the court without a counselling certificate, it is implicit that it is characterised as a serious disregard ‑ ‑ ‑

HIS HONOUR:   I certainly am proceeding - I thought I made it abundantly clear that I regard the matter as ‑ ‑ ‑

MR ALLEN:I refer you then,  your Honour, to section 70NFB(1)(a).  It requires that you make a costs order, your Honour.  I am not pressing for a costs order, your Honour, it is just that you happen to have addressed the matter.  It would seem though that in the circumstances, in light of the father's poor financial position and the fact that ‑ ‑ ‑

HIS HONOUR:  Where does it say there that a costs order has to be made?    Section 70NFB ‑ ‑ ‑

MR ALLEN:The powers of the court, and then subsection (a), "Make an order under       paragraph (2)(g)," and (2)(g) is "to make an order that the person who      committed the contravention pay all the costs of another party or the parties to the proceedings".  I am just raising it, your Honour ‑ ‑ ‑

HIS HONOUR:   No, that is helpful, Mr Allen.  I will incorporate that discussion
         within the extempore reasons which will continue.

1. I intend to make no order as to costs.  In the context of this case, the father does not have the facility and I find that it is not in the best interests of the child to exercise that power as provided for in that subsection and I will formally make no order as to costs.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:                   
Date: 5 September 2007