Webber and Budd (No 2)

[2011] FamCA 539

FAMILY COURT OF AUSTRALIA

WEBBER & BUDD (NO 2) [2011] FamCA 539

FAMILY LAW – CONTRAVENTION – contravention found – where the contravention was of a serious kind – where the mother is required to enter into a bond – statutorily prescribed discussion of consequences of failing to enter into a bond or failing to act in accordance with it.

Family Law Act 1975 (Cth)

APPLICANT: Mr Webber

RESPONDENT: Ms Budd

FILE NUMBER: CAC 1614 of 2009

DATE DELIVERED: 28 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 28 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watts McCray McGuinness Eley

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

MS BUDD having this day the 28^th day of March 2011 been found by the Family Court of Australia at Sydney to have contravened without reasonable excuse an order made by this Court on 15^th day of February 2011, is hereby ordered to enter into this bond pursuant to the provisions of section 70NFE of the Family Law Act 1975. 

MS BUDD

HEREBY ACKNOWLEDGES THAT SHE IS BOUND BY THIS BOND ACCORDING TO THE FOLLOWING TERMS AND CONDITIONS:

(a)This bond starts on the 29^th day of March 2011 and continues in full force and effect until the 28^th day of March 2013. 

(b)      The conditions of this bond are as follows:

The mother shall comply with orders made by this Court on 15 February 2011 and any variation of those orders from time to time.

To be of good behaviour during the time this bond is in force.

(c)      This bond is without security.

IT IS NOTED that publication of this judgment under the pseudonym Webber & Budd (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 1614 of 2009

Mr Webber

Applicant

And

Ms Budd

Respondent

REASONS FOR JUDGMENT

1. Final parenting orders were made by His Honour Justice Rose on 15 February 2011. The father filed an application for contravention on 11 March 2011 asserting that the mother had failed to comply with those orders.

2. The father asserted that the mother, without reasonable excuse, had failed to allow the children to spend time with him on 26 February 2011 and on 27 February 2011 and further that the mother had failed to allow the father to have telephone contact with the children on 16 February 2011, 21 February 2011, 23 February 2011, 28 February 2011 and 2 March 2011. 

3. The father filed an affidavit on 4 March 2011 which sets out the evidence upon which the father relies to support his contentions.  I accept that evidence and it is more than ample for me to find that there is a prima facie case for the mother to answer in respect of each of the seven charges. 

4. The mother offered by way of oral evidence an explanation which she said was a reasonable excuse for the children not being available.  The “reasonable excuse” proffered by the mother was in part that she had other things to do with the children and in part, that the children showed a reluctance to involve themselves with the father. 

5. Having heard the evidence, I find that the charge that the mother has contravened an order that she make the children available on 26 February 2011, has been proven.  The order which has been breached by the mother was made on 15 February 2011 by Rose J after he had heard the matter for a day and then delivered judgment.  The order was that the mother ensure the father was able to spend time with the children between 12 noon and 3.00pm on, inter alia, 26 February 2011, subject to them being able to partake in extra curricular activities, upon the father receiving notice from the mother.  The mother offers as an excuse that she had to attend another place at the relevant time to register the children for soccer.  The mother agreed that she did not give the father any notice about the soccer registration day.  I am satisfied that even if it was a reasonable excuse, and I find it was not, that the mother could have participated in that soccer registration and still complied with the order of ensuring that the two children were with their father between 12 noon and 3.00pm on 26 February 2011. 

6. I do not accept the assertions by the mother that the mother cannot control her ten and a half year old and her eight and a half year old.  If in fact, at some later time, I or some other judge does reach a conclusion that the mother is unable to control her ten and a half year old and eight and a half year old, then it may be a conclusion would follow that the mother is unable to parent them properly and that some change in residence might have to take place. 

7. In relation to the charge on Sunday 27 February 2011, I am not satisfied on the evidence that the mother has given, that she did everything within her power to ensure that the children went with their father after conclusion of cricket.  In fact even accepting the version the mother has given, there was nothing in that version about any encouragement that the mother gave to the children to go with their father on that day, or about anything the mother did to prepare the children, so that they would happily go with their father on that day.  I find the charge in relation to 27 February 2011 established. 

8. In relation to the five occasions when the children were to receive telephone calls from their father in accordance with order 10, I find that the mother did not make them available to communicate with their father by telephone at the times specified which is between 6.30 pm and 7 pm.  In fact, the mother allowed on a number of those occasions for the phone call to go to message bank and she did not return the call.  It cannot be said that the mother ensured the children speak to their father or made the children available to speak to their father.  In general terms, I do not accept the mother’s assertion that the children control her in this area.  She is the parent. 

9. A court has ordered her to do things, and in my view, it has been established today that she has failed on these seven occasions to fulfil that responsibility.  Having heard the mother’s explanation and having heard her responding to questions about her explanation, I find that the mother does not have a reasonable excuse for contravening the court orders.  I find the mother guilty of each of the offences.

10. It appears to me that regrettably, I am faced with a situation where the mother has failed to comply with orders on previous occasions and has been found guilty of that.  She appeared before Rose J for the substantive hearing and put her position to him. He found that it was in the children’s best interests for the mother to ensure that the children have face-to-face time with their father and they have telephone communication with him. The mother’s case that it was not in their best interests was unsuccessful before Rose J.  Her case was that the children spend no time with the father. 

11. Citizens of this country cannot take the law into their own hands.  The mother unilaterally took the law into her own hands and has contrived to frustrate the orders that His Honour had made.  The mother cannot by her behaviour achieve the same result that she hoped the Judge would have given her.  After the hearing, Rose J concluded it was in the children’s best interests for them to have a relationship with their father face to face and on the telephone.

12. I do consider the mother’s behaviour to be a serious breach of court orders and that she has behaved in a way that has showed a serious disregard of her obligations under the primary order and I am therefore satisfied pursuant to the provisions of s 70NFA(2) Family Law Act (“FLA”). I am entitled to consider a number of penalties against the mother. The penalty that I have decided to impose is to require the mother to enter into a bond. I am required under s 70NFE(5) FLA if I propose to require the mother to enter a bond to, before making that requirement, explain to the mother in language that she would readily understand (and they are in the words in the FLA, I am not trying to be condescending), the purpose and effect of the proposed requirement and the consequences that may flow if she fails to enter into the bond or having entered into the bond, she fails to act in accordance with the bond. I am not going to require the mother to provide any surety in relation to the bond but she will be required before she leaves the building today to enter into a bond that has as one of its conditions, that the mother will comply with the orders made by this court on 15 February 2011 and any variation of those orders from time to time.

13. The conditions of this two year bond are that it will commence tomorrow and continue in force and effect until 28 March 2013.  The conditions of the bond will be that the mother comply with orders made by this court on 15 February 2011 and any variation of those orders from time to time and to be of good behaviour during the time this bond is in force.  The bond will be without security. 

14. The purpose of the bond is to ensure compliance with the orders made by Rose J on 15 February 2011. The possible consequences that may follow, having entered into the bond, fails to act in accordance with the bond, are set out in s 70NFF FLA. If the court is satisfied that the mother has without reasonable excuse failed to comply with the bond, the court may take action under s 70NFF(3) FLA and may:

    14.1.Impose a fine not exceeding 10 penalty units on the mother.  A penalty unit is $1,100.  Ten penalty units is $11,000; or

    14.2.Revoke the bond and deal with the mother for the contraventions in respect of which the bond was entered into in any manner in which the person could have been dealt with for the contravention. 

15. The mother has to realise if she fails to sign this bond before she leaves today or after having signed it, if she is convicted of a further contravention of the orders, the mother will come back before me to be sentenced further in relation to the contraventions that I have found today.  If that happens, the mother runs a serious risk of a term of imprisonment. The additional thing that I should say to the mother is that if the court on any further contravention found against her, they may well seriously consider whether or not it is appropriate for the children to remain with her. 

16. Those are the things I want to say to the mother by way of explanation to her of what might happen if she breaches this bond.

17. I note when asked, the mother said she had no questions about what I have said and that she would sign the bond.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 March 2011.

Associate:   

Date:  1 July 2011